Ferrieri v Cascio

[*1] Ferrieri v Cascio 2006 NY Slip Op 51070(U) [12 Misc 3d 1165(A)] Decided on February 15, 2006 Supreme Court, Suffolk County Doyle, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2006
Supreme Court, Suffolk County

Franca Ferrieri, Plaintiff,

against

Kurt Cascio, JOSEPH BONO and GIOVANNI BONO, Defendants.



02-805



WILLIAM P. GRIFFIN, III, ESQ.

Attorney for Plaintiff

320 Carleton Avenue, Suite 2500

Central Islip, NY 11722

SARETSKY DRANOFF & GLASS

Attorneys for Defendants Joseph and

Giovanni Bono

475 Park Avenue South, 26th Floor

New York, NY 10016

KURT CASCIO Pro Se Defendant

40 Prospect Street Deer Park, NY 11729

Robert W. Doyle, J.

ORDERED that the motion by defendants Joseph Bono and Giovanni Bono for summary judgment dismissing the complaint is granted; and it is further

ORDERED that the Court, sua sponte, dismisses the complaint and the cross claim against defendant Kurt Cascio.

Plaintiff Franca Ferrieri commenced this action to recover damages for serious injuries allegedly sustained in a motor vehicle accident that occurred in the Town of Babylon on May 19, 2000. Plaintiff, who was riding in the front seat of a vehicle operated by defendant Kurt Cascio, allegedly sustained injuries to her neck, back and left knee when a vehicle owned by defendant Giovanni Bono and operated by defendant Joseph Bono struck the passenger side of Cascio's vehicle. The bill of particulars alleges that plaintiff sustained various injuries in the accident, including cervical myofascitis, cervical sprain/strain, thoracic myofascitis, thoracic sprain/strain, lumbar myofascitis, left knee derangement, and "five herniated discs in the cervical and lumbar spine." It further alleges that the injuries sustained by plaintiff caused "permanent consequential limitation of use of a body function and system" or a "medically determined injury or impairment of a nonpermanent nature," which prevented plaintiff from performing substantially all of her daily activities for at least 90 days of the 180 days following the accident.

Defendants Giovanni Bono and Joseph Bono (hereinafter defendants) now move for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d) as a result of the accident. The Court notes that by order dated September 14, 2005, this Court (Werner, J.) granted defendants a default judgment on their cross claim against defendant Cascio. It also granted plaintiff a default judgment against defendant Cascio. Defendants submissions in support of the motion include copies of the pleadings, a transcript of plaintiff's deposition testimony, and various medical records and reports prepared by plaintiff's treating physicians. X-rays taken by the hospital emergency room on the date of the accident, for example, show no evidence of fracture in the lumbar spine, mild degenerative changes in the cervical spine, and no evidence of fracture, dislocation or subluxation in the left knee. Nerve conduction velocity studies of plaintiff's upper extremities produced normal results, as did an electromyographic evaluation of her upper extremities and cervical spine musculature. Further, medical reports and records prepared by plaintiff's various physicians and by Island Wide Medical Care and Diagnostics, the medical facility where plaintiff received physical therapy, show that plaintiff, who was classified by her treating orthopedist, Dr. Salina Balilo, as partially disabled, experienced improved function during the months after the accident and demonstrated normal range of motion in her lumbar spine and clinically insubstantial restrictions in her cervical spine and left knee during a [*2]neurologic examination in 2001.

Defendants also submitted medical reports prepared by Dr. Craig B. Ordway, Dr. Howard B. Reiser and Dr. Mark J. Decker. Dr. Ordway, an orthopedic surgeon, and Dr. Reisner, a neurologist, were retained by defendants to conduct physical examinations of plaintiff and to review plaintiff's medical records. Dr. Deker, a radiologist, reviewed magnetic resonance (MRI) scans of plaintiff's spine and left knee at defendants' request. Dr. Ordway's sworn report, dated March 3, 2004, states that he conducted an orthopedic examination of plaintiff that same date. It states, in relevant part, that plaintiff presented with complaints of neck pain, left knee pain, and a tingling sensation in her left hand. It states that plaintiff demonstrated full range of motion in her cervical spine and at the wrist, and that compression tests indicated mild carpel tunnel in the left hand. As to plaintiff's left knee, the report states that there was full range of motion and no evidence of effusion or instability, but that there was 1.5 cm of atrophy of the left quadriceps. It further states that plaintiff exhibited mild tenderness over the medial facet of the patella and femoral surface, as well as increased irritation with patella grind testing. Dr. Ordway concludes that there was "no evidence of any post-traumatic neurologic deficit or deformity secondary to the trauma of 5/19/00." In addition, he concludes that, as plaintiff displayed signs and symptoms consistent with post-traumatic patella chondromalacia and denied having such symptoms prior to the accident, plaintiff suffers a mild degree of permanent partial impairment of the left knee.

Plaintiff opposes the motion, arguing essentially an issue of fact exists as to whether she sustained a medically determined injury that prevented her from performing substantially all of her normal daily activities for at least 90 of the 180 days after the accident. The only evidence submitted in opposition to the motion is an affidavit by plaintiff. Plaintiff's alleges in her affidavit that she was "unable to work or perform any activities of daily living for a period in excess of four (4) months" due to the injury to her left knee. Plaintiff, a licensed hair dresser, was employed at a hair salon at the time of the accident. She alleges that she attended physical therapy for her injuries for more than seven months, and that when she returned to work she only was able to manage a part-time schedule.

New York's No-Fault Insurance Law precludes recovery for any "non-economic loss, except in the case of serious injury, or for basic economic loss" arising out of the negligent use or operation of a motor vehicle (Insurance Law §5104[a]). As long recognized by the Court of Appeals, the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 NY2d 795, 798, 622 NYS2d 900 [1995]; see, Toure v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 [2002]; Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]). The Legislature also intended that the issue of whether a plaintiff sustained a "serious injury" could be determined by the courts as a matter of law on a motion for summary judgment (see, Licari v Elliot, supra ).

Insurance Law § 5102 (d) defines "serious injury" as "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 [*3]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."

In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 NY2d 295, 727 NYS2d 378 [2001]). To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the plaintiff's present limitations to the normal function, purpose and use of the affected body, organ, member or function (see, Toure v Avis Rent A Car Sys., supra ). "Whether a limitation of use or function is significant' or consequential' * * * relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, supra , at 798, 622 NYS2d 900; see, Toure v Avis Rent A Car Sys., supra ). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see, Licari v Elliott, supra ). Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the plaintiff (see, Ali v Vasquez, 19 AD3d 520, 797 NYS2d 528 [2d Dept 2005]; Batista v Olivo, 17 AD3d 494, 795 NYS2d 54 [2d Dept 2005]; Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]).

A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see, Toure v Avis Rent A Car Sys., supra ; Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, supra , at 270, 587 NYS2d 692). A defendant also may establish entitlement to summary judgment using the plaintiff's deposition testimony and medical reports and records prepared by the plaintiff's own physicians (see, Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Vignola v Varrichio, 243 AD2d 464, 662 NYS2d 831 [2d Dept 1997]; Torres v Micheletti, 208 AD2d 519, 616 NYS2d 1006 [2d Dept 1994]; Pagano v Kingsbury, supra ). Once a defendant meets this burden, the plaintiff must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form (Gaddy v Eyler, supra ; Pagano v Kingsbury, supra ; see, Grasso v Angerami, 79 NY2d 813, 580 NYS2d 178 [1991]; see generally, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). [*4]

Here, the unsworn reports by Dr. Reiser and Dr. Decker were not considered by the Court in its determination of the motion (see, Pagano v Kingsbury, supra ). Nevertheless, defendants' remaining submissions were sufficient to establish prima facie that plaintiff did not sustain serious injury to her back or left knee as a result of the accident (see, Hernandez v DIVA Cab Corp., 22 AD3d 722, 804 NYS2d 396 [2d Dept 2005]; Khan v Hamid, 19 AD3d 460, 798 NYS2d 444 [2d Dept 2005]; Luckey v Bauch, 17 AD3d 411, 792 NYS2d 624 [2d Dept 2005]; Paul v Trerotola, 11 AD3d 441, 782 NYS2d 773 [2d Dept 2004]). The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see, Gaddy v Eyler, supra ). Plaintiff failed to present competent medical evidence substantiating her claim that the knee injury prevented her from performing substantially all of her normal activities for not less than least 90 days out of the 180 days immediately following the accident (see, Batista v Olivo, 17 AD3d 494, 795 NYS2d 54 [2d Dept 2005]; Howell v Reupke, 16 AD3d 377, 790 NYS2d 703 [2d Dept 2005]), and her allegations that she was unable to work or perform her other usual daily activities after the accident are insufficient to establish a triable issue of fact (see, McConnell v Ouedraogo, 24 AD3d 423, 805 NYS2d 418 [2d Dept 2005]; Gousgoulas v Melendez, 10 AD3d 674, 782 NYS2d 103 [2d Dept 2004]; Davis v New York City Tr. Auth., 294 AD2d 531, 742 NYS2d 658 [2d Dept], lv denied 98 NY2d 612, 749 NYS2d 475 [2002]; Sainte-Aime v Ho, 274 AD2d 569, 712 NYS2d 133 [2d Dept 2000]; Jackson v New York City Tr. Auth., 273 AD2d 200, 708 NYS2d 469 [2d Dept 2000]).

Accordingly, the motion for summary judgment dismissing the complaint is granted. Further, having determined that plaintiff's injuries do not meet the serious injury threshold, the Court, sua sponte, grants summary judgment dismissing the complaint and the cross claim against defendant Cascio (CPLR 3212[b]).

Dated:

J.S.C.

X FINAL DISPOSITION NON-FINAL DISPOSITION