Bousted v L & V Car Serv.

[*1] Bousted v L & V Car Serv. 2006 NY Slip Op 50373(U) [11 Misc 3d 1063(A)] Decided on January 5, 2006 Supreme Court, Kings County Johnson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2006
Supreme Court, Kings County

Diana Bousted, Plaintiff,

against

L & V Car Service and Reinaldo A. Marte, Defendants.



12772/03

Diana A. Johnson, J.

Upon the foregoing papers, defendants L &V Car Service and Reinaldo A. Marte move for an order pursuant to CPLR 3212: (a) granting summary judgment and dismissing the complaint of plaintiff, Diana Bousted, in as much as plaintiff fails to meet the serious injury threshold requirement mandated by Insurance Law Section 5102 (d); and (b)granting on the grounds that defendant has failed to meet the initial burden of establishing entitlement to summary judgment and that questions of fact exist requiring a trial.

Plaintiff commenced the underlying action for personal injuries allegedly sustained as a result of a motor vehicle accident which occurred on August 9,2001 in Brooklyn, New York. Plaintiff was the driver of one of the motor vehicles involved in the accident. In plaintiffs supplemental bill of particulars she alleges that she sustained the following injuries: [*2]

Headaches

Dizziness vertigo

Post-concussion syndrome

Anxiety, tension and stress reaction to pain

Post traumatic syndrome

Insomnia

Cervical spine sprain/strain

Cervical radiculitis

R/o cervical disc herniation

Cervical thoracic myofascitis

Thoracic sprain/strain

Lumbosacral sprain/strain

R/o lumbar disc herniation

Lumbar myofascitis

R/o right and left rotator cuff tear

Right and left rotator cuff tendonitis

Shoulder pain

Injury to left wrist

Tenosynoyitis of the left wrist

Injury to left ankle/leg/foot/toes s/s contusion costochondritis [*3]

Nausea and abnormal tenderness and cramping

Dextroscoliosis of the lumbar spine

Straightening of the cervical lordosis

Bilateral choroid plexus and midline vascular and/or pineal region calcifications At L3-4 and L4-5 loss of nuclear signal and disc herniation with ventral impingement on thecal sac

Central disc bulge C3-4 and C4-5

The bill of particulars alleges that plaintiff was confined to bed and home for about three weeks after the accident. Plaintiff was about twenty-nine years old at the time of the accident. Plaintiff was taken by ambulance to Brookdale Hospital where she was treated and released without admission. At the hospital plaintiff complained of burning in her face, pain in her neck, leg and back. Plaintiff began treatment with Dr. Jean D. Miller. Her treatment included physical therapy, acupuncture, chiropractic adjustments, shock treatment and massage therapy. Plaintiffs initial complaints to Dr. Miller, as stated in plaintiffs affidavit annexed to the within opposition papers, were that she had difficulty walking and climbing stairs, was unable to bend her left knee without severe pain and that her knee would lock, click, and buckle. She also complained that she could not tie her shoes, bend, lift, stand, or sit for long periods of time without experiencing pain in her neck and back. In her affidavit, plaintiff states that she had difficulty sleeping and that she could not walk or perform any physical activity without experiencing pain. At the time of the accident plaintiff was employed as a salesperson at K-Mart. At plaintiffs deposition taken on October 19, 2004, plaintiff stated that she lost about four months of time from work after the accident. She also stated that she would bend and lift heavy objects as part of her job. Plaintiff alleges that she is unable to bend and lift heavy objects now and that she had to stop working as a result of the accident.

Pursuant to New York State Insurance Law § 5104 an injured plaintiff may recover damages for personal injuries sustained in a motor vehicle accident only if he or she has sustained a "serious injury" defined as one of the conditions identified under Insurance Law § 5102 (d).[FN1] In order to weed out frivolous claims and limit recovery to significant injuries [*4]objective medical proof of a plaintiffs injury in admissible form is necessary to satisfy the serious injury threshold (see Duel v Green, 84 NY2d 230; Tore v Avis Rent-A-Car Systems, inc., 98 NY2d 345). However, the defendant/movant on a summary judgment motion must first establish a prima facie case that plaintiff did not suffer a serious injury before plaintiff has any obligation to demonstrate that he/she did sustain a "serious injury" (see Cosovic v Term Leasing, Inc., 234 AD2d 79). Defendants must tender evidence that eliminates any material issues of fact (Gaddy v Eyler, 79 NY2d 955; see also Ocasio v Henry, 276 AD2d 611; Villalta v Schecter, 273 Ad2d 299). In order to meet this prima facie showing, defendants'medical experts must set forth the objective tests he or she performed to support findings that the plaintiff suffered no ongoing disability (see Franchini v Palkmieri, 307AD2d 1056, aff'd 1 NY3d 536; Mosheyev v Pilevsb, 3 AD3d 523).

In support of defendants' argument they submit plaintiffs verified bill of particulars supplemental bill of particulars and plaintiffs deposition testimony. Defendants also submit the affirmed reports of the independent neurological and orthopedic examinations of plaintiff performed, at defendants' request, by Dr. Sarasavani Jayaram and Dr. Alan Zimmerman, respectively. Defendants call attention to plaintiffs supplemental bill of particulars, wherein plaintiff claimed to have sustained, among other injuries, disc herniation, disc bulge and muscle spasm. Dr. Jayaram examined plaintiff on May 13,2005. During the examination, range of motion tests were administered. Dr. Jayaram noted that with respect to plaintiffs cervical spine, all ranges of motion were within normal limits.[FN2] Dr. Jayaram reported that the results of the cervical tests[FN3] that he performed on plaintiff were all negative. Dr. Jayaram found no tenderness, triggers or spasm in plaintiffs cervical, thoracic and lumbar spines. Negative results were also found when Dr. Jayaram conducted the lumbar test.[FN4] With respect [*5]to plaintiffs lumbar spine, Dr. Jayaram found all ranges of motion to be normal except that flexion was slightly below normal limit.[FN5] Dr. Jayaram's opines that status-post cervical and lumbar spraidstrain are resolved and Dr. Jayaram found no focal deficits, no disability and no restrictions of ADL's at the time of plaintiffs examination. Inconclusion, Dr. Jayaram's impression was that plaintiff "is not in need of any treatment from a neurological perspective inclusive of any care modalities." Dr. Jayaram also concluded that plaintiff does not need "household help, transportation, testing or medical supplies" and that "there is no benefit to continuing any course of care from" Dr. Jayaram's perspective. On May 13,2005, plaintiff was examined by Dr. Alan J. Zimmerman, an orthopedic surgeon. In Dr. Zimmerman's affirmation he found all ranges of motion to be beyond or within normal limits regarding plaintiffs lumbar spine.[FN6] Dr. Zimmerman noted that the tests conducted on plaintiffs lumbar spine all yielded negative results.[FN7] With respect to plaintiffs shoulder and knees, all ranges of motion were found to be within normal limits. Dr. Zimmerman's diagnosis of plaintiff is status-pos'cervical and lumbar straidsprain resolved and status-post left knee, leg and foot spraidcontusion resolved. He found no disability and stated that plaintiff "can work full time [at] fullcapacity in any occupation for which she is qualified." Dr. Zimmerman, like Dr. Jayaram found that no household help, transportation, testing or medical supplies are necessary for plaintiff and that there is no benefit to continuing any course of care from his perspective.

The affirmed reports of defendants' independent examining neurologist and orthopedist indicate that examinations conducted on May 13,2005 revealed no neurological abnormalities or deficits, and no orthopedic injuries or deficits. This evidence amply satisfied defendants' initial burden of demonstrating that plaintiff did not sustain a serious injury. Therefore, defendants have met their initial burden of proof, the burden now shifts to plaintiff to establish either a prima facie case that he suffered a serious injury or that there [*6]are triable issues of fact as to whether plaintiff did so (Jackson v United Parcel Serv., 204 AD2d 605; Bryan v Brancato, 213 Ad2d 577). Thus, plaintiff must submit quantitative objective 3ndings in addition to medical opinions as to the significance of her injuries (see Grossman v Wright, 268 AD2d 79).

In opposition to the motion, plaintiff contends that defendants have failed to meet

their burden of proof in establishing that plaintiff did not suffer a serious injury as a result of the subject accident. Furthermore, plaintiff avers that if the court were to find that defendants have met their necessary burden for summary judgment that plaintiff would be able to establish that she sustained a serious injury under the 90/180 provision of Insurance Law § 5102 (d)as well as the other required provisions under the statute.

Plaintiff submits the undated affirmation of Dr. Michael Marrone who examined

plaintiff on August 4,2005 in connection with this action. Dr. Marrone states in his report

that plaintiff initially sought treatment after the accident with Dr. Jean D. Miller on August 13,2001, approximately four days after the accident. Dr. Marrone affirms that the office of Dr. Miller was closed for construction and could not be reached. Dr. Marrone also reiterates the history, diagnosis and treatment of the plaintiff. He notes the results of her initial examination, orthopedic testing, MRI of the cervical spine (performed on August 3 1,200 1 by Dr. Merita Bania)and the results of the MRI of plaintiffs lumbar spine (performed on October 12,2001 by Dr. Stephen Zinn). The results of the two MRI film taken indicated disc herniation, disc bulge and muscle spasm. Dr. Marrone examined plaintiff and found mild limitation in extension of plaintiffs cervical spine and straightening of plaintiffs lumbar curve. Plaintiffs left lateral bending lacks 10 degrees and forward flexion is below normal. Dr. Marrone concluded that plaintiff has "discomfort on neck motion with mild limitation in extension." He found straightening of the lumbar lordotic curvature with 10 degrees loss of lateral bending" and forward flexion 50 degrees with flattening of the left paravertebral musculature. Additionally, Dr. Marrone notes a dimunition of plaintiffs left calf circumference representing residuals of a left lower extremity radiculopathy.[FN8] Dr. Marrone opines that "given the length of time, the findings would be permanent" and that "given the history, review of the medical records and the clinical examination, the above findings would be directly attributable to the incident of August 9, 2001." In plaintiff 's deposition testimony and her affidavit, plaintiffs stated that she had difficulty walking and climbing stairs. She was unable to bend her left knee without severe pain. She stated that her knee would lock, click, and buckle. She could not tie her shoes, bend, lift, stand, or sit for long periods of time without experiencing pain in her neck and back. Plaintiff alleged that she had difficulty sleeping and that she could not walk or perform any physical activity without experiencing pain. With respect to plaintiffs performance at work, she maintains that she can not bend and lift heavy objects now and that she had to stop working as a result of the accident. Plaintiff [*7]stated that she could not perform any of her daily activities. She also stated that at the end of the four month period, with slow improvement, she was able to resume most of her activities.

In reply, defendants argue that they have met their burden of proof and that summary

judgment is warranted. Defendants contend that plaintiff did not sustain a serious injury and that plaintiffs medical submissions are deficient rendering them incapable of raising a triable issue of fact. Defendants maintain that plaintiff relies on unsatisfactory evidentiary proof. Dr. Marrone's affirmed report is undated and appears to be based on his August 4, 2005 examination of plaintiff, the unsworn MRI reports and the unsworn report of Dr. Miller. Additionally, defendants aver that plaintiff fails to explain the more than three year gap in treatment From plaintiffs treatment in 2001 with Dr. Miller to her examination with Dr. Marrone in 2004. Finally, defendants maintain that a sincere future course of treatment has not been presented by plaintiff.

To support a claim of permanent loss of use, plaintiff is required to make a showing

that in addition to an injury being permanent, there is a loss of use of a particular body organ, member, function or system (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295). For plaintiff to establish that she suffered a permanent consequential limitation of use of a body organ or member, andor a significant limitation of use of a body function or system, plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration (see Oberly v Bangs Ambulance, Inc., supra; Grossman v Wright, supra; Beckett v Conte, I76 Ad2d 774; Booker v Miller, 258 Ad2d 783). Resolving the issue of whether a serious injury was sustained involves a comparative determination of the degrcc or qualitative nature of an injury based on the normal function, purpose and use of the body part involved (see Toure v Avis Rent-a-Car Sys., Inc., 98 NY2d 345). In the alternative, plaintiff must prove that she sustained a medically determined injury or impairment which prevented her from performing substantially all of the material acts which constituted his usual and customary daily activities for 90 out of the 180 days immediately following the accident (see Gaddy v Eyler, 79 NY2d 955).

Based upon a review of the submissions of the parties, the court finds that plaintiff has failed to raise a triable issue of fact as to whether she sustained a serious injury. Plaintiff submits the undated affirmed report of Dr. Marrone. Dr. Marrone relies on the unsworn report of Dr. Miller. "The unsworn statement of a physician contained in a medical report does not, . . . constitute evidentiary proof in admissible form" (Rodriguez v Goldstein, 182 AD2d 396; see Zoldas v Louise Cab Corp., 108 AD2d 378). Plaintiffs also submits the unsworn MRI reports of Dr. Bania and Dr. Zinn, which are insufficient to defeat summary judgment (see Grasso v Angerami, 79 NY2d 813; Charlton v Almaraz, 278 AD2d 145). In Dr. Marrone's report he relies on these unsworn medical reports which are inadmissable (see Grasso v Angerami, id.). Dr. Marrone's affirmation is insufficient to raise an issue of fact regarding a permanent consequential limitation of use of a body organ or member or a [*8]significant limitation of use of a body function or system for several reasons as it undated and it improperly relies on unsworn three year old MRI reports by physicians other than Dr. Marrone (see Friedman v U-Haul Truck Rental 216 AD2d 266). It also fails to state what tests, if any, Dr. Marrone performed on plaintiff when he examined her. Plaintiffs papers are also deficient in that they fail to include an affirmation from Dr. Miller based on his treatment of plaintiff right after the accident. Dr. Marrone stated that Dr. Miller's office was under construction and could not be reached. No further explanation was given and plaintiff failed to orfer an acceptable excuse for her failure to provide the medical reports in proper form (see Grasso Angerami, supra). Consequently, without further information to explain who could not be reached and the attempts made to obtain the sworn reports, the court can not excuse the absence of an affirmed report from Dr. Miller. Plaintiff argues that defendants fail to discuss plaintiffs knee pain as defendants'orthopedic doctor was unclear as to his findings regarding plaintiffs knee. Dr. Zimmerman states in his orthopedic report that all ran9es of motion in plaintiffs knee were found to be normal. Moreover, plaintiff offers no evidence 10 substantiate a knee injury that would qualify for any of the categories under Insurance Law § 5102 (d). Plaintiffs subjective complaints of pain alone, as well as Dr. Marrone's, medical opinion based upon such complaints, are insufficient to raise a triable issue of fi ct (see Johnson v Burke & McCowen, 7 AD3d 674; Mahoney v Zerillo, 6AD3d 403; Giordano v Ramos, 2 AD3d 676). "Conclusions, even of an examining doctor, which are unsupported by acceptable objective proof, are insufficient to defeat a motion for summary judgment directed to the threshold issue of whether plaintiff has suffered serious injury" (Antoniou v Dug 204 AD2d 670; see Lincloln v Johnson, 225 AD2d 593). The court also finds that plaintiff has failed to submit any objective evidence that she sustained a medically determined injury or impairment of anon-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident in question. In plaintiffs deposition testimony she alleges that she missed four months from work. However, it is alleged that she was out of work for three weeks in her supplemental bill of particulars. Plaintiff also makes subjective complaints that she had difficulty walking, climbing stairs, bending, lifting and carrying out any of her daily activities for the first four months after the accident. "[P]laintiff's subjective complaints of pain, stamling alone, are insufficient" (Pierre v Nanton, 279 AD2d 621; see Kauderer v Penta, 261 Ad2d 365). Furthermore, contrary to plaintiffs complaints there is no competent medical proof of confinement or incapacity (see Nega v Janella Cab, Inc., 249 AD2d 710). Dr. Marrone's report is inadmissible and even if Dr. Miller's report was sworn Dr. Marrone makes no mention that Dr. Miller ordered plaintiff to stay home for that period of time. Plaintiff has failed to produce any evidence of the kind of activities which plaintiff was unable to perform (see Ceruti v Abernathy, 285 AD2d 386). Additionally, plaintiff offers no explanation for the three year gap in treatment. In plaintiffs deposition testimony she mentions that she saw a Dr. Hassan "maybe twice a month" for "three years since the [*9]accident". She stated that he has been her physician since before the accident. She also stated that his treatment of her accident related injuries has been to give her muscle relaxers. Plaintiff neglected to submit ;i ny report of Dr. Hassan in the opposition papers and does not mention him in the opposition. Hence, plaintiff has failed to prove that sustained a serious injury as defined under Insurance Law § 5102 (d).

Accordingly, defendants' motion for summary judgment is granted and the complaint is hereby dismissed.

The foregoing constitutes the order and decision of the court.

E N T E R

J. S. C.

Footnotes

Footnote 1: Insurance Law $5102 (d)defines "serious injury's "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 and eighty days immediately following the occurrence of the injury or impairment."

Footnote 2: Cervical Spine range of motion results were as follows: flexion to 45 degrees, extension to 45 degrees, right and left lateral flexion to 45 degrees and right and left rotation to 60 degrees.

Footnote 3: 3Dr. Jayaram performed the following cervical tests: Foraminal CompressiodSpurling Test, Jackson's Compression Test, Shoulder Depression Test, Soto-Hall Test, Cervical Distraction Test and the Valsalva Maneuver.

Footnote 4: Dr. Jayaram conducted the following Lumbar Tests: Forward Flexion, Bechterew/Sitting Boot Test, Straight Leg Raising, Hoovers Test, and the Kemig Test.

Footnote 5: Lumbar Spine range of motion results were normal: 30 degrees for extension, right and left lateral Llexion and right and left rotation. Flexion was below normal at 75 degrees active and 80 degrees passive. Dr. Jayaram notes that these findings related to knee complaints

Footnote 6: Lumbar Spine range of motion results were normal; flexion to 1 10 degrees, extension to 45 degrees, right and left lateral flexion to 30 degrees and right and left rotation to 45 degrees.

Footnote 7: Lumbar tests performed are as follows: Kemp, Lascgue, Spasm, Supine SLR and Reverse Seated SLR.

Footnote 8: Dr. Marrone does not state the type of tests, if any, that he used during his examination of plaintiff.