Crew v Green Bus Lines, Inc.

[*1] Crew v Green Bus Lines, Inc. 2006 NY Slip Op 52564(U) [14 Misc 3d 1229(A)] Decided on December 20, 2006 Civil Court Of The City Of New York, Kings County Ash, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2006
Civil Court of the City of New York, Kings County

Drusilla C. Crew, Plaintiff,

against

Green Bus Lines, Inc. and ROBERT D. SCIRICA, Defendant.



298/2004

Sylvia G. Ash, J.

In this action for personal injuries arising out of an automobile accident. Defendants

move for summary judgment dismissing Plaintiff's complaint on the grounds that Plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102(d). Defendants also move to dismiss this action pursuant to CPLR §3126(3) on the grounds that Plaintiff failed to comply with discovery orders. Plaintiff opposes the instant motion on the basis that there are material issues of fact in controversy.

New York Insurance Law §5102(d) defines "serious injury" as follows:

[A] personal injury which results in death; dismemberment;

significant disfigurement; loss of a fetus; permanent loss of use

of a body organ, member, function or system; 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 [*2]

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.

Plaintiff claims that she sustained a serious injury which resulted in a permanent, consequential limitation of use of her cervical spine and lumbar spine; a significant limitation of use of her cervical spine and lumbar spine; and a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of at least ninety days during the one hundred and eighty days immediately following the accident.

Plaintiff was involved in an automobile accident which occurred on February 20, 2001. On the same date, Plaintiff went to the hospital for medical treatment where she was diagnosed with a cervical strain and released a few hours later. Plaintiff returned to work two days after the accident. Shortly thereafter, Plaintiff sought medical treatment from Skymed Medical facility consisting of physical and acupuncture therapy for three and a half months, and chiropractic care for six months. According to Plaintiff's Bill of Particulars, Plaintiff sustained the following permanent injuries:

Post traumatic cervical sprain and strain;

Cervical disc bulges;

Muscular spasm;

Multi-Cervical subluxation;

Cervical paraspinal myospasms;

Subluxation in lumbar spine;

Lumbo myofascitis, myalgia, myositis;

Post traumatic headaches;

Pain;

Suffering;

Emotional distress.

Plaintiff's Bill of Particulars also states, in addition thereto, that Plaintiff sustained injuries to the skin, bones, muscles, tissues, ligaments, blood vessels, nerve and nerve centers of the affected parts of the body. Plaintiff's Bill of Particulars further states that Plaintiff was confined to bed and home for at least ninety days out of the first 189 days immediately following the date of the accident and periodically and intermittently thereafter.

In support of the instant motion, Defendant submitted Plaintiff's Bill of Particulars, Plaintiff's EBT, medical reports from Skymed Medical, P.C., medical reports from Dr. Joseph A. Grillo and medical report from Defendant's medical doctor, Kenneth A. Falvo, M.D., F.A.A.O.S.

Dr. Flavo examined Plaintiff on October 9, 2003. In preparing his report, Dr. Flavo stated that he reviewed Plaintiff's Bill of Particulars, chiropractic report of Dr. Grillo, report from Dr. Bezabeh and acupuncture report dated February 23, 2001. Dr. Flavo conducted range of motion tests of Plaintiff's cervical spine, lumbar spine, and both shoulders, as well as reflex tests of Plaintiff's upper and lower extremities. Based on the records reviewed and Plaintiff's medical examination, Dr. Flavo reported [*3]that Plaintiff's cervical and low back sprains were resolved, and concluded that Plaintiff has no disability in performing her daily living activities and no disability for the continued performance of her usual occupation.

The Court finds that Defendants have established their initial burden of showing that Plaintiff has not sustained a "serious injury" as a matter of law through objective medical documentation. See Toure v. Avis Rent a Car System, 98 NY2d 345 (2002); Gaddy v. Eyler, 79 NY2d 955 (1992).

The burden now shifts to Plaintiff to produce prima facie evidence in admissible form to demonstrate that she sustained a "serious injury" due to the accident. Licari v. Elliot, 57 NY2d 230 (1982); Lopez v. Senatore, 65 NY2d 1017 (1985). In order to defeat a summary judgment motion, Plaintiff must submit medical proof in admissible form contemporaneous with the accident showing any initial range of motion restriction in the cervical spine. Novoselo v. Rizzo, NYLJ, 2/15/2005, col 4 (2nd Dept.); Nemchyonok v. Peng Liu Ying, 2 AD3d 421 (2nd Dept. 2003). Plaintiff's medical proof must also compare the alleged physical limitations to the normal function, purpose and use of the effected area. Toure v. Avis Rent a Car System., supra .

In opposition to the motion, Plaintiff submitted an Affidavit of Merit from Plaintiff and a report from Plaintiff's medical doctor, Paul Post, M.D., F.A.C.S. Plaintiff was examined by Dr. Post, on January 22, 2006. Dr. Post reported that he reviewed Plaintiff's medical reports including an acupuncture report and a neurological evaluation which referenced an MRI of Plaintiff's cervical spine, as well as an EMG/NCV study of the uppers. Dr. Post states in his report that at the time of the office visit, Plaintiff complained of persistent neck pain which radiates to both shoulders associated with a feeling of tightness of same and difficulty in turning her head fully. Plaintiff further complained of a persistent intermittent back pain, worse with sleeping, which awakens her from same. She has pain with bending and lifting, intermittent radiation of pain to the right lower extremity. The Court notes that Plaintiff did not report these complaints to Dr. Falvo when he examined her two (2) years prior to Dr. Post's examination. In fact, Dr. Falvo reported that his physical examination of Plaintiff concluded that her gait and station were normal. She used no aid in ambulation and wears no supports on her body surfaces. She arises from the sitting to standing position without difficulty and climbs onto the examining table likewise.

In her Bill of Particulars, Plaintiff states that she was confined to bed and home for at least ninety days out of the first 180 days immediately following the date of the accident and periodically and intermittently thereafter. However, in her E.T., Plaintiff states that she returned to work as a Security Agent at JFK two (2) days after the accident and resumed the same type of work she had been doing prior to the accident. Additionally, Plaintiff did not allege or submit any medical proof that she was instructed to curtail her regular activities as a result of the injuries she sustained in the accident. As to the claim that the alleged injuries affected Plaintiff's usual and customary activities for not less than 90 days of the first 180 days immediately following the accident, the Court finds that Plaintiff did not submit competent medical evidence to support this claim. Mahabir v. Alley, 2006 NY Slip Op 1003 (2nd Dept 2006); Sainte-Aime v. Ho, 274 AD2d 569 (2nd Dept. 2000; Howell [*4]v. Reupke, 16 AD3d 377, 378 (2nd Dept. 2005). The Court finds that Plaintiff's complaints are subjective in nature and not supported by medical documentation.

It is important to note that Dr. Post's examination of Plaintiff was conducted in 2006, approximately five (5) years after the accident. Plaintiff medical treatment for her alleged injuries ended approximately six months after the accident. Plaintiff states in her Affidavit of Merit that she ended treatment because she was told her condition was permanent and chronic and that it was medically appropriate to discontinue treatment at that time. Plaintiff submits no medical proof to verify this statement. When a Plaintiff terminates treatment after an accident, a reasonable explanation must be given for the gap in treatment when claiming serious injury. Pommells v. Perez, 4 NY3d 5656, 574 (2005); McConnell v. Ovedraogo, 24 AD3d 423 (2nd Dept. 2005); Vallejo v. Builders for the Family Youth, 18 AD3d 741 (2nd Dept. 2005).Although Dr. Post's states in his report that it is his "understanding" that Plaintiff's treatment ended because it provided short-term not long-term relief, Dr. Post did not state what his "understanding" was based on or how he came to that "understanding". An explanation for a gap in treatment must be "concrete and substantiated by the record". Pommell, supra . Therefore, because Dr. Post failed to adequately explain or substantiate the gap in treatment, the Court is left only with Plaintiff's unsubstantiated explanation for the five (5) year gap in treatment.

Notwithstanding the fact that Dr. Post concludes in his report that Plaintiff's alleged condition is casually related to the accident and is permanent and chronic, the Court finds that Dr. Post's affirmation is insufficient to raise a triable issue of fact insofar as it was based upon an examination that occurred approximately five years after the Plaintiff's last medical treatment, a gap in time which was not satisfactorily explained. Paykina V. Golden, 21 AD3d 1021, 802 NYS2d 541 (2nd Dept. 2005).

Based on the foregoing, the Court finds that Plaintiff has failed to raise any material issues of fact in controversy that require a trial.

Accordingly, Defendants' motion for summary judgment on threshold is granted and Plaintiff's Complaint against the Defendant is hereby dismissed..

Due to the fact that Plaintiff's Complaint is dismissed, the Court will not address the issue of Plaintiff's alleged failure to comply with discovery orders.

This constitutes the Decision and Order of this Court. A copy of this decision will be mailed to the parties.

DATED: December 20, 2006

_______________________________

SYLVIA G. ASH, J.C.C.