McRae v Alauddin

[*1] McRae v Alauddin 2007 NY Slip Op 52645(U) [25 Misc 3d 1208(A)] Decided on May 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2007
Supreme Court, Kings County

Carolyn P. McRae, Plaintiff,

against

Asm Alauddin, Defendant.



15289/05



Plaintiff:

Jeremy A. Hellman, Esq.

Law Offices of Alan M. Greenberg, PC

60 East 42nd Street

New York, NY 10165

Defendant:

Mark L. Levenson, Esq.

Cheven, Keely & Hatzis, Esqs.

40 Wall Street

New York, NY 10005

Bruce M. Balter, J.

Upon the foregoing papers, defendant Asm Alauddin (defendant) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as that term is defined under § 5102 (d) of the Insurance Law.[FN1] [*2]

In the instant action, plaintiff Carolyn P. McRae (plaintiff) seeks damages for personal injuries she allegedly sustained in a motor vehicle accident which occurred on November 2, 2004, at or near the intersection of Linden Boulevard and Fountain Avenue in Brooklyn. At the time of the accident, plaintiff was operating a motor vehicle that was allegedly struck in the rear by an automobile owned and operated by defendant.

In the complaint, plaintiff alleges that she sustained a serious injury as a result of the accident. In her verified bill of particulars, plaintiff claims that as a result of the accident she suffered, among other things, posterior disc bulging, lumbar radiculopathy and lumbar sprain/strain. Plaintiff claims that these injuries satisfy a fracture, permanent loss of use of a body organ or member, significant limitation of use of a body function or system and the 90/180 days category of the insurance law.

In support of the motion, defendant proffers the affirmed medical report of Dr. Ravi Tikoo, a neurologist, based upon an independent medical examination of plaintiff on September 6, 2006, at defendant's request. Dr. Tikoo noted that there was mild tenderness of the cervical and lumbar spine but that there was no associated spasm. Plaintiff's straight leg raising was found to be unlimited at 90 degrees. The Rhomberg was negative. Dr. Tikoo assessed plaintiff's alleged injuries as follows: (1) subjective complaints of headaches; (2) history of cervical strain; and (3) history of lumbosacral strain. Dr. Tikoo further concluded, as a result of his examination of plaintiff, that:

[I]t is my opinion, with a reasonable degree of medical certainty that my neurological exam of Carolyn McRae did not reveal objective findings to substantiate her subjective complaints. Carolyn does not need any further treatment or diagnostic testing. Maximal medical improvement has been reached. She is able to work in her normal capacity. It is my opinion that she does not have significant clinical evidence of neuropathy, radiculopathy, or disc herniation. Furthermore, Carolyn is not disabled from a neurological basis.

Defendant also proffers the affirmed report of Dr. Carl Weiss, an orthopedist, based upon an independent examination of plaintiff on September 7, 2006, at defendant's request. Dr. Weiss found that plaintiff exhibited full range of motion of her head, neck, shoulders, lumbar spine and knees. The results were compared to the normal. Straight leg raising was unlimited to 90 degrees. McMurray's, Anterior Draw Sign, abduction stress and adduction stress testing were negative. As a result of his examination of plaintiff, Dr. Weiss determined that plaintiff "suffered a cervical and lumbar sprain injury from which she has recovered completely. She is not disabled. She needs no treatment. There is no permanency. Prognosis is good."

In addition, defendant submits the affirmed report of Dr. Richard A. Heiden based upon a review of the MRI images of plaintiff's lumbar spine. The MRI examination was performed on December 7, 2004, and noted a disc bulge at L5-S1. Based upon his review of the MRI images, Dr. Heiden is of the opinion that the findings were due to degenerative disease and not as a result of the subject accident. [*3]

Based upon these submissions, defendant contends that he has satisfied his initial burden of proof entitling him to summary judgment as a matter of law.

In opposition to the motion, plaintiff submits the June 28, 2006 statement of Dr. David L. Milbauer, a radiologist, affirming the contents of the report of the MRI of plaintiff's lumbar spine. Plaintiff asserts that defendant has failed to satisfy his initial burden of proof demonstrating that she did not sustain a serious injury. Plaintiff maintains that she was confined to her home except for doctor's visits for five to six months after the accident and relies upon her deposition testimony that her doctor instructed her "not to overdo it" during that time period.

In reply, defendant argues that plaintiff has failed to submit sufficient evidence in admissible form to raise a triable issue of fact as to whether she suffered a serious injury. Defendant maintains that neither plaintiff's attorney's affirmation nor plaintiff's deposition testimony is admissible probative evidence on medical issues. Defendant asserts that once it has been established that no serious injury has been sustained then plaintiff has the burden of proof of establishing that she satisfies the 90/180 days category of the insurance law. Defendant further points out that plaintiff failed to submit an affirmed medical report and that her radiologist failed to causally relate her alleged injuries to the subject accident.

In an action seeking damages for personal injuries allegedly sustained in an automobile accident, the plaintiff must, as a threshold matter, prove that he or she has sustained a "serious injury" as defined by Insurance Law §5102 (d). 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]). On a motion for summary judgment, "a defendant can 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 conclude that no objective medical findings support the plaintiff's claim" of serious injury (Grossman v Wright, 238 AD2d 79, 83-84 [2000]). Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the burden then shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2000]). If the plaintiff is unable to meet this burden, summary judgment will be granted to defendant (see e.g. Ginty v McNamara, 300 AD2d 624 [2002]; Attanasio v Lashley, 223 AD2d 614, 614-615 [1996]; Sotirhos v Pinello, 209 AD2d 687, 687-688 [1994]).

As an initial matter, the court finds that the serious injuries claimed by plaintiff falls exclusively within the "significant limitation of use of a body function or system" and the 90/180 days categories established by Insurance Law § 5102(d). Although plaintiff states, in her verified bill of particulars, that she is also claiming serious injuries which constitute either a "fracture" or a "permanent loss of use of a body organ, member, function or system," the court notes that the medical evidence submitted by plaintiff in opposition to defendant's [*4]instant motion is entirely bereft of any findings of a fracture or permanency with regard to plaintiffs' alleged injuries.

It is well settled that "[t]o establish a significant limitation, the medical evidence must provide either quantitative or qualitative assessment to differentiate serious injuries from mild and moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [2005]). Accordingly, it is also well established that "[a] defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d)" (Kearse v New York City Transit Authority, 16 AD3d 45, 49 [2005]; see also Kerzhner v NY Ubu Taxi Corp., 17 AD3d 410 [2005]).

Based upon a review of the record, defendant has satisfied his initial burden of proof demonstrating that plaintiff did not sustain a serious injury which resulted in "a significant limitation of use of a body function or system." During his examination of plaintiff, Dr. Tikoo conducted straight leg raising test and Rhomburg test and obtained negative results. He determined that plaintiff is not disabled. Dr. Weiss conducted, among other things, range of motion tests of plaintiff's lumbar spine and found that she exhibited a full range of motion. Dr. Weiss also found that straight leg raising was negative in the sitting position and obtained negative results for the McMurray's, Anterior Draw Sign, abduction stress and adduction stress tests. Dr. Weiss concluded that plaintiff has recovered from her alleged injuries and that she is not disabled. Further, Dr. Heiden characterized the results of the MRI of plaintiff's lumbar spine as degenerative in nature. In opposition, plaintiff submitted no medical evidence in objective form demonstrating the existence of an injury that was a significant limitation of use of a body organ, member, function or system. Instead, plaintiff refers to her deposition testimony that she was instructed "not to overdo it" during the five to six months immediately after the subject accident and that she only left the home to attend doctor's visits. Additionally, plaintiff submits the affirmed report of the MRI of her lumbar spine. However, evidence of a bulging or herniated disc in and of itself does not establish the existence of a serious injury.

As a result, defendants' motion for summary judgment is granted.

The foregoing constitutes the decision and order of the court.

ENTER,

J.S.C. Footnotes

Footnote 1:

Insurance Law § 5102(d) defines a 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 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 eighty days immediately following the occurrence of the injury or impairment."