Acholonu v Archer

[*1] Acholonu v Archer 2008 NY Slip Op 52395(U) [21 Misc 3d 1136(A)] Decided on November 24, 2008 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008
Supreme Court, Kings County

Consuella Acholonu, Plaintiff,

against

Allan Archer, JANET A. CADOGAN, and OVID CADOGAN, Defendants.



9343/06



ATTORNEYS FOR PLAINTIFF

CONSUELLA ACHOLONU

SHAFRAN & MOSLEY, P.C.

EMPIRE STATE BUILDING

350 FIFTH AVENUE, SUITE 2310

NEW YORK, NEW YORK 10118

(212) 631-7000

ATTORNEYS FOR DEFENDANT

ALLAN ARCHER,

JAMES G. BILELLO & ASSOCIATES

875 MERRICK AVENUE

WESTBURY, NEW YORK 11590

(516) 229-4363

ATTORNEYS FOR DEFENDANTS

JANET A. CADOGAN and OVID CADOGAN

MORRIS, DUFFY, ALONSO & FALEY LLP

2 RECTOR STREET, 22ND FLOOR

NEW YORK, NEW YORK 10006

(212) 766-1888

Martin Schneier, J.

In this motor vehicle personal injury action defendants Janet A. Cadogan, Ovid Cadagan and Allan Archer move and cross-move for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law Section 5102(d). Plaintiff cross-moves for partial summary judgment on the issue of liability.

Background

On May 12, 2005 plaintiff was a passenger in a two-car motor vehicle accident. The next day, May 13, 2005, plaintiff went to the Emergency Room at Kings County Hospital where she complained only of "having back pain" in the lower back. The clinical diagnosis was "lumbar strain".

On June 10, 2005, plaintiff was examined by Dr. Eric Senat . Her only complaint was "lower back pain". No range of motion tests were performed by him. Plaintiff went to Dr. Senat for follow up examinations August 18, 2005, January 30, 2006, May 5, 2008 and, June 18, 2008. At no time did Dr. Senat perform any objective tests or make any specific, quantative limitation of motion determinations.

On September 15, 2005, plaintiff was examined by Dr. Alexander Alperovich, who performed a neurological evaluation. Her sole complaint was "lower back pain." Dr. Alperovich's "final diagnosis" was, "Lower Back Muscle Sprain/strain and "knee Sprain/strain." He did not perform detailed, objective quantative limitation of motion tests. In his "dictated but not read" unverified report of April 26, 2006, Dr. Alperovich states that plaintiff "was totally disabled from 5/12/05 to 9/15/2005."

The records establish that plaintiff has had arthritis in her knees since 2003. She testified on January 16, 2007 at her deposition that she has had knee pain continually since 2003 which was, "...constant. Sometimes it comes and I get a sharp pain."

Plaintiff further testified in her deposition that on the date of this accident she was employed as a "medical technologist" at Kings County Hospital and did not go to work for only one week immediately following the accident. When she returned to work she resumed her normal, usual and customary "duties and responsibilities" and normal work schedule of 4 P.M. to midnight every day and continued to take a bus to work. Plaintiff also testified that she lives by herself and that, after the accident, she was able to shop, cook, and do the laundry.

On February 27, 2007, on behalf of the defendants, Dr. Anthony Spataro conducted an orthopedic examination of the plaintiff. He performed comprehensive objective orthopedic tests with the following results: [*2]

"Lumber-Spine-Range of motion:

ObservedNormal

Flexion 90 degrees90 degrees

Knee-Range of motion:

ObservedNormal

Right Knee0-135 degrees0-135 degrees

Left Knee0-135 degrees0-135 degrees"

Dr. Spataro determined that, "there is no disability."

Dr. C.M. Sharma also examined plaintiff on February 27, 2007 on behalf of the defendants, and, conducted a complete neurological examination of the plaintiff. He concluded that this was a "Normal neurological examination" and that, "There is no neurological disability."

DISCUSSION

Insurance Law Section 5102 (d) provides, in pertinent part, that: "(d) "serious injury" means a personal injury which results in [a] .....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.

Defendants have the initial burden of making a prima facie showing that the plaintiffs did not sustain serious physical injuries. The defendants can meet this burden by establishing that the plaintiffs have full range of motion and no disabilities or, by showing that the injuries are not causally related to the accident. If the Court finds that the defendants have met their initial burden, the burden shifts to the plaintiffs to demonstrate that they have suffered serious physical injuries. (Gonzalez v Green, 24 AD3d 939 [3d Dept. 2005])

The degree or, seriousness, of an injury may be shown in one of two ways. First, "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury" (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345,350 [2002]). However, the loss of range of motion must have an objective basis. Tests which are in part, dependant on a [*3]plaintiff's subjective complaints of pain, will not suffice (Toure, at 356). Second, "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 (Toure, at 350).

In support of their motion, defendants rely on the affidavits of Drs. Spataro and Sharma. Dr. Spataro, a board-certified orthopedist, avers that the plaintiff suffered from knee and back sprains which have been resolved and that plaintiff now has a range of motion within normal limits. Dr. Sharma, a board-certified neurologist, found that plaintiff has no neurological disability. These findings are sufficient to meet the defendants' prima facie showing that plaintiff has not sustained a "serious injury".

(Gonzalez at 940).

In opposition, plaintiff argues that she sustained a medically determined injury which prevented her from performing substantially all of the material acts which constitute her daily activities for at least 90 of the 180 days following the occurrence of the injury. In this case, the plaintiff testified that she was only out of work for "about a week." This admission precludes a finding that the plaintiff was prevented from performing substantially all of the material acts which constitute her daily activities for the requisite period (Ingram v. Doe, 296 AD2d 530 [2d Dept 2002]). To the extent that the plaintiff's affidavit submitted in opposition to the defendant's motion asserts allegations that are contrary to the plaintiffs deposition testimony, it presents only feigned issues of fact, and is thus insufficient to defeat the defendant's motion (Karwowski v. New York City Transit Authority, 44 AD3d 826 [2d Dept 2007]).

Plaintiff has failed to proffer any competent objective medical evidence that she sustained in this accident a medically determined injury of a nonpermanet nature which prevented her, for 90 of the 180 days following the subject accident from performing her usual and customary daily activities (Vribe-Zapata v. Capallan, 54 AD3d 936 [2d Dept 2008]).

Plaintiff also argues that she sustained a "permanent consequential limitation of use of a body organ or member" and a "significant limitation of use of a body function or system." However, an unexplained gap in treatment between treatment received shortly after the accident and treatment received long thereafter warrants dismissal of plaintiff's case (Pommells v. Perez, 4 NY3d 566 [2005]). In this case, plaintiff ceased treatment on January 30, 2006, and did not resume treatment until her May 5, 2008 examination. A gap in treatment of more than two [*4]years is sufficient to require explanation (Puerto v. Omholt, 17 AD3d 650 [2nd Dept 2005]). Because the plaintiff offers no explanation for this gap in treatment, the defendants' motion must be granted.

CONCLUSION

Based on the foregoing, the defendant's motion and cross-motion for summary judgment are granted and the complaint is dismissed. The plaintiff's cross-motion for partial summary judgment on the issue of liability is denied at this time on the grounds that it is moot.

This constitutes the Decision and Order of the Court.

_____________________

J.S.C.