Hutchinson v R.F. Tr. Inc.
Annotate this CaseDecided on October 12, 2006
Supreme Court, Kings County
Garth G. Hutchinson, BRUCE A. FORBES, and PAMELA A. HUTCHINSON, Plaintiff,
against
R.F. Transit Inc., JEAN-BPATIST MEGIE, M & I CAB CORP., and ANTHONY YEBOA, Defendants.
16397/03
Plaintiff Attny: Kohn & Kohn, Esqs.
Defendant's Attny: Norman Volk & Associates, PC
Richard J Valent
Yvonne Lewis, J.
On January 1, 2002, it is alleged that the defendants Yeboa and Megie were driving vehicles, respectively owned by M & I Cab Corp. and R.F. Transit, Inc., at excessive rates of speed, in the course of which the Megie vehicle rear-ended the Yeboa vehicle which, in turn, collided into the rear of Pamela Hutchinson's vehicle, which was being operated by Garth Hutchinson with Bruce Forbes as a passenger.
Defendants, M & I Cab Corp. and Anthony Yeboa, have now moved for summary judgment seeking an order, pursuant to CPLR §3212, to dismiss Plaintiffs Garth G. Hutchinson and Bruce A. Forbes' complaint and all cross-claims on the ground that they did not sustain serious injuries as defined under Insurance Law 5102. The remaining Defendant, Jean-Baptist Megie, has joined in that application by way of his counsel's affirmation.
The defense begins its arguments with the observation that since the plaintiffs' bill of particulars did not allege any of the first five statutory categories of possible serious injuries, only the four remaining categories; to wit, permanent loss of use of a body organ, member, function or system; permanent limitation; significant limitation; and/or the 90/180 day curtailment of normal activities can be considered in support of their claims. In that regard, the defense notes that the plaintiff Garth Hutchinson stayed at home for only approximately two weeks following the accident and that none of the objective medical tests conducted on him established any of the just enumerated categories of injury. The plaintiff Bruce Forbes, in addition to exhibiting no objective medical bases to meet any of the subject threshold levels of serious injury, only sought treatment for six months following the accident and never missed work.
In opposition, counsel for the plaintiff Forbes notes that he was initially seen by his private physician who referred him for an orthopedic examination, on January 7, 2002, which disclosed a pained right knee with cracking noise, decreased range of motion to his cervical spine with positive paracervical muscle spasm. An MRI indicated a partial thickness tear of the medial collateral ligament of the right knee. Finally, the orthopedist found tenderness along the medial aspect and the medial patellofemoral joint of the right knee, recommended exploratory surgery, and assessed that the right knee was permanently injured. Counsel for plaintiff Forbes culminated his arguments by noting that he underwent physical therapy and chiropractic and acupuncture treatments from February 22, 2002 to October 18, 2002, and that diagnostic testing [*2]confirmed limited range of motion whereby his chiropractor determined respective permanent functional losses of 42% and 33% in the cervical and lumbar spines, which an MRI revealed had disc bulges at various points. Despite the foregoing arguments of counsel, and so as to elucidate matters, it is to be noted that Mr. Forbes' orthopedist, in a letter dated February 2, 2006, found that an examination of ". . .the lumbar spine shows that he can forward flex to about 80 degrees, extend to neutral and has negative straight leg raising. . . .[t]he right knee. . .can fully extend. . .to about 110 degrees. He does have tenderness along the medial aspect of his knee and along the medial patellofemoral joint. No gross instability." The orthopedist then concludes that ". . .because of his persistent pain and altered lifestyle in his right knee despite the MRI findings, I am recommending an exploratory arthoscopic procedure to his right knee as he is now 4 years into his injury with persistent difficulty."
Following a diagnosis of abnormal sensation indicative of damage to his cervical and lumbar nerve roots, the plaintiff Hutchinson underwent physical therapy until September, 2002. An MRI disclosed posterior disc bulges at various points along his lumbar spine, resulting in a 42% permanent functional loss therein. Counsel for the defense alleges that on January 18, 2006 (as corroborated by doctor's affirmation, dated February 1, 2006), Mr. Hutchinson was diagnosed via range of motion diagnostic evaluation to have continuing pain and limitation of motion of the lumbar spine, with radiation of pain down the left posterior thighs. In addition, range of motion of the cervical spine was found to be limited in all tests. Lastly, the medical doctor who performed these tests underscored the fact that Mr. Hutchinson had discontinued treatment (in September, 2002) since he had been advised that the same would not help his condition. His doctor then concluded that Mr. Hutchinson, who had treated with him for approximately eight months, had sustained permanent injuries to his cervical and lumbar spines and left knee.
It is indisputable that five of the nine categories of serious physical injuries enumerated in Insurance Law 5102(d) are clearly inapplicable herein inasmuch as there is no allegation of death, dismemberment, significant disfigurement, fracture, or loss of a fetus. The controversy therefore to be resolved herein is whether or not the asserted injuries are borne out by the medical evidence proffered and constitute the 1. permanent loss of use of a body organ, member, function, or system; 2. permanent consequential limitation of use of a body function or system; and/or 3. 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 ususal and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
On the evidence presented by the defendants, a prima facie showing has been made that neither the plaintiff Forbes nor Hutchinson sustained a serious injury within the meaning of Insurance Law §5102(d). The plaintiffs, in turn, have submitted proofs sufficient to raise triable issues of fact with regard to the seriousness of their injuries. The affirmations of Mr. Forbes' orthopedic surgeon and Mr. Hutchinson's treating physician establish that their injuries presented after the accident in which they had been involved on January 1, 2002; that the injuries which they sustained have placed significant limits on their functions with respect to their cervical and lumbar spines, as compared to normal functioning; and, that their injuries are seemingly permanent and serious in nature. In light of the objective tests performed which corroborate decreased ranges of motion to the plaintiffs' lumbar and cervical spines, this court finds that [*3]sufficient issues of fact have been raised to defeat the defendants' request for summary judgment on the issue of serious injury.(See Acosta v. Rubin, 2 AD3d 657, 768 NYS2d 642, citing Figueroa v. Westbury Trans., 304 AD2d 614, 757 NYS2d 756; Elfiky v. Harris, 301 AD2d 624, 754 NYS2d 59; Jelicks v. Camacho, 305 AD2d 373, 757 NYS2d 901, and Toure v. Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865). In addition, it remains to be ascertained at trial whether any gap in plaintiffs' treatments was attributable solely to Messrs. Forbes and [more particularly] Hutchinson having reached maximum medical improvement. Accordingly, the defendants' collective request for summary judgment is denied in its entirety. In view of the foregoing, the defendants' remaining motions and cross-motions for dismissal are granted as to each plaintiff who fails to appear for depositions and medical examinations which shall be set within 60 days (of notice of entry of this decision) by the defendants. This constitutes the decision and Order of this Court.
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