Oglivie v Echavarria

[*1] Oglivie v Echavarria 2008 NY Slip Op 52069(U) [21 Misc 3d 1114(A)] Decided on October 9, 2008 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 9, 2008
Supreme Court, New York County

Ayisha G. Oglivie, Plaintiff,

against

Onofrea Echavarria and Elissa L. Montas, Defendants.



105216/06



Attorney for the Plaintif:

Firm: Sacco & Fillas Llp

Address : 141-07 20th Avenue - Ste. 506

Whitestone, New York 11357

Attorney for the Defendants

Firm : Robert P. Tusa, Esq. - Law Ofc

Address : 1 Metrotech Center - 19th Flr.

Brooklyn, New York 11201

Paul Wooten, J.

Defendants, Onofrea Echavarria and Elissa L. Montas, move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint on the ground that the plaintiff, Ayisha G. Oglivie, has not met the serious injury threshold as defined by New York's No-Fault Law (Insurance Law § 5102 [d]). Defendants contend that, based upon medical examinations and objective testing, plaintiff does not have a serious injury under the statute.

FACTUAL ALLEGATIONS

Plaintiff sustained injuries after being involved in a four-car accident at 5:45 p.m. on March 3, 2004 at Wadsworth Avenue, between 179th and 180th Street in Manhattan, New York.

On the date of the accident, plaintiff was 29 years old and was the driver of one vehicle.[FN1] Plaintiff was also driving three passengers, including her son, who are not parties in this action. As a result of the impact, plaintiff alleges that her neck, back, arms, head, knees and leg were violently thrown about the vehicle and portions of her [*2]body hit the interior of the vehicle.[FN2]

Plaintiff alleges that she sustained central posterior disc herniation at C5-6 with impingement upon the thecal sac; loss of the normal anterior cervical lordosis indicating muscle spasm; derangement of the cervical spine and lumbar spine; right knee intrasubstance tear; posterior horn of the medial meniscus; straightening of the lumbar and cervical lordosis; post-traumatic headaches; cervical sprain/strain; lumbar sacral sprain/strain; muscle spasms; a limited range of motion of the right knee, cervical spine and lumbar spine; and lumbar and cervical radiculopathy.

Following the accident, plaintiff states that she was driven to the emergency room of Columbia-Presbyterian Medical Center, where she complained of pain in the neck, head, back, and right knee. She was treated and released from the emergency room the same night of the accident.

When her injuries from the accident did not improve, plaintiff sought medical treatment at AAKA Orthopedic Associates, P.C. for four months. Plaintiff first saw orthopedist Dr. Frank Carr on May 24, 2004. During the course of her treatment, plaintiff complained of various problems including headaches, dizziness, insomnia, neck pain and stiffness, and restriction of movement in her neck, back, legs, arms and hands. Plaintiff received a variety of treatment from AAKA including therapeutic exercise, physical therapy, massage therapy, electrical stimulation, and hot/cold packs.

On May 24, 2004, Dr. Miklos Weinberger, a board-certified radiologist, interpreted an MRI taken of plaintiff's cervical spine at Westend MRI Medical Associates, P.C. Dr. Weinberger states that plaintiff suffered a central posterior disc herniation at C5-6 with impingement upon the thecal sac and has loss of the normal anterior cervical lordosis indicating muscle spasm. On June 2, 2004, Dr. Weinberger interpreted the MRI taken of plaintiff's right knee and noted an intrasubstance tear and a posterior horn of the medial meniscus.

Treatment with Dr. Carr stopped after four months due to problems with plaintiff's insurance coverage. Plaintiff had her most recent visit with Dr. Carr on January 3, 2008. Dr. Carr noted a decreased range of motion in plaintiff's cervical spine as well as in the right knee. Dr. Carr diagnosed plaintiff with a herniated disc at C5-C6 with impingement of the thecal sac as well as a torn meniscus of the right knee and noted that the plaintiff has a permanent partial disability which is casually-related to the March 3, 2004 accident. Dr. Carr also advised plaintiff to have arthroscopic surgery of her right knee and is a candidate for disc surgery on her cervical spine.

At the request of the defendants, on July 9, 2007, plaintiff had a neurological examination with Dr. Daniel J. Feuer, M.D., a board-certified neurologist. Dr. Feuer's examination revealed that plaintiff had a normal range of motion of the cervical and lumbar spine and straight leg raising was negative bilaterally in the sitting position. Dr. Feuer concludes that plaintiff did not exhibit any objective neurological disability and [*3]can engage in full activities without restrictions.

Defendants also requested that plaintiff be examined by an orthopedist. Dr. Michael Katz, a board-certified orthopedic surgeon, examined plaintiff on May 29, 2007. Dr. Katz's physical examination of plaintiff revealed normal range of motion of the cervical and lumbar spine, normal gait, and normal range of motion in the flexion/extension arc of the right knee. Dr. Katz notes that plaintiff shows no signs or symptoms of permanence relative to the musculoskeletal system.

On July 14, 2007, Dr. Sondra J. Pfeffer, M.D., a board-certified radiologist examined the MRI's of plaintiff's right knee and cervical spine which were taken on May 24, 2004. Dr. Pfeffer states that the MRI of plaintiff's right knee revealed mild medial and lateral meniscal posterior horn insubstance degeneration, without evidence for meniscal tear and no evidence for trauma-related internal derangement. Dr. Pfeffer also reviewed the MRI of plaintiff's cervical spine and states that the trauma reveals minimal anterior disc bulging with endplate spurring and disc space narrowing at C5-6 along with minimal posterior disc bulging at C2-3, C3-4 and C4-5. Dr. Pfeffer further states that her findings are reflective of early, albeit pre-existing, spondylitic disease processes unrelated to the subject accident and that there is broad-based posterior disc herniation at C5-6. Due to the presence of co-existent pre-existing degenerative disc disease at this level, Dr. Pfeffer concludes that the herniation is more likely degenerative than traumatic in etiology.

DISCUSSION

Section 5102 (d) of New York State's Insurance Law defines the term "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.

It is indisputable that five of the nine categories of serious physical injuries discussed by Insurance Law 5102 (d) are not applicable herein as there is no allegation of death, dismemberment, significant disfigurement, fracture, or loss of a fetus. Therefore, the court must determine if the injuries asserted by plaintiff constitutes: (1) a permanent loss of use of a body organ, member, function, or system; (2) a significant limitation of use of a body function or system; (3) a permanent consequential limitation of use of a body function or system; and/or (4) 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 [*4]and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

Defendants contend that upon viewing the facts most favorable to plaintiff, it is clear that her injuries are not serious as defined by section 5102 (d) of the Insurance Law, because plaintiff does not have a significant limitation of a body function or a system. The qualitative assessment of the physicians that examined plaintiff at the request of the defendants, is that she has a normal range of motion and can engage in full activities without restrictions. As defendants have met their burden by producing the affirmations of Dr. Feuer, Dr. Katz and Dr. Pfeffer, the burden shifts to plaintiff to come forward with evidence to prove that she sustained a serious injury within the meaning of the Insurance Law. Gaddy v Eyler, 79 NY2d 955, 957 (1992); Shinn v Catanzaro, 1AD3d 195, 197 (1st Dept 2003).

Plaintiff contends in her bill of particulars that she suffered an injury under the "90/180" category of the insurance law. "When construing the statutory definition of a 90/180-day claim, the words substantially all' should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment." Thompson v Abbasi, 15 AD3d 95, 100-101 (1st Dept 2005).

Plaintiff's verified bill of particulars states that plaintiff was not hospitalized, but was confined to bed for approximately two weeks and to her home for approximately one week following the accident. At her deposition, plaintiff testified that she was confined to bed for a "couple of weeks. Maybe a week or two" (Oglivie EBT, at 59), and that she needed assistance taking care of her son, such as preparing meals and taking him to school, and with household work after the accident. Plaintiff's affidavit in opposition to this motion, sworn to in February 2008, five years after the accident, states that plaintiff cannot sit, walk or stand for prolonged periods of time without experiencing pain; that she can no longer perform or requires assistance with carrying groceries, lifting objects, sweeping or cleaning the floors in her home, walking up stairs, washing dishing and "attending to her other household duties"; and that she can no longer participate in any type of exercise. With respect to her employment, plaintiff testified at her deposition that she "may have been temping" at the time of the accident (Oglivie EBT, at 7), and that she returned to work in October or November 2004 as a full-time consultant for Columbia-Presbyterian.

While some of plaintiff's activities may have been affected as a result of the accident, plaintiff has not sustained her burden of raising an issue of fact that her injuries prevented her from performing "substantially all" of the material acts that constitute her usual and customary daily activities for three of the first six months following the accident. There is no evidence that plaintiff was prevented from working as a result of the accident and she was admittedly able to function as a mother and homemaker immediately after the accident when assistance from friends or family was not available. (Oglivie EBT, at 60-62). Although plaintiff's injuries do not fall under the "90/180" category of serious injury as defined by Insurance Law §5102 (d), the motion must otherwise be denied as plaintiff has met her burden of raising a triable issue of fact as to the "significant limitation of use of a body function or system" category of section 5012 (d) of the Insurance Law. [*5]

The Court of Appeals has examined whether a limitation of the use or function is significant or consequential. That Court has held that a limitation is significant or consequential if there is 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 Sys., Inc., 98 NY2d 345, 353 (2002), quoting Dufel v Green, 84 NY2d 795, 798 (1995). "In order to prove the extent or degree of physical limitation, an expert may designate a numeric percentage of a plaintiff's loss of range of motion or may make a qualitative assessment of plaintiff's condition, provided that the latter evaluation has an objective basis and compare the plaintiff's limitations to the normal use of the affected body system or function." Shinn v Catanzaro, 1 AD3d at 198.

Here, Dr. Katz's examination and conclusions regarding plaintiff's range of motion differ from the conclusions of Dr. Carr, thereby presenting an issue of fact as to the "significant limitation of use of a body function or system" category of Insurance Law 5102 (d). Specifically, while Dr. Katz states that plaintiff demonstrates a normal range of motion and notes that plaintiff shows no signs or symptoms of permanence relative to the musculoskeletal system, Dr. Carr notes a decreased range of motion in plaintiff's cervical spine as well as in the right knee and diagnosed plaintiff with a permanent partial disability which is casually related to the March 3, 2004 accident. Dr. Carr's examination of January 3, 2008 found forward flexion of the cervical spine at 20 degrees (normal 45 degrees), extension of the cervical spine at 0 degrees (normal 45 degrees), and right knee flexion at 55 degrees (normal 150 degrees). Furthermore, Dr. Carr also found plaintiff's injuries so serious that he advised plaintiff to have arthroscopic surgery of her right knee and that she is a candidate for disc surgery on her cervical spine.

There is also a question of fact as to whether any of the injuries as a result of the accident are due to degeneration. Although Dr. Pfeffer states that her findings are reflective of early, but pre-existing, spondylitic disease processes unrelated to the subject accident, Dr. Carr's affirmed report states that plaintiff's past medical history is negative for previous orthopedic problems.

Thus, there exists a question of fact concerning plaintiff's range of motion, her limitations as a result of her injuries, and whether the injuries were pre-existing.

In their reply affirmation, defendants contend that plaintiff failed to produce any proof that she was treated in the emergency room or anywhere else for this accident. Dr. Carr's affirmed report states that he first saw plaintiff on May 13, 2004 and treated her on a monthly basis following the accident. Regarding her treatment at Columbia-Presbyterian on the day of the accident, plaintiff testifies in her sworn deposition as well as her affidavit that she was transported to the hospital where she was treated and released. Dr. Feuer's and Dr. Katz's affirmed reports also maintain that plaintiff stated that she was transported by car to the emergency room where she underwent routine examination and x-rays and was subsequently released for outpatient care. Furthermore, defendants fail to explain what, if any, attempts were made by either side to obtain medical records from the hospital.

Defendants also contend that Dr. Weinberger's affirmation does not comply with CPLR § 2106 and should be disregarded by the court as the CPLR requires a physician's statement to be affirmed to be true under the penalties of perjury. However, [*6]this argument is without merit as Dr. Weinberger's affirmation states that he affirmed "the foregoing pursuant to CPLR § 2106" (Dr. Weinberger Affirm., ¶ 5), thereby acknowledging that he was aware of the penalties associated with non-compliance of CPLR § 2106.

Finally, defendants argue that plaintiff has failed to address the gap of treatment with any admissible evidence. Plaintiff states that she attended physical therapy twice a week for four months, but had to stop because her insurance was not going to cover the treatment. Contrary to defendants' contention, this explanation is a reasonable one and is sufficient to explain the cessation of treatment. Wadford v Gruz, 35 AD3d 258, 259 (1st Dept 2006); Francovig v Senekis Cab Corp., 41 AD3d 643, 644 (2d Dept 2007).

For these reasons and upon the foregoing papers, it is,

ORDERED that the motion of defendants Onofrea Echavarria and Elissa L. Montas for summary judgment is denied.

The Clerk is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Enter:

Dated:

Paul WootenJ.S.C. Footnotes

Footnote 1: Plaintiff's bill of particulars states that plaintiff was exiting her parked motor vehicle when she was struck by defendant. However, plaintiff's deposition testimony states that the accident took place while she was driving and as one of her passengers was about to exit the vehicle.

Footnote 2: Although plaintiff alleges in her affidavit that, as a result of the accident, portions of her body struck the interior of the vehicle, her deposition testimony states that her right knee was the only part of her body that came in contact with the vehicle. (Oglivie EBT, at 35-36).