Huerta v Benycol Transp. Corp.
Annotate this CaseDecided on September 16, 2009
Civil Court of the City of New York, Bronx County
Lucero Huerta, Plaintiff,
against
Benycol Transportation Corp. and Taveras R. Paredes, Defendants.
300687/07
Plaintiff's counsel: Salenger, Sack, Schwartz & Kimmel, LLP by Scott Gennarelli, Esq.
Defendant's counsel: Baker, McEvoy, Morrissey & Meskovits, PC by Jennifer Galarza, Esq.
Lizbeth Gonzalez, J.
Plaintiff Huerta claims that she sustained serious injuries to her back and left knee and shoulder as a result of the defendants' negligence. On 1/22/07, the plaintiff was allegedly struck by a vehicle owned by defendant Benycol Transportation Corp. and operated by defendant Paredes ("Benycol and Paredes"). The defendants move for summary judgment on the ground that the plaintiff sustained no serious injuries pursuant to Insurance Law § 5102(d).
In support of their motion, defendants Benycol and Paredes proffer the affirmed medical reports of their radiologist, Dr. David Fisher; their orthopedist, Dr. Regina O. Hillsman; and their neurologist, Dr. Warren Cohen.
In opposition to the defendants motion, plaintiff Huerta proffers her deposition testimony; the affirmed medical reports of the defendants' chiropractors, Drs. Ronald G. Lanfranchi and Kevin S. Portnoy; and orthopedist, Dr. Irving Liebman; the affirmed medical reports and test results of her neurologist, Dr. Arie Hausknecht; and the unsworn MRI findings of her radiologist, Dr. Mark Shapiro.
DISCUSSION
Defendants Benycol and Paredes seek summary judgment on threshold grounds. Summary judgment is a drastic remedy that a court should employ only in the absence of triable issues of fact. (Andre v Pomeroy, 35 NY2d 361 [1974].) Insurance Law § 5102(d) delineates the serious injury threshold:
a personal injury which results in ... 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 nonpermanent 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
The defendants proffer the affirmed reports of their radiologist, orthopedist and neurologist, Drs. Fisher; Hillsman; and Cohen, respectively. Dr. Cohen, the defendants' [*2]neurologist, reviewed the police accident report and bill of particulars and examined the plaintiff on 2/14/08. The plaintiff informed the doctor that she experienced back, bilateral knee and left arm pain on the day of the accident. An ambulance transported her to St. Barnabas hospital where she was treated and released. Two days later, she was treated at Montefiore Hospital's emergency room and released. She currently receives physical therapy and chiropractic treatment three times weekly. The plaintiff's current complaints consist of bilateral knee pain and intermittent neck and lower back pain without radiation. Ms. Huerta claims that she was employed as a housekeeper and babysitter at the time of the accident and never returned to work. No restrictions were revealed when Dr. Cohen performed range of motion tests on the plaintiff's cervical and lumbar spine. (Nagbe v Minigreen Hacking, 22 AD3d 326 [1st Dept 2005]). Diagnostic tests performed on her cervical and lumbar spine were negative. Movement in her thoracic spine was normal and painless and no spasms or tenderness was noted. Dr. Cohen opined that the plaintiff's cervical and lumbar spine sprains had resolved. Her neurological exam revealed no deficits, radiculopathy or traumatic neuropathy. No evidence of disabilities, restrictions or permanency is present. No further treatment is required and the plaintiff may return to work.
Dr. Hillsman, the defendants' orthopedist, like Dr. Cohen, reviewed the police accident report and the bill of particulars and examined the plaintiff on 2/14/08. The plaintiff complained of lower back and knee pain. She used a cane and wore a left knee sleeve. Range of motion tests performed on the plaintiff's cervical and lumbar spine, left shoulder and knees revealed no restrictions. (Nagbe v Minigreen Hacking, 22 AD3d 326, supra .) No evidence of radiating pain, numbness or tingling was present and diagnostic tests were negative. Dr. Hillsman opined that the plaintiff's cervical and lumbar spine, left shoulder and bilateral knee sprains had resolved. No further orthopedic treatment is required. She demonstrates no disabilities, permanency or residuals and may perform her work and daily living activities without restriction.
Dr. Fisher, the defendants' radiologist, reviewed the plaintiff's lumbar spine and left knee and shoulder MRIs and reported his findings on 1/15/09. Dr. Fisher opined that the plaintiff's lumbar spine performed on 2/17/07, approximately three weeks post-accident, showed degenerative changes at L4/5 which are consistent with a pre-existing condition; and "a mild disc bulge and small annular tear noted at L4/5 are compatible with the amount of degenerative change present. There is no clear radiographic evidence of recent traumatic or causally related injury to the lumbar spine." The plaintiff's left knee MRI performed on 2/24/07, approximately seven weeks post-accident, was unremarkable "aside from mild degenerative changes affecting the articular cartilage of the patella. There is no meniscal or ligament tear. There is no radiographic evidence of recent traumatic or causally related injury to the left knee." The plaintiff's shoulder MRI, also performed on 2/24/07, was unremarkable.
In opposition to the defendants' motion, plaintiff Huerta proffers her deposition testimony; the findings of the defendants' chiropractors, Drs. Lanfranchi and Portnoy; and orthopedist, Dr. Lieberman; and the findings of her neurologist, Dr. Hausknecht. The unsworn MRI findings of her radiologist, Dr. Shapiro are inadmissible and lack probative value. (Grasso v Angerami, 79 NY2d 813 [1991]; Simms v APA Truck Leasing, 14 AD3d 322 [1st Dept 2005].)
Dr. Hausknecht examined the plaintiff on 2/15/07 and 3/13/07, approximately three and seven weeks post-accident, respectively. During the initial examination, the plaintiff stated that, [*3]since the accident, she has been experiencing radiating lower back pain into her left leg; numbness in her left foot; weakness in her left arm and leg; left shoulder and knee pain; and left leg swelling. She alleges that she is unable to return to work as a baby sitter and has difficulty sitting, standing, bending, lifting, walking and performing her daily living activities. Range of motion tests performed on the plaintiff's thoracic-lumbar spine revealed normal range of motion except for a thirty degree restriction during forward flexion. Tenderness and spasm in her lumbosacral spine was present. Her straight leg raising test in the sitting position was positive. The plaintiff's right knee had full range of motion. Because of the tenderness and swelling in the left knee joint, Dr. Hausknecht "deferred" range of motion testing on her left knee. Dr. Hausknecht opined that the plaintiff presented a left shoulder sprain; lumbosacral derangement; and a left knee contusion. He rendered her totally disabled, restricted her activities and prescribed MRIs for her lower back and left shoulder and knee.During her final examination on 3/13/07 by Dr. Hausknecht, the plaintiff informed the doctor that she continues to experience similar symptoms described during her prior examination. She receives physical therapy which provides her some relief and takes Vicodin as needed. The plaintiff has not returned to work and continues to experience difficulty performing her daily living activities. She utilizes a cane and a left knee support.
Dr. Hausknecht's examination of the plaintiff revealed pain and limited weakness in her left shoulder and knee; tenderness and spasm in her lumbosacral spine; and tenderness and swelling in the left knee joint. Her straight leg raise test in the sitting position was positive. Dr. Hausknecht stated that "the patient has been symptomatic for over 6 weeks despite an adequate course of conservative management. She has persistent radiating lower back pain with associated motor weakness...she may be an appropriate candidate for interventional pain management or surgical decompression." Dr. Hausknecht opined that the plaintiff is totally disabled, her prognosis is guarded and her activities are restricted.
Plaintiff's counsel states in his affirmation that "according to Dr. Ari Hausknecht...the plaintiff suffered a herniated disc at L4-5; Chondromalacia of the left knee; tendonitis of the left shoulder which required a trigger point injection." These diagnoses, however, are absent from Dr. Hausknecht's 2/22/07 and 3/13/07 examination findings.
Dr. Liebman, the defendants' orthopedist, thereafter examined the plaintiff on 3/8/07 and 9/4/07. During his initial examination, approximately six weeks post-accident, the plaintiff complained of pain in her cervical and lumbosacral spine. Range of motion tests performed on the plaintiff's cervical, dorsal and lumbosacral spine revealed full range of motion with complaints of pain and no muscle spasms were present. Her shoulders, elbows, wrists, hands, hips, right knee, ankles and feet had full range of motion. The doctor determined that the plaintiff's left knee range of motion restrictions were voluntary. Dr. Liebman opined that the plaintiff sustained multiple soft injuries as a result of the accident; her left knee required additional therapy for three to four weeks for an additional four weeks; and she required no household help or special transportation.
Dr. Liebman's second examination of the plaintiff occurred on 9/4/07. The plaintiff complained of lower back and left shoulder and knee pain. Dr. Liebman performed range of motion tests on the plaintiff's cervical, dorsal and lumbosacral spine. No range of motion restrictions, tenderness or muscle spasms were revealed. The plaintiff wore an elastic support on [*4]her left knee. Her left knee had full range of motion with complaints of pain during flexion movement but no tenderness. Although she complained of hypesthesia throughout the left knee, the McMurray, Lachman and anterior Drawer sign tests were negative. She demonstrated full range of motion of her shoulders, elbows, wrists, hands, hips, knees, ankles and feet. Dr. Liebman opined that the plaintiff sustained multiple soft tissue injuries as a result of the accident; has received maximum benefits from medical care; requires no further treatment; and is able to work.
The plaintiff was examined by the defendants' chiropractors, Drs. Portnoy and Lanfranchi. Dr. Lanfranchi examined the plaintiff on 8/15/07, approximately 7 months post-accident. The plaintiff stated that she sustained injuries to her neck and lower back and left shoulder and knee. Her current complaints consisted of lower back and left shoulder and knee pain. Although the plaintiff demonstrated a left sided limp and utilized a cane, she had no difficulty mounting and dismounting the table. Dr. Lanfranchi performed range of motion tests on the plaintiff's cervical and thoracolumbar spine. Her cervical spine revealed normal restrictions except during flexion and extension movements where she demonstrated 25 to 35 degree restrictions. Her thoracolumbar spine revealed restrictions ranging from 5 to 60 degree restrictions. Although Jackson compression, Soto-Hall, Spurling, O'Donohue and Adson tests were negative, the Foraminal compression test on the left elicited pain during right lateral flexion. Ms. Huerta could not perform the Lasegue's, straight leg raise, Patrick Fabere, Hibs and Yeoman's tests due to knee pain. Dr. Lanfranchi opined that the plaintiff's "cervical and lumbosacral sprain/strain and left knee injury by history (sic)." She presents no chiropractic disability.
Dr. Portnoy reviewed the MRI reports of the plaintiff's lumbar spine and left shoulder and knee; reports of the plaintiff's treating physicians; and her physical therapy evaluation. He examined the plaintiff on 10/22/07, nine months post-accident. Her current complaints consisted of neck, upper and lower back and left knee pain. Dr. Portnoy performed range of motion tests on the plaintiff's cervical spine and upper extremities which revealed normal ranges of motion except during right and left rotation. Similarly, range of motion of her thoraco-lumbosacral spine and lower extremities were normal except during forward flexion which also revealed a ten degree restriction. Ten degree restrictions do not constitute serious injury. (Ferguson v Budget Rent-A-Car, 21 AD3d 730 [1st Dept 2005].) Dr. Portnoy performed a total of eighteen orthopedic diagnostic tests on the plaintiff's spine and extremities and each test yielded negative results. Dr. Portnoy opined that the accident caused the plaintiff to sustain cervical, thoracic and lumbosacral strains but they have all resolved. "There were no positive objective findings in the clinical evaluation of the cervical spine and the thoraco-lumbosacral spine to support the claimant's subjective complaints...no further chiropractic treatment is warranted."
Plaintiff Huerta proffers her 1/8/08 deposition testimony to establish that, for more than one
year post-accident, she performed no work, housecleaning or babysitting.
CONCLUSION
The defendants move for summary judgment on threshold grounds. The burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the plaintiff did not suffer a serious injury as a result of the accident. The burden thereafter shifts to the plaintiff to demonstrate the existence of a triable issue of fact. (Perez v Rodriguez, 25 AD3d 506 [1st Dept [*5]2006];Seminara v Grossman, 253 AD2d 420 [2nd Dept 1998].)
Recent examinations of the plaintiff are necessary to establish that the plaintiff is alleging an injury which has an extended duration element as defined in Insurance Law § 5102(d). (Smith and Moffatt v Edwards, 10 Misc 3d 129(A) [App Term, 1st Dept 2005].)
The defendants proffer the medical findings of their radiologist, Dr. Fisher; their orthopedist, Dr. Hillsman; and their neurologist, Dr. Cohen. Drs. Cohen and Hillsman examined the plaintiff on 2/14/08, approximately one year post-accident, and opined that the plaintiff sustained no serious injuries. The plaintiff proffers no 2008 or 2009 examination findings in rebuttal. The most recent examination findings proffered by the plaintiff are those of Dr. Liebman, the defendants' orthopedist, who last examined the plaintiff on 9/4/07, and whose findings coincide with Drs. Cohen and Hillsman. The plaintiff also proffers the findings of Dr. Hausknecht, her neurologist, who examined her on 2/12/07 and 3/13/07, approximately three and seven weeks post-accident, respectively.
In instances where a defendant asserts that the evidence reveals a preexisting injury or a degenerative condition, it is incumbent upon the plaintiff to present contrary evidence. (Brewster v FTM Servo, Corp, 44 AD3d 351 [1st Dept 2007]; Santiago v Nimbus Service Corp., 2008 NY Slip Op 50253 [U] [App Term, 1st Dept].) Dr. Fisher, the defendants' radiologist, opined that the plaintiff's lumbar spine and left knee MRIs reveal evidence of a preexisting injury and a degenerative condition but the plaintiff tenders no rebuttal evidence. The MRI findings of the plaintiff's radiologist are unsworn, inadmissible and lack probative value.
In interpreting the statutory definition of a 90/180 day claim, the words "substantially all" mean that the plaintiff has been prevented from performing her usual and customary activities to a great extent. (Thompson v Abbasi, 15 AD3d 95 [1st Dept 2005].) Proof of a medically determined injury must be provided to establish that she could not substantially perform all of her usual and customary daily activities and was directed to disengage from such activities by a physician. (Berete v Ford Motor Credit Co., Company, 814 NYS2d 559, affd 29 AD3d 452 [1st Dept 2006].) Although plaintiff Huerta testified at deposition that she performed no work, housecleaning or babysitting for more than one year post-accident, she fails to submit the requisite evidence. Dr. Hausknecht rendered the plaintiff totally disabled on 3/13/07 just seven weeks post-accident, which does not satisfy the 90/180 day criteria.
After a careful review of the evidence in a light most favorable to the plaintiff (Ferrer v Riverbay Corp., 214 AD2d 312 [1st Dept 1995]), this Court finds that the defendants have met their burden. The plaintiff proffered no 2008 or 2009 medical findings to rebut the defendant's more recent evidence. Since the plaintiff failed to meet her shifting burden, the defendants' motion for summary judgment is granted.
This constitutes the Decision and Order of the Court.
Dated: September 16, 2009
So ordered,
__________________________
Hon. Lizbeth González
Judge, New York City Civil Court
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