Curtis v Brent

[*1] Curtis v Brent 2007 NY Slip Op 52575(U) [21 Misc 3d 1125(A)] Decided on May 24, 2007 Supreme Court, Bronx County Green, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
Supreme Court, Bronx County

Marc Curtis, Plaintiff,

against

Edmond Brent, Defendant.



20903/05



Plaintiff's attorney: Jonathan Silver, 80-02 Kew Gardens Road, Kew Gardens, NY 11415. (718) 261-1100

Defendant's attorney:Vincent P. Crisci, Esq., 17 State, St., New York NY 10004. (212) 943-8940.

Stanley Green, J.

The motion by Edmond Brent for an order pursuant to CPLR §3212 dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) is granted.

Plaintiff commenced this action to recover damages for personal injuries he sustained in a motor vehicle accident on May 24, 2005. Plaintiff alleges that as a result of the accident, he sustained the following injuries: (1) C3-4 disc herniation with ventral dural sac and spinal cord compression; (2) C4-5 disc bulge; left shoulder impingement and supraspinatous outlet syndrome; (3) osteochondral defect/erosion of the proximal humerus; (4) joint fluid in glenohumeral joint; (5) neck pain, low back pain, and left hand pain; (6) headaches; (7) left shoulder pain and tenderness with restricted motion; (8) restricted motion, tenderness and pain in cervical spine and lumbar spine with pain radiating the left side; (9) vertebral derangement; (10) acute traumatic strain/sprain of the cervical and lumbar spine; (11) myofascitis of the cervical and lumbar spine; and (12) cephalgia vertbrogenic. The bill of particulars indicates that plaintiff was partially confined to bed and home after the accident and that he was incapacitated from his employment as a car service driver until 11/20/05. However, it also indicates that plaintiff was "never totally incapacitated" and no claim is being made for lost wages.

Brent seeks dismissal of the complaint on the ground that plaintiff's injuries are not "serious injuries" within the meaning of Insurance Law §5102(d). In support of the motion, Brent submits copies of plaintiff's medical records, plaintiff's deposition testimony and the affirmed report of Dr. Seslowe, an orthopedist who conducted a physical examination of plaintiff on September 7, 2006.

Plaintiff's medical records show, inter alia, that he first sought treatment for his injuries on May 26, 2005, when he consulted Dr. Yolanda Bernard, a specialist in Physical Medicine and Rehabilitation. Dr. Bernard's report indicates that plaintiff's history included a motor vehicle accident in 1993 in which he suffered an injury to his left hand. Dr. Bernard's initial examination [*2]revealed that plaintiff had "moderately reduced" active and passive range of motion of the cervical and lumbosacral spine. Her initial diagnosis was: vertebral derangement, acute traumatic strain/sprain of the cervical and lumbosacral muscles, myofascitis, sprain, contusion injury to left shoulder, left hand/wrist (aggravated) and cephalgia vertbrogenic. Dr. Bernard prescribed physical therapy, which plaintiff underwent from May 31, 2005 through September 2005. He returned for additional physical therapy once in January and February 2006, three or four times in March and April and once in May 2006.

Dr. Bernard also referred plaintiff for MRI's of his cervical spine, lumbar spine and left shoulder. The MRI of plaintiff's cervical spine revealed a "moderate" central disc herniation at C3-4 resulting in central dural sac and "mild" spinal cord compression and "very mild" spinal cord edema and bulging annulus at C4-5. The MRI of plaintiff's lumbar spine, taken June 11, 2005, revealed "mildly" bulging discs at L3/L4, L4/L5 and L5-SS1; bilateral S1 joint diseased and ligamentum flavum hypertrophy especially at the lower levels and the MRI of plaintiff's left shoulder, taken on June 14, 2005, revealed impingement and supraspinatus outlet syndrome of the left shoulder; low grade erosion and /or osteochondral defect of the proximal humerus.

Plaintiff was re-evaluated by Dr. Bernard on seven occasions. At the time of Dr. Bernard's last report, dated April 14, 2006, plaintiff complained of a pinching sensation in his lower back, headaches "once in a while" and neck pain. Dr. Bernard's examination revealed that he had tense muscles in the neck, "restricted " range of motion of the lower back with positive straight leg raise on the left at 60 degrees and pain on range of motion of the left shoulder.

Dr. Bernard also referred plaintiff to Dr. Radna, a neurologist, who examined him on August 5, 2005 and August 29, 2005. Dr. Radna's report shows that at the times he examined plaintiff, there was evidence of "moderate" bilateral paravertebral spasm in the cervical and lumbosacral regions, with "moderately diminished" range of motion." However, Dr. Radna does not quantify his findings or provide a qualitative analysis of the limitations. Dr. Radna recommended that plaintiff undergo decompressive cervical micro-laminotomy and medial facetectomy, but plaintiff did not follow this recommendation.

Plaintiff's deposition testimony, taken June 27, 2006, shows that he did not have any further medical appointments scheduled and that as a result of the accident, he can no longer swim or play basketball and football. It also shows that plaintiff had injured his left hand in a motorcycle accident in 1993 and that he had received emergency room treatment and physical therapy for the injuries he sustained in that accident.

The affirmed report of Dr. Seslowe, dated September 7, 2006, shows that he reviewed plaintiff's medical records and performed an orthopedic examination of plaintiff on September 7, 2006. At that time, plaintiff had full cervical flexion and full rotation to the right and full lateral flexion to the right and left, but cervical extension was limited to 60 degrees, where 75 degrees is normal. He also reported that cervical rotation to the left was limited to 60 degrees, where 80 degrees is normal and forward flexion of plaintiff's low back was 50 degrees, where 90 degrees is normal. However, Dr. Seslowe noted that "when distracted", plaintiff "moved much more freely and fully." Dr. Seslowe's "Impression" was that plaintiff had "resolved" cervical and lumbosacral strain and "resolved" strain of the left shoulder, that there was no permanency associated with the injury and no objective evidence of an orthopedic disability. His opinion, based upon the history and medicals reviewed, is that the injury to plaintiff's left shoulder was [*3]causally related to the 5/24/ 05 accident and the injuries to his neck and back were due, in part to the 05/24/05 and in part to his prior motor vehicle accident, "in which he injured his neck and back."

Plaintiff contends that the evidence presented shows that there are triable issues of fact as to whether he sustained a serious injury as a result of the May 24, 2005 accident. In opposition to the motion, plaintiff submits the affirmation of Dr. Radna, who opines that plaintiff suffered medically determined injuries that prevented him from performing substantially all of the material acts that constituted his usual and customary activities for more than three months following the date of the accident and injuries that have "significantly limited the movement, use and function of his cervical and lumbo-sacral regions". Plaintiff also submits his own affidavit, which indicates that: (1) due to his injuries, he was unable to return to work for more than six months; (2) he continues to have pain in his neck, low back and left hsoulder; and that he can no longer play sports, drive for too long or lift heavy packages due to the pain in his neck and back. He states that he had been under the care and treatment of Dr. RAdna and when he was last examined by him, Dr. Radna once again suggested surgery.

Plaintiff also contends that Dr. Seslowe's affirmed report, which indicates positive findings upon range of motion testing, yet finds no objective evidence of orthopedic disability, is further evidence of his injuries.

In order to maintain an action to recover damages for personal injuries arising out of a motor vehicle accident, a plaintiff must establish that he sustained a "serious injury" within the meaning of Insurance Law § 5102(d), (Licari v. Elliot, 57 NY2d 230). Objective proof of a plaintiff's injury is required in order to satisfy the statutory serious injury threshold (Gaddy v. Eyler, 79 NY2d 955; Scheer v. Koubek, 70 NY2d 678). Whether a limitation of use or function is "significant" or "consequential" relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (Toure v. Avis Rent A Car, 95 NY2d 345). "Mild" soft tissue injuries that result in no restriction of mobility are not considered serious injuries under the No-Fault Law (Scheer, supra). 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 (Pommells v. Perez, 4 NY3d 566).

Defendants can establish that plaintiffs' injuries are not serious within the meaning of Insurance Law §5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim (Grossman v. Wright, 268 AD2d 79). The burden then shifts to plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (Gaddy v. Eyler , 79 NY2d 955).

Here, plaintiff's medical records and deposition testimony, coupled with the affirmed report of Dr. Seslowe, who opined that plaintiff had no orthopedic disability and no permanent injuries, are sufficient to establish, prima facie, that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member, a significant limitation of a body function or system or a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his [*4]usual and customary daily activities for not less than ninety days during the 180 days immediately following the accident.

While plaintiff contends that Dr. Seslowe's reported findings and opinion are inconsistent because he found restrictions in the range of motion of plaintiff's cervical spine and lumbar spine, yet opined that he had "resolved" cervical strain, lumbosacral strain and strain of the left shoulder, his statement that plaintiff moved "much more freely and fully" when distracted and that there was "no objective" evidence of an orthopedic disability, indicates his medical opinion that the restrictions in plaintiff's ranges of motion were voluntary.

The affirmation of Dr. Radna, dated March 6, 2005, recites, without benefit of any factual support, his opinion that plaintiff sustained: (1) "medically determined injuries that prevented him from performing substantially all of the material acts that constituted his usual and customary activities for more than three months following the date of the accident;" and (2) "the subject motor vehicle accident resulted in Marc Curtis sustaining medically determined injuries that since the date of the accident have significantly limited the movement, use and function of his cervical and lumbo-sacral regions based upon the various objective orthopedic tests and measurements performed as described in my March 5, 2007 report; that those injuries are as a result of the subject motor vehicle accident of May 24, 2005; that the resulting limitations and disabilities are both substantial and permanent in nature..." However, a review of his March 5, 2007 report shows that it merely recites, verbatim, the contents of his August 29, 2005 report and although there is a separate page entitled "Gradation of Spinal Range of Motion," which is behind the affirmation and report, the page is undated, unsigned and does not indicate when the measurements were taken. Therefore, this page lacks probative value and its content are not considered in opposition to the motion.

It is noted that the MRI's taken in June 2005 revealed a herniation and disc bulge in plaintiff's cervical spine and disc bulges in his lumbar spine. However, neither the MRI reports nor the reports of plaintiff's treating physicians indicate that there is a causal relationship between the MRI findings and the accident of May 24, 2005 and . In view of the fact that plaintiff injured his back in a prior motor vehicle accident, the reports of Dr. Radna and Dr. Seslowe indicate that plaintiff sustained injuries to his low back in a prior motor vehicle accident, was involved in a prior accident in which he injured his back, the reports of Dr. Radna and Dr. Bernard indicate that the reports of Dr. Radna and Dr.'s report dated August 5, 2005, indicates that no recent MRI of the lumbo-sacral region was performed, (which is incorrect) and acknowledges that plaintiff's history included a motor vehicle accident several years earlier, which is consistent with the history set forth in Dr. Seslowe's report.

While plaintiff has submitted the defendant has presented evidence which shows that plaintiff had only "moderate" restrictions of motion in his neck and low back during the initial three months immediately following the accident and is not making a claim for lost earnings, it also shows that: (1) MRI's taken shortly after the accident revealed objective findings of a herniation and bulging discs in plaintiff's cervical and lumbar spine that defendant has not established are not causally related to the accident; (2) plaintiff received physical therapy from May through September 2005 and from January through May 2006; (3) plaintiff was incapacitated from his usual employment for more than three months immediately following the accident; and (4) Dr. Seslowe's examination, performed more than a year after the accident, [*5]revealed limitations in the range of motion of plaintiff's cervical spine and lumbar spine.

It is noted that Dr. Seslowe's statement that plaintiff "moved more freely" when distracted, raises some question as to the extent of plaintiff's limitations. However, this goes to plaintiff's credibility, which must be decided by the trier of fact. It is also noted that Dr. Seslowe opines that the injuries to plaintiff's neck and back are due, in part, to a motor vehicle accident that plaintiff was involved in approximately ten years earlier. However, there is no indication in Dr. Seslowe's report that he reviewed any medical records or MRI's taken after plaintiff's prior accident or any other basis for this opinion. This renders the opinion that plaintiff's neck and back injuries are only partly due to the accident of May 24, 2005 speculative, conclusory and insufficient to establish that the limitations he observed were not causally related to the May 24, 2005 accident.

Defendant having failed to submit competent evidence sufficient to establish prima facie, that plaintiff was not prevented from performing substantially all of his usual daily activities during at least ninety days during the 180 day period immediately following the accident, the motion for summary judgment must be denied, regardless of the sufficiency of the opposing papers (Winegrad, supra).

This constitutes the decision and order of the court.

Dated: May 24, 2007

__________________________

STANLEY GREEN, J.S.C.