McKelvey v New York City Tr. Auth.

[*1] McKelvey v New York City Tr. Auth. 2009 NY Slip Op 52776(U) [28 Misc 3d 1218(A)] Decided on November 13, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009
Supreme Court, Bronx County

Jacqueline McKelvey, Plaintiff

against

New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Washington T. Jones, and Gary Moton, Defendants.



23849/2005



For Plaintiff

Steven M. Zorowitz Esq.

Getz & Braverman P.C.

172 East 161st Street

Bronx, NY 10451

For Defendants New York City Transit Authority and

Manhattan and Bronx Surface Transit Operating Authority

Wallace Gossett Esq. and Corey Hardin Esq.

130 Livingston Street

Brooklyn, NY 11201

For Defendant Moton

Andrea E. Ferrucci Esq.

Picciano & Scahill, P.C.

900 Merchants Concourse

Westbury, NY 11590

Lucy Billings, J.

Plaintiff sues to recover for personal injuries she sustained July 15, 2005, in a collision between a motor vehicle owned and operated by defendant Moton and a bus owned by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority and operated by defendant Jones, in which plaintiff was a passenger. Defendant Moton moves, and the Transit Authority defendants cross-move, for summary judgment dismissing the complaint and cross-claims against these defendants, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling her to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a).

For the reasons explained below, the court grants defendants' motion and cross-motion insofar as they are based on the absence of a serious injury in the categories of a significant limitation or a permanent consequential limitation of functioning. The court denies defendants' [*2]motion and cross-motion as to the category of an impairment that prevented daily activities for 90 of the 180 days after the collision. C.P.L.R. § 3212(b) and (e); NY Ins. Law § 5102(d).

I. SIGNIFICANT OR PERMANENT CONSEQUENTIAL LIMITATION

A.DEFENDANTS' EVIDENCE

Defendants' physicians examined plaintiff and reviewed her diagnostic studies and other medical records and found full range of motion in her cervical spine, without any neurological or orthopedic abnormalities, obviating a need to comment on her cervical diagnostic studies. Onishi v. N & B Taxi, Inc., 51 AD3d 594, 595 (1st Dep't 2008); Santana v. Khan, 48 AD3d 318 (1st Dep't 2008); Style v. Joseph, 32 AD3d 212, 214 (1st Dep't 2006); Servones v. Toribio, 20 AD3d 330 (1st Dep't 2005). While these physicians found restrictions on range of motion in her lumbosacral spine, they concluded those limitations were not attributable to trauma.

Neurologist Rene Elkin M.D. specifically concludes that the magnetic resonance imaging (MRI) of plaintiff's lumbar spine conducted August 9, 2005, a few weeks after the collision: reveals degenerative changes in the lower lumbar area, in keeping with her age, for which there is no traumatic etiology. There is no accident-related neurologic explanation for persistence of her lower back symptoms that . . . are more likely to be related to the presence of preexisting spondylosis of the lower lumbar spine independent of the subject accident.

Aff. of Andrea E. Ferrucci, Ex. C at 4. Upon reviewing the same films, defendants' radiologist Jessica Berkowitz M.D. similarly finds plaintiff's diffuse disc bulge at the L4-L5 level and other abnormalities at that level and at L5-S1 "degenerative in origin" and "no other evidence of acute traumatic injury to the lumbar spine." Id., Ex. E at 1. Dr. Berkowitz suggests that such evidence would include a fracture, asymmetrical disc spaces, a ligament tear, or an epidural hematoma. The combined findings by defendants' physicians demonstrate plaintiff did not sustain a permanent or significant limitation in functioning of her spine. Harris v. Ariel Transp. Corp., 55 AD3d 323, 324 (1st Dep't 2008); Lunkins v. Toure, 50 AD3d 399 (1st Dep't 2008); Yagi v. Corbin, 44 AD3d 440 (1st Dep't 2007); Lopez v. Simpson, 39 AD3d 420, 421 (1st Dep't 2007).

B.PLAINTIFF'S REBUTTAL

Plaintiff's physician Aric Hausknecht M.D. began treating plaintiff August 31, 2005, when he found weakness, diminished reflexes, spasm, and tenderness in her lumbosacral spine. In a report dated November 20, 2007, Dr. Hausknecht found a 28% restriction in range of motion in two planes of her lumbosacral spine. Based on review of electrodiagnostic studies of her lumbosacral spine, Dr. Hausknecht diagnosed plaintiff with a L4-L5 disc herniation and related radiculopathy, which he concluded were caused by the July 2005 collision and permanent. 1.Assessment of Plaintiff's Limitations

The only assessment of plaintiff's limitations in functioning before November 20, 2007, 28 months after the collision, is Dr. Hausknecht's findings August 31, 2005: "Seated straight leg raise testing was positive on the right at 50 degrees. There was restricted forward flexion in the thoracolumbar spine." Aff. of Steven M. Zorowitz, Ex. 1 at 1.

Dr. Hausknecht fails to compare the range of motion observed in plaintiff's straight leg raising with a baseline norm, to reach an accurate "comparative quantification," Yasheyev v. Rodriguez, 28 AD3d 651, 652 (2d Dep't 2006), critical to determining whether there are significant limitations in her range of motion. Lattan v. Gretz Tr. Inc., 55 AD3d 449, 450 (1st Dep't 2008); McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Wells v. Seckla, 11 AD3d 240, 241 (1st Dep't 2004). See Tuico v. Maher, 52 AD3d 201 (1st Dep't 2008); Gorden v. Tibulcio, 50 AD3d 460, 463 (1st Dep't 2008). Although defendants' Dr. Elkin found plaintiff's straight leg raising was to 80 degrees in March 2007, he does not indicate whether his test was also in a seated position. Second, Dr. Hausknecht's finding simply of restricted forward flexion is not the requisite quantitative assessment comparing the degree of plaintiff's restriction with the normal range of motion to qualify as a significant or permanent consequential limitation. Milazzo v. Gesner, 33 AD3d 317, 318 (1st Dep't 2006); Nagbe v. Minigreen Hacking Group, 22 AD3d 326, [*3]327 (1st Dep't 2005); Bent v. Jackson, 15 AD3d 46, 48-49 (1st Dep't 2005); Cortez v. Manhattan Bible Church, 14 AD3d 466 (1st Dep't 2005).

Nor does Dr. Hausknecht provide a further qualitative assessment other than the reflexes in plaintiff's knees and ankles being depressed and her gait antalgic. These qualitative findings do not reveal their relationship to plaintiff's lumbar condition or compare her limitations in reflexes and gait to their normal function or to their function immediately before July 15, 2005, as required to substitute for a quantitative assessment. Gorden v. Tibulcio, 50 AD3d at 463; Parreno v. Jumbo Trucking, Inc., 40 AD3d 520, 523-24 (1st Dep't 2007); Milazzo v. Gesner, 33 AD3d at 317-18; Bent v. Jackson, 15 AD3d at 49-50. Finally, Dr. Hausknecht's quantitative assessment of significant limitations November 20, 2007, is insufficiently proximate to the July 2005 collision to raise a factual issue of a significant or permanent consequential limitation from that collision. Migliaccio v. Miraku, 56 AD3d 393, 394 (1st Dep't 2008); Brown v. Singh, 52 AD3d 367 (1st Dep't 2008); Brantley v. New York City Transit Auth., 48 AD3d 313 (1st Dep't 2008); Lloyd v. Green, 45 AD3d 373, 374 (1st Dep't 2007). 2.Degenerative Condition

Neither Dr. Hausknecht nor any other medical evidence presented by plaintiff addresses the findings by defendants' physicians that her limitations were caused by degeneration. Marsh v. City of New York, 61 AD3d 552 (1st Dep't 2009); Nickolson v. Albishara, 61 AD3d 542 (1st Dep't 2009); Delfino v. Luzon, 60 AD3d 196, 198 (1st Dep't 2009); Saint-Hilaire v. PV Holding Corp., 56 AD3d 541 (2d Dep't 2008). Regarding the cause of plaintiff's claimed injuries, Dr. Hausknecht finds only that "the motor vehicle accident of 7/20/05 is the substantial contributing factor to her lower back condition." Zorowitz Aff., Ex. 1 at 4. He offers no objective medical support for this opinion. Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520 (1st Dep't 2009); Delfino v. Luzon, 60 AD3d at 198; Rodriguez v. Abdallah, 51 AD3d 590, 591 (1st Dep't 2008); Gorden v. Tibulcio, 50 AD3d at 464. He fails even to base this opinion on his review of her medical records, his physical examination findings, the nature of her injuries, or the duration of her symptoms or otherwise explain how he reached his conclusion regarding causation. Linton v. Nawaz, 62 AD3d 434, 437-38 (1st Dep't 2009); Chan v. Garcia, 24 AD3d 197, 198 (1st Dep't 2005). In particular, he fails even to mention the possibility of degeneration or to explain why he ruled it out as the cause of plaintiff's lumbar condition. Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520; Valentin v. Pomilla, 59 AD3d 184, 186 (1st Dep't 2009); Gorden v. Tibulcio, 50 AD3d at 464.

Dr. Hausknecht's conclusory opinion regarding causation contrasts with the opinions by defendants' physicians in concluding that degeneration before the vehicle collision caused plaintiff's lumbar abnormalities and related limitations. These latter opinions specify their reliance on plaintiff's age, her spondylosis predating the collision, and the absence of a traumatic origin that would provide a neurologic explanation for her persistent symptoms, such as the examples Dr. Berkowitz suggests. Lopez v. American United Transportation, __ AD3d __, 2009 WL 3126503 at *1 (1st Dep't Oct. 1, 2009); Linton v. Nawaz, 62 AD3d at 441. See Marsh v. City of New York, 61 AD3d 552; Delfino v. Luzon, 60 AD3d at 198. Dr. Hausknecht's report ignores all these factors. Lopez v. American United Transportation, __ AD3d __, 2009 WL 3126503 at *1; Linton v. Nawaz, 62 AD3d at 442; Valentin v. Pomilla, 59 AD3d at 186; Chan v. Garcia, 24 AD3d at 198.

Dr. Hausknecht's lack of specificity renders his contrary opinion, that plaintiff's injuries were caused by the vehicle collision, purely speculative. Lopez v. American United Transportation, __ AD3d __, 2009 WL 3126503 at *1; Valentin v. Pomilla, 59 AD3d at 186; Gorden v. Tibulcio, 50 AD3d at 464; Saint-Hilaire v. PV Holding Corp., 56 AD3d 541. See Sky v. Tabs, 57 AD3d 235, 238 (1st Dep't 2008). Without providing a reliable basis for linking her lumbar condition to the July 2005 collision, Dr. Hausknecht fails to rebut the findings by defendants' physicians regarding the cause of that condition. Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520; Rodriguez v. Abdallah, 51 AD3d at 591. Just as defendants' physicians "simply repeating the mantra" that the injuries were caused by degeneration may not meet [*4]defendants' burden, so, too, plaintiff's physician "simply repeating the mantra that the injuries were caused by the accident" does not create a factual issue. Linton v. Nawaz, 62 AD3d at 443. Such conclusory opinions are insufficient to raise factual issues whether plaintiff sustained a significant or permanent consequential limitation of functioning. Lopez v. American United Transportation, __ AD3d __, 2009 WL 3126503 at *1; Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520; Rodriguez v. Abdallah, 51 AD3d at 591.

II. INABILITY TO PERFORM DAILY ACTIVITIES FOR 90 DAYS

At plaintiff's deposition, when asked what plaintiff, who had been retired since 2004, could not do following the collision, she first listed climbing steps. After the Transit Authority defendants' attorney questioned further whether she could climb steps before the collision, and plaintiff answered that she had encountered no difficulty, she listed dancing and lifting. After providing examples of household objects she lifted before but could not lift after the collision, the attorney pursued more questions regarding her climbing, dancing, and injuries to her leg, hip, and shoulder.

The inquiry never returned to activities during the 180 days after the collision. Plaintiff never was asked whether or when she ever resumed the previous activities she listed, what other activities she could not do, or how long she was confined to her bed or home after the collision. She did offer, however, that her routine was altered to the extent of attending physical therapy three days per week for over three months immediately following the collision.

This testimony does not meet defendants' burden to demonstrate the absence of an injury or impairment that prevented plaintiff's daily activities during 90 of the 180 days following the collision. Defendants' physicians establish that, as of their examinations of plaintiff approximately 20 months after the collision, her limitations in functioning were not attributable to the trauma of the collision. Having never examined plaintiff during the six months after the collision, see Hernandez v. Rodriguez, 63 AD3d 520 (1st Dep't 2009); Uddin v. Cooper, 32 AD3d 270, 271 (1st Dep't 2006), defendants' physicians do not conclude, nor offer any other objective medical support for the conclusion, that no injury or impairment attributable to the collision, which may have later resolved, prevented her daily activities during that period. Thompson v. Ramnarine, 40 AD3d 360, 361 (1st Dep't 2007); Toussaint v. Claudio, 23 AD3d 268, 269 (1st Dep't 2005); Webb v. Johnson, 13 AD3d 54, 55 (1st Dep't 2004). Defendants thus fail to satisfy their initial burden to entitle them to summary judgment on this category of a serious injury.

III. DEFENDANTS' FAILURE TO SATISFY THE PROCEDURAL REQUIREMENTS

FOR SUMMARY JUDGMENT

A.THE PLEADINGS REQUIREMENT

In addition to meeting the requisite evidentiary burden, a "motion for summary judgment shall be supported . . . by a copy of the pleadings." C.P.L.R. § 3212(b) (emphasis added). "The pleadings" means "a complete set of the pleadings," Wider v. Heller, 24 AD3d 433, 434 (2d Dep't 2005), or "all of the pleadings." Matsyuk v. Konkalipos, 35 AD3d 675, 676 (2d Dep't 2006); Welton v. Drobnicki, 298 AD2d 757 (3d Dep't 2002). Defendants, in support of their motion and cross-motion for summary judgment, collectively present only their own answers and not defendant Jones's answer. Although the attorney for the Transit Authority defendants represented Jones in a stipulation adjourning the motion and cross-motion, the Transit Authority defendants' answer is not also on Jones's behalf. Nor does any party explain that he never answered separately or never was served with the summons and complaint. Where the moving parties, in support of their summary judgment motions, fail to include all the pleadings filed or served, denial of the motions is warranted for that reason alone. State of New York v. Metz, 241 AD2d 192, 198 (1st Dep't 1998); Kyung Mi Lee v. Musso, 30 AD3d 1089 (4th Dep't 2006); Matsyuk v. Konkalipos, 35 AD3d at 676; Sted Tenants Owners Corp. v. Chumpitaz, 5 AD3d 663 (2d Dep't 2004). [*5]

The requirement for all pleadings to support a summary judgment motion may be overly technical, particularly when they may be found in the court file, but the above authority makes clear that the Appellate Divisions enforce this mandate. C.P.L.R. §§ 2001 and 2101(f) may be available to correct noncompliance with § 3212(b)'s pleadings requirement, but the controlling authority precludes reliance on those provisions to disregard such a transgression. The court also might treat parties who otherwise unsuccessfully move for summary judgment the same way as non-moving parties and search the record to grant the unsuccessful moving parties summary judgment, but here the opposition does not contain the missing pleadings. Quinones v. Caballero, 10 Misc 3d 486, 494-95 (Sup. Ct. Bronx Co. 2005). See C.P.L.R. § 3212(b); Maheshwari v. City of New York, 2 NY3d 288, 293 n.2 (2004); Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 111 (1984).

B.SUFFICIENCY OF THE RECORD

Nevertheless, several reasons support refraining from outright denial of defendants' motion and cross-motion in their entirety on this basis. First, plaintiff's opposition does not raise this deficiency in defendants' support for their motion and cross-motion. Matter of Dietrich, 271 AD2d 894, 895 (3d Dep't 2000). See Marcel v. Chief Energy Corp., 38 AD3d 502, 503 (2d Dep't 2007).

Second, denial of summary judgment motions based on such a deficiency may be limited to motions by parties who fail to present their own pleadings, Chan v. Garcia, 24 AD3d at 198; Notaro v. Bison Constr. Corp., 32 AD3d 1218, 1219 (4th Dep't 2006); Bonded Concrete v. Town of Saugerties, 3 AD3d 729, 730 (3d Dep't 2004), or limited to the parts of the motions to which the missing pleadings pertain. Roach v. AVR Realty Co., LLC, 41 AD3d 821, 825 (2d Dep't 2007); Niagara Frontier Transp. Auth. v. City of Buffalo Sewer Auth., 1 AD3d 893, 896 (4th Dep't 2003); Bacon v. Arden, 244 AD2d 940, 941 (4th Dep't 1997). Jones, the only party whose answer is missing, does not move for summary judgment. Moton seeks summary judgment in his favor, which to be fully favorable would include dismissal of cross-claims against him. The Transit Authority defendants specifically seek dismissal of all cross-claims as well as the complaint against them. The absence of Jones's answer prevents the court from determining whether any cross-claims by Jones would be viable or even whether Jones interposes any cross-claims. Roach v. AVR Realty Co., LLC, 41 AD3d at 825; Niagara Frontier Transp. Auth. v. City of Buffalo Sewer Auth., 1 AD3d at 896; Bacon v. Arden, 244 AD2d at 941-42.

Given the court's retention of plaintiff's claim of an injury or impairment that prevented daily activities for 90 of the 180 days after the collision, retention of all cross-claims, whatever they allege and by whomever interposes them, is likewise warranted. Were the court to dismiss plaintiff's entire complaint against the moving defendants, given the basis for their summary judgment motion and cross-motion, upon searching the record, the court also would dismiss the complaint against defendant Jones, rendering any cross-claims academic. Plaintiff's failure to raise factual issues whether she sustained a serious injury from the collision July 15, 2005, supports dismissal of her claims equally against all defendants. Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520; Lopez v. Simpson, 39 AD3d at 421. See Marsh v. City of New York, 61 AD3d 552; Nickolson v. Albishara, 61 AD3d at 542-43. Therefore the record is sufficient to determine whether the moving defendants are entitled to the relief they seek. Chan v. Garcia, 24 AD3d at 198.

IV. DISPOSITION

For the above reasons, the court grants defendants' motion and cross-for summary judgment to the limited extent of dismissing plaintiff's claims of a serious injury under the categories of a significant limitation and a permanent consequential limitation. The court denies defendants' motion and cross-motion insofar as they seek to dismiss plaintiff's claim under the 90 out of 180 days category, regardless of any deficiencies in plaintiff's evidence, because defendants have not established a prima facie absence of such an injury. C.P.L.R. § 3212(b) and (e); NY Ins. Law § 5102(d); Thompson v. Ramnarine, 40 AD3d at 361; Toussaint v. Claudio, 23 AD3d at 269. See Alexander v. Garcia, 40 AD3d 274 (1st Dep't 2007); Ferguson v. Budget [*6]Rent-A-Car, 21 AD3d 730, 731 (1st Dep't 2005). Upon searching the record, the court also grants a judgment dismissing plaintiff's claims of a serious injury under the categories of a significant limitation and a permanent consequential limitation against defendant Jones, since her failure to raise factual issues whether she sustained these categories of serious injury supports dismissal of these claims equally against Jones. Rose v. Citywide Auto Leasing, Inc., 60 AD3d 520; Lopez v. Simpson, 39 AD3d at 421. See Marsh v. City of New York, 61 AD3d 552; Nickolson v. Albishara, 61 AD3d at 542-43.

DATED: November 13, 2009

_____________________________

LUCY BILLINGS, J.S.C.