Agramonte v Marvin

[*1] Agramonte v Marvin 2004 NY Slip Op 51943(U) [21 Misc 3d 1135(A)] Decided on July 7, 2004 Supreme Court, Bronx County Salman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2004
Supreme Court, Bronx County

Jocelyn Agramonte, Luis Hernandez, Santiago Hernandez, and Jonathan De La Cruz, Plaintiffs,

against

Donald Marvin and Humberto S. Espinal, Defendants.



Humerto S. Espinal, Plaintiff, v

against

Donald Marvin, Defendant.



14818/2002



Keogh and Associates, P.C.

by Dorothy M. Keogh for plaintiff in action # 1

Law Office of David Dimitri

by David A. Dimitri for plaintiff in action # 2

Mintzer, Sarowitz, Zeirs, Leada & Meyers, Esq.

for defendant Marvin

Piciano & Scahill, P.C.

for defendant Espinal

Barry Salman, J.

Two motions on the court calendars of March 5, 2004 and April 8, 2004 are consolidated for disposition.

Motion by defendant Donald Marvin (hereinafter referred to as "Marvin") for summary judgment dismissing the complaint of plaintiffs Luis Hernandez ("Hernandez") and Jonathan De La Cruz (De La Cruz), and for other relief, is decided as follows:

Motion by defendant Humberto Espinal ("Espinal") for summary judgment dismissing the complaint of plaintiffs Luis Hernandez ("Luis"), Santiago Hernandez ("Santiago"), and Jonathan De La Cruz (De La Cruz), and for other relief, is decided as follows:

Plaintiffs instituted this action to recover damages for injuries allegedly sustained in a motor vehicle accident on November 12, 2001. They allege that they were passengers in a vehicle owned and operated by defendant Espinal, when it impacted upon a vehicle owned and operated by defendant Marvin. Defendants seek summary judgment alleging that several plaintiffs have failed to sustain a "serious injury" within the purview of the Insurance Law. Ins. Law §5102(d) provides:

"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function[,] or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.THE APPLICATIONS AS AGAINST LUIS HERNANDEZ

In support of his application as to plaintiff Luis Hernandez, defendant Marvin has submitted the affirmation of Philip K. Keats, M.D., who performed an orthopedic evaluation upon Luis on June 12, 2003. Keats states that his examination of Luis' cervical spine, thoracic spine, and lumbosacral spine show "no spasm and no deformity". Further:

There is full range of motion of the cervical and thoracic spine...There is full flexion,extension[,] and lateral bending [of the lumbosacral spine]. Neurologicexamination of the upper and lower extremities shows muscle testing, reflexes[,] and sensation to be intact. Examination of the lower extremities shows full range of motion of the hips and knees bilaterally.

Keats states there were "[n]o objective findings on orthopedic examination of any abnormalities involving the spine". He opines that Luis' prognosis is "excellent", "the injuries sustained were muscular and ligamentous in nature and have resolved", and that "Mr. Hernandez has no disability from an orthopedic standpoint....Within a reasonable [*2]degree of medical certainty Mr. Hernandez has sustained no serious or permanent injuries in the accident of November 12, 2001."

Marvin also submits the affirmation of Daniel J. Feuer, M.D., who conducted a neurological examination of Luis on June 12, 2003. Feuer's diagnosis was of a "Normal neurological examination". He states that the examination:

... fails to demonstrate objective deficits referable to the central or peripheral nervous system. Motor, reflex[,] and sensory examinations were within normal limits. There are no findings on examination to support a diagnosis of radiculopathy.

Feuer opines that Luis:

... does not demonstrate any objective neurological disability or neurological permanency. He is neurologically stable to engage in full active employment as well as full activities of daily living without restriction.

Defendant Espinal submits the affirmation of Andrew M. Elmore, Ph.D. ("Elmore"); the date of Elmore's examination is not given. Elmore states that when asked about his psychological response to the incident, Luis "denied any psychological complaints".

Elmore found that "[t]here is no psychological impression related to the motor vehicle accident of 11/12/01". Further, "[t]here is no disability from a psychological perspective".

Espinal also submits the affirmation of Robert J. Orlandi, M.D., ("Orlandi") an orthopaedic surgeon who examined Luis on March 11, 2003. He performed various tests upon Luis, and diagnosed him as having sustained "Cervical and lumbar sprains, resolved". He opines that:

Today's cervical spine examination is normal, and the low back examination reveals no evidence of a lumbar injury. The claimant's minor restriction of forward flexion and the positive straight leg raising test in the supine position only were both not compatible with the straight leg raising test which was negative to 85 degrees in the seated position with claimant's knees extended (as the maximum calf circumferences were measured and as the heel reflexes were checked). Today's comprehensive orthopedic examination does not document the presence of permanent residuals, or a musculoskeletal disability, and in my opinion, the prognosis is excellent.

Neurologist E. Kojo Essuman, M.D., ("Essuman") examined Luis on March 20, 2003. His diagnosis was of a normal neurological examination. Essuman diagnosed Luis with:

The findings on neurological examination are entirely normal, negative[,] and without objective focality. The diagnosis is a soft-tissue injury which is minor, resolved[,] and without sequelae.. No clinical correlation between the claimant's subjective symptoms [*3]and the objectively normal findings on exam.

Essuman further opines that "Based upon the normalcy of this examination, there is no restriction in activities of daily living". Further, "[n]o further treatment, electrodiagnostic testing[,] or follow-up is warranted from a neurological standpoint based upon the normalcy of examination".

In opposition to the applications as to Luis Hernandez, plaintiffs submit the affirmation of Manuel Sanguily, M. D. ("Sanguily"). Sanguily examined Luis on November 19, 2001, February 4, 2002, and again on January 30, 2004.

Sanguily states that on November 19, 2001 and on February 4, 2002, Luis exhibited, in the region of the lumbosacral spine, a 50% loss of anterior flexion and of extension, and abnormal straight leg raising at 30%. On January 30, 2004, there was a 15% loss of anterior flexion, 10% loss of extension, and abnormal straight leg raising at 40%. He opines that Luis has an "eighteen (18%) percent loss of normal function of the lumbosacral spine with no chance of total cure". Other than the straight leg raising test, however, Sanguily fails to delineate the test(s) performed to determine the restriction in range of motion.

Plaintiffs also submit the affidavit of chiropractor Ronald J. Lambert, D.C. ("Lambert"), who saw Luis on November 19, 2001 and on February 18, 2002. Lambert states that Luis sustained restrictions in range of motion of the lumbosacral spine, which he quantifies, and which he states were confirmed by the use of manual palpation. Luis also had tenderness and muscle spasm of the lumbar spine. He received 12 weeks of physical therapy.

Lambert opines that as a result of the incident, Luis has sustained a "permanent loss of normal function of the lumbosacral spine[, which] constitutes a permanent partial disability with no chance of total cure".

Plaintiffs also submit the affidavit of Luis, who states that he experiences pain and weakness in his back, which prevents him from "sitting for prolonged periods, lifting heavy objects, or turning my back to its full range of motion". During the three months he attended therapy, the "therapy provided me some relief, however the relief was limited and temporary [sic]". The Court notes that at his examination before trial, Luis testified that after the accident, utilizing a back support, he was able to "pull out the tarp", a heavy item, at his seasonal job at Yankee Stadium.

A positive straight leg raising test is indicative of a serious injury when combined with MRI reports (see, e.g., Brown v. Achy, 9 AD3d 30 where the Appellate Division states "we need not ... reach the issues of whether straight-leg raising tests alone would be sufficient under Toure"). Plaintiffs have not submitted any MRI reports for Luis.

Mere subjective reports of pain are not sufficient to constitute a serious injury. In addition, plaintiffs have failed to provide an explanation for the two year gap in Luis' treatment from February 4, 2002 to January 30, 2004 (see, e.g., Bandoian v Bernstein, [*4]254 AD2d 205, 679 NYS2d 123; Vaughan v. Baez, 305 AD2d 101, 758 NYS2d 648; Taylor v Gin Cabel Trucking, Inc., 5/10/04 NYLJ, p 26 col 2). In the absence of an acceptable explanation for the gap in treatment, the physicians' statements, two years after the last treatment dates, that Luis will suffer life-long pain, limited range of motion, and limited function are not sufficient. The affirmations by Luis' physicians appear tailored to meet statutory requirements (see, e.g., Lopez v Senatore, 65 NY2d 1017, 494 NYS2d 101). Accordingly, those branches of defendants' motions which seek summary judgment dismissing the complaint as to plaintiff Luis Hernandez are granted.

THE APPLICATIONS AS AGAINST JONATHAN DE LA CRUZ

In support of his application as to plaintiff Jonathan De La Cruz, defendant Marvin has submitted the affirmation of Keats, who performed an orthopedic evaluation upon De La Cruz on June 12, 2003. Keats states that his examination of De La Cruz' cervical spine, thoracic spine, and lumbosacral spine show "no spasm and no deformity". Further, "[t]here is full flexion, extension, lateral rotation[,] and lateral flexion" of the cervical spine.

Keats diagnosed De La Cruz as having sustained:

1. Muscular and ligamentous sprain, cervical spine resolved.

2. Muscular and ligamentous sprain, lumbosacral spine resolved.

Keats opines that De La Cruz' prognosis is excellent, and that he:

... has no disability from an orthopedic standpoint. He is capable of activities of daily living and he is capable of his normal occupation. Within a reasonable degree of medical certainty, it is my opinion that Mr. DeLaCruz has sustained no serious or permanent injuries as a result of the accident of November 12, 2001.

Marvin also submits the affirmation of Feuer, who conducted a neurological examination of De La Cruz on June 12, 2003. Feuer's diagnosis was of a "Normal neurological examination". He states that the examination:

... fails to demonstrate objective deficits referable to the central or peripheral nervous system. Motor, reflex[,] and sensory examinations were within normal limits.

Feuer opines that De La Cruz:

... does not demonstrate any objective neurological disability or neurological permanency. He is neurologically stable to engage in full active employment as well as full activities of daily living without restriction.

Defendant Espinal submits the affirmation of Elmore; the date of Elmore's examination is not given. Elmore states that when asked about his psychological response to the incident, De La Cruz "denied any psychological complaints".

Elmore found that "[t]here is no psychological impression related to the motor [*5]vehicle accident of 11/12/01". Further, "[t]here is no disability from a psychological perspective".

Espinal also submits the affirmation of Orlandi, who examined De La Cruz on

April 8, 2003. He performed various tests upon De La Cruz , and diagnosed him as having sustained "Cervical and lumbar sprains, resolved". He opines that:

Today's examination of both areas is unremarkable. this young man has normal cervical and lumbar lordotic curvatures and there is not a trace of muscular spasm. There are normal ranges of motion. There are no radicular symptoms and no nerve root findings, as reflexes, sensation[,] and motor function are intact in both upper and both lower extremities. Today's comprehensive orthopedic examination does not document the presence of permanent residuals, or a musculoskeletal disability, and in my opinion, the prognosis is excellent.

Neurologist E. Kojo Essuman, M.D., ("Essuman") examined De La Cruz on March 20, 2003. His diagnosis was of a normal neurological examination. Essuman diagnosed De La Cruz with:

The findings on neurological examination are entirely normal, negative[,] and without objective focality. The diagnosis is a soft-tissue injury which is minor, resolved[,] and without sequelae.. No clinical correlation between the claimant's subjective symptoms and the objectively normal findings on exam.

Essuman further opines that "Based upon the normalcy of this examination, there is no restriction in activities of daily living". Further, "[n]o further treatment, electrodiagnostic testing[,] or follow-up is warranted from a neurological standpoint based upon the normalcy of examination".

In opposition to the applications as to De La Cruz, plaintiffs submit the affirmation of Sanguily. Sanguily examined De La Cruz on November 19, 2001, February 4, 2002, and again on January 30, 2004.

Sanguily states that on November 19, 2001 and on February 4, 2002, De La Cruz exhibited, in the region of the lumbosacral spine, a 65% loss of anterior flexion and of extension, and a 15% straight leg raising abnormality, with pain radiating into the buttocks. On January 30, 2004, there was a 20% loss of anterior flexion, 25% loss of extension, and 30% abnormal straight leg raising. He opines that De La Cruz has "sustained a permanent partial disability of a loss of range of motion of between Twenty-Eight (28%) percent and Thirty (30%) of the lumbosacral spine". Other than the straight leg raising test, however, Sanguily fails to delineate the test(s) performed to determine the restriction in range of motion.

Plaintiffs also submit the report of the MRI of De La Cruz' lumbosacral spine. This report is not sworn to, however, and thus is not considered herein (see, e.g., Graham v Shuttle Bay, Inc, 281 AD2d 372, 722 NYS2d 541). Further, a bulging or herniated disc, [*6]in the absence of objective medical evidence, is insufficient to establish serious injury for purposes of Insurance Law § 5102(d) (see, e.g., Braham v U-Haul Co., 195 AD2d 277, 599 NYS2d 593; Noble v. Ackerman, 252 A.D.2d 392, 675 N.Y.S.2d 86; Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746N.Y.S.2d865).

Plaintiffs also submit the affidavit of De La Cruz, who states that he experiences pain and weakness in his back, which prevents him from "sitting for prolonged periods, lifting heavy objects, or turning my back to its full range of motion". During the three months he attended therapy, the "therapy provided me some relief, however the relief was limited and temporary [sic]".

As stated above, a positive straight leg raising test is indicative of a serious injury when combined with MRI reports (see, e.g., Brown, op cit.) The MRI reports submitted, however, are not considered as they are not sworn.

Mere subjective reports of pain are not sufficient to constitute a serious injury. In addition, plaintiffs have failed to provide an explanation for the two year gap in De La Cruz' treatment from February 4, 2002 to January 30, 2004 (see, e.g., Bandoian, op cit.; Vaughan, op cit; Taylor, op cit). In the absence of an acceptable explanation for the gap in treatment, the physicians' statements, two years after the last treatment dates, that De La Cruz will suffer life-long pain, limited range of motion, and limited function is not sufficient. The affirmations by De La Cruz' physicians appear tailored to meet statutory requirements (see, e.g., Lopez, op cit.) Accordingly, those branches of defendants' motions which seek summary judgment dismissing the complaint as to plaintiff De La Cruz are granted.

ESPINAL'S APPLICATION AS AGAINST SANTIAGO HERNANDEZ

In support of his application as to plaintiff Santiago Hernandez, defendant Espinal has submitted the affirmation of Elmore. Elmore states that when asked about his psychological response to the incident, Santiago "denied any psychological complaints".

Elmore found that "[t]here is no psychological impression related to the motor vehicle accident of 11/12/01". Further, "[t]here is no disability from a psychological perspective".

Espinal also submits the affirmation of Robert J. Orlandi, M.D., an orthopaedic surgeon who examined Santiago on March 11, 2003. He performed various tests upon Santiago, and diagnosed him as having sustained "Cervical and lumbar sprains, resolved". He opines that:

Today's cervical spine examination is unremarkable, and the low back examination reveals no evidence of a lumbar injury. The claimant's moderate restriction of forward flexion and positive straight leg raising test in the supine position only were both not compatible with the straight leg raising test which was negative on two occasions in the sitting position with claimant's knees extended (as the maximum calf circumferences were measured and as the heel reflexes were checked). Today's comprehensive orthopedic examination does not document the presence of permanent residuals, or a [*7]musculoskeletal disability, and in my opinion, the prognosis is excellent.

Neurologist Essuman examined Santiago on March 20, 2003. His diagnosis was of a normal neurological examination. Essuman found that Santiago had sustained:

a soft-tissue injury which is minor, resolved[,] and without sequelae. No clinical correlation between the claimant's subjective symptoms and the objectively normal findings on exam.

Essuman further opines that "Based upon the normalcy of this examination, there is no restriction in activities of daily living". Further, "[n]o further treatment, electrodiagnostic testing[,] or follow-up is warranted from a neurological standpoint based upon the normalcy of examination".

In opposition to the application, plaintiffs submit the affirmation of Sanguily, who examined Santiago on November 19, 2001 and again on February 21, 2002. Sanguily found that Santiago sustained a loss of anterior flexion and extension, which he quantifies. Sanguily, however, fails to delineate the test(s) performed to determine the restriction in range of motion.

Sanguily states that he relied on the reports of MRIs performed on Santiago, which revealed a "superior wedge compression fracture of he C6 vertebral body". Those reports, however, are not sworn to, nor does Sanguily state that he reviewed the actual films. Accordingly, these documents are not considered herein (see, e.g., Graham, supra ).Plaintiffs also submit the affidavit of Lambert, who states he examined Santiago in November 2001, and again in February 2002. Lambert found that Santiago had sustained restrictions in ranges of motion, which he quantifies. He states that he performed manual palpation upon Santiago, as well as the straight leg raising test; no other tests are delineated. In addition to the palpation and straight leg raising, Lambert relied upon the MRI reports in formulating his conclusion. As stated above, however, these MRI reports are not sworn to, and thus are not considered herein.

Santiago received approximately 15 weeks of physical therapy. His affidavit concerning his subjective complaints of pain is not persuasive.

As stated above, plaintiffs have not submitted proof in proper evidentiary form as to the fracture allegedly sustained by Santiago, and thus the opinions based on the MRI reports must be disregarded. Further, plaintiffs have failed to provide an explanation for the more than two year gap in Santiago's treatment from February 2002 to date (see, e.g., Bandoian, op cit.; Vaughan, op cit; Taylor, op cit). In the absence of an acceptable explanation for the gap in treatment, the physicians' statements, two years after the last treatment dates, that Santiago has sustained a permanent partial disability is not sufficient. The affirmations by Santiago's physicians appear tailored to meet statutory requirements (see, e.g., Lopez, op cit.) Accordingly, that branch of Espinal's motion which seeks summary judgment dismissing the complaint as to plaintiff Santiago Hernandez is [*8]granted.

This shall constitute the decision and order of the Court.

DATED:______________________________

J.S.C.