Rizzo v Torchiano

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[*1] Rizzo v Torchiano 2007 NY Slip Op 52660(U) [25 Misc 3d 1227(A)] Decided on November 21, 2007 Supreme Court, Nassau Co Mahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007
Supreme Court, Nassau Co

John M. Rizzo and DEBRA RIZZO, Plaintiff(s),

against

Vitto A. Torchiano, Defendant(s).



15468/05

Roy S. Mahon, J.

Upon the foregoing papers, the motion by defendant for an Order pursuant to CPLR Rule 3212 and Article 51 of the Insurance Law of the State of New York, granting summary judgment to the defendant,Vitto A. Torchiano, and dismissing the Complaint of the plaintiffs,John M. Rizzo and Debra Rizzo, for personal injuries allegedly sustained in a motor vehicle accident on July 14, 2004 on the ground that (I) the injuries alleged by the plaintiff, John M. Rizzo, do not satisfy the "serious injury" threshold requirement of §5102(d) of the Insurance Law; and thus, his claim for non-economic loss and the derivative claim of plaintiff, Debra Rizzo, are barred by §5104(a) of the Statute; and (ii) the plaintiffs have not shown that they suffered economic loss greater than basic economic loss, is determined as hereinafter provided:

This personal injury action arises out of motor vehicle accident that occurred on July 14, 2004 at approximately 7:00 pm on the eastboundside of Grand Central Parkway at or near LaGuardia Airport, Queens, New York.

In pertinent part, the plaintiff John M. Rizzo in the plaintiffs' Verified Bill of Particulars sets forth:

"5. Plaintiff sustained the following personal injuries:

(a) Central disc bulge at the C2-3 level.

(b) Broad-based disc herniation at the C4-5 level at the anterior margin of the cervical cord with bilateral uncovertebral joint hypertrophy.

(c) A broad-based disc herniation at the C5-6 level extending from the right to the left lateral recess with asymmetry on the right and with impingement upon the anterior right margin of the cervical cord [*2]narrowing of the right lateral recess.

(d) Broad-based disc bulge at the C6-7 level extending from the right to the left lateral recess with bilateral uncovertebral joint hypertrophy touching the anterior margin of the cervical cord.

(e) Cervical radiculopathy requiring cervical epidural steroid injection with fluoroscopic guidance on two separate occasions at the C5-6 and C6-7 levels. Plaintiff sustained a loss of consciousness in the course of undergoing a third epidural injection, requiring emergency room treatment.

(f) Cervicalgia.

(g) Lumbago.

(h) Paraspinal cervical tenderness and spasm with restriction of extension, lateral bend and rotation.

(I) Broad based disc herniations with bilateral lateral recess stenosis at the L2-3, L3-4 and L4-5 levels, extending across the neural canal from the right to the left lateral recess with a bilateral foraminal extension with crowding and impinging upon the existing right and left nerve roots and tenderness over the lower lumbar spine with restriction of extension and lateral bend and spasm; bilateral lumbar radiculopathy.

(j) Restriction of internal rotation of the bilateral hips.

(k) Lower back pain.

(l) Neck pain.

5a. All of the foregoing injuries are with the involvement of the surrounding muscles, bones, ligaments, tendons, nerves, both afferent and efferent, blood vessels, both venous and arterial, fascia and other soft parts in said regions, and with pain, deformity and disability. Said injuries, upon information and belief, are permanent and protracted in nature."

In support of the requested relief, the defendant, amongst other things, submits the affirmed letter report dated August 16, 2006 of S. Farkas, MD, an orthopedist of an orthopedic examination of the plaintiff conducted on August 16, 2006; an affirmed letter report dated September 11, 2006 of Melissa Sapan Cohen, MD a radiologist of a review of an MRI of the plaintiff's cervical spine and an MRI of the plaintiff's lumbosacral spine both performed on August 15, 2004 at Orlin & Cohen Orthopaedics and a copy of the June 22, 2006 deposition transcript of the plaintiff John M. Rizzo.

The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 6l6 NYS2d 650, 65l (Second Dept., l994):

"It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 85l, 853, 487 NYS2d 3l6, 476 NE2d 642; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 7l8). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe, [*3]97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 50l NE2d 572; Zuckerman v. City of New York, supra , 49 NY2d at 562, 427 NYS2d 595, 404 NE2d 7l8)."

It is noted that the question of whether the plaintiff has made a prima facie showing of a serious injury should be decided by the Court in the first instance as a matter of law (see Licaro v. Elliot, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088; Palmer v. Amaker, 141 AD2d 622, 529 NYS2d 536, Second Dept., 1988; Tipping-Cestari v. Kilhenny, 174 AD2d 663, 571 NS2d 525, Second Dept., 1991).

In making such a determination, summary judgment is an appropriate vehicle for determining whether a plaintiff can establish prima facie a serious injury within the meaning of Insurance Law Section 5102(d) (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 381, 489 NYS2d 468, First Dept., 1985; Wright v. Melendez, 140 AD2d 337, 528 NYS2d 84, Second Dept., 1988).

Serious injury is defined, in Section 5102(d) of the Insurance Law, wherein it is stated as follows:

"(d) 'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, ember, 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."

The report of Dr. Farkas sets forth:

"PHYSICAL EXAMINATION: The claimant is a 52 year-old male who stands 5'10" tall and weighs 245 lbs. The claimant states being right-hand dominant.

The claimant was examined disrobed from the waist up.

The claimant was asked to inform me as to any pain or tenderness during the examination.

Skin: The skin was examined with no lesions, masses, or warmth noted.

Examination of the lumbar spine: Revealed no spasm or crepitus to palpation during static positioning or active range of motion. The claimant can forward flex 90§ (90§ forward flexion normal). Lateral bending was 30§ (30§ lateral bending normal). The claimant complained of pain over the low back to palpation. The claimant can toe and heel walk without difficulty. No limp was noted. Deep tenden reflexes were normal at both the Achilles tendon and patellar tendon regions. Motor exam is 5+. Straight leg raising was negative. [*4]

The claimant sits and bends forward to remove his shoes with no indication of discomfort.

Examination of the cervical spine: Examination revealed this individual to present with 80§ of rotation left and right (70 to 80§ rotation left and right is normal) and 50§ of flexion and extension (30 to 50§ of flexion and extension is normal). The claimant offered no complaint of pain. There was no spasm or crepitus to palpation during static positioning or active range of motion. Deep tendon reflexes are 2+ and motor examination is 5+. Tinel's sign was negative at the elbow and wrist.

Examination of the shoulders: The shoulder abducts to 175§ with no complaint of pain. Internal rotation is to L3 (normal range of motion 160-170§ of abduction). There is a negative Impingement Test, negative Neer's Sign, and negative Hawkin's Sign. The claimant offers no complaint of pain as I palpate the shoulder girdle. There is no crepitus through range of motion. Full stability is noted.

Sensory Examination: The claimant states feeling more about the left than right upper extremity circumferentially including the neck. He states feeling more about the lateral aspect of the right leg. Otherwise, the remainder of the lower extremity examination reveals equal sensation.

DIAGNOSES: The claimant presents with diagnosis of:

1. Resolved lumbar sprain.

2. Resolved cervical sprain.

The diagnoses, as documented, are based upon the claimant's description of the accident and the physical examination, taking into account the subjective complaints and objective findings."

Dr. Cohen states in said physician's review of the respective MRIs of the plaintiff:

"Cervical Spine MRI:

Cervical spine MRI consists of sagittal T1 and T2 and gradient echo axial

images. The examination was performed on 8/15/04 at Orlin & Cohen Orthopaedics and is diagnostic.

There is straightening of the normal cervical lordosis.

At the C2-C3 level, there is circumferential disc bulging

The C3-C4 disc space is normal.

At the C4-C5 level, there are anterior and posterior osteophytes, disc space narrowing and a central disc herniation which just touches the spinal cord.

At the C5-C6 level, there are anterior and posterior osteophytes, disc space narrowing and a right parasagittal disc herniation which effaces the ventral aspect of the thecal sac.

At the C6-C7 level, there are anterior and posterior osteophytes, disc space narrowing and [*5]circumferential disc bulging. Uncovertebral joint hypertrophic changes are present. There is mild central canal and moderate bilateral neural foraminal stenosis.

The C7-T1 disc space is within normal limits.

The marrow signal is normal. No intrinsic spinal cord abnormality is identified.

IMPRESSION:

Straightening of the normal cervical lordosis.

C3-C4 disc bulge.

C4-C5 central disc herniation just touches the spinal cord.

C5-C6 right parasagittal disc herrniation effaces the ventral aspect of the thecal sac.

C6-C7 disc bulge.

DISCUSSION:

There is straightening of the normal cervical lordosis. This may be secondary to muscular spasm. Alternatively, this may be the result of the positioning of the patient's neck within the cervical coil necessary to perform the examination.

There is circumferential disc bulging at the C2-C3 level. Disc bulging is unrelated to trauma. Disc bulging occurs as the outer fibers of the disc, also known as the annulus fibrosis, lose their normal elasticity. This allows the central, more gelatinous portion of the disc to bulge circumferentially. This is the commencement of degenerative disc disease.

At the C4-C5 and C5-C6 levels, there are disc herniations. This is in a central location at C4-C5 and a right parasagittal location at C5-C6. Both of these disc herniations are associated with substantial underlying degenerative changes indicating chronicity. There is disc space narrowing. Disc space narrowing occurs when there is loss of the internal architecture of the disc allowing it to collapse upon itself. More importantly, there are anterior and posterior osteophytes. Osteophytes represent bony spurs which form off of the vertebral bodies. This is an attempt by the spine to stabilize itself in the setting of the degenerative process. This represents actual bone formation and takes years to develop. This is compatible with chronic disease.

At the C6-C7 level, there is again circumferential disc bulging. Additional degenerative changes with disc space narrowing and anterior and posterior

osteophytes are also noted at this level.

In my opinion, this patient does have disc herniations at C4-C5 and C5-C6. These are associated with substantial underlying degenerative changes consistent with chronic disease. Additional degenerative changes, unrelated to trauma, are noted throughout the remainder of the spine. [*6]

Lumbosacral Spine MRI:

Lumbosacral spine MRI consists of sagittal T1 and T2 and sagittal and axial proton density images. The study was performed on 8/22/04 at Orlin & Cohen Orthopaedics Associates and is diagnostic.

The normal lumbar lordosis is maintained.

The L1-L2 disc space is within normal limits.

At the L2-L3 level, there are anterior and posterior osteophytes, disc desication, disc space narrowing and circumferential disc bulging.

At the L3-L4 level, there are anterior and posterior osteophytes, disc desication, disc space narrowing and circumferential disc bulging. A small superimposed central disc herniation effaces the ventral aspect of the thecal sac.

At the L4-L5 level, there is disc desiccation and circumferential disc bulging.

The L5-S1 disc space is within normal limits.

The marrow signal is normal. The conus is within normal limits.

IMPRESSION:

Multilevel degenerative disc disease with superimposed central disc herniation at the L3-L4 level.

DISCUSSION:

This patient has diffuse multilevel degenerative disc disease. There is circumferential disc bulging at L2-L3, L2-L4 and L4-L5. Disc bulging is unrelated to trauma. Disc bulging occurs as the outer fibers of the disc, also known as the annulus fibrosis, lose their normal elasticity. This allows the central, more gelatinous portion of the disc to bulge circumferentially. Disc desiccation is present at all three levels. Disc desiccation indicates that the discs are drying out and losing their normal water content.

Additional degenerative changes are present at the L2-L3 and L3-L4 levels with disc space narrowing and anterior and posterior osteophytes. Disc space narrowing occurs when there is loss of the internal architecture of the disc allowing it to collapse upon itself. Anterior and posterior osteophytes represent bony spurs which form off of the vertibral bodies. This entails actual bone formation and indicates long-standing disease. This is a response to the underlying degenerative process.

At the L3-L4 level, there is a small focal lesion consistent with a small superimposed disc herniation. The association of this disc herniation with all of the underlying degenerative changes indicates that it is chronic in nature. Acute disc herniation usually occur in well-hydrated discs. It is the central, gelatinous portion of the disc which insinuates itself through the outer fibers of the disc to result in an acute disc herniation. Once this central, gelatinous portion dries up, the incidence of acute disc herniation rapidly diminishes. The more likely scenario is that this disc herniation occurred when the disc was healthy and well-hydrated. This led to the inevitable degeneration and desiccation of the disc. [*7]

In my opinion, this patient does have a disc herniation at the L3-L4 level which is associated with substantial underlying degenerative disc disease indicating a chronic and long-standing process. Diffuse degenerative changes are present throughout the remainder of the spine. No acute trauma-related injury is identified."

The Court finds that the defendants have submitted evidence in admissible form to make a "prima facie showing of entitlement to judgment as a matter of law" (Winegrad v. New York University Medical Center, 64 NY2d 851, 853; Pagano v. Kingsbury, supra at 694) and is sufficient to establish that the plaintiff did not sustain a serious injury. Accordingly, the burden has shifted to the plaintiff to establish such an injury and a triable issue of fact (see Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176; Jean-Meku v. Berbec, 215 AD2d 440, 626 NYS2d 274, Second Dept., 1995; Horan v. Mirando, 221 AD2d 506, 633 NYS2d 402, Second Dept., 1995).

In opposition to the requested relief the plaintiffs, amongst other things, submits an affirmation of Michael Shapiro, MD, a treating physician of the plaintiff John Rizzo with Orlin & Cohen Orthopedic Associates, LLP together with office records dated August 4, 2004; August 30, 2004; September 20; 2004; November 1, 2004; January 10, 2005; May 23, 2005; July 25, 2005; October 31, 2005; January 9, 2006; March 5, 2007; June 4, 2007 and August 20, 2007.

In pertinent part, Dr. Shapiro sets forth:

"4. At the request of Dr. Orlin, on August 30, 2004 I examined Mr. Rizzo for an orthopaedic spinal consultation relating to the pain in his neck, lower back and right lower extremity. I personally reviewed the MRI film of his cervical spine which revealed that Mr. Rizzo suffered from disc herniations at the C4/5 and C5/6 levels and bulging discs at the C2-3 and C6-7 levels, and the MRI of his lumbar spine which revealed broadbased disc herniations with developing bilateral lateral recess stenosis at the L2/3, L3/4 and L4/5 levels. Copies of these MRI reports are annexed hereto as Exhibits "6" and "7", respectively. Based upon my review of these MRI films, I agree with the interpretations contained in the annexed reports.

After evaluating the MRI studies and my personal observations, I made a determination that the injuries Mr. Rizzo sustained caused a significant impairment of function of her cervical and lumbar spines. My diagnosis at this visit was that Mr. Rizzo was suffering from cervical herniated discs at the aforesaid C4-5 and C5/6 levels; bulging discs at the C2/3 and C6/7 levels; cervicalgia; lumbar herniated discs at the aforesaid L2/3, L/34 and L4/5 levels with stenosis; lower back pain; and cervical and lumbar radiculopathy. I also had a lengthy discussion with Mr. Rizzo to discuss these injuries along with treatment options that included epidural steroid injections. I prescribed the medications, Bextra and Ultracet, along with a course of physical therapy, and stretching on a daily basis, and suggested that he apply ice alternating with heat to the affected areas. I also discussed the benefits of conservative measure including acupuncture, yoga, and stress reduction techniques and suggested that he attempt some combination of these modalities of therapy.

5. Mr. Rizzo continued under my care and continued to receive physical therapy as I directed, but, unfortunately, his condition really did not improve and his complaints remained the same. On January 10, 2005, in response to Mr. Rizzo's complaint of pain, numbness and spasm in a C6/7 type distribution in the left upper extremity, I referred him for a series of cervical epidural injections on the left side at the C5/6 and C6/7 levels. He received two (2) epidural treatments, but in the course of receiving a third series of injections, he sustained a loss of consciousness and required emergency room treatment. I then prescribed [*8]conservative treatment such as chiropractic care, stretching, strengthening and massage to address his symptoms. The treatment my office rendered to Mr. Rizzo is fully described in my annexed office notes. I have reviewed these notes and state that they express my findings, evaluation and opinion of Mr. Rizzo's injuries and physical condition to a reasonable degree of medical certainty.

6. Mr. Rizzo continues to treat in my office until the present time. My last examination of John M. Rizzo took place on August 20, 2007. His complaints of pain have been continuous and consistent throughout, barely improving since I first examined him. On August 20, 2007, I re-examined Mr. Rizzo and performed range of motion testing. The results were as follows:

7. It is my opinion that John M. Rizzo has shown minimal improvement in his ability to utilize his cervical and lumbar spines and still suffers from a significant limitation in all aspects of motion of these parts of his body. I am further of the opinion that these limitations are permanent in nature, as they have not improved substantially in three years. These injuries have led to a significant and permanent impairment of function in Mr. Rizzo's ability to utilize his cervical and lumbar spines and have prevented these parts of his body from functioning properly from the date of the accident continuing until the present time. It is my opinion that these limitations in the use of Mr. Rizzo's cervical and lumbar spines are significant as these restrictions have resulted in a quantified impairment of function as described above.

8. It is my opinion, to a reasonable degree of medical certainty, that Mr. Rizzo has reached a point of maximum improvement with conservative therapy and that the limitations that he is left with are permanent in nature.

9. Based upon my observation and examination of Mr. Rizzo over the past three years, as well as my review of the MRI films, it is my opinion to a reasonable degree of medical certainty, that Mr. Rizzo suffers from cervical and lumbar disc injury as described above as a result of the July 14, 2004 automobile accident. Mr. Rizzo's complaints of pain, the results of his MRI exams on August 15, 2004 and August 22, 2004, and the severe limitations of motion with respect to his cervical and lumbar spines are consistent with these injuries. Mr. Rizzo's limitation in the use of his cervical and lumbar spines demonstrated during my examinations of him constitutes a significant limitation of use of those portions of his body. It can be stated, with a reasonable degree of medical certainty, based upon the results of the MRIs and my examinations that the accident of July 14, 2004 caused these injuries and that these conditions are chronic, permanent and disabling in nature."

Based upon the foregoing, there is an issue of fact as to whether the plaintiff suffered a serious injury pursuant to §5102 of the Insurance Law. As such, the defendant's application for an Order pursuant to CPLR Rule 3212 and Article 51 of the Insurance Law of the State of New York, granting summary judgment to the defendant,Vitto A. Torchiano, and dismissing the Complaint of the plaintiffs,John M. Rizzo and Debra Rizzo, for personal injuries allegedly sustained in a motor vehicle accident on July 14, 2004 on the ground that (I) the injuries alleged by the plaintiff, John M. Rizzo, do not satisfy the "serious injury" threshold [*9]requirement of §5102(d) of the Insurance Law; and thus, his claim for non-economic loss and the derivative claim of plaintiff, Debra Rizzo, are barred by §5104(a) of the Statute; and (ii) the plaintiffs have not shown that they suffered economic loss greater than basic economic loss, is denied.

SO ORDERED.

DATED:......................................................................

J.S.C.

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