Diaz v Kanuteh

[*1] Diaz v Kanuteh 2006 NY Slip Op 52666(U) [21 Misc 3d 1137(A)] Decided on February 1, 2006 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2006
Supreme Court, Bronx County

Joseph Diaz, Plaintiff,

against

Bangaly Kanuteh, CEESAY'S EXPRESS INC., ROLAND K. MICHELY, GLEN BOLES, H IM KWANG, J IM SUNG and ERIC C. ANDERSON, Defendants.



16554/2002



Counsel for plaintiff:Marylyn P. Lipman, Esq.

32 Court Street, Suite 1500

Brooklyn, NY 11201

Counsel for defendants Kanuteh and Ceesay:Carol A. Simpao, Esq.

Norman Volk & Associates, PC

333 West 33rd Street, 7th Floor

New York, NY 10001

Counsel for defendants Michely and Boles:Lauren J. Walter, Esq.

Barnett & Walter, LLP

1205 Franklin Avenue, Suite 275

Garden City, NY 11530

Counsel for defendants Kwang and Sung:Costas M. Eliades, Esq. and Robert W. Allen, Esq.

Acito Klein & Candiloros, PC

535 Fifth Avenue

New York, NY 10017

Betty Owen Stinson, J.

This motion by defendants Bagalay Kanuteh ("Kanuteh") and Ceesay's Express Inc. ("Ceesay's") for summary judgment dismissing plaintiffs' complaint is granted. Cross-motion by defendants Roland K. Michely ("Michely") and Glen Boles ("Boles") for the same relief is [*2]granted to the extent that plaintiff's complaint is dismissed for failure to demonstrate a serious injury. Cross-motion by defendants H Im Kwang ("Kwang") and J Im Sung ("Sung") for the same relief and for sanctions is granted to the extent that plaintiff's complaint is dismissed for failure to demonstrate a serious injury.

On May 8, 1999, plaintiff was on a ramp exiting the Bruckner Expressway when he saw a minor accident in front of him and another car, apparently Kwang's and Sung's, stopped behind the accident. Plaintiff stopped his car and it was hit from behind by a white delivery truck owned by Ceesay's and driven by Kanuteh shortly thereafter. Plaintiff testified that his car came in contact with no other vehicle. Michely testified that he was also stopped on the ramp and the white delivery truck hit his car in the rear also. Michely was stopped in one lane but the delivery truck was in the middle of the ramp. Michely testified that his car came in contact with no other vehicle.

Plaintiff commenced suit against all the named defendants claiming injuries including herniated or bulging discs at C6-7 and C5-6, exacerbation of prior disc injuries at C3-4 and C4-5, exacerbation of prior back injuries consisting of bulging discs at L3-4, L4-5 and L5-S1 and lumbar radiculopathy, left arm pain and right shoulder pain. Defendants Kanuteh and Ceesay's moved for summary judgment dismissing the complaint for plaintiff's failure to demonstrate a serious injury. Defendants Michely and Boles cross-moved for the same relief and for dismissal based on their lack of liability. Defendants Kwang and Sung moved for the same relief as Michely and Boles and for sanctions against the plaintiff.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).

In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent loss of use of a body organ, member, function or system", a "permanent consequential limitation of use of a body organ or member", a "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 constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v. Palmieri, 1 NY3d 536 [2003]; Licari v. Elliot, 57 NY2d 230 [1982]).

To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" [*3]requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). A permanent loss of use must be "total" in order to satisfy the serious injury threshold (Oberly v. Bangs Ambulance, 96 NY2d 295 [2001]; Hock v. Aviles, 21 AD3d 786 [1st Dept 2005]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 678 [1987]). To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708)."Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommels v. Perez, 4 NY3d 566 [2005]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]).

The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v. Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v. Louise Cab Co.,108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v.Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).

In support of their motions, Kanuteh and Ceesay's offered the plaintiff's bill of particulars, his deposition testimony and the affirmed report of Dr. Alan David, neurologist; Michely offered relevant portions of his deposition testimony and Kwang and Sung offered the affirmed report of Dr. Michael J. Katz, orthopedist. Plaintiff and Michely testified as set forth above. In addition, plaintiff testified that his back was still bothering him from a 1996 motor vehicle accident and he was not lifting heavy objects due to that prior occurrence at the time of the subject accident.

Dr. David examined plaintiff on March 29, 2005. Plaintiff's complaints were neck and lower back pain and headaches. Dr. David found full range of motion of plaintiff's cervical and lumbar spine. Straight-leg raising, Kernig's and Hoover's tests were all negative. Spurling's, Jackson's and Soto-Hall's tests were all negative. The conclusion was normal neurological examination.

Dr. Katz examined plaintiff on June 9, 2005. Plaintiff's only complaint was difficulty in [*4]turning his head. Dr. Katz found full range of motion of the cervical and lumbar spine and right shoulder. Straight-leg raising and Patrick's tests were negative. There was no impingement of the right shoulder and no crepitation of the AC joint. Dr. Katz' diagnosis was cervical and lumbar strain and right shoulder contusion, all resolved. He found no signs or symptoms of permanence causally related to the subject accident.

In opposition to the motions, plaintiff submitted his own affidavit and the affirmation of Dr. Richard Morgan, D.O. Plaintiff stated in his affidavit dated September 8, 2005 that he no longer has problems with his head, but still experiences neck and back pain for which he has undergone physical therapy for the past six years. The subject accident worsened his neck pain and created a right arm problem. Approximately one and one-half year after the subject accident, sometime at the end of 2000, plaintiff returned to the gym where he had a membership. At some point, he experienced "shooting" pain and numbness in his arms and stopped. He has not returned to the gym after 2003. He can no longer play with his nephews, play paint ball or war games, exercise in the gym, carry heavy objects or sit or stand for long periods.

Dr. Morgan, physiatrist, first examined plaintiff in March 2005 and last saw him on July 12, 2005. Dr. Morgan treated plaintiff on an "as needed" basis during that period, finding numerically decreased range of motion of plaintiff's neck, without specifying the tests used to reach those results, and right rotator cuff strain/sprain. Dr. Morgan speculated that the subject accident "most likely" exacerbated plaintiff's earlier neck injury because plaintiff has more disc bulges now than he did after the 1996 accident. No MRI reports were offered to show when those respective findings were made and there is no indication Dr. Morgan reviewed the films. He stated that plaintiff's lumbar injuries, on the other hand, had resolved.

Defendants have established their entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendants met their burden of showing by admissible medical evidence that the plaintiff suffered from sprain injuries which have completely resolved, whether they originated with the 1996 accident or the 1999 accident. Plaintiff's testimony that he missed only one month of work is sufficient to preclude a finding of a medically-determined injury that prevented him from performing substantially all his customary daily activities. Neither plaintiff's subjective complaints in his affidavit, drafted for the purpose of opposing these motions, nor Dr. Morgan's affirmation are sufficient to show either significance, permanence or causation. No medical records were offered to substantiate plaintiff's claimed continuous treatment or even the herniated and bulging discs. Dr. Morgan's conclusion that plaintiff's 1996 neck injuries were "most likely" exacerbated by the 1999 accident is insufficient to constitute prima facie proof of that opinion. Even if the opinion were more definite, it would not suffice as to the causal relationship between present injuries and an accident that happened six years earlier. It is clear from plaintiff's own affidavit that his shoulder injury dates from activities at the gym unrelated to the subject accident and Dr. Morgan contradicts the plaintiff's claim of back pain by his opinion that plaintiff's lumbar injuries have resolved. Plaintiff cannot create an issue of fact by contradicting his own expert in an affidavit drafted in opposition to summary judgment.

The complaint is, therefore, dismissed in its entirety. In light of that disposition, the court does not reach the issue of liability. That branch of the cross-motion seeking sanctions is denied; movants did not offer sufficient evidence to show defendants Kwang's and Sung's obvious [*5]involvement or lack thereof in the subject accident. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.

This constitutes the decision and order of the court.

Dated: February 1, 2006

Bronx, New York

_______________________________

BETTY OWEN STINSON, J.S.C..