Bernard v Stavrou

[*1] Bernard v Stavrou 2010 NY Slip Op 50186(U) [26 Misc 3d 1220(A)] Decided on February 5, 2010 Civil Court Of The City Of New York, Queens County Buggs, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2010
Civil Court of the City of New York, Queens County

Anthony G. Bernard, Plaintiff,

against

Alexandros Stavrou



TS-300757/09



For plaintiff: Christina C. Vassilas, Esq., Marshall & Bellard, 1305 Franklin Avenue, Garden City, NY 11530

For defendant: Linda Meisler, Esq., Richard T. Lau & Associates, P.O. Box 9040, Jericho, NY 11753-9040

Cheree A. Buggs, J.

Defendant filed a motion for summary judgment pursuant to Civil Practice Law and Rules (CPLR) §3212 on grounds that plaintiff failed to substantiate a claim of "serious injury" under Insurance Law §§5102 and 5104. Upon full review of motion, opposition and reply papers and supporting documents, the defendant's motion is motion is granted in its entirety.

Plaintiff brought suit for alleged injuries suffered in a November 9, 2007 vehicular accident on 21st Avenue near 31st Street in Queens County. In his complaint, plaintiff alleged that defendant's "negligence, carelessness and recklessness" in operating his vehicle caused the accident. The bill of particulars alleges that plaintiff sustained the following injuries: impingement of the left shoulder, posterior bulge of the cervical spine at C3-C4; and a posterior bulge of the lumbar spine at L4-L5. Further, plaintiff alleges in the bill of particulars that he was totally disabled for approximately three months and that he remained partially disabled and intermittently confined to bed and the house "to the present time."

In his motion for summary judgment, defendant submitted the results of electrodiagnostic tests conducted on December 19, 2007 of the nerves and muscles of plaintiff's upper and lower extremities and paraspinal muscles. The tests, performed by Stephanie Bayner, M.D., reported normal findings. Specifically, the reports concludes: "This is a normal study. There is no evidence of a cervical radiculopathy or peripheral neuropathy."

Defendant further submitted the January 12, 2009 affirmed independent orthopedic examination report of S. Farkas. M.D., in which Dr. Farkas, an orthopedic surgeon, who diagnosed the plaintiff as follows: "1. Resolved cervical sprain; 2. Resolved lumbar sprain; 3. Resolved left shoulder sprain." The doctor concluded that he found "no orthopedic impairment based on the physical examination at this time."

Moreover, defendant offered the reports of Melissa Sapan Cohn, M.D., who conducted reviews of a January 15, 2008 magnetic resonance imaging (MRI) of plaintiff's lumbosacral spine and of a December 6, 2007 MRI of plaintiff's left shoulder. Her impression of the lumbar spine [*2]MRI was "unremarkable lumbosacral spine MRI." She concluded that "[t]his is a normal appearing lumbosacral spine MRI. The disc spaces are well-maintained. No pathology is identified. There is no evidence for a trauma-related injury on the submitted examination." Her impression of the left shoulder MRI was "minimal degenerative change at the acromioclavicular joint resulting in impingement upon the underlying supraspinatus muscle." Dr. Sapan Cohn's conclusion about the left shoulder MRI was that the "patient has minimal degenerative change of the shoulder" and that [t]here is no evidence for an acute trauma-related injury on the submitted study."

Defendant also argued that plaintiff failed to establish "serious injury" pursuant to the "90/180 rule" of Insurance Law §5102(d), i.e., "a medically determined injury or impairment of a non-permanent nature" preventing plaintiff "from performing substantially all of the material acts which constitute [his] 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." To support his contention, defendant submitted the November 14, 2008 examination before trial of the plaintiff in which he acknowledges having been terminated from his job of twenty years on the same day as the accident for "poor work performance." (Bernard Dep. 14:17-23; 15:2 November 14, 2008.) In addition, while the plaintiff testified that he was confined to bed and home for three weeks, he acknowledged that no medical doctor directed him to stay at home and/or in bed. (Bernard Dep. 81: 13-22; 82:20-23; 83:23-24.)

The defendant has presented a prima facie showing of lack of "serious injury" and entitlement to summary judgment in this matter. Plaintiff must offer admissible evidence to rebut the defendants' prima facie case (Zuckerman v City of New York, 49 NY2d 557, 569 [1980]; Gaddy v Eyler 79 NY2d 955, 956 [1992].In support of his case, plaintiff offered his affidavit attesting to pain and physical restrictions as a result of his injuries, to the duration and frequency of medical treatment, to the alleviation of pain by using both a transcutaneous electrical nerve stimulation (TENS) device and pain medication at home, and to the lack of any pre-existing injuries. However, plaintiff's self-serving affidavit is insufficient to demonstrate objective evidence of the extent and duration of physical limitations resulting from the injury. (Thomas v Weeks, 61 AD3d 961 [2009]; Luna v Mann, 58 AD3d 699 [2009]).

Plaintiff also offered three MRI reports of John T. Rigney, M.D., a certified radiologist, separately finding: 1) Posterior bulge and C3-C4 of the cervical spine; 2) Mild posterior bulge at L4-L5 of the lumbosacral spine; and 3) Presence of impingement without rotator cuff tear, bursal inflammation, or joint effusion of the left shoulder. It must first be noted that the contents of the MRI reports are unaffirmed; unsworn MRI reports are not competent evidence unless both sides rely on those reports (Alvarez v New York City Transit Authority, 24 Misc 3d 1206 [A] [2009]). In the matter herein, while defendant's doctor reviewed the MRIs, there was no apparent reliance upon the unaffirmed reports. Consequently, the reports must be deemed inadmissible.

Even if the MRI reports could properly be considered by this court, the diagnosed injuries alone do not establish the existence of a serious injury. (See Garcia v Solbes, 41 AD3d 426, 427 [2007], in which the MRI of the plaintiff's cervical and lumbar spine revealed "multiple bulging and herniated discs," and the MRI of her right shoulder showed impingement, but the court, [*3]citing Yakubov v CG Trans Corp. 30 AD3d 509 [2006], Cerisier v Thibiu, 29 AD3d 507 [2006], Kearse v New York City Transit Authority, 16 AD3d 45 [2005], found that the "mere existence of these conditions is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injuries and their duration.")

The plaintiff also offered the affirmation of Viviane Etienne, M.D., who treated the plaintiff for six months between 2007 and 2008. Although she referred to the MRIs performed, she made no claim to have reviewed the MRIs. In her affirmation, Dr. Etienne referenced muscle spasms pursuant to both cervical and lumbar examinations; while "muscle spasms detected during range of motion tests are universally recognized (medically and legally) as an objective sign supporting a claim of serious injury" (see Vidal v Maldonado, 23 Misc 3d 186, 206 [2008]), there is no indication that Dr. Etienne performed range of motion testing. Further, while she stated that he "currently exhibits an impairment of 15%," given the three different injuries plaintiff claims to have suffered, it is unclear to what part of the body this percentage referred, and how it was quantified. In light of Dr. Etienne's failure to set forth the objective testing she performed to arrive at her conclusions, the court finds that her affirmation fails to raise a triable issue of fact. (See Spence v. Mikelberg, 66 AD3d 765 [2009]).

Lastly, the plaintiff has failed to offer competent medical evidence in support of his claim of being unable to perform "substantially all of the material acts which constitute [his] 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." (Insurance Law §5102[d], supra.) As noted herein, he conceded in the November 14, 2008 deposition that no doctor confined him to bed for the three weeks he claims to have been bedbound. Further, for the few activities the plaintiff said he has limitations in performing"carrying bags, going up and down steps"; "sex , limited"; and washing his back in the shower (Bernard Dep. 84: 17-23)he testified that no doctor placed any restriction on his performance of those activities (Bernard Dep. 85: 24,25-86:2; 87:20-22).[FN1] In fact, plaintiff testified that he did not complain to any physician about his limitation in carrying boxes (Bernard Dep. 86: 3-6). Importantly, Dr. Etienne's affirmation does not address the plaintiff's claim of being bedbound for three weeks or limitations in performing daily activities.

Based on the foregoing, the court finds that the plaintiff has failed to offer admissible evidence to rebut the defendants' prima facie case by raising a triable issue of fact (Jackson v Colvert, 24 AD3d 420 [2005]). Accordingly, the defendant's motion for summary judgment pursuant to CPLR §3212 is granted in its entirety.

Dated: February 5, 2010

____________________________________

HON. CHEREÉ A. BUGGS

Judge, Civil Court of the City of New York [*4]

County of Queens

Footnotes

Footnote 1:While the deposition does not specifically address whether there were any doctor's restrictions placed on going up and down stairs, this omission in no way inures to the benefit of plaintiff's case, in that plaintiff offered no medical evidence in support of this claimed limitation.