Sanchez v Rosendo

[*1] Sanchez v Rosendo 2007 NY Slip Op 51436(U) [16 Misc 3d 1115(A)] Decided on July 26, 2007 Supreme Court, Kings County Starkey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2007
Supreme Court, Kings County

Pablo A. Sanchez, Plaintiff,

against

Piris Rosendo a.k.a. Rosendo Piris, Luis A. Alvarez and Khan Commuters of Queens, Inc., Defendant.



50101/2000



For the Plaintiff(s):

Robert J. Woolsey, Esq.

305 Broadway, 14th Floor

New York, New York 10007

For the Defendant(s): Alvarez

Baker, Mcevoy, Morrissey & Moskovits, P.C.

330 West 34th Street, 7th Floor

New York, New York 10001

James G. Starkey, J.

By notice of motion dated January 22, 2007, defendant Luis A. Alvarez seeks summary judgement pursuant to CPLR § 3212 dismissing plaintiff's complaint in its' entirety pursuant to Insurance Law § 5102(d).

The parties appeared in Part 6 of this Court for oral argument on the motion on May 16, 2007 and decision was reserved. `

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Pablo A. Sanchez was operating his vehicle on January 25, 1998 at approximately 5:50AM when the vehicle operated by defendant Piris Rosendo a.k.a. Rosendo Piris (hereinafter "Piris") and owned by moving defendant Luis A. Alvarez (hereinafter "Alvarez") collided with plaintiff's vehicle at the intersection of Montrose Avenue and Leonard Street, Brooklyn, New York. Plaintiff's vehicle was traveling on Montrose Avenue proceeding through a green light when defendants' vehicle traveling on Leonard Street collided into the driver's side of plaintiff's vehicle. A police squad car was nearby and at least one police officer witnessed the accident. Piris was arrested for operating a motor vehicle while intoxicated [*2]and was subsequently convicted of this offense.

Due to the heavy impact, fire department rescue personnel had to remove the driver's door before plaintiff could be taken by ambulance to Bellevue Hospital. Plaintiff's lower leg

just above his left ankle was lacerated and bleeding, however he did not lose consciousness as a result of the accident. Plaintiff's chief complaints in the emergency room were of pain to his neck, chest and left leg and he was treated and released later that same day.

A day or two later, plaintiff went to Greene Avenue Medical P.C. and came under the care of several doctors whom he could not identify. He was referred for MRI's of the back and neck, and received treatment at Greene Medical for approximately five months. He missed 45 continuous days of work [FN1], and returned to work "part time" for two years thereafter.[FN2]

On December 26, 2000, plaintiff commenced this action seeking recovery for the injuries sustained by filing a summons and complaint against Alvarez and Piris. Several days before the expiration of the service window pursuant to CPLR § 306-b, plaintiff filed a Supplemental Summons and Amended Verified Complaint naming Khan Commuters of Queens, Inc., as an additional defendant.[FN3] Defendants Alvarez and Piris were served with this Supplemental Summons and Amended Verified Complaint on April 24, 2001 pursuant to CPLR § 308(4). However, defendant Khan Commuters of Queens, Inc. appears to have never been served.[FN4]

On November 26, 2001, plaintiff filed a Request for Judicial Intervention and a Default Judgment Motion as against all named defendants, even though defendant Alvarez appeared and filed an Answer with the court on May 8, 2001. This motion was returnable December 19, 2001, but adjourned to January 22, 2002, and opposed by counsel for defendant Alvarez. The motion was "marked off" by order of the court (Steinhardt, J., Part 31), at the call of the calendar on January 22, 2002.

After a prolonged discovery period wherein this matter was marked off and restored on two separate occasions by separate orders of the court the parties appeared in the Central Compliance Part of this Court on September 21, 2006. A Compliance Conference Order was issued wherein plaintiff was directed to file a Note of Issue by November 15, 2006. That date has not been extended, and to date, plaintiff has failed to file his Note of Issue.

LAW AND APPLICATION

Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 [*3]NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra , at 324.

In support of the motion, defendant annexes the affirmed medical report of Alla Mesh, M.D., a neurologist, who examined plaintiff. Dr. Mesh also reviewed plaintiff's bill of

particulars, supplemental bill of particulars, medical records and diagnostic testing reports.

Dr. Mesh's examination included, inter alia, various range of motion tests of plaintiff's motor system, cervical and lumbar spine, as well as examination of plaintiff's thoracic spine. Plaintiff's range of motion results are properly compared to the "norms" for the identified test. As a result, the Court finds that defendant has carried its initial burden for purposes of this motion. See

Toure v. Avis Rent A Car System, 98 NY2d 345, 350, 746 NYS2d 865, 774 NE2d 1197 (2002); Petrpoulos v. New York City Transit Authority, 11 AD3d 552, 782 NYS2d 797

(2nd Dept. 2004). According to Dr. Mesh, plaintiff has no neurological disability as a result of the accident.

In opposition, plaintiff annexes the affirmation of Irving M. Etkind, M.D., a Board Certified Physician in Orthopedics and Neurology. Dr. Etkind examined plaintiff one time on September 22, 2005, (which, surprisingly, he characterized as a "course of treatment"), and issued a report also annexed of his findings, dated September 27, 2005. Prior to this examination, Dr. Etkind obtained the medical records from Greene Avenue Medical P.C. as well as the cervical and lumbar MRI films and reports from Diagnostic Imaging, P.C. In his affirmation dated April 20, 2007, Dr. Etkind states that he used these records with his own records for the purposes of his opinion and affirmation. Other than the affirmation and report of Dr. Etkind, no other records of plaintiff's medical treatment were annexed to the opposition papers.

Dr. Etkind opines, based on the above, that plaintiff suffered "concentric bulging discs C4-C5 through C6-C7; subarachnoid space at the C4-C5 through C6-C7 levels; disc bulge at L4-L5; and facet hyperthrophy (sic)." Further, plaintiff's "range of motion at his cervical spine is restricted to 30 degrees forward flexion and hyperextension, 30 right and left bends, 30 right and left rotation" and he found "tenderness over the right and left paradorsal muscles and lumbosacral (sic) tenderness." He also suggests that the extended gap in treatment [FN5] is solely due to plaintiff's lack of medical insurance coverage, and that plaintiff therefore "has not been able to receive the medical and physical therapy he needs." He concludes that plaintiff suffered a "permanent partial disability" with a "10% loss of use of his low back and a 20% loss of use of his cervical spine" and that as plaintiff "advances in age there is a distinct possibility that his [*4]present condition will deteriorate." The rest of his opinion is based on the subjective statements

made by plaintiff.

The affirmation of plaintiff's physician is insufficient to raise a triable issue of fact. While Dr. Etkind stated that he had objectively measured and found restrictions in both the cervical and lumbar range of plaintiff's motion, "he failed to set forth the tests that he used to arrive at this conclusion, or to quantify the results of those tests." Bailey v. Ichtchenko,

11 AD3d 419, 420, 782 NYS2d 781 (2nd Dept. 2004); see also Millar v. Town of Oyster Bay,

7 AD3d 588, 775 NYS2d 893 (2nd Dept. 2004). Specifically, while Dr. Etkind ascribes the degree of motion range in certain areas to some objective testing, he does not compare his patient's degrees of motion range with a normal range of motion. See Bent v. Jackson, 15 AD3d 46, 49, 788 NYS2d 56 (1st Dept. 2005). Nor does Dr. Etkind explain how he arrived at the overall loss of use percentages he attributes to plaintiff's lumbar and cervical spine regions. See Mastaccioula v. Sciarra, 11 AD3d 434, 782 NYS2d 770 (2nd Dept. 2004).

Moreover, Dr. Etkind's affirmation and report are of no probative value as they do not offer "competent medical evidence showing range of motion limitations in the plaintiff's spine that were contemporaneous with the subject accident." Iusmen v. Konopka, 38 AD3d 608, 609, 831 NYS2d 530 (2nd Dept. 2007). Further, each was based on an examination two years prior to the date of the affirmation and not a recent examination of the plaintiff. See Mejia v. DeRose, 35 AD2d 4076, 825 NYS2d 722 (2nd Dept. 2006); Albano v. Onolfo, 36 AD3d 728, 729, 2007 NY Slip Op 00466 (2nd Dept. 2007). In addition, it did not adequately explain the lengthy gap between plaintiff's last treatment and his examination by Dr. Etkind. See Rivera v. Francis, 7 AD3d 690, 776 NYS2d 840 (2nd Dept. 2004) (report based on examination six years after last medical treatment rendered to plaintiff).[FN6]

In fact, what the evidence demonstrates is a cessation of all treatment. Plaintiff ended his physical therapy five months after the accident and sought no other treatment until years later, when he visited Dr. Etkind in connection with this case. See Pommells v. Perez, 4 NY3d 566, 574, 797 NYS2d 380, 830 NE2d 278 (2005). In the absence of any objective medical evidence of a related disability or restriction, the mere existence of a bulging disc is not conclusive evidence of a serious injury. See Hernandez v. Bahlke, 6 AD3d 578, 775 NYS2d 869 (2nd Dept. 2004). In the circumstances, plaintiff cannot establish a causal connection between his condition and the accident of January 25, 1998.

The Court, however, is reluctant to dismiss plaintiff's cause of action for property damages. Plaintiff did testify that he was the owner of the vehicle at the time of the accident, and defendant has failed to put forth evidence to indicate otherwise, such as Department of Motor Vehicle registration or title search indicating the vehicle was registered or titled in the name of someone other than the plaintiff at the time of the accident. [*5]

CONCLUSION

In light of the above, defendant's motion is granted to the extent that plaintiff's personal injury causes of action are severed and dismissed. Plaintiff may proceed on his property damage claim, and same is transferred to the Civil Court of the City of New York, County of Kings, pursuant to CPLR § 325(d). Any and all causes of action as against the defaulting defendants are hereby dismissed for plaintiff's failure to either serve the defendant or to enter a Default Judgment pursuant to CPLR § 3215 (c) within one year of the default.

This constitutes the decision and order of the court. Defendant is directed to settle Order on notice.

____________________________

J.S.C. Footnotes

Footnote 1: At the time of the accident, plaintiff was a livery driver who worked as an independent contractor six days a week for 12 hours per day.

Footnote 2: Plaintiff defined "part time" as 5 days a week for 6 hours per day.

Footnote 3: The amended complaint alleges in the alternative that Khan Commuters of Queens, Inc., was also the owner of the vehicle that was involved in the collision.

Footnote 4: The affidavit of "non" service filed with the County Clerk states that the business had been closed and there is no other affidavit on file indicating that the corporate defendant was served via Secretary of State.

Footnote 5: The report states "that it is now ten years from the time of his accident", however, based on the date of the accident to the date of the report, not yet eight years had passed by the time the report was allegedly prepared.

Footnote 6: Plaintiff testified at his deposition that he stopped treatment because "they told me that I was feeling better," while Dr. Etkind in his affirmation asserted plaintiff still needs treatment but cannot receive same because plaintiff has no medical insurance coverage. See Gonzalez v. A.V. Mng., 37 AD3d 175, 829 NYS2d 70 (1st Dept. 2007); Vaughan v. Baez, 305 AD2d 101, 758 NYS2d 648 {305 AD2d 101} (1st Dept. 2003).