Harry v Acevedo

[*1] Harry v Acevedo 2006 NY Slip Op 52414(U) [14 Misc 3d 1205(A)] Decided on September 28, 2006 Civil Court Of The City Of New York, Kings County Bluth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2006
Civil Court of the City of New York, Kings County

McRoy Harry, Plaintiff,

against

Ramon Acevedo, Defendant.



127/04

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, defendant Ramon Acevedo moves for summary judgment pursuant to CPLR § 3212 on both liability and damages grounds, arguing (1) that defendant is not liable for the happening of the accident, and (2) that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). For the following reasons, defendant's motion is granted in part and denied in part. [*2]

On a motion for summary judgment for the failure to sustain a "serious injury" within the meaning of Insurance Law § 5102(d), the defendant must make a prima facie showing that the plaintiff does not meet the serious injury threshold under any of the categories set forth in the statute. See Gaddy v Eyler, 79 NY2d 955, 956, 582 NYS2d 990 [1992]; Grossman v Wright, 268 AD2d 79, 80, 83-84, 707 NYS2d 233 [2nd Dept 2000]. If the defendant makes such a showing, the burden shifts to the plaintiff to come forward with sufficient evidence to overcome the defendant's submissions by demonstrating that there is a triable issue of fact as to whether a serious injury was sustained. See Gaddy, 79 NY2d at 957; Grossman, 268 AD2d at 84.

In the instant case, plaintiff McRoy Harry was walking his bicycle across the street on October 18, 1999 when he was allegedly hit by defendant's vehicle. First, as to defendant's first argument on this motion, that he bears no liability for the accident, the Court finds that defendant has not made out a prima facie case for entitlement to summary judgment as a matter of law. While the EBT testimony of plaintiff raises the possibility of contributory negligence, neither it nor defendant's own EBT testimony establishes as a matter of law that defendant bears no liability for the happening of the accident. It is undisputed that the accident occurred at night during slippery road conditions, and there is an issue of fact as to whether defendant used reasonable care under the circumstances.

The Court now turns to the second ground for the motion, that plaintiff did not sustain a serious injury. In his Verified Bill of Particulars, plaintiff claims that he suffered the following injuries: MRI of lumbrosacral spine revealing herniation at the L4-5 level causing anterior compression of the thecal sac in the midline and straightening of the normal lumbar lordosis; MRI of cervical spine revealing disc bulge at C6-7 level; lumbrosacral radiculopathy; post-traumatic lumbrosacral fibromyostitis; lumbrosacral sprain/strain; cervical radiculopathy; post-traumatic cervical fibromyostitis; cerviobrachial; cervical sprain/strain; pain and restrictions of motion in the neck, shoulders, left hip, and back; headaches; and anxiety. Plaintiff alleges that his injuries fall under the following categories of the statute: (1) permanent loss of use of a body, organ, member, function, or system; (2) permanent consequential limitation of use of body organ or member; (3) significant limitation of use of a body function or system; and (4) a medically determined injury or impairment of a non-permanent nature which prevents him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 out of the 180 days immediately following the accident. See Ins. Law § 5102(d).

After the accident, plaintiff was treated and released from St. Mary's Hospital. At his EBT, plaintiff testified to the following: that he was unemployed at the time of the accident; that he was confined to bed for about two weeks and to home for three to four months after the accident; that he underwent treatment, including acupuncture, masssage, physical therapy, and chiropractic, during those three months; and that he stopped treating in December 1999 because he "could not afford it." (In his affidavit in opposition, plaintiff states that his No-Fault benefits were cut off and he did not have private insurance to cover continued treatment.) [*3]

In support of this motion, defendant submits the affirmed reports of three physicians. First, defendant submits the report of an orthopaedic surgeon, Edward A. Toriello, M.D., dated September 27, 2002. Dr. Toriello examined plaintiff on September 26, 2002. His examination of the cervical and lumbrosacral spines revealed full range of motion. Dr. Toriello also examined plaintiff's shoulders, elbows, wrists and hands, and hips, and found no impairments.He found that plaintiff had suffered a "resolved cervical hyperextension injury, resolved low back strain, resolved right shoulder contusion and resolved left hip contusion." According to Dr. Toriello, no further orthopaedic or physical therapy treatment was indicated.

Next, defendant submits the report of a radiologist, Sondra J. Pfeffer, M.D., dated July 25, 2000. Dr. Pfeffer reviewed the MRI films of plaintiff's cervical and lumbar spines. She found no disc herniations or bulges or any other pathologies. In the cervical MRI, which was performed nine days after the accident, on October 27, 1999, Dr. Pfeffer saw some straightening which she attributed to muscle spasm. The lumbar MRI was performed on November 23, 1999, five weeks after the accident.

Finally, defendant submits the report of a neurologist, Burton S. Diamond, M.D., dated September 18, 2002, who examined plaintiff on that date. His examination was completely normal, with no negative findings. His diagnosis was "cervical and lumbar sprain, resolved," with no need for further evaluation or treatment.

The Court finds that defendant has met his initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of the statute, thereby shifting the burden to plaintiff to raise a triable issue of fact. See Toure v Avis Rent A Car, 98 NY2d 345, 352, 746 NYS2d 865 [2002]; Grossman, 268 AD2d at 83-84. See also Little v Tzong, 22 AD3d 532, 802 NYS2d 237 [2nd Dept 2005]. Indeed, plaintiff's own opposition papers argue only that plaintiff's opposition raises a triable issue of serious injury, thus apparently conceding that defendant met his initial burden to show the absence of serious injury.

In opposition, plaintiff submits his affidavit, an affirmation and two affirmed reports from a neurologist, R.C. Krishna, M.D., and an affirmation from the radiologist who performed the MRIs, Valentino J. Bianchini, M.D., accompanied by the MRI reports themselves (thereby making those reports admissible).[FN1] Plaintiff also annexes various medical records which are not sworn to or otherwise in admissible form. In an affirmation dated August 22, 2006, Dr. Krishna states that he examined plaintiff on two occasions: May 15, 2006 and March 11, 2004. Plaintiff also submits Dr. Krishna's affirmed reports following each of those two visits. [*4]

At the first visit, on March 11, 2004, more than four years after the accident, Dr. Krishna found "significant limitation of motion" of plaintiff's lumbrosacral and cervical spines, as well as "spasms and tenderness" in these regions. Dr. Krishna quantified the range of motion restrictions in the lumbrosacral and cervical spines as compared to normal function. He also found decreased sensation on the outer right leg and arm. Dr. Krishna deemed the range of motions restrictions permanent. He recommended that plaintiff refrain from strenuous activity and consider injections for pain. At the second visit, on May 15, 2006, Dr. Krishna again quantified range of motion restrictions and decreased sensation on the right side, and reiterated his diagnosis. In sum, he determined that plaintiff's injuries were causally related to the October 1999 accident, and that plaintiff had suffered a "permanent consequential and significant limitation of use of his lumbrosacral and cervical spine." Dr. Krishna recited plaintiff's complaints of alleged restrictions in performing various daily activities.

The Court finds that plaintiff has raised a triable issue of fact as to whether he sustained a serious injury to his lumbrosacral and/or cervical spine under the permanent consequential limitation and significant limitation of use categories of the statute. Dr. Krishna's affirmations specified the degree of restriction in plaintiff's range of motion which, the Court notes, remained largely unchanged between his two examinations approximately two years apart. See Eng v New Main Line Trading Corp., 249 AD2d 359, 670 NYS2d 800 [2d Dept 1998]. There is no evidence of any superseding causes of plaintiff's alleged injuries. In addition, Dr. Bianchini's affirmation attests to the probity of the findings of disc injury he made in his original MRI reports. See Shpakovskaya v Etienne, 23 AD3d 368, 804 NYS2d 767 [2d Dept 2005].

However, plaintiff has not raised a triable issue of fact that he suffered a permanent loss of use of any body, organ, member, function, or system, because Dr. Krishna made no finding to that effect. Moreover, plaintiff has failed to raise a triable issue of fact as to the 90/180 category. Although plaintiff states that he was confined to his home for three to four months after the accident, an allegation of serious injury under the 90/180 category must be supported by competent medical evidence from the period following the accident, of which there is none here. See Joseph v Layne, 24 AD3d 516, 808 NYS2d 253 [2d Dept 2005]; Drexler v Melanson, 301 AD2d 916, 918, 754 NYS2d 433 [3d Dept 2003]. Plaintiff's unsubstantiated and self-serving statements are insufficient to raise a triable issue of fact. See Quezada v Luque, 27 AD3d 205, 810 NYS2d 463 [2d Dept 2006]. In any event, plaintiff was unemployed at the time of the accident, and he does not claim to have been unable to perform substantially all of the material acts that constituted his usual and customary daily activities for 90 out of the first 180 days following the accident. Therefore, plaintiff's claims under those two categories of the statute must be dismissed.

Accordingly, defendant's motion is granted solely to the extent that the claims under the permanent loss of use and 90/180 categories of the statute are hereby dismissed. The motion is denied in all other respects.

This is the Decision and Order of the Court. [*5]

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________ Footnotes

Footnote 1: Contrary to defendant's contention, the fact that Dr. Bianchini was later suspended from practice for one instance of unspecified professional misconduct is not relevant to the Court's determination of this motion. At most, it raises an issue of credibility, which is not appropriate for resolution at the summary judgment stage. See Singh v Rosenberg, - NYS2d -, 2006 NY Slip Op 06403 [2d Dept].