Lorsirisup v Russo

[*1] Lorsirisup v Russo 2007 NY Slip Op 51394(U) [16 Misc 3d 1112(A)] Decided on July 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2007
Supreme Court, Richmond County

Jane Lorsirisup and Nare Lorsirisup, Plaintiffs,

against

Virginia G. Russo, Salvatore Russo and Precise Brick, Inc., Defendants.



102011/05

Philip G. Minardo, J.

Upon the foregoing papers, defendants' motion for summary judgment is granted in part and denied in part as herein indicated.

Defendants Virginia G. Russo, Salvatore Russo and Precise Brick, Inc. move by notice of motion for an order granting them summary judgment and dismissing the complaint on the ground that neither plaintiff sustained a "serious injury" as required by Insurance Law §§ 5102(d) and 5104(a). Plaintiffs Jane and Nare Lorsirisup oppose such application.

This action arises out of a motor vehicle accident which occurred on August 18, 2004 at or near the intersection of Hamilton Avenue and Smith Street in Brooklyn, New York. Plaintiff Jane Lorsirisup was driving at the time, and his wife, Nare, was a passenger. The action was commenced on or about July 11, 2005 by the filing and service of a summons and complaint upon defendants Virginia and Salvatore Russo. Issue was joined on or about September 2, 2005 by the service of an answer.

In a decision and order dated June 23, 2006 and entered June 29, 2006, this Court granted plaintiffs' motion for partial summary judgment against defendants Virginia and Salvatore Russo on the issue of liability. In addition, defendants' counterclaim was dismissed. On or about June 14, 2006, plaintiffs served a supplemental summons and amended complaint adding Precise Brick, Inc. as a defendant. An amended answer was served on behalf of all three defendants on or about June 27, 2006, in which a counterclaim substantially identical to that previously dismissed was asserted.

Plaintiff Jane Lorsirisup is alleged to have sustained the following injuries: -Cervical derangement with C3-4 through C6-7 herniations with C5-6 radiculopathy;[*2]

-Lumbosacral derangement with L3-4 bulges, L4-5 and L5-S1 herniations;

-Exacerbation of previously asymptomatic underlying degenerative joint disease;

-Herniations of C3-C7;

-Herniations of L5-S1;

-C5-6 and L5-S1 radiculopathy;

-Tear of left shoulder rotator cuff tendon;

-Dizziness;

-Low back pain;

-Muscle spasm;

-Diplopia (double vision).

Plaintiff Nare Lorsirisup alleges the following injuries: -Cervical derangement with C2-C6 herniations and C5-6 radiculopathy;

-Lumbosacral derangement with L3-4 and L5-S1 herniations and L5-S1 radiculopathy;

-Disc herniation at C2-C6 with cord compression;

-Herniations at L3-S1 with compression;

-Torn medial meniscus of the left knee;

-Left knee join effusion;

-Post-concussion syndrome;

-Vertigo;

-Headaches.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500. On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). In order to prevail, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d [*3]557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in Court, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (see Persaud v Darbeau, 13 AD3d 347).

Insofar as is applicable, the Insurance Law provides that there shall be no right to recover damages for personal injuries sustained in a motor vehicle accident unless said injuries may be characterized as "serious" within the meaning of section 5102(d) of the Insurance Law (see Insurance Law §5104[a]). Accordingly, upon a prima facie showing by a moving defendant that plaintiff did not sustain a "serious injury", the latter's failure to raise a triable issue as to the "seriousness" of his or her injury will result in the dismissal of the complaint (see Toure v Avis Rent A Car Sys., 98 NY2d 345).

In moving for summary judgment, defendants contend that neither plaintiff has sustained a statutory "serious injury". In support of this contention defendants rely upon the deposition testimony of each plaintiff, as well as the expert affirmations of Drs. Robert Israel and Naunihal Sachdev Singh.

According to his deposition testimony, Mr. Lorsirisup did not inform the police at the scene of the accident that he was experiencing pain, and no ambulance was called (EBT of Jane Lorsirisup, p 36). In fact, Mr. Lorsirisup was driven from the scene in his own vehicle to the factory which he owns with his wife (id. at 38), where he worked until 5:00 p.m. before returning home (id. at 40-41). He did not seek-out medical treatment for approximately one week, at which time he was administered intermittent physical therapy, acupuncture and other alleged palliative treatment for purported back and shoulder pain at a facility that he located in the local newspaper (id. at 41-43, 45-47). In the following year (2005) there were four significant interruptions in his treatment when Mr. Lorsirisup traveled to Central and South America, Australia, Moscow and Italy on business. Each trip lasted approximately one month. Since the accident, Mr. Lorsirisup claims to have difficulty lifting and moving certain objects as he had previously (id. at 61).

On April 4, 2006, the plaintiff-husband was subjected to a [*4]thorough orthopedic examination by Dr. Robert Israel, a board certified orthopedist. According to the doctor, an examination of his cervical spine revealed normal lordosis with no muscle spasm present; his cervical compression test was negative; and he exhibited full range of motion as compared to stated norms. The same was true with respect to the lumbar spine, i.e., he exhibited no restriction in range of motion as compared to the normal ranges. Straight leg raising was stated to be negative bilaterally, as was his Laseque's test. An examination of Mr. Lorsirisup's shoulder revealed full range of motion, with no instability present. His drop arm, Yergason, apprehension and speed tests were also negative. Based upon these findings and a review of his medical history and records, Dr. Israel opined that any sprains which Mr. Lorsirisup may have suffered as a result of this accident had resolved, and that he had no orthopedic disability.

Two days later, i.e., on April 6, 2006, Dr. Naunihal S. Singh, a board certified neurologist, conducted a thorough neurological examination of Mr. Lorsirisup, which included, inter alia, range of motion studies of the cervical and lumbar spines and shoulder joints. In every instance, a full range of motion was exhibited as compared to the stated norms, with no tenderness or spasms present. Functional muscle testing revealed muscle strength to be normal in both arms and both legs, with no fasciculations or atrophy. In addition, palpation of the thoracic spine revealed no vertebral tenderness or spasms. Supine and sitting straight leg-raising was possible up to 90 degrees on both sides. Based on these results, Dr. Singh opined that any cervical or lumbar sprains that Mr. Lorsirisup may have suffered in the accident had resolved. The doctor found no evidence of any neurological disability, and opined that Mr. Lorsirisup could perform all of the activities of daily living without restriction.

At her deposition, Mrs. Lorsirisup, testified that she refused to go to the hospital after the accident because she thought she was alright (EBT of Nare Lorsirisup, pp 20-21). Like her husband, she went to work after the accident and did not seek medical treatment until a week or two after the accident (id. at 23-24, 28). Thereafter, she received acupuncture and physical therapy at the same clinic as her husband (id. at 30), and experienced the same four, month-long interruptions when she traveled abroad with her husband during 2005 (id. at 33). Mrs. Lorsirisup admitted that she had been [*5]confined to her bed and home for only one or two days immediately after the accident (id. at 44), but claims that

she stopped working for about one half year after the accident and is now unable to work for more than a few hours without feeling tired; no longer cooks; and is afraid to carry her grandchildren (id. at 48).

Mrs. Lorsirisup was also examined by Dr. Israel on April 4, 2006. According to the doctor, an examination of her cervical spine revealed normal lordosis, with no muscle spasm present. Her cervical compression test was negative, and she exhibited full range of motion as compared to the stated norms. An examination of her thoracic spine was also unexceptional, revealing normal curvature with no spasms present. The same was true of the orthopedic examination of her lumbar spine, which yielded no restrictions in range of motion as compared to stated norms. Her straight leg raising test was negative bilaterally, as was her Laseque's testing. Her knees also tested negative bilaterally. She exhibited full range of motion, and no instability was detected. In addition, her McMurray, Lachman, anterior draw and posterior draw tests were all negative. Mindful of her medical history, Dr. Israel opined that Mrs. Lorsirisup presented with no evidence of any disability from an orthopedic point of view, and that any allegations of continued injury appeared to be unsupported. His diagnosis was one of resolved cervical, lumbar and thoracic sprains, as well as resolved knee contusions.

In his neurological examination of Mrs. Lorsirisup on April 6, 2006, Dr. Singh reported that her cervical, thoracic and lumbar spines revealed no vertabral tenderness or spasms, with full range of motion as compared to stated norms. Her Foraminal Compression test and Valsalva's maneuver were each negative; her supine and sitting straight leg raising was possible up to 90 degrees on both sides; and an examination of her shoulder joints revealed no tenderness with full range of motion bilaterally when compared to "normal". The doctor found no evidence of fasciculations or atrophy; her muscle strength in both arms and legs was stated to be normal, as was her sensory examination. Her Romberg's test was negative. Based on the foregoing and a review of her medical history, Dr. Singh opined that Mrs. Lorsirisup's symptoms of cervical and lumbar sprain associated with the accident had fully resolved, and that there was no need for further treatment. In this regard, it was the doctor's impression that any residual pain in her knees, right elbow and [*6]shoulder was due to osteoarthritis. Dr. Singh concluded that Mrs. Lorsirisup was not disabled from the activities of daily living.

Based on the foregoing evidence, it is the opinion of this Court that defendants have satisfied their burden of demonstrating prima facie that neither plaintiff sustained a "serious injury" within the meaning of § 5102(d) of the Insurance Law. Thus, it is incumbent upon each to raise a triable issue of fact as to the seriousness of his or her injury or suffer dismissal of the complaint.

In attempting to meet this burden, plaintiffs' rely on (1) the expert affirmations of Dr. Jay Komerath and Dr. Aric Hausknecht; (2) MRI reports indicating that both plaintiffs suffer from disc herniations; and (3) EMG/NCV studies indicating that they also suffer from radiculopathy. In addition, plaintiffs allege that defendants have failed to sustain their burden of demonstrating that neither sustained a serious injury which prevented him or her "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 accident (Insurance Law § 5102[d]).

Dr. Jay Komerath is affiliated with New York Comprehensive Medical, P.C. (hereafter "NYCM"), the rehabilitation clinic which was utilized by both plaintiffs.

Dr. Komerath avers[FN1] that the plaintiff-husband received treatment from various medical doctors at NYCM from September 20, 2004 through December 2004[FN2]. Based upon his review of the pertinent medical files maintained in its office, the doctor states that the physical examinations of Mr. Lorsirisup revealed mild to moderate restrictions in range of motion of his spine and shoulders, which was treated with hot and cold packs, therapeutic ultrasound, electrical stimulation and exercise. In addition, Dr. Komerath states that an MRI of this patient's [*7]cervical spine taken on September 23, 2004 revealed anterior and posterior disc herniations, and that an MRI of the lumbosacral spine taken on October 4, 2004 revealed a straightening of the lumbar lordosis consistent with posterior disc herniation[FN3]. He further states that the conduction studies performed on this plaintiff on September 19, 2004 revealed evidence of acute denervation in the muscles supplied by the C5-C6 and L5-S1 nerve roots bilaterally. In conclusion, the doctor opined that the plaintiff-husband had sustained permanent spinal injuries as a result of the accident on August 18, 2004, and that said injuries will prevent him from participating in many activities which require the rotation or bending of the neck and lower back.

Dr. Aric Hausknecht is a physician at Complete Medical Care Services of New York, who treated Mr. Lorsirisup and supervised the series of three lumbosacral epidural injections which this patient received on March 28, 2006, May 23, 2006 and June 28, 2006.

In his affirmation a narrative report dated January 12, 2006, Dr. Hausknecht states that after reviewing all of the available medical records and diagnostic test results, he conducted a neurological examination of Mr. Lorsirisup in which the latter appeared to be mostly normal, except for some weakness in the shoulder abductor. The remainder of the patient's motor strength appeared intact in both the upper and lower extremities, with no measurable atrophy. While the doctor detected cervical paravertebral tenderness and associated muscular spasm in Mr. Lorsirisup, he could not find any discrete "trigger points" upon deep muscle palpation. Range of motion testing of the cervical spine was stated to be generally normal, with observed deficits in left and right lateral flexion. The same was stated to be true of the patient's thoracic-lumbar spine, except for a deficit detected in forward flexion. The remainder of the patient's range of motion was found to be unrestricted in all directions. Dr. Hausknecht states that he personally reviewed the MRI films taken on September 26, 2004 and October 4, 2004, and found disc herniations in the cervical [*8]and lumbosacral spines. In addition, the NCV/EMG studies dated September 19, 2004 were said to reveal bilateral radiculopathy. This was confirmed when Dr. Hausknecht performed his own NCV/EMG study on January 12, 2006[FN4]. Based upon all of the above, Dr. Hausknecht diagnosed Mr. Lorsirisup with an exacerbation of previously asymptomatic underlying degenerative joint disease, and opined with a reasonable degree of medical certainty that the accident had caused this patient to sustain permanent consequential limitations of use of his cervical and lumbosacral spines which limited the activities of daily living. In addition, Dr. Hausknecht observed that while the plaintiff-husband had received an adequate course of rehabilitation, he was unlikely to derive any additional benefit from further restorative therapy. On August 29, 2006, pursuant to a subsequent office visit, Dr. Hausknecht re-affirmed the findings and opinions stated in his earlier affirmation.

As to the plaintiff-wife, Dr. Komerath affirmed that Mrs. Lorsirisup had received treatment from various medical doctors at NYCM from September 20, 2004 through the date of his affirmation, i.e., January 12, 2007. Based, inter alia, upon his review of the medical file contained in that office, as well as his personal knowledge of the physical examinations conducted by him, Dr. Komerath states that Mrs. Lorsirisup's cervical and lumbosacral spines and shoulders revealed restrictions in her range of motion when compared to stated norms, which were treated with hot and cold packs, therapeutic ultrasound, electrical stimulation and exercise. In addition, Dr. Komerath noted that her MRIs revealed herniations in the patient's cervical and lumbosacral spine, and that a further MRI of her left knee taken on October 27, 2004 revealed a torn medial meniscus. Based upon all of the above, Dr. Komerath opined within a reasonable degree of certainty that Mrs. Lorsirisup's injuries (1) were causally related to the subject accident; (2) are permanent in nature; and (3) will prevent her from participating in many activities that require rotation or bending of the neck and lower back.

In his affirmed report of the neurological examination of Mrs. Lorsirisup conducted at the request of Dr. Komerath on January 12, 2006, Dr. Hausknecht states that his tests of the [*9]patient's mental status and cranial nerves fell within recognized limits, but that some weakness was seen in the intrinsic muscles of both hands and the hip flexors. He also detected paravertebral tenderness and associated muscle spasm. Her Spurling maneuver was positive bilaterally, as was her seated straight leg raising. Range of motion of the cervical spine demonstrated some observed deficit in left and right flexion. Upon his review of the MRI studies of Mrs. Lorsirisup's cervical and lumbar spines, Dr. Hausknecht found herniations to be present, while a review of the NCV/EMG studies of her upper and lower extremities revealed evidence of radiculopathy. Based on all of the above, Dr. Hausknecht diagnosed Mrs. Lorsirisup with permanent consequential limitations of use of her cervical and lumbosacral spines, each of which was stated to be causually related to the subject accident. Dr. Hausknecht also concluded that Mrs. Lorsirisup had received an adequate course of rehabilitation, but that she was unlikely to derive any further benefit from restorative therapy. Following a further neurological examination of Mrs. Lorsirisup on January 4, 2007, Dr. Hausknecht noted additional deficits as to range of motion in both the cervical and thoracic lumbosacral spines and additional deficits of the cervical spine were noted in comparison to normal limits. Deficits were also noted in the range of motion testing of her thoracic lumbosacral spine in left and right lateral flexion, extension and forward flexion. Each was observed to be below stated norms.

In reply, defendants allege that plaintiffs have failed to raise a triable issue on "serious injury". In pertinent part, they contend that (1) the unsworn medical records attached as exhibits to the opposing papers have no probative value; (2) a herniated disc is not per se evidence of a "serious injury"; and (3) plaintiffs have failed to submit any competent evidence sufficient to support the claim of a medically determined "serious injury" under the 90/180 category. They also contend that the affirmations by Drs. Komerath and Hausknecht are fatally flawed because they are not based upon recent examinations; are lacking in an objective basis; and reveal unexplained gaps in treatment.

Insurance Law § 5102(d) defines the term "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture, loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of body organ [*10]or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment".

It has long been recognized that the intent of the legislature in enacting section 5102(d) was to weed out frivolous claims and limit the right to recover to instances of significant injury (Dufel v Green, 84 NY2d 795, 798). In pursuance of this goal, the Court of Appeals has attempted to provide guidance to the trial courts by specifying the nature and extent of the objective medical proof necessary for a plaintiff to meet the "serious injury" threshold under the No-Fault Law (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350), and by holding that subjective complaints alone are insufficient (Lopez v Senatore, 65 NY2d 1017, 1020; Gaddy v Eyler, 79 NY2d 955, 957-958). In this regard, the Court has stated that an expert's designation of a numeric percentage of, e.g., loss of range of motion can be sufficient when quantified and compared to established norms (Toure v Avis Rent A Car Sys., 98 NY2d at 350), as may such expert's qualitative assessment of an injury supported by objective evidence of, e.g., spasm. Even in this case, however, the alleged limitations in function, purpose and use of the affected body organ, member, function or system must be related or compared to "normal" (Dufel v Green, 85 NY2d at 798). Additional complications arise when the nature of the materials upon which an expert may rely are considered. For example, in this Department at least, an expert may not rely upon the unsworn reports of others (Moore v Sarwar, 29 AD3d 752). Nor may a prior injury or a significant gap in treatment be disregarded (Pommells v Perez, 4 NY3d 566; Allyn v Hanley, 2 AD3d 470). Thus, even where objective medical proof of a "serious injury" is present, a complaint seeking damages for personal injury may be summarily dismissed where a prior injury or a gap in treatment is neither acknowledged nor explained.

Needless to say, there is no mathematical formula for calculating how much of an interval between visits constitutes a "gap" in treatment, nor is there a specific standard regarding which explanations are "reasonable" (Baez v Rahamatali, 24 AD3d 256, affd 6 NY3d 876). The single best explanation for a [*11]cessessation in treatment is clearly a medical determination that the person in question has already achieved the maximum result, as medical treatment need not be continued without a corresponding benefit (Pommells v Perez, 4 NY3d at 576). Neither may an injured party be required to continue treatment which he or she can ill afford once no-fault benefits have terminated. The fact that such explanations are subject to abuse and may be crafted as necessary to forestall summary judgment is simply another issue that must be confronted by the court. In this as in all such matters, it is ultimately the experience of the court which guides the determination of whether or not a triable issue of "serious injury" is presented. Here, it having already been determined that defendants have satisfied their initial burden of proving that neither plaintiff sustained a "serious injury" in the accident of August 18, 2004, it becomes incumbent upon plaintiffs to raise a triable issue of fact in order to thwart summary judgment.

In making this determination, the Court begins by noting that the mere existence of disc herniations in each plaintiff does not constitute prima facie evidence of a "serious injury" in the absence of any objective evidence of the extent and duration of the physical limitations resulting therefrom (Mejia v Drose, 35 AD3d 407, 408). Moreover, it appears that one of plaintiffs' experts, Dr. Komerath impermissibly relied upon the unsworn MRI and nerve conduction studies of others rather than his independent review of the underlying films and data in reaching his diagnoses. In addition, it appears that his averments regarding the alleged restrictions in range of motion of the plaintiff-husband were never properly related or compare to the stated norms.

As for Dr. Hausknecht, his neurological findings regarding Mr. Lorsirisup were essentially normal, although he found objective evidence of radiculopathy. Critically, he also concluded that the presence of degenerative joint disease in this plaintiff had been asymptomatic prior to the subject accident.

With respect to Mrs. Lorsirisup, both Dr. Komerath and Dr. Hausknecht found multiple limitations in her ranges of motion based upon objective testing along with objective evidence of radiculopathy and dis herniation. In addition, Mrs. Lorsirisup testified that she stopped working for one-half a year.

In view of the foregoing, and mindful of the legislative intent to limit personal injury actions in these matters to [*12]cases of significant injury (see Dufel v Green, 84 NY2d at 798), it is the opinion of this Court that Mr. Lorsirisup has failed to raise a triable issue of fact on "serious injury", while Mrs Lorsirisup has.

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted as to Jane Lorsirisup and denied as to Nare Lorsirisup;

ORDERED that the complaint by Jane Lorsirisup is severed and dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

s/ Philip G. MinardoJ.S.C.

Dated: July 6, 2007 Footnotes

Footnote 1:The Court notes that the affirmations by Dr. Komerath are submitted specifically in opposition to the summary judgment motion, while three of the four affirmations by Dr. Hausknecht pre-date the motion, and are addressed "To whom it may concern".

Footnote 2:This is contradicted by the deposition testimony of Mr. Lorsirisiup, who testified that he only received therapy at NYCM during the week before his deposition, and that additional appointments had been scheduled (EBT of Jane Lorsirisup, p 59).

Footnote 3:It appears from the affirmation of Dr. Komrath that his observations regarding these MRIs and nerve conduction studies were not based upon his independent review of the films and/or test results, but rather on the impressions of others. According to Mr. Lorsirisup, these MRIs had not been performed at NYCM (EBT of Jane Lorsirisup p 46).

Footnote 4:Attached as Plaintiffs' Exhibit "D" is an affirmed, but undated copy of an NCV/EMG report for Mr. Lorsirisup performed by Dr. Hausknecht.