Vomero v Gronrous

[*1] Vomero v Gronrous 2008 NY Slip Op 50614(U) [19 Misc 3d 1109(A)] Decided on February 29, 2008 Supreme Court, Nassau County McCormack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 29, 2008
Supreme Court, Nassau County

Georgette Vomero and Frank J. Vomero, Plaintiff,

against

Dorothy M. Gronrous, Defendants.



007301/06



KAPLAN BELSKY ROSS, LLP

Attorney for PlaintiffS

666 Old Country Road, Suite 602

Garden City, NY 11530

Richard T. Lau & Associates

Attorney for Defendant

P. O. Box 9040

Jericho, NY 11753-9040

James P. McCormack, J.

Motion by defendant Dorothy Gronrous for an order pursuant to CPLR § 3212 granting summary judgement on the grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §§ 5102(d) and finding that her principal claim and the derivative claim of her husband, Frank Vomero, for non-economic loss are barred by section 5104(a) of the Insurance Law.

This action is brought by plaintiffs to recover money damages for what are alleged to be serious physical injuries sustained by Georgette Vomero in an automobile accident which took place on October 19, 2005 at the intersection of Merrick Road and Richmond Avenue, Amityville in the County of Suffolk, State of New York when the automobile she was driving was struck by a vehicle operated by defendant Dorothy Gronous. The plaintiff's Bill of Particulars alleges, inter alia,

Direct blow to the face causing the condyles to be forced upward and backward traumatizing the intracapsular tissue causing severe pain in her jaw and requiring ultrasound, heat hydroculation, vapocoolant spray and stretch myofacial release and manipulation; Herniated discs lumbosacral spine casing sever back pain; Temporomandibular joint disorder causing pain on palpation in the temporalis muscle, masseter muscle, lateral and medical pterygoid muscle, trapezius muscle, sternocleidomastoid muscle and occipital muscle requiring construction of a mandibular orthopedic repositioning appliance to unload the TM joints and prevent excessive muscle contraction of the muscles of mastication; Focal left paracentral disc herniation L5-S1, abutting the descending left S1 nerve root causing severe back pain; Severe myalagia [*2]causing acute pain throughout the injured muscles; Spinal nerve root compression (cervical C5/C6) causing weakness in the biceps and sensory loss in the lateral arm and forearm, sensory loss in the thumb and lateral aspects of index finger; Peripheral neuropathy and peripheral nerve entrapment (medium) causing temporary numbness, tingling and pricking sensations, sensitivity to touch and muscle weakness; Cervical strain/cervical sprain causing pain and tenderness; Left shoulder impingement and left shoulder sprain causing severe arm and shoulder pain; Left carpal tunnel syndrome causing pain in the left hand; Left hip strain causing pain and tenderness in the left hip; Lumbosacral strain; Articular disc disorder where the cushion between the ball and the socket of the temporomandibular joint is worn creating muscle tension or spasm; Retrodiscitis causing pain, inflamation and tenderness; Contusions in the left elbow causing damaged or broken blood vessels, possibly crushing underlying muscle fibers and connective tissue; Musculoskeletal chest pain; Severe pain in the neck radiating to the left shoulder.

Insurance Law 5102(d) defines "serious injury" as a personal injury which results in among other things "permanent loss of use of a body organ, member, function or system; permanent consequential limitation os 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 preforming 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."

With regard to the statutory categories of "permanent consequential limitation" and " significant limitations of use", the Court of Appeals has stated that whether a limitation of use or function is "consequential" or "significant" 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 Systems, 98 NY2d 345, 353[2002]) Additionally, the doctor's opinion as to the medical significance of the injury must be supported by objective medical evidence, such as an MRI or CT scan, or the observation of muscle spasms during the physical examination. Id.

On a motion for summary judgement, it is defendant's burden to present a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a matter of law (Schultz v. Von Voight, 86 NY2d 865[1995]). If defendant makes that showing the burden shifts to plaintiff to come forward with sufficient evidence to overcome defendant's motion by demonstrating that he/she sustained a serious injury under the No-Fault Law (Gaddy v. Eyler, 79 NY2d 955[1992]). Thus, the question of whether plaintiff suffered a serious injury is not always a question of fact which requires a jury trial (Licari v. Elliot, 57 NY 2dd 230, 237[1982]). However, where plaintiff submits objective evidence as to "the extent of the limitation of [*3]movement," a factual issue will be presented (Id. at 238-239).

In support of their motion for summary judgement dismissing the complaint, defendants submit an affirmed findings and opinions of doctors Arthur Kupperman, a board certified dentist, who examined plaintiff on March 15, 2007, as part of an independent medical evaluation; S. Murphy Vishnubhakat, a board certified neurologist, who examined plaintiff on April 24, 2007, as part of an independent medical evaluation; and Peter Berman, a board certified otolaryngologist, who examined plaintiff on March 15, 2007, as part of an independent medical evaluation.

Dr. Kupperman examined plaintiff and performed clinical tests, and noted:

Oral examination revealed teeth No. 1 through 13 and 19 through 29 present and in good repair. There is noted to be a class 2 malocclusion with deep anterior over-bite. There was a full range of opening with no deviation noted on opening or closing. There was a full range of lateral and protrusive movements. There was no clicking or crepitus noted on opening an closing to the right and left temporomandibular joint and the left masseter, temporalis and lateral pterygoid muscles. The claimant related pain to palpation to the left temporomandibular joint and the left masseter. There was no pain or tenderness to palpation to the right temporomandibular or the right masseter, temporalis or lateral pterygoid muscle.

The conclusion reached by Dr. Kupperman after his exam was that the exam was essentially normal with the exception of the plaintiff's subjective complaints. He stated there was no disability from the oral or dental standpoint.

Dr. Vishnubhakat examined the plaintiff, performed quantitative and comparative range of motion and other clinical tests, and noted:

Pulse is 70 per minute and regular, no extrasystoles, blood pressure 122/78. Head, neck, ear, nose and throat unremarkable. There is no carotid bruit, thyromegaly or lymphadenopathy. Neck is supple. Straight leg-raising test is negative up to 90 degrees bilaterally. Peripheral pulsations are normal. There is no pretibial edema. Abdomen is soft. Chest is clear. Heart sounds are normal.

Cervical spine movements were visually observed and measured with a goniometer and revealed a flexion of 45 degrees (normal is 45 degrees) and lateral rotation of 45 degrees (normal is 45 degrees) and extension is 45 degrees (normal is 45 degrees). There was no spinal tenderness or paravertebral muscle spasm. Lumbar spine movements were also visually observed and measured with a goniometer revealing a forward flexion of 90 degrees (normal is 90 degrees). Her lateral flexion was 45 degrees bilaterally (normal is 45 degrees) Etension was noted to be 35 degrees (normal is 35 degrees). I did not notice any paravertebral muscle spasm, spine or sciatic notch tenderness. Hip joints were observed in full range of motion bilaterally. When measured with goniometer she [*4]revealed a forward flexion of the right hip to 100 degrees from 0 and also on the left from 0-100 degrees (normal is 100 degrees). Bilateral internal and external rotation of the hip joints was measured with a goniometer revealing 0-40 degrees internal and 0-50 degrees external rotation bilaterally (normal is 40-50 degrees respectively for internal and external rotation). During the maneuver she did not experience any hip joint tenderness. There was no Tinel's sign at the wrist or elbow bilaterally.

Motor evaluation revealed normal tone in both upper and lower extremities with 5/5 strength in dorsiflexors, plantar flexors, invertors, evertors, gluteals, hamstrings, iliopsoas, quadriceps and adductors. In the upper extremities intrinsic muscles of both hands, wrist extensors and flexors, biceps, triceps, and deltoid, supra and infraspinatus, trapezius, and sternomastoid were 5/5. Finger-to-nose and heel-to-shin testing was normal. There was no atrophy, fasciculation or abnormal movements. Her deep tendon reflexes were 2+ in the biceps, brachioradialis, triceps, knees and ankles. There was no Babinski sign. Measurements of her muscles revealed 41 cm on the right and 40.5 cm on the left calf, whereas thighs were measured 50 cm bilaterally, 10 cm above the patellar border. Her arm measured 29 cm bilaterally, 10 cm below the crease. She had no difficulty in toe, heel and tandem walking. Romberg sign was negative.

The conclusion reached by Dr. Vishnubhakat after his exam was that Ms. Vomero does not show any objective evidence of neurologic abnormalities. Thus, there is no evidence of injury to the brain, spinal cord, nerve roots or the peripheral nerves as a result of the accident of 10/19/05. There is no evidence of traumatically induced bilateral carpel tunnel syndrome ad cervical or lumbosacral radiculopathy. Thus, there is no neurologic disability and no adverse neurological prognostic indicators.

Dr. Peter Berman examined the plaintiff and performed clinical tests, and noted:

On examination, the oral cavity and oropharynx is clear. Examination of the ears reveals clear external auditory canals. Tympanic membranes are clear and intact. Neck exam reveals spasm and some minimal tenderness on the left sternocleidomastoid muscle area, left posterior auricular and mastoid area greater than the right side. The temporomandibular joint area appears subjectively tender but I do not palpate any clicks or dislocation of the jaw.

The conclusion reached by Dr. Peter Berman after his examination of the plaintiff was that Ms. Vomero had irritation to the temporomandibular joint area and cervical strain and muscle strain.

Finally, defendant submits to this court the affirmed report of Dr. Melissa Sapan Cohn, a board certified radiologist, who conducted a review of the plaintiff's lumbar spine MRI. Dr. Sapan Cohn reported:

There is evidence of a small disc herniation at the L5-S1 level. This is associated with underlying disc desiccation. Disc desiccation indicates that the disc has dried out [*5]and lost its normal water content. The association of the disc herniation with disc desiccation suggests it is chronic in nature. Acute disc herniations normally occur in well-hydrated discs. It is the central, gelatinous portion of the disc, known as the nucleus pulposus which insinuates itself through a tear in the outer fibers to result in an acute disc herniation. Once this central, gelatinous portion dries up, the incidence of acute herniation rapidly diminishes. The more likely scenario is that the disc herniation occurred when the discs were healthy and well hydrated, leading to the inevitable degeneration and desiccation of the disc.

Dr. Melissa Sapan Cohn concluded the plaintiff does have disc herniation at the L5-S1 level. However she stated, this is associated with underlying degenerative changes suggesting it is chronic in nature.

The defendant has established, through the affirmed reports of doctors Kupperman, Vishbubhakat, Berman, and Sapan-Cohn , a prima facie case that plaintiff's injuries were not serious within the meaning of Insurance Law § 5102. (Chatah v. Iglesias, 5 AD3d 160; Ziegler v. Ramadhan, 5 AD3d 1080). Accordingly, the burden now shifts to the plaintiff to demonstrate a serious injury. (Attanasio v. Lashley, 636 NYS2d 834 {223 AD2d 614} )

In opposition to the motion, plaintiff has submitted the affirmed reports of doctors Barry Rozenberg, DDS, Jonathan Dashiff, M.D, P. Leo Variale, M.D., Robert Madison, DDS, Mohammed Husain, M.D. and Dr. Steven Peyser, M.D., a radiologist who conducted an M.R.I. of plaintiff's lumbar spine.

Dr. Rozenberg examined plaintiff March 14, 2006 and performed certain clinical tests. Dr. Rozenberg examined the plaintiff and found:

There was mild to moderate pain on palpation in the right and left TM joints, intrameatally and extraorally. There was mild to moderate pain on palpation in the following muscles: temporalis, masseter (trigger point), lateral and medial pterygoid, trapezius (trigger point), sternocleidomastoid (trigger point) and occipital (trigger point). Mandibular range of motion: Maximum opening = 54 mm, right lateral excursion = 9 mm, left lateral excursion = 8mm and protrusive = 4mm. There was intermittent clicking of the TMJ's.

Dr. Rozenberg concluded The direct blow to my patient's face forced the jaw backwards. This directly caused the condyles to be forced upward and backward traumatizing the intracapsular tissue. There was a direct causal relationship between the injuries sustained by my patient and the motor vehicle accident of 10/19/05.

Dr. Steven Peyser interpreted an MRI performed on the plaintiff's lumbar spine on November 28, 2005.

The M.R.I of the lumbar spine taken by Dr. Peyser on November 28, 2005, approximately one-month post accident, revealed L5/S1 posterocentral disc herniation (Plaintiff's Exhibit F). [*6]

Dr. P. Leo Varriale, a board certified orthopedic surgeon, examined the plaintiff on January 12, 2006 and noted:

Cervical Spine: There is flexion to 70 degrees (80 degrees normal), right and left lateral rotation to 70 degrees (80 degrees normal). There is no tenderness or spasm. No atrophy about the paraspinal muscles. There is no pain or radiation of pain on range of motion. Thee is no atrophy noted in the forearms or upper arms. There is normal skin color. There is no excessive sweating of the extremities. There is a negative Spurling's test.

Left Shoulder: There is no swelling or tenderness. Abduction is 140 degrees (160 normal). External rotation to 70 degrees (80 degrees normal), internal rotation 70 degrees (80 degrees normal). There is pain at 90 degrees of abduction. There is no erythema. There is full strength of the abductors, internal and external rotators. There is no atrophy of the, supra spinatus or deltoid muscles. There is no evidence of anterior, posterior or inferior instability. No sign of impingement. Negative biceps inflammation sign and no signs of a tear of the labrum.

Left hand and wrist: There is a positive Phalen's and Tinel's of the carpal tunnel. There is decreased sensation in the index finger.

Left hip: There is tenderness in the groin. There is pain on internal and external rotation. Flexion is 130 degrees (140 degrees normal). Abduction is 60 degrees (80 degrees normal. Internal rotation is 30 degrees (45 degrees normal) and external rotation is 70 degrees(80 degrees normal).

Lumbar spine: There is no spasm or tenderness about the lower back. No atrophy about the paraspinal muscles. There is extension to 10 degrees (ten degrees normal), flexion to 80 degrees (90 degrees normal). There is negative straight leg raising bilaterally. There is full strength of the dorsi flexors and plantar flexors of the feet and quadriceps and hamstrings of the legs. There are no sensory deficits in the lower extremity. Knee ankle reflexes are 2+ bilaterally. No atrophy noted about the calves or the thighs.

Dr. Varriale concluded the plaintiff had cervical strain, left shoulder impingement, left carpal tunnel syndrome, left hip strain and lumbosacral strain. More importantly Dr. Varriale's affirmed findings and opinion revealed a significant reduction in the plaintiff's range of motion in the cervical spine, left shoulder and lumbar spine.

Dr. Robert Madison, DDS, examined the plaintiff on May 12, 2006

Dr. Madison concluded that his examination was able to elicit the objective TMJ symptom of left side clicking. There was no crepitus, no dislocation upon opening or closing, normal limit of opening, no deviation upon opening or closing, normal movements during right and left lateral excursions, and normal protrusive movement. He [*7]stated his examination was able to elicit the subjective symptoms of pain during palpation of the left masseter and temporalis muscles and during palpation of the left TMJ both intra and extrameatilly. It is worth noting that this finding is wholly supported by the affirmed findings and opinions of the defendant's doctor, Aurthur Kupperman, DDS, who noted the same pain related to palpation to the left TMJ and the left masseter and temporalis muscles.

The findings and opinions contained in each of the affirmed reports of the doctors who examined the plaintiff, as well as those of radiologist, Dr. Peyser, lead this court to conclude that the plaintiff has met her burden of presenting sufficient evidence in admissible form as to present a triable issue of fact as to the serious nature of her injuries. The plaintiff herein has submitted objective medical evidence of a herniated disc(s) together with objective tests showing a decreased range of motion in the cervical and lumbar spine of a sufficient quality as to preclude summary judgement. (Toure v. Avis Rent A Car Systems, supra ; Ejzerman v. Cruz, 309 AD2d 893; Salomon v. Hadco, 1 AD3d 426; Espinoza v. Dinicola, 8 AD3d 225). Specifically, this court concludes that plaintiff has presented sufficient evidence as to two of the No-Fault thresholds: 1) permanent consequential limitation of use of a body organ or member, and 2) significant limitation of use of a body function or system.

Accordingly, the defendant's motion is denied in all respects.

This decision constitutes the order of this Court.

Dated: February 29, 2008

______________________________

Hon. James P. McCormack, AJSC

KAPLAN BELSKY ROSS, LLP

Attorney for PlaintiffS

666 Old Country Road, Suite 602

Garden City, NY 11530

Richard T. Lau & Associates

Attorney for Defendant

P. O. Box 9040

Jericho, NY 11753-9040