Hackett v AAA Expedited Frgt. Sys., Inc.

[*1] Hackett v AAA Expedited Frgt. Sys., Inc. 2007 NY Slip Op 52642(U) [25 Misc 3d 1206(A)] Decided on March 15, 2007 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2007
Supreme Court, Kings County

Gloria Hackett and Winnifred Smith, Plaintiffs,

against

AAA Expedited Freight Systems, Inc. and Frank Alvarez, Defendants.



11271/03



Plaintiff:

Robert George Bombara

98-16 163rd Avenue

Howard Beach, NY 114314-4044

Defendant:

Joseph Battista, Esq.

Eschen, Frenkel & Weisman

20 West Main Street

Bay Shore, NY 11706-8304

Plaintiff on Counterclaim:

William J. Cariello, III, Esq.

Robin, Harris, King, Yuhas, Fodera & Richman

One Battery Park Plaza - 30th Floor

New York, NY 10004-1437

Bruce M. Balter, J.

Defendants AAA Expedited Freight Systems, Inc. and Frank Alvarez move for an Order pursuant to CPLR §3212 granting summary judgment, and dismissing the complaint of plaintiffs Gloria Hackett and Winnifred Smith, on the grounds that both plaintiffs did not sustain "serious injury" as defined in New York Insurance Law § 5102(d).

Plaintiff on the Counterclaim Gloria Hackett cross-moves for the same relief as to plaintiff Winnifred Smith.

Plaintiff Winnifred Smith cross-moves for an Order granting leave to plaintiff to serve an Amended Verified Bill of Particulars.

The underlying action is for personal injuries allegedly sustained during a motor vehicle accident which occurred on May 13, 2002 at the intersection of Foster Avenue and East 53rd Street, in the County of Kings.

Defendants allege that plaintiffs Gloria Hackett and Winnifred Smith have not suffered a "serious injury" as defined by Insurance Law § 5102 (d) . It is for the Court to determine whether each plaintiff has established a prima facie case of sustaining "serious injury." see Licari v. Elliot, 57 NY2d 230. When defendant's motion raises the issue of whether a "serious injury" has been sustained by the plaintiff, the burden of proof shifts to the plaintiff to produce evidence in admissible form to support her allegations. (McHaffe v. Antieri, 190 AD2d 780; Kordanaa v. Pamellito, 121 AD2d 783; Vermette v. Kenworth Truck Co., 68 NY2d 714; Alvarez v. Prospect Hospital 68 NY2d 320).

In addressing defendants motion and Plaintiff on the counterclaim Gloria Hackett's cross-motion, the Court notes that under no fault law, in order to maintain an action to recover damages for non-economic loss, i.e., pain and suffering, arising out of a motor vehicle accident, a plaintiff must establish that he or she has sustained a "serious injury" as defined by Insurance Law § 5102 (d) (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Lopez v Senatore, 65 NY2d 1017, 1019-1020; Licari v Elliott, 57 NY2d 230, 237).

Plaintiff Gloria Hackett alleges the following bodily injuries in the Bill of Particulars: "Post concussion headaches; Anterior disc herniation at C5-C6 impinging on the thecal sac; Posterior disc bulges at C4-C5 and C5-C6 impinging on the thecal sac; Narrowing of the bilateral C4-C5 and left C5-C6 neural foramina; Straightening of the cervical lordosis; Cervical radiculitis; Hypertrophic changes at the AC joint of the left shoulder; chest contusion; Posterior disc bulge at the L3-L4 impinging upon the thecal sac and narrowing the right-sided neural foramen; Posterior disc bulge at the L4-L5 and L5-S1 impinging upon the thecal sac and narrowing the right-sided neural foramen bilaterally; Lumbar myofascitis; Left ankle pain with effusion; and, Contusion of the left small toe". Plaintiff further asserts that these injuries fall within the categories of "serious injury," set forth in Insurance Law § 5102 (d), of a "permanent consequential limitation of use of a body organ or member," a "significant limitation of use of a body function or system," and "a medically determined injury or impairment of a non-permanent nature which prevent[ed her] from performing substantially all of the material acts which constitute[d her] usual and customary daily activities".

Plaintiff Winnifred Smith alleges the following bodily injuries in the Bill of Particulars: "Cervical radiculitis; Hematoma in posterior cervical area; and Hypertrophic changes at the AC joint of the left shoulder". Plaintiff further asserts that these injuries fall within the categories of "serious [*2]injury," set forth in Insurance Law § 5102 (d), of a "permanent consequential limitation of use of a body organ or member," a "significant limitation of use of a body function or system," and "a medically determined injury or impairment of a non-permanent nature which prevent[ed her] from performing substantially all of the material acts which constitute[d her] usual and customary daily activities".

Section 5104 (a) of the Insurance Law provides, in part, that, in any action by, or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in New York, there shall be no right of recovery for non-economic loss, except in the case of a serious injury.

Insurance Law § 5102 (d) defines "serious injury", as follows:

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 a body

organ or member; significant limitation of use of a body

function or system; or a medically determined injury or

impairment of a non-permanent 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 and eighty days immediately following the

occurrence of the injury or impairment.

In support of the motion for summary judgment as to plaintiff Gloria Hackett, defendants rely upon the EBT testimony of plaintiff taken on April 26, 2006, and the examinations conducted of the plaintiff as well as the sworn medical reports of various physicians. On August 30, 2006, A. Robert Tantleff, M.D. performed an independent radiology review of MRIs taken of plaintiff's cervical spine, lumbar spine and brain. Defendants further rely upon the sworn medical report of Robert J. Orlandi, M.D., who, on July 1, 2002, performed an orthopedic evaluation of plaintiff. Dr. Orlandi opined: "Cervical, left shoulder, lumbar, left ankle and left fifth toe sprains, resolved". Defendants further rely upon the sworn medical report of Mark Pitman, M.D., who, on July 11, 2006, performed an orthopedic evaluation of plaintiff. Dr. Pitman performed objective range of motion tests. Dr. Pitman opined: "The claimant sustained injury to the neck, lower back, left shoulder, left knee. Claimant has very morbid obesity which is probably the main cause of her problems". Defendants further rely upon the sworn medical report of C.M. Sharma, M.D., who, on July 11, 2006, performed a neurologic evaluation of plaintiff. Dr. Sharma opined: "Subjective soft tissue pains including cervical, lumbar, left shoulder, left foot, left knee. Normal neurological examination".

In support of the motion for summary judgment as to plaintiff Winnifred Smith, defendants and plaintiff on the counterclaim Gloria Hackett rely upon the EBT testimony of plaintiff taken on April 26, 2006, and the examinations conducted of the plaintiff as well as the sworn medical reports of various physicians. On June 18, 2002, Ivy Zelanka, D.C. evaluated plaintiff. Dr. Zelanka opined: "[T]here are no positive objective residuals. There is no evidence of a disability". Defendants further rely upon the sworn medical report of Robert J. Orlandi, M.D., who, on July 1, 2002, performed an orthopedic evaluation of plaintiff. Dr. Orlandi opined: "Cervical and left shoulder sprains, resolved". Defendants further rely upon the sworn medical report of Mark Pitman, M.D., who, on July 11, 2006, performed an orthopedic evaluation of plaintiff. Dr. Pitman performed objective range of motion tests. Dr. Pitman opined: "The claimant sustained cervical and lumbar injuries. The claimant no longer needs any treatment". On September 13, 2006, Dr. Pittman added: "[I]t was noted that she was able to return to her usual occupation on the day following the accident of 5/13/02". "Defendants further rely upon the sworn medical report of C.M. Sharma, M.D., who, on July 11, 2006, performed a neurologic evaluation of plaintiff. Dr. Sharma opined: "Resolved contusion left calf. Normal neurological examination".

In an action seeking damages for personal injuries allegedly sustained in an automobile accident, the plaintiff must, as a threshold matter, prove that she has sustained a "serious injury" as defined in Insurance Law § 5102 (d).[FN1] It is well-established that:

"the court should decide the threshold question of whether the

evidence would warrant a jury finding that the injury falls

within the class of injuries that, under no-fault, should be

excluded from judicial remedy. If it can be said, as a matter

of law, that plaintiff suffered no serious injury ... then plaintiff

has no claim to assert and there is nothing for the jury to decide"

(Licari v Elliott, 57 NY2d 230, 238 [1982]; see also Armstrong v Wolfe, 133 AD2d 957 [1987]).

Accordingly, to succeed on this motion for summary judgment, a defendant must meet the initial burden of showing that plaintiff did not, as a result of the automobile accident at issue, sustain a serious injury as defined by Insurance Law § 5102 (see Gaddy v Eyler, 79 NY2d 955 [1992]; Ocasio v Henry, 276 AD2d 611 [2000}; Grossman v Wright, 268 AD2d 79 [2000]).

A defendant can sustain this initial burden and "establish that the plaintiff's 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 concluded that no objective findings support the plaintiff's claim" of serious injury (Grossman, 268 AD2d at 83-84). Once the defendant has prima facie established that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable question of fact" (Napoli v Cunningham, 273 AD2d 366 {2000}). If the plaintiff is unable to meet this burden, summary judgment will be granted to the defendant (see e.g. Ginty v MacNamara, 300 AD2d 624, 625 [2002]; Attanasio v Lashley, 223 AD2d 614, 614-615 [1996]; Sotirhos v Pinello, 209 AD2d 687, 687-688 [1994]).

Defendants have established a prima facie entitlement to summary judgment dismissing the complaint by submitting the affirmed reports which indicates that both individual plaintiffs did not sustain a serious injury within the meaning of Section 5102(d) of the Insurance Law (see Kallicharan v Sookhanan, 282 AD2d 573 [2001]). Theses affirmed reports qualify as admissible evidence, which may be properly relied upon by the defendants (see CPLR § 2106; Mezentseff v Ming Yat Lau, 284 AD2d 379, 379; Addison v New York City Tr. Auth., 208 AD2d 368, 368; Baker, 199 AD2d at 661). Thus, it is incumbent upon plaintiffs to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Based upon the objective medical opinions and other proof submitted by defendants (see Moore v Tappen, 242 AD2d 526 [1997]), the court finds that defendants have met their burden and proffered evidence that is sufficient to establish a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (see Grossman, 268 AD2d at 83-84).

The burden thus shifts to plaintiffs to "come forward with admissible proof [sufficient] to raise a triable question of fact" (Napoli,273 AD2d at 366; McHaffie v Antieri, 190 AD2d 780 [1993]) by submitting objective findings, in addition to opinions, as to the significance of their respective injuries (see Grossman, 268 AD2d at 84).

Resolution of the issue of whether a serious injury was sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part (see Toure v Avis rent A Car Systems, Inc., 98 NY2d 345, 353 [2002]).

For a plaintiff to establish that she suffered a permanent loss of use of a body organ member or function, such loss must be total (Oberly v Bangs Ambulance, Inc., 96 NY2d 295, 297 [2001]). To establish that she has suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration (see Grossman, 268 AD2d at 83; Booker v Miller, 258 AD2d 783, 784 [1999]; Burnett v Miller, 255 AD2d 541 [1998]); King v Johnston, 211 AD2d 907 [1995]; Beckett v Conte, 176 AD2d 774 [1991]).

The court notes that a disc herniation may constitute a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Volozhinets v DeHaven, 296 AD2d 437, 437; West v Rivera, 286 AD2d 327, 327; Chaplin v Taylor, 273 AD2d 188, 188; Boehm v Estate of Mack, 255 AD3d 749, 750; Flanagan v Hoeg, 212 AD2d 756, 757).

In opposition to the motion, and in support of her claim of a "serious injury" pursuant to Insurance Law §5102 (d), plaintiff Gloria Hackett submits the affirmed medical report of Albert A. Anglade, M.D. dated November 2, 2006. Dr. Anglade performed objective range of motion tests upon plaintiff. Dr. Anglade opined: "The patient has sustained traumatic injuries to her head, neck, chest, lower back, left ankle and left small toe resulted in prolonged disability and permanent impairment in patient's physical condition. The patient has difficulty performing many daily activities due to the above-described symptoms". Plaintiff further submits the affirmation of Thomas M. Kolb, M.D., dated October 12, 2006. Dr.Kolb, a board certified radiologist, supervised the MRI taken of the cervical and lumbar spines of plaintiff on July 1, 2002.

In opposition to the motion and cross-motion, and in support of her claim of a "serious injury" pursuant to Insurance Law §5102 (d), plaintiff Winnifred Smith submits the affirmed medical report of Albert A. Anglade, M.D. dated November 2, 2006. Dr. Anglade performed objective range of motion tests upon plaintiff. Dr. Anglade opined: "The patient has sustained traumatic injuries to her neck and left shoulder resulted in prolonged disability and permanent impairment in patient's physical condition. The patient has difficulty performing many daily activities due to the above-described symptoms". Plaintiff further submits the affirmation of Thomas M. Kolb, M.D., dated November 1, 2006. Dr. Kolb, a board certified radiologist, supervised the MRI taken of the cervical spine and left shoulder of plaintiff on June 29, 2002.

Plaintiffs each claim to have sustained a serious and permanent disability casually related to the [subject] automobile accident in question. Thus, to meet their burden and raise a question of fact on the issue of serious injury, plaintiff was required, inter alia, to submit admissible proof that was contemporaneous with the accident showing either any initial range of motion restrictions or an expert's qualitative assessment of plaintiff's condition, which compares plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system ( see Jason, 1 AD3d at 399).

After a careful review of the complete record, specifically the transcript of plaintiff Gloria Hackett's EBT testimony as well as all of the physician affirmations provided to the Court, the Court determines that defendants offer proof that plaintiff did not sustain a "serious injury" under Insurance Law §5102 (d); however, plaintiff's response satisfies the necessary requirement to raise a material issue of fact.

Based upon the record before it, the court finds that plaintiff Winnifred Smith has failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact as to whether she sustained a "serious injury" (see Duldulao v City of New York, 284 AD2d 296, 297 [2001]; Pierre v Nanton , 279 AD2d 621, 621-622 [2001]). As plaintiff must prove that she sustained a medically determined injury or impairment which prevented her from performing "substantially all" of the material acts which constitute their usual and customary activities for 90 out of the 180 days immediately following the accident (see Gaddy, 79 NY2d at 958; Licari, 57 NY2d at 236; Crandall v Sledziewski, 260 AD2d 754, 757 [1999]). The 90 days set forth in the statute are strictly construed (see e.g. Abrahamson v Premier Car Rental of Smithtown, 261 AD2d 562 [1999]).

Winnifred Smith does not assert that she was advised by a medical practitioner to curtail her activities (see Barbarulo v Allery, 271 AD2d 897, 901 [2000]; and presents no contemporaneous evidence of medically determined injuries that would have prevented her from performing substantially all of her usual daily activities (see Ersop v Variano, 307 AD2d 951 [2003]; Dabiere v Yager, 297 AD2d 831, 832-833 [2002]; Cassese v Leister, 291 Ad2d 350 [2002]; McKinney v Lane, 288 Ad2d 274 [2001]; Blanchard v Wilcox, 283 AD2d 821,824 [2001]; Curry v Velez, 243 AD2d 442 [1997]; see also Gaddy, 79 NY2d at 958; Licari, 57 NY2d at 230; Nelson v Distant, 308 AD2d 338, 340 [2003]; Lichtman v Heit, 300 AD2d242 [2002]).

Given the lack of any medical corroboration for a claim that plaintiff Winnifred Smith was incapacitated for the requisite statutory period, plaintiff fails to raise a triable issue of fact (see e.g. Rudas, 10 AD3d at 357; Gjelaj v Ludde, 281 AD2d 211, 212 [2001]). Furthermore, plaintiff fails to address the significant gap in treatment. See Pommells v. Perez, 4 NY3d 566 [2005].

After a careful review of the complete record, including the transcript of each plaintiff's EBT testimony, as well as all of the physician affirmations and affidavits provided to the Court, the Court determines that defendants have offered proof that both plaintiffs did not sustain a "serious injury" under Insurance Law §5102 (d); while plaintiff Gloria Hackett's response raises a triable issue of fact, plaintiff Winnifred Smith's response fails to satisfies the necessary requirement to raise a material issue of fact.

It is ORDERED that defendants motion and plaintiff on the counterclaim's cross-motion for summary judgment is GRANTED as to plaintiff Winnifred Smith. Accordingly, plaintiff's cross-motion is rendered moot.

ENTER,

March 15, 2007

J.S.C.

7 Footnotes

Footnote 1:Insurance Law § 5102 (d) defines "serious injury' as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of a use of a body organ or member; permanent consequential limitation of use of a body organ or member; significant limitation of the use of a body function or system; or a medically determined injury or impairment of a non-permanent 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.