Santos v Taveras

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[*1] Santos v Taveras 2007 NY Slip Op 52648(U) [25 Misc 3d 1209(A)] Decided on May 14, 2007 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2007
Supreme Court, Bronx County

Adelaida Santos, Plaintiff,

against

Tomas Taveras, Defendant.



23983/2004



Plaintiff counsel: Joseph T. Mullen, Jr. & Associates

30 Vesey Street, 15th Floor

New York, NY 10007

Defendant counsel: Baker, McEvoy, Morrissey & Moskowitz

333 West 33rd Street, 7th Floor

New York, NY 10001

Betty Owen Stinson, J.



This motion by defendant for summary judgment dismissing the plaintiff's complaint is granted.

On August 28, 2004, while crossing a street on foot, plaintiff was struck by a taxi and injured. She was taken by ambulance to an emergency room where a laceration next to her left eye and a laceration on one of her toes were sutured. She was examined and released the same day. Plaintiff commenced an action against the defendant in September 2004 alleging injuries including permanent scarring near her left eye and over a toe on her left foot, a herniated disc at L5-S1, a bulging disc at L4-5 and cervical and lumbar sprain and strain. Defendant answered and made demands for HIPPA-compliant medical record authorizations and photographs of plaintiff's healed scars. Before providing those items of discovery, plaintiff filed a note of issue on March 10, 2006 and certified that discovery was complete. Only after defendant made a motion to preclude plaintiff from offering the demanded items as evidence at trial, were the items provided under cover of a letter dated August 25, 2006. On October 11, 2006, defendant made the instant motion for leave to file a late summary judgment motion, and upon leave granted, for an order dismissing the complaint for plaintiff's failure to demonstrate she had suffered a serious injury.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). A motion for summary judgment may not be made after 120 days of filing of the note of issue except upon good cause [*2]shown (Civil Practice Law and Rules ["CPLR"] § 3212). "Good cause" requires a satisfactory explanation for the untimeliness (Brill v. City of New York, 2 NY3d 648 [2004]).

In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, "significant disfigurement", a "permanent consequential limitation of use of a body organ or member", a "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 constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v. Palmieri, 1 NY3d 536 [2003]; Licari v. Elliot, 57 NY2d 230 [1982]).

An injury is disfiguring if it alters for the worse the plaintiff's natural appearance (PJI3d 2:88B [2005]). A disfigurement is significant if a reasonable person viewing the plaintiff's body in its altered state would regard the condition as unattractive, objectionable, or as the object of pity or scorn (id.). Although the question of whether a plaintiff has suffered a serious injury is usually for the jury, it is incumbent upon the court to decide in the first instance if reasonable people could differ as to whether plaintiff's scar was a significant disfigurement (Edwards v. De Haven, 155 AD2d 757 [3rd Dept 1989] [court dismissed complaint at close of plaintiff's case after personally viewing scars on plaintiff's legs and concluding plaintiff had failed to establish serious injury as a matter of law]; see also Loiseau v. Maxwell, 256 AD2d 450 [2nd Dept 1998] [summary judgment granted where reasonable person would not regard 5-cm. scar on lower part of infant plaintiff's right leg unattractive, objectionable or subject of pity or scorn]; cf Abdulai v. Roy, 232 AD2d 229 [1st Dept 1996] [doctor's testimony was sufficient to satisfy serious injury threshold where line-shaped scar under right eye was deeply discolored and scar on nose was thickened]).

To make out a prima facie case of serious injury relating to the other relevant categories in the statute, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). A permanent loss of use must be "total" in order to satisfy the serious injury threshold (Oberly v. Bangs Ambulance, 96 NY2d 295 [2001]; Hock v. Aviles, 21 AD3d 786 [1st Dept 2005]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 678 [1987]). To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that [*3]plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708). Allegations of sprains and contusions do not fall into any of the categories of serious injury set forth in the statute (Maenza v. Letkajornsook, 172 AD2d 500 [2nd Dept 1991]).

"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" (Pommels v. Perez, 4 NY3d 566 [2005]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]).

The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v. Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v. Louise Cab Co.,108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v. Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).

In support of the motion, defendant offered color photographs provided by plaintiff of her face and left foot, plaintiff's bill of particulars and supplemental bill of particulars, the affirmation of Dr. Sarasavani Jayaram, plaintiff's ambulance call report, emergency room records, and plaintiff's deposition testimony. The photographs show the left side of plaintiff's face with a small, flat, colorless, approximately 1.25 cm. scar above and to the side of plaintiff's left eye, which is barely visible. The scar on plaintiff's middle toe is not visible at all in the photographs offered.

In plaintiff's bill of particulars, she alleged the lacerations to the left side of her face and her left toe, concussion and possible nerve damage. In her supplemental bill, plaintiff added a herniated disc at L5-S1, a bulging disc at L4-L5, hypertrophic changes to the zygapophyseal joints from L4-5 through L3-4, studies suggestive of cervical and lumbar arthritis, dextroscoliosis, a plantar calcaneal spur, post-traumatic fibrous capsulitis in the cervical and lumbar regions, post-traumatic headaches and cervical and lumbar sprain and strain, among other things.

Dr Jayaram, neurologist, examined plaintiff on February 8, 2006, finding a 53-year-old, 5'2" tall woman weighing 162 pounds. She presented using a cane and complained of pain in her neck, mid back and low back. Dr. Jayaram noted that plaintiff was able to walk normally without the cane and had a well-healed 1.25" [sic] scar over the left lateral orbital margin. Dr. Jayaram could not find a scar on plaintiff's left toe. He found no tenderness, spasm or triggers in either [*4]the cervical, thoracic or lumbar spine. He observed plaintiff voluntarily demonstrate full range of motion of her cervical spine. The following cervical tests were all negative: Spurling, Jackson's, Soto-Hall, Cervical Distraction Test, and Valsalva manuever. Plaintiff complained of subjective lower lumbar tightness on any attempted movement of the lumbar spine. Dr. Jayaram observed a restriction in range of motion of plaintiff's lumbar spine that was, however, self-imposed as plaintiff contracted antagonistic muscles simultaneously. All objective lumbar tests, including Forward Flexion, Quick Test, Bechterew/ Sitting Boot Test, straight-leg raising and Kernig's Test were negative. Dr. Jayaram's diagnosis was: normal neurological examination. He found no focal deficits and no objective findings to explain plaintiff's use of a cane.

The ambulance call report stated that plaintiff was found sitting on the ground after being hit on her left side at low speed by cabdriver and falling to the ground. She denied "LOC", "sob", dizziness, "diff. Br.", "alp", "neck or back pn".

The emergency room records show that plaintiff was a "pedestrian struck" with complaints of "headache", "foot pain"and "questionable LOC". A CT scan of her head was done as well as x-rays of her pelvis, cervical spine and left foot, all with negative results. The emergency room records of her visit contain no complaints or results indicating other possible areas of concern. Plaintiff returned to the emergency room a second time ten days after the accident for removal of her sutures and the records contain no mention at that time of any other problems related to the accident.

Plaintiff testified that she made no complaints regarding her back at the emergency room. (Deposition of Adelaida Santos, January 12, 2006, at 24). She was confined to bed for 5 weeks following the accident (Id. at 41). She testified that, as a result of the accident, ". . . when I bend down or I have to bend down to pick up something, I have trouble" (Id. at 38). Another activity that caused her difficulty was "[l]ike climbing up, like to put the curtains" using a chair (id.). She also complained of headaches for which she took Tylenol (Id. at 39). She had no other complaints (Id. At 38).

In opposition to the motion, plaintiff argued that the motion should not be considered as it was untimely and offered an MRI report of plaintiff's lumbar spine, unsworn treatment records signed by Dr. Joseph Giacalone, an unsworn and unsigned "Initial Consultation" from Encompass Medical Group, an affidavit by the plaintiff, affidavits by Dr. Phill Nadler and Dr. Robert Scott Schepp, and an affirmed report by Dr. Irving Friedman.

The MRI report, dated June 20, 2005, reported a herniated disc at L5-S1 and bulging disc at L4-5 with no structural abnormalities in the bilateral L5 nerve roots. Hypertrophic changes of the bilateral zygapophyseal joints were noted at L1-2 through L3-4. Dr. Robert Scott Schepp, who did the examination, affirmed the accuracy of the report.

The unsworn records of chiropractic treatment reported 10 visits with adjustments, ultrasound and mechanical traction to plaintiff's spine, beginning on September 1, 2004 and ending on January 19, 2005. At each visit plaintiff reportedly estimated her pain level, on a scale of 1 to10, to measure between 8 and 10.

The unsworn and unsigned "Initial Consultation", dated November 5, 2004, diagnosed plaintiff with cervical and lumbar sprain and strain, headaches and muscle spasm. Dr. Nadler, who stated that he took over Dr. Giacalone's office after the latter retired, affirmed that the records from Dr. Giacalone's office were kept in the ordinary course of business. [*5]

Plaintiff stated in her affidavit dated January 9, 2007 that she has been in constant pain since the accident, that she had physical therapy for five months after the accident and that she stopped when her no-fault benefits ran out. She stated she "was told" by unnamed doctors that further treatment would not help her. She continues to have pain in her neck and back. Exercising, sitting or lying down in the same position "bother" her neck and back. She cannot lift grocery bags and has "difficulty" walking up and down stairs and mopping floors. She is "constantly embarrassed" by the "extensive" scarring left from the 16 sutures required to repair her eyelid.

Dr. Friedman examined plaintiff for the first time on December 26, 2006. He found significantly restricted range of motion of plaintiff's cervical and lumbar spine and her inability to heel and toe walk, tandem walk, get on and off the examination table without assistance, or walk without a cane. She had positive straight leg raising and "exquisite tenderness" to palpation over the left second toe. Dr. Friedman reviewed the ambulance call report, the emergency room report, Dr. Giacalone's report of September 1, 2004 and the MRI report of plaintiff's lumbar spine. Based on plaintiff's complaint of continued pain since the time of the accident, Dr. Friedman concluded that she suffered from chronic lumbar myofascitis with radiculopathy, cervical myofascitis, L5-S1 disc herniation, L4-5 disc bulge, headaches, 1-1/5 cm left orbital scar, laceration on left toe requiring 8 stitches to close and chronic pain syndrome with affective disturbances including anxiety, depression and insomnia, all as a result of the subject accident.

This motion may be properly considered by the court although it was made more than 120 days after plaintiff filed the note of issue. Plaintiff filed a note of issue and certified that discovery was complete, knowing that it was not, and having received a demand for medical authorizations and photographs of the healed scars, obviously critical items of discovery in the instant case. Under these circumstances, plaintiff will not be heard to complain that the motion was not timely made.

Furthermore, defendant has established his entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendant met his burden of showing by admissible medical evidence that plaintiff suffered no permanent or significant injury as a result of the subject motor vehicle accident. Plaintiff did not complain of back pain to the ambulance emergency medical technicians, did not complain of back pain at the emergency room, even upon her second visit, and demonstrated no restriction of motion in her neck and only self-imposed restricted motion in her back, with no objective findings of injury to support that restriction when examined by Dr. Jayaram. Dr. Jayaram was not given the MRI report to review as it was not turned over by plaintiff until six months after Dr. Jayaram's examination of the plaintiff and four months after plaintiff filed the note of issue. Dr. Jayaram could not find the alleged scar on plaintiff's left toe and only a small, well-healed scar on the left side of her face. The photographs of plaintiff's face show a tiny colorless scar, visible only upon very careful study of the picture. It does not, as a matter of law, constitute a significant disfigurement. No reasonable person with normal eyesight would even notice the scar, let alone regard it as unattractive, objectionable or the subject of pity or scorn. This court was unable to find the alleged scar on plaintiff's toe by examining the photographs.

Plaintiff's offerings in opposition are insufficient to defeat summary judgment. The MRI report of plaintiff's herniated and bulging discs was based on a study done on July 20, 2005, [*6]almost a full year after the subject accident of August 28, 2004. Plaintiff has offered no admissible evidence linking those findings contemporaneously to the accident. Dr. Friedman's affirmation is not competent to establish causality. He was not plaintiff's treating doctor and saw her for the first time on December 26, 2006, two years after she ceased her physical therapy treatments. She has not explained that gap in her treatment. Her affidavit claiming she was told no further treatments would be helpful is unsupported by any contemporaneous medical record and is a hearsay statement that does not even purport to identify the declarant. Her subjective complaints of pain and vague descriptions of limitation in her affidavit, drafted for the purpose of opposing this motion, are insufficient to establish a permanent or significant injury, even if believed. Her "embarrassment" over the scar on her face is entirely subjective, if not unreasonable, and does not convert that minimal defect into a significant disfigurement.

Finally, plaintiff's testimony that she was only confined to her bed for five weeks after the accident preclude a finding that she was prevented by a medically determined injury from performing substantially all her customary daily activities for 90 out of the first 180 days following the accident. The complaint is, therefore, dismissed in its entirety.

Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.

This constitutes the decision and order of the court.

Dated: May 14, 2007

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..