Ramirez v Hynes

[*1] Ramirez v Hynes 2007 NY Slip Op 52129(U) [17 Misc 3d 1123(A)] Decided on June 21, 2007 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2007
Supreme Court, Bronx County

Roberto Ramirez, Plaintiff

against

Sherwin Hynes and Garth Hynes, Defendants



21657/2005

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover for personal injuries sustained May 15, 2005, when a vehicle that defendant Sherwin Hynes owned and defendant Garth Hynes operated struck plaintiff, a pedestrian. Defendants move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling him to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). Upon oral argument June 4, 2007, and after attempts to settle the action, the court denies defendants' motion for the reasons explained below.

II.APPLICABLE STANDARD

To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact that they caused plaintiff to sustain a "serious injury" as defined in Insurance Law § 5102(d). C.P.L.R. § 3212(b); Shaw v. Looking Glass Assoc. LP, 8 AD3d 100, 102 (1st Dep't 2004); Chatah v. Iglesias, 5 AD3d 160 (1st Dep't 2004); Shinn v. Catanzaro, 1 AD3d 195, 197 (1st Dep't 2003). Only if defendants satisfy this standard, does the burden shift to plaintiff to rebut defendants' prima facie showing, by producing admissible evidence sufficient to require a trial of material factual issues as to whether plaintiff sustained a serious injury. Knoll v. Seafood Express, 5 NY3d 817, 818 (2005); Franchini v. Palmieri, 1 NY3d 536, 537 (2003); Shaw v. Looking Glass Assoc. LP, 8 AD3d at 102; Martin v. Schwartz, 308 AD2d 318, 319 (1st Dep't 2003). The court must deny summary judgment if defendants fail to meet this standard, regardless of any insufficiency in plaintiff's opposition. Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005); Diaz v. Nunez, 5 AD3d 302 (1st Dep't 2004); Lichtman v. Heit, 300 AD2d 242, 243 (1st Dep't 2002); Pisasale v. Buckhorn Carriers, 249 AD2d 157, 158 (1st Dep't 1998).

III.DEFENDANTS' FAILURE TO ESTABLISH THEIR DEFENSE

Maria Audrie DeJesus M.D. examined plaintiff May 11, 2006, and found no neurological abnormalities and no range of motion restrictions. Jonathan D. Glassman M.D. examined plaintiff May 10, 2006, and found lost range of motion in his lumbar spine of ten degrees in flexion and five degrees in extension, losses of over 11% and 16%, respectively. Dr. Glassman concluded based on a magnetic resonance imaging (MRI) report, however, that plaintiff "has pre-existing degenerative disc disease and degenerative joint disease" in the lumbar spine. Aff. of Andrea Ferrucci, Ex. C at 4.

Although minimal restrictions on functioning do not constitute a serious injury, Gaddy v. Eyler, 79 NY2d 955, 957 (1992); Licari v. Elliott, 57 NY2d 230, 236 (1982); Style v. Joseph, 32 AD3d 212, 214 n.1 (1st Dep't 2006), no percentage of restriction, per se, constitutes a minimal restriction. Whether a reduction in range of motion or other functioning is a minimal restriction [*2]depends on various factors. A low percentage of loss in range of motion or functioning limited to a single area or to several areas, but not affecting overall ability to function does not raise a factual issue as to a serious injury. Arrowood v. Lowinger, 294 AD2d 315, 316 (1st Dep't 2002); Bandoian v. Bernstein, 254 AD2d 205 (1st Dep't 1998); Trotter v. Hart, 285 AD2d 772, 773 (3d Dep't 2001); Sellitto v. Casey, 268 AD2d 753, 755 (3d Dep't 2000). In contrast, a low percentage of loss in range of motion with atrophy and requiring surgery may constitute a serious injury. Wong v. Tanyee-Sing, 247 AD2d 356, 357 (2d Dep't 1998).

Unlike the above authority, here the report of defendants' orthopedist, Dr. Glassman, rather than plaintiff's evidence, disclosed the restriction on his range of motion. Absent defendants' showing that, despite Dr. Glassman's quantified restrictions on range of motion, plaintiff's functioning is not significantly limited, defendants have failed to satisfy their burden to demonstrate that plaintiff did not sustain a serious injury. See Negrette v. Hernandez, 2 AD3d 511, 512 (2d Dep't 2003); Heath v. Allerton, 279 AD2d 872, 873 (3d Dep't 2001).

While Dr. Glassman also attributes plaintiff's limitations to a "pre-existing" degenerative condition, Ferrucci Aff., Ex. C at 4, reading his report in the light most favorable to plaintiff, Toure v. Avis Rent A Car Sys., 98 NY2d 345, 353 (2002), all that may be inferred is that this degenerative condition predated Dr. Glassman's examination of plaintiff, not that the condition predated the collision. In fact, Dr. Glassman concludes neither that the May 2005 collision did not cause the disc and joint degeneration, nor that it is unrelated to any trauma. Moreover, a diagnosis of a degenerative condition unrelated to trauma must be based on magnetic resonance imaging (MRI) or x-rays. Mullings v. Huntwork, 26 AD3d 214, 215 (1st Dep't 2006); Perez v. Rodriguez, 25 AD3d 506, 508 (1st Dep't 2006); Agard v. Bryant, 24 AD3d 182 (1st Dep't 2005); Stevens v. Homiak Transp., Inc., 21 AD3d 300, 302 (1st Dep't 2005). See Jimenez v. Rojas, 26 AD3d 256, 257 (1st Dep't 2006). Absent Dr. Glassman's review of such films, as opposed to the hearsay MRI report, his conclusion regarding plaintiff's degenerative condition is not founded on competent, objective evidence, Perez v. Rodriguez, 25 AD3d at 508; Sherlock v. Smith, 273 AD2d 95 (1st Dep't 2000), and thus fails to establish that the collision did not cause plaintiff's injuries. Pommells v. Perez, 4 NY3d 566, 577-78 (2005).

For all the above reasons, defendants' evidence fails to defeat plaintiff's claims of a significant limitation and a permanent consequential limitation of functioning. NY Ins. Law § 5102(d). Similarly, defendants fail to present any evidence that his customary activities were restricted for less than 90 days following the collision or were unrestricted during those 90 days, to demonstrate the absence of an injury or impairment that prevented substantially all daily activities during that period. Id.; Thompson v. Abbasi, 15 AD3d 95, 101 (1st Dep't 2005); Flores v. Singh, 13 AD3d 203, 204 (1st Dep't 2004); Copeland v. Kasalica, 6 AD3d 253, 254 (1st Dep't 2004); Nelson v. Distant, 308 AD2d 338, 339 (1st Dep't 2003). While defendants had the opportunity to adduce such evidence at plaintiff's deposition, his testimony contains no such admission. Thus defendants also have failed to demonstrate that plaintiff did not sustain a serious injury under that category. See Toussaint v. Claudio, 23 AD3d 268 (1st Dep't 2005).

IV.CONCLUSION

Since defendants have failed to meet their initial burden to demonstrate their defense as a matter of law, the court denies their motion for summary judgment. C.P.L.R. § 3212(b); NY Ins. Law § 5102(d). This decision constitutes the court's order. The court will provide copies to parties' attorneys.

DATED: June 21, 2007

_____________________________

LUCY BILLINGS, J.S.C.