Arshad v Ron Cab Corp.

[*1] Arshad v Ron Cab Corp. 2006 NY Slip Op 51897(U) [13 Misc 3d 1218(A)] Decided on August 9, 2006 Supreme Court, Kings County Jacobson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2006
Supreme Court, Kings County

Chaudhary U. Arshad, Plaintiff,

against

Ron Cab Corp. and Shokat Hayat, Defendants.



32361/04

Laura Lee Jacobson, J.

Defendant moves for an order pursuant to CPLR section 3212, for summary judgment plus costs and disbursements of this action due to plaintiff's failure to meet the threshold limits set by New York State Insurance Law sections 5102 and 5104. This action stems from a motor vehicle accident that occurred on January 13, 2004, when plaintiff's vehicle collided with the vehicle owned by defendant Ron Cab Corp. and operated by defendant Shokat Hayat on 86th Street Transverse Road at or near its intersection with Central Park West in New York, New York.

Plaintiff alleged in his bill of particulars that as a result of the motor vehicle accident he sustained the following injuries: lumbar epidural steroid injection dated 4/27/04; central disc herniation at L4-L5 with caudal displacement; disc bulge at L5-S1; radiculapathy; pain radiating [*2]to lower extremities; weakness in right leg; loss of range of motion tenderness; muscle spasms; pain and inability to perform normal daily functions; cervical myofascitis; cervicodorsal derangement; radiculopathy; weakness; tenderness; muscle spasms; painful and limited range of motion; pain and inability to perform normal daily functions; bilateral shoulder strain; loss of range of motion in forward flexion and abduction and pain. Plaintiff asserted that he was totally incapacitated from his employment since the date of the accident until 11/15/04 and partially incapacitated from his employment since 11/15/04 as he is only able to work 20-25 hours per week due to his injuries. Plaintiff alleged that the injuries were permanent in nature and that he had suffered a disabling injury for a period in excess of 90 out of the first 180 days following the accident. In a supplemental bill of particulars, plaintiff noted that he had sustained two lumbar epidural steroid injections.

In support of defendants' threshold motion, defendants submitted a duly affirmed medical affirmation from neurologist Edward M. Weiland, M.D. who examined plaintiff on November 4, 2005. He stated that plaintiff indicated that while he was a restrained driver he sustained blunt trauma from a rear end impact. He noted that plaintiff reported that he may have struck his head during the accident and he does report losing consciousness for a brief period of time. Plaintiff then complained of neck pain radiating more prevalently to his right shoulder, as well as lower back pain radiating to both buttocks and thighs. At the time of the examination, plaintiff continued to complain of neck and lower back discomfort without any radicular component. He stated that these symptoms appear to be provoked with flexion and extension movements of the upper and lower torso. Dr. Weiland noted that after the accident plaintiff underwent a course of multimodality rehabilitation treatment for approximately nine months. Dr. Weiland stated that plaintiff reported that at the time of the accident, he was working as a limousine driver but he is currently employed as a taxi driver. Dr. Weiland reported that he performed a detailed neurologic examination of plaintiff. He stated that plaintiff was alert and oriented and there was no evidence of aphasia. The examination included range of motion testing of plaintiff's shoulders, cervical spine and lumbar spine. Dr. Weiland quantified his results and compared them to normal standards. He reported that all were within normal limits. He noted that plaintiff's straight leg raising was unlimited at 90 degrees. He stated that plaintiff's gait and coordination skills were within normal limits. Dr. Weiland's impression was cervical sprain/strain- resolved; lumbosacral sprain/strain- resolved and history of contusion of the right shoulder-resolved, as reported by the claimant. He reported that he could find no evidence of any lateralizing neurological deficits at the present time. He noted that plaintiff could perform activities of daily living and continue employment activities without restrictions, from a neurological perspective. Dr. Weiland found no primary neurologic disability at the present time as it relates to the injuries that reportedly occurred as a result of the 1/31/03 accident

In opposition to the relief requested, plaintiff submitted copies of his records from his workers compensation file and the medical affirmations of physicians Charles DeMarco, M.D and Eric S. Roth, M.D. Dr. DeMarco affirmed that under his supervision, an MRI of plaintiff's right shoulder was taken on February 18, 2004 and an MRI of plaintiff's lumbar spine was performed on February 25, 2005. Attached to Dr. Marco's affirmation were the unaffirmed medical reports of [*3]radiologist Daniel Schusselberg, MD. However, the radiology reports have no probative value because Dr. DeMarco did not prepare the reports or allege that he reviewed the reports or plaintiff's MRI films and attest to the truth and accuracy of the findings.

Dr. Eric S. Roth stated that he is a Diplomate in the area of physical Medicine and Rehabilitation. Dr. Roth stated that he first examined plaintiff on January 20, 2004. He stated that plaintiff gave a history of being a 26 year old driver whose vehicle was rear-ended by another motor vehicle on January 13, 2004. He stated that at the time of the initial examination, plaintiff complained of constant pain in his neck radiating into the right shoulder and arm with mid and lower back pain as well. Plaintiff also complained of pain in his legs as well as occasional numbness and tingling in his right leg, headaches, nausea and vomiting. Dr. Roth stated that his examination of plaintiff's cervical spine revealed severely limited and painful active movement in all planes. Dr. Roth performed range of motion tests on plaintiff's cervical spine which revealed: 67% loss of flexion; 56 % loss of extension; 44 % loss of left rotation; 56 % loss of right rotation; 22 % loss of left lateral flexion and 44% loss of right lateral rotation. Dr. Roth examined plaintiff's right shoulder and found that there was weakness in the right arm with diminished sensation. Dr. Roth found that reflex examination revealed diminished right sided biceps and flexor carpi radioalis reflexes compared to the left. He stated that range of motion tests on plaintiff's shoulder revealed 42 % loss of abduction; 25 % loss of abduction; 25 % loss of internal rotation; 25 % loss of external rotation; 44 % loss of flexion and 25% loss of extension. Dr. Roth examined plaintiff's lumbar spine which revealed severely limited and painful active movement in all planes. He stated that plaintiff had difficulty in performing heel and toe walk exercises indicating weakness in the lower extremities. He stated that the neurological examination revealed diminished sensation in the L5 and S1 dermatones in the right leg. Dr. Roth found that range of motion tests on plaintiff's lumbar spine revealed: 72 % loss of flexion; 67% loss of extension; 33% loss of left rotation; 67% loss of right rotation; 50% loss of left lateral flexion and 50% loss of right lateral flexion. Dr. Roth's initial diagnosis was trauma to the areas of the cervical and lumbar radiculopathy as well as contusion and tendonitis of the right shoulder. Plaintiff was prescribed physical therapy and a non steroidal anti- inflammatory. In Dr. Roth's opinion, plaintiff was disabled and unable to perform his normal activities of daily living at the time of his initial examination. Dr. Roth reported that plaintiff received therapy at a rate of approximately three times per week. Dr. Roth indicated that plaintiff continued to be evaluated and receive physical therapy until March 30, 2005.Dr. Roth indicated that during the course of plaintiff's treatment he was referred to Dr. Alexander Weingarten, a pain relief specialist for evaluation. During the course of his treatment with Dr. Weingarten, plaintiff received two to three steroid injections which resulted in improvement in plaintiff's pain although there were reported side effects of headache. Dr. Roth reported that at plaintiff's November 9, 2004 examination, he demonstrated slight and continued improvement. He stated that in his opinion plaintiff was moderately disabled in the cervical and lumbar spines as a result of the injuries sustained in the motor vehicle accident. Dr. Roth noted that until November of 2004, plaintiff had been completely disabled with regard to his activities of daily living due to pain including most tasks requiring even minimal physical activity. Dr. Roth noted that on plaintiff's March 30, 2005 visit, there was no significant change from plaintiff's March 2, 2005 evaluation. Dr. Roth stated that at that point, there were indications that additional treatment would be merely palliative. Dr. Roth stated that [*4]at plaintiff's counsel request, he examined plaintiff on April 17, 2006. At that time, plaintiff complained of pain in the neck and low back, mostly right sided. Dr. Roth stated that upon neurological examination, plaintiff was found with positive straight leg raising bilaterally at 25 degrees, diminished sensation in the right arm and leg and weakness in the right arm and leg. Dr. Roth asserted that he performed range of motion tests on plaintiff's cervical spine, lumbar spine and right shoulder. Dr. Roth quantified the percentages of limitation of motion. The results were unchanged from Dr. Roth's initial examination of plaintiff. Dr. Roth stated that in his opinion, to a reasonable degree of medical certainty, as a result of the motor vehicle accident, plaintiff suffered right cervical radiculopathy; cervical disc bulges; right lumbar radiculopathy; disc herniation at L4-L5; chronic strain/sprain of the cervical, thoracic and lumbar spines, chronic tendonitis of the right shoulder and myofascial pain. He stated the these conditions are chronic and subject to periods of exacerbation. Dr. Roth found that plaintiff's injuries are permanent and serve as a significant limitation of function for plaintiff's neck, back and shoulder. Dr. Roth stated that the long term consequences of these conditions are arthritis or the eventual need for more aggressive treatment including surgical intervention.

Plaintiff submitted an affidavit in which he states that at the time of the accident, his body was jolted back and forth and he felt a violent impact of his head and neck against the headrest. He stated that he was taken to St. Luke's Roosevelt Hospital with complaints of neck pain and headaches. Plaintiff stated that x-rays were taken and he was given pain medication and released. Plaintiff stated that he stayed home for three days during which time, there was no improvement in his head, neck and back pain. He stated that he went to the emergency room at St. Catherine of Siena Medical Center where more x-rays were taken and he was given pain medication and a neck brace. Plaintiff asserted that he wore the neck brace for five months because it gave him pain relief. Plaintiff stated that eventually, he contacted Dr,. Roth who prescribed physical therapy and medications that plaintiff continued to take for six months. Plaintiff alleges that he attended physical therapy beginning in October 2004, for a period of approximately eight months. In May of 2004, plaintiff was examined by Dr. Cole on behalf of the insurance company for the worker's compensation carrier. Plaintiff stated that he began to receive worker's compensation payments which partially compensated him for being unable to work, until November 12, 2004. Plaintiff alleged that because of the pain in his neck, shoulder and low back, Dr. Roth referred him Dr. Weingarten who gave him epidural injections. Plaintiff asserted that the shots were painful but they blocked the pain in his neck, shoulder and lower back. Plaintiff stated that he returned to work in mid-November 2004 on a limited basis. He stated that he was in a great deal of pain when performing certain movements and his ability to turn and bend his neck and back were limited as was his arm at the shoulder. Plaintiff contends that those limitations have never improved and that he still has limitations in his range of motion in all three areas of his body, as well as ongoing pain. Plaintiff stated that he continued to see Dr. Roth once a week until April 2005. Plaintiff contends that his condition was no longer as bad but it also did not seem to improve in the last weeks that he was seeing the doctor. Plaintiff stated that he still cannot lift heavy things; he cannot sit or stand for extended periods of time without discomfort; walking for any distance causes discomfort and he cannot turn his head properly from side to side. [*5]

Plaintiff also included the duly affirmed report of Dr. Joseph C. Cole, who examined plaintiff on May 4, 2004 in regards to plaintiff's workers compensation claim. Dr. Cole performed range of motion tests on plaintiff's cervical and lumbar spine. Although Dr. Cole quantified his results, he failed to compare plaintiff's range of motion in his cervical spine with normal standards. Dr. Cole did find significant limitation in plaintiff's lumbar spine as compared to normal standards. Dr. Cole found that if plaintiff's history was correct, there was a causal relationship between the original complaints and the reported accident. Dr. Cole found that plaintiff sustained a total temporary disability and that plaintiff was unable to perform his job as a taxi/limousine driver. He stated that plaintiff could perform sedentary work activities with the allowance of frequent breaks and that he should avoid prolonged sitting or standing. Dr. Cole recommended that plaintiff avoid whole body vibration and lifting objects of 20 pounds or greater.

The legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]) While it is clear that the Legislature intended to allow plaintiffs to recover for non-economic injuries in appropriate cases, it had also intended that the court first determine whether or not a prima facie case of serious injury has been established which would permit a plaintiff to maintain a common-law cause of action in tort.( Licari v. Eliot, 57 NY2d 230, 237 [1982]). As such, the courts have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (Toure v. Avis Rent A Car Systems, Inc., supra). Here, defendants have made a prima facie showing through competent medical evidence that plaintiff did not suffer "serious injury" as a matter of law (see Mahabir v. Ally, 26 AD3d 314 [2nd Dept. 2006]). In opposition, the affirmation of plaintiff's expert Dr. DeMarco has no probative value. Nonetheless, the findings of plaintiff's treating physician, Dr. Roth, which was based on objective evidence including tests and reports, raised issues of fact as to whether plaintiff sustained a "serious injury" (see Toure v. Avis Rent A Car, supra). Furthermore, the parties conflicting medical expert affirmations create material issues of fact requiring a jury determination (see Garcia v. Long Island MTA, 2 AD3d 675 [2nd Dept. 2003]). Additionally, contrary to defendants' allegations, plaintiff's treating physician provided a satisfactory explanation for the gap in treatment (see Williams v. New York City Trans. Auth., 12 AD3d 365 [2nd Dept. 2003]). Moreover, defendants' medical evidence based on an examination performed more than a year and a half after the accident, failed to established that plaintiff did not suffer a disabling injury for a period in excess of 90 days out of the first 180 days following the accident (see [ Frier v. Teague, 288 AD2d 177 [2nd Dept. 2001]). Furthermore, the plaintiff's affidavit, the plaintiff's treating physician's affirmation and the worker's compensation physician's affirmed medical report, underscores the defendants' failure of proof (Peplow v. Murat, 304 AD2d 633 [2nd Dept. 2003]).

Accordingly, defendants' motion for summary judgment is denied.

This constitutes the decision and order of the court.

ENTER:

LAURA L. JACOBSON, JSC