Cruz v Lugo

[*1] Cruz v Lugo 2008 NY Slip Op 52721(U) [29 Misc 3d 1225(A)] Decided on July 11, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 11, 2008
Supreme Court, Bronx County

Efrain Cruz, Plaintiff,

against

Sandra Lugo, PEDRO MARTINEZ and PENTECOSTAL CHURCH FREED BY JESUS CHRIST, Defendants.



21116/2006



Counsel for plaintiff:

Harmon, Linder & Rogowsky, Esqs.

by Mark J. Linder

42 Broadway, Suite 1227

New York, NY 10004

(212) 732-3665

Counsel for moving defendants:

Richard T. Lau & Assoc.

by Keith E. Ford, Esq.

P.O. Box 9040

Jericho, NY 11753-9040

(516) 229-6000

Betty Owen Stinson, J.

This motion by defendants Pedro Martinez ("Martinez") and Pentecostal Church Freed by Jesus Christ ("Pentecostal Church") and cross-motion by defendant Sandra Lugo ("Lugo") for summary judgment dismissing the plaintiffs' complaint are granted.

On October 25, 2005, plaintiff was involved in a motor vehicle accident with a vehicle owned and operated by defendant Lugo and another owned by defendant Pentecostal Church and operated by defendant Martinez. Plaintiff declined medical care at the scene and went home. Somewhat later he visited his primary care doctor complaining of headaches and pain in his left side (Deposition of Efrain Cruz, July 24, 2007 at 58). His doctor referred him to a chiropractor [*2]for physical therapy and plaintiff began a course of therapy including heat pads and acupuncture (id. at 61).

Plaintiff commenced this action against the defendants alleging injuries including a herniated disc at C5-6, bulging discs at C4-5 and L4-5, a partial tear of the supraspinatus tendon in the left shoulder and radiculopathy, sprains and strains. After completion of discovery defendants made the instant motion and cross-motion for summary judgment dismissing the plaintiff's complaint for failure to demonstrate that he had suffered a serious injury as a result of the subject accident.

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]).

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, a "permanent loss of use of a body organ, member, function or system", 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]).

To make out a prima facie case of serious injury, 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 [1998]; Gaddy v Eyler, 167 AD2d 67, aff'd, 79 NY2d 955 [1992]). 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 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 [*3]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]; Shvartsman v Vildman, 47 AD3d 700 [2nd Dept 2008 [even a tear in a tendon is not evidence of serious injury in absence of objective evidence of extent of physical limitations resulting from injury and its duration]). 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 and cross-motion, defendants offered plaintiff's bill of particulars; his deposition testimony and the affirmed reports of Dr. Jacqueline Emmanuel, Dr. Maria Audrie DeJesus and Dr. Stephen Lastig. Plaintiff's bill of particulars listed the alleged injuries as set forth above and stated that plaintiff was confined to his bed and home for two days following the subject accident.

Plaintiff testified that he missed two days from work after the accident (Deposition of Efrain Cruz, July 24, 2007 at 16). He was not confined to his bed at all (id. at 117). Physical therapy was helpful and he no longer has a problem with his hip (id. at 68, 70). The problem now is his back (id. at 70-71). He used to swim three times a week before the accident and he can no longer do that and he can no longer dance (id. at 80-81). He was not told by a doctor that he should not swim or dance (id. at 81). There is nothing that he is still able to do, but not do as well as before the accident (id. at 82).

Dr. Emmanuel, orthopedic surgeon, examined plaintiff on September 25, 2007. Plaintiff complained of pain in his left shoulder and lower back. Dr. Emmanuel found no spasm or tenderness in plaintiff's cervical or lumbar spine. In both areas plaintiff demonstrated full range of motion, expressed numerically and compared to the normal. Straight leg raising was negative at 75 degrees in the sitting and supine positions. Sitting Lasegue was negative to 80 degrees. Plaintiff's left shoulder demonstrated full range of motion expressed numerically and compared to the normal. The impingement sign was negative. Dr. Emmanuel concluded plaintiff had resolved sprains and strains of his cervical and lumbar spine and left shoulder. [*4]

Dr. DeJesus, neurologist, examined plaintiff on October 23, 2007. Plaintiff complained of pain in his lower back. He exhibited normal muscle tone in both upper and lower extremities, could walk on toes and heels and in tandem. He demonstrated full range of motion of his cervical and lumbar spine with no spasm and with complaints of mild pain in both areas. Kernig's and Patrick's tests were negative. Dr. DeJesus concluded plaintiff had resolved cervical and lumbar sprains and strains and a normal neurological examination.

Dr. Lastig, radiologist, examined MRI films of plaintiff's cervical and lumbar spine and left shoulder. From the film of plaintiff's lumbar spine, taken on January 5, 2006, Dr. Lastig observed degenerative disc disease with disc desiccation at L4-5 and no focal herniations. He found a disc bulge at L4-5, likely degenerative in origin and unrelated to the subject accident. There was no evidence of rotator cuff tear or labral tear in the MRI film of plaintiff's left shoulder, taken on November 10, 2005, no fluid in the subacromial or deltoid bursa and no significant joint effusion. Dr. Lastig did see subacromial spurring.

In opposition to the motion, plaintiff offered the plaintiff's affidavit; affirmed reports by Dr. Allen Rothpearl, Dr. Bhupinder S. Sawhney, Dr. Aric Hausknecht and Dr. Shahid Mian; medical records of plaintiff's physical therapy treatments; an x-ray report by Dr. Kenneth Crystal; a letter by Dr. Joel Mittleman and unaffirmed reports by Dr. Dina Nelson, Dr. John Mitamura and Dr. Stuart Remer.

Plaintiff stated in his affidavit, dated February 13, 2008, that he underwent physical therapy consisting of hot packs, electrical stimulation, massages, acupuncture and chiropractic treatments for three months following the accident. He suspended the treatments in February 2006 because he needed to prepare for surgery to donate a kidney to his sister and to recover from that surgery. He recommenced treatment with Dr. Sawhney for one and one-half months and then switched to treatment with Dr. Mian because Dr. Mian's office was closer to the school plaintiff was attending. Plaintiff stopped treatment altogether in October 2007 due to "financial issues". He needed to return to work full-time because of outstanding debts and was also attending school. Nevertheless, he continues to have pain in his neck and back. He has difficulty driving and sitting for long periods of time. He used to play basketball, tennis, racquet ball and jog, but can no longer engage in those activities. He used to dance twice a week and can no longer dance.

Dr. Rothpearl, radiologist, performed MRI examinations of plaintiff's cervical and lumbar spine and left shoulder on November 23, 2005; January 5, 2006 and November 10, 2005, respectively. Dr. Rothpearl found a bulging cervical disc at C4-5, approximating the ventral sac, and a herniated disc at C5-6, encroaching on the thecal sac. He also observed a decreased signal "on the long TR sequence throughout the visualized cervical disc levels, indicating discogenic changes possibly related to poor hydration within the nucleus pulposus of the disc". Dr. Rothpearl found a bulging disc at L4-5 in plaintiff's lumbar spine. In plaintiff's left shoulder, Dr. Rothpearl found the examination limited by inadequate axial images, but no evidence of hypertrophic change or joint effusion. He did find a "partial tear versus tendonitis of the supraspinatus tendon".

Dr. Sawhney's records show plaintiff made complaints of headaches, neck, back, left hip and left shoulder pain at his initial visit on November 9, 2005. Dr. Sawhney found restricted range of motion in all affected areas and recommended diagnostic tests, referrals to specialists [*5]and physical therapy. A follow-up examination in December 27, 2005 found plaintiff with the same complaints. At a further follow-up in March 13, 2006, plaintiff had no more headaches, his neck pain was better, but lower back and left shoulder pain were reportedly worse. He had not attended physical therapy for the previous four weeks because of the kidney surgery. Plaintiff's neck had a "minimal to mild" decrease in range of motion with a negative Spurling's test at that time. His back was unchanged. He had a positive impingement sign and tenderness in the left shoulder, but a negative supraspinatus test. At the last follow-up visit with Dr. Sawhney on April 19, 2006, plaintiff reported his neck pain improved, lower back pain "off and on" depending on his activity level for the day, and a "much better" left shoulder. Dr. Sawhney found plaintiff's neck to have no decreased range of motion, no tenderness and a negative Spurling's test, despite noting an x-ray report showing degenerative change in that area. There was "minimal" tenderness and a "minimal to mild" decrease in range of motion in plaintiff's lower back. Plaintiff's straight leg raising test was negative. Plaintiff's left shoulder had no decreased range of motion, a negative impingement sign, negative supraspinatus test and negative tenderness. Dr. Sawhney's final diagnosis was cervical and lumbar sprains/strains; bulging discs at C4-5 and L4-5, herniated disc at C5-6 and left shoulder contusion/partial tear v. tendonitis. He discharged plaintiff as having achieved maximum medical improvement.

Plaintiff's medical records included a report of an x-ray of plaintiff's cervical spine performed by Dr. Kenneth Crystal on November 14, 2005 recording degenerative change at C4-5 and C5-6. Dr. Crystal identified osteophyte formation and relative disc space narrowing at C5-6.

A physiatrist, Dr. Dina Nelson, examined plaintiff on January 17, 2006 and noted plaintiff's MRI report showing either rotator cuff tendonitis or a partial tear and recommended continued physiotherapeutic and rehabilitative care. An orthopedist, Dr. Stuart Remer examined plaintiff on January 18, 2006 and noted the x-ray of plaintiff's cervical spine showing "DJD". On March 18, 2006, Dr. John Mitamura, surgeon, evaluated plaintiff's left shoulder with an impression of "rotator cuff tear which is in the process of healing".

Dr. Hausknecht, neurologist, first examined plaintiff on August 18, 2006, finding unspecified decreases of range of motion of plaintiff's cervical and lumbar spine "in all vectors with pain". He recommended spinal manipulation one to two times per week and hot moist treatment and exercises at home. He next examined plaintiff, who was complaining of neck and back pain, on February 26, 2008, two years and four months after the subject accident. Dr. Hausknecht found a 50-year-old man with weakness in his left shoulder abductor and restricted range of motion, numerically measured and compared to the normal, in plaintiff's cervical and lumbar spine. The lumbar spine range of motion was limited by pain. Plaintiff had a positive Spurling's test and positive straight leg raising on the left in a seated position. Dr. Hausknecht did not mention whether the same result was found in a supine position. Plaintiff reported doing exercises on his own, including swimming. Nerve conduction studies showed cervical radiculopathy at C5-6. Dr. Hausknecht's impression was of the herniated and bulging discs previously noted and radiculopathy at C5-6. Dr. Hausknecht concluded plaintiff had suffered permanent consequential limitation of use of his cervical and lumbar spine, a condition causally related to the subject motor vehicle accident.

A letter by chiropractor Dr. Joel R. Mittleman to Dr. Hausknecht, dated August 18, 2006, states that plaintiff presented on that day for the spinal manipulation recommended by Dr. [*6]Hausknecht. No records of any treatment past that date were attached.

Dr. Mian first examined plaintiff on August 23, 2007 when plaintiff complained of neck pain "on and off", left hip pain "on and off", increased lower back pain after sitting more than one-half hour, pain in his left shoulder and "difficulty" lifting his left arm. Dr. Mian found restricted range of motion in all areas. His impression was of the bulges, herniation and tendon tear mentioned above and a contusion of the left hip. Dr. Mian recommended physical therapy and tylenol. In Dr. Mian's affirmation dated March 7, 2008, Dr. Mian found plaintiff's injuries to be causally related to the subject motor vehicle accident, stated that permanency was "expected" in the cervical and lumbar spine and left shoulder given the MRI studies, and that surgery would be required to correct these injuries.

An affirmed, but undated, "final narrative report" by Dr. Sawhney summarized the treatment he had given plaintiff, noting the x-ray report of plaintiff's cervical spine, dated November 14, 2005, showing "degenerative changes". He referenced his discharge of plaintiff in April 2006 only briefly. There is no indication Dr. Sawhney saw plaintiff after that date. Dr. Sawhney stated that plaintiff "still may have exacerbation of the neck and low back pain" although he had "moderate response" to physiotherapy. Dr. Sawhney concluded that plaintiff's injuries are permanent in nature and directly related to the subject accident.

Defendants have established their entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendants met their burden of showing by admissible medical evidence that the plaintiff suffered from sprain injuries in his neck and back, which have completely resolved, and no evidence of a possible partially torn tendon in his left shoulder. In September and October of 2007, Dr. Emmanuel and Dr. DeJesus found plaintiff to have full range of motion in his neck, back and left shoulder, despite Dr. Lastig's finding of a bulging lumbar disc at L4-5. That bulge was, according to Dr. Lastig, most likely degenerative in origin. In addition, plaintiff's own testimony, that he missed no more than two days of work as a result of the accident and was never confined to his bed, is sufficient to preclude his claim of an injury preventing him from performing substantially all of his customary daily activities for 90 out of the first 180 days following the accident.

Plaintiff's submissions are insufficient to create an issue of fact for trial. Dr. Sawhney discharged plaintiff from his care in April 2006, less than six months after the accident, finding nothing wrong with plaintiff's neck or left shoulder and only a minimal to mild restriction of range of motion in plaintiff's lower back with a normal straight leg raising test. Dr. Sawhney's subsequent conclusion, almost two years later, that plaintiff "may" still have exacerbation of his neck and back pain and that this condition is "permanent" is not enough to support a finding of serious injury. Dr. Sawhney ignored the x-ray report, referenced in his own reports, that plaintiff had "degenerative changes" in his neck, rendering his conclusion as to causation vague, contradictory and unsupported by his own earlier findings.

Dr. Rothpearl found only the possibility of a torn tendon in plaintiff's left shoulder and Dr. Mitamura judged that condition to be in the process of healing as early as March 2006. Dr. Mian's conclusion that permanency of plaintiff's cervical, lumbar and left shoulder injuries was "expected" is too vague a statement to support a finding of serious injury. Furthermore, Dr. Mian did not examine plaintiff until almost two years after the accident and, like Dr. Sawhney, ignored any evidence of a degenerative condition when he found plaintiff's injury to be causally [*7]related to the subject motor vehicle accident.

Plaintiff's explanation in his affidavit of "financial issues" is not enough to address the considerable gap in his treatment. He did not specify time periods when he explained that he switched from Dr. Sawhney to Dr. Mian, but there are no records of any physical therapy after April 19, 2006 when plaintiff was discharged from Dr. Sawhney's care. Although plaintiff saw Dr. Hausknecht and Dr. Mittleman in August 2006, there is no evidence of further visits to them or any other physicians, chiropractors or therapists until plaintiff saw Dr. Mian in August 2007, an entire year later. If plaintiff actually received any treatment other than the visit with Dr. Mian and the examinations by defendants' medical experts in September and October 2007, plaintiff offered no evidence of it.

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: July 11, 2008

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..