Bullock v Gimeranez

[*1] Bullock v Gimeranez 2006 NY Slip Op 52085(U) [13 Misc 3d 1232(A)] Decided on October 26, 2006 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 9, 2006; it will not be published in the printed Official Reports.

Decided on October 26, 2006
Supreme Court, Richmond County

Gregory Bullock and DONNA COLLIER- BULLOCK, Plaintiffs,

against

William F. Gimeranez, Defendant.



11817/04

Thomas P. Aliotta, J.

Upon the foregoing papers, the defendant's motion for summary judgment dismissing the complaint on the ground that plaintiffs' injuries fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is denied.

This matter arises out of a two vehicle accident which occurred on March 16, 2003, on the northbound Gowanus Expressway near the 39th Street exit in Brooklyn, New York. As a result, each plaintiff claims to have sustained "serious" personal injuries, i.e., "permanent loss of use of a body organ, member, function or system; a 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 90 days during the 180 days immediately following the occurrence of the injury or impairment" (Plaintiffs' March 7, 2005 Verified Bill of Particulars, para 11 [Defendant's Exhibit C]). More particularly, plaintiff Gregory Bullock claims to have sustained, inter alia, a [*2]"herniated disc at C5-C6; bulging disc at C4-C5; right C5-C6 cervical radiculopathy; left carpal tunnel syndrome; right L5-S1 radiculopathy; and right temporomandibular joint dysfunction" (Id., para 7), while plaintiff Donna Collier-Bullock claims to have sustained, inter alia, "herniated discs at C5-C6 and C6-C7; bulging disc at C4-C5; right C5-C6 cervical radiculopathy; right L5-S1 radiculopathy; right temporomandibular joint

dysfunction, and sprain of the right shoulder" (Id.).

In support of his motion for summary judgment, defendant has submitted the December 5, 2005 affirmations of a radiologist, Dr. Steven L. Mendelsohn, who reads plaintiff Gregory Bullock's cervical MRI as revealing "degenerative changes" at C5-C6 and C4-C5 (see Defendant's Exhibit E), and the lumbar MRI of plaintiff Donna Collier-Bullock as showing "a combination of mild degenerative changes at L4-5 as well as a small central posterior herniation" (see Defendant's Exhibit I). Also attached are the December 15, 2005 and January 12, 2006 affirmations of a neurologist, Dr. Michael Carciente, who found, after examining each plaintiff, "no evidence of a causally related neurologic disability" (see Defendant's Exhibits F and J). Finally, defendant relies on the December 13, 2005 and January 10, 2006 affirmations of an orthopedist, Dr. Robert Israel, who concluded following his physical examinations of each plaintiff, that Gregory Bullock had suffered from "cervical and thoracic spine sprains" and "right shoulder sprain" all of which had "resolved" (see Defendant's Exhibit G), while plaintiff Donna Collier-Bullock suffered from "cervical and lumbar spine sprains, right shoulder sprain, and right arm sprain" which had similarly "resolved" (see Defendant's Exhibit K).

In opposition, each plaintiff argues that their spinal injuries are "serious" within the meaning of Insurance Law §5102(d), and attaches, inter alia, their own June 27, 2006 affidavits setting forth their subjective complaints and the course of physical therapy they pursued (see Plaintiffs' Exhibit A). In addition, plaintiffs have submitted unauthenticated medical records and unsworn copies of certain diagnostic tests, neither of which is admissible (cf. Ayzen v. Melendez, 299 AD2d 381). Plaintiffs have also attached (1) the June 26, 2006 affirmations of their treating neurologist, Bhim S. Nangia, M.D. (see Plaintiffs' Exhibit B), and (2) the affirmations of radiologists H. Parekh, M.D. and Ravindra V. Ginde, M.D. (see Defendant's Exhibits E,F, and G), each of whom opines that MRIs of the respective plaintiffs reveal the presence of causally related disc bulges and herniations.

At the outset, the court notes that so much of plaintiffs' claims of serious injury as are predicated

upon the alleged "permanent loss of use of a body organ, member, function or system" (see Defendant's Exhibit C) must be dismissed pursuant to Oberly v. Bangs Ambulance (96 NY2d 295). The injuries alleged by plaintiffs are indisputably not "total" (Id. at 297, 299).

As for the balance of the motion, it is the opinion of this Court that defendant has made a prima facie showing that neither plaintiff sustained a serious injury within the meaning of Insurance Law §5102(d) through the affirmations of their medical experts (see Holmes v. Hanson, 286 AD2d 750, citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 299; Nisnewitz v. Renna, 273 AD2d 210; Guzman v. Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). In this regard, it is worthy of note that the mere presence of a bulging or herniated disc is not evidence of a serious injury (Kearse v. New York City Tr. Auth., 16 AD3d 45). Accordingly, it is plaintiffs' burden to come forward with evidence demonstrating the existence of a triable issue of fact that each sustained a serious injury in order to avoid summary judgment (see Gaddy v. Eyler, [*3]79 NY2d 955).

Here, plaintiffs' have successfully met this burden, as the affirmations of Drs. Nangia, Parekh and Ginde are sufficient, when read together, to raise a triable issue of fact as to the seriousness of the injuries sustained by each plaintiff. The key affirmation in this respect is that of Dr. Nangia, whose opinion was predicated on objective medical evidence in the form of MRI films, straight leg raising and range of motion testing which quantified and compared the limitations of each plaintiff to established norms (see Toure v. Avis Rent A Car., 98 NY2d 345).As to each plaintiff, Dr. Nangia concluded that his or her "physical injuries [were] a competent provocative cause of the [respective] impairment and disability and [are] causally related to the accident" of March 16, 2003.

"It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Corbett v. County of Onondaga, 291 AD2d 886, 887, quoting Williams v. Luciantelli, 259 AD2d 1003, 1003 [internal quotation marks omitted]).

Accordingly, it is

ORDERED, that defendant's motion for summary judgment is denied.

E N T E R,

Dated:OCTOBER 26, 2006

/s/_________________________________

HON. THOMAS P. ALIOTTA, J. S. C.

ASN by KD/pt on 10/30/06