Rosa v New York City Tr. Auth.

[*1] Rosa v New York City Tr. Auth. 2007 NY Slip Op 51321(U) [16 Misc 3d 1106(A)] Decided on July 2, 2007 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2007
Supreme Court, Richmond County

Lucille Rosa and Luis Rosa, Plaintiffs,

against

New York City Transit Authority, Linda Haith, Alexander Kazdan, and A & J Tire Repair, Defendants.



12440/04

Philip G. Minardo, J.

Upon the foregoing papers, the motions for summary judgment dismissing the complaint by defendants Alexander Kazdan and A&J Tire Repair (No. 030), and defendants New York City Transit Authority and Linda Haith (No. 033), on the ground that the injuries sustained by plaintiff Lucille Rosa fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) are granted, and the complaint is dismissed.

This matter arises out of a two vehicle accident which occurred on January 28, 2004, on Forest Avenue near the intersection of Bruckman Avenue, in Staten Island, New York, between a bus owned by the defendant New York City Transit Authority and operated by defendant Linda Haith (hereinafter, collectively, the "NYCTA") and a vehicle owned by defendant A&J Tire Repair and operated by defendant Alexander Kazdan. As a result of the accident, plaintiff Lucille Rosa (hereinafter "plaintiff"), a passenger on the bus, claims to have sustained "serious personal injuries [FN1] including herniated discs at L4-L5 and L5-S1, as well as "lesion in the bone marrow of C7" (Plaintiffs' Verified Bill of Particulars, para 12). It is conceded that plaintiff sustained injuries to her cervical and lumbar spines in a prior automobile accident occurring on September 13, 2001, for which she had undergone treatment (see Plaintiff's January 25, 2006 Examination Before Trial, pp 49 - 55). [*2]

In support of their motions for summary judgment, defendants Kazdan and A&J Tire Repair have submitted the December 2, 2005 affirmations of a neuroradiologist, Dr. Jeffrey N. Lang, who reviewed a February 27, 2004 MRI study of plaintiff's lumbosacral spine and a February 26, 2004 MRI study of plaintiff's cervical spine. According to Dr. Lang, there was no evidence of herniated discs at C7, L4-L5 or L5-S1 but rather "non traumatic finding[s] unrelated to a recent accident" and "annulus tears with bulges...[that] strongly mitigate[ ] against this being related to an accident which occurred on 1/28/04" (see Defendants' Exhibit F). Also submitted by these defendants is the June 22, 2005 affirmation of a neurologist, Dr. Mohsin Ali, who concluded after his examination that plaintiff's lumbar spine sprain has "resolved", and that she "has no causally related disability" (see Defendants' Exhibit H). Additionally, defendants attach the June 22, 2005 affirmation of an orthopedic surgeon, Dr. Robert Zaretsky, who also found "no causally related orthopedic disability." In the opinion of Dr. Zaretsky, plaintiff's alleged cervical lesion at C7 and herniated lumbar discs at L4-L5 and L5-S1 were each "pre-existing" (see Defendants' Exhibit I).

In support of its motion, the NYCTA submits copies of the aforementioned affirmed reports of Drs. Ali and Zaretsky, as well as, inter alia, uncertified copies of the reports of cervical and lumbar MRIs performed by plaintiff's physicians in October of 2001 as a consequence of the prior automobile accident (see Defendants' Exhibit F). At a minimum, these reports indicate that plaintiff's current complaints involve the same portions of the spine as were purportedly injured in the prior accident.

In opposition, plaintiff argues that the injuries to her spine are "serious" within the meaning of Insurance Law §5102(d), and attaches her own February 9, 2007 affidavit in which she outlines, inter alia, her present complaints and the course of treatment which she has pursued (see Plaintiffs' Exhibit A). In sum and substance, plaintiff avers that she was symptom free from the 2001 accident when this accident occurred. In supplemental papers, plaintiff also submits the March 14, 2007 affidavits of two chiropractors, Dr. John Pizza and Dr. Ronald Porcello. The former began treating plaintiff on February 3, 2004, and the latter reexamined plaintiff in connection with these motions, on January 24, 2007. Neither doctor treated plaintiff following the 2001 accident, but both acknowledged plaintiff's prior accident when concluding that the current restrictions in plaintiff's cervical and lumbar ranges of motion constitute a permanent partial disability which is directly related to the subject accident (see Plaintiffs' Exhibit B).

In the opinion of this Court, defendants have submitted sufficient evidence to demonstrate their right to judgment as a matter of law. Here, the affirmed medical reports of defendants' neurologist and orthopedic surgeon detailing the objective tests performed upon plaintiff , and demonstrating that she has full range of motion in the affected areas, supports their conclusion that plaintiff has recovered from any sprains or strains that she may have suffered in the instant collision. Moreover, the foregoing is consistent with the opinion set forth in the affirmation of the radiologist who reviewed plaintiff's 2004 MRI films, and found that she had not sustained a disc injury as a result of this accident. Viewed together, these affirmations are clearly sufficient to satisfy defendants' burden of establishing a prima facie case that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d) (see Nagbe v. Minigreen Hacking Group, 22 AD3d 326). Consequently, the burden of proof has shifted to the plaintiff to present sufficient admissible evidence to raise a triable issue of fact that she sustained a serious injury (see Gaddy v. Eyler, 79 NY2d 955).

Plaintiff at bar has failed to meet this burden. The affidavits of plaintiff's chiropractors are [*3]insufficient to establish a causal relationship between plaintiff's alleged injuries and the accident of January 28, 2004, inasmuch as neither can attest that plaintiff was asymptomatic at any time following the 2001 accident. Moreover, plaintiff's experts failed to address the absence of trauma noted in the MRI reports prepared by Dr. Lang (see Passaretti v. Ping Kwok Yung, ___AD3d___, 2007 NY Slip Op 02915; Tudisco v. James, 28 AD3d 536). This failing is particularly relevant here, since plaintiff's October 2001 MRIs indicate injuries to the same areas where only non-traumatic changes were reported in the 2004 MRI reports of Dr. Lang (cf. Pagano v. Kingsbury, 182 AD2d 268, 271).The foregoing renders the opinions of plaintiff's experts speculative as to causation.

Considered in the light most favorable to the plaintiff, the evidence adduced is nevertheless insufficient to raise a material issue of fact as to whether she sustained a serious injury as defined in Insurance Law §5102(d).

Accordingly, it is

ORDERED, that defendants' motions for summary judgment are granted, and the complaint is dismissed; and it is further

ORDERED, that the Clerk of the Court enter judgment accordingly.

E N T E R,

Dated: July 2, 2007s/ Philip G. Minardo

J. S. C. Footnotes

Footnote 1:In her November 8, 2004 Verified Bill of Particulars, plaintiff fails to enumerate the categories under which she claims to have sustained a "serious injury" pursuant to Insurance Law §5102(d) (see para 25).