Major v Keynan

[*1] Major v Keynan 2010 NY Slip Op 50325(U) [26 Misc 3d 1230(A)] Decided on March 3, 2010 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 3, 2010
Supreme Court, Queens County

Beryl Major, Plaintiff(s)

against

Abidirashid Keynan and Muhudin Warsame, Defendant(s).



28973-2007

Robert J. McDonald, J.

On September 8, 2006 at 12:40 p.m. the plaintiff, an occupant of a motor vehicle parked on 88th Street and Astoria Boulevard, Queens County, New York was struck by a tractor trailer owned by Abdirashid Keynan and operated by Muhudin Warsame.

The moving defendants assert that the plaintiff has not sustained a "serious injury" as a result of the accident.

In order to maintain an action for personal injury in an automobile case a plaintiff must establish, after the defendant has properly demonstrated that it is an issue, that the plaintiff has sustained a "serious injury" which is defined as follows:

"Serious Injury" Insurance Law §5102(d)

In order to maintain an action for personal injury in an automobile case a plaintiff must establish that he has sustained a "serious injury" which is defined as follows: [*2]

Serious injury means a personal injury which result in ... 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 constitutes 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.

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendant's motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury (Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).

Insurance Law 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" (Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).

The defendants submit the affirmation of Dr. J. Mervyn Lloyd, M.D., a Board Certified Orthopedic Surgeon, dated September 23, 2009 who performed an "independent" medical examination of the plaintiff. The plaintiff was defined by Dr. Lloyd as a "morbidly obese" woman who is 5 feet 7 ½ inches weighing more then 300 pounds. His orthopedic examination of the plaintiff's cervical spine, shoulders, upper extremities, gait, lumbar spine, lower extremities, and right knee all revealed her to have a normal breadth of movement and were "normal for a person of this size." He found "The claimant is a morbidly obese person with pain in the right knee, and left shoulder. I believe she has degeneration in these areas not caused by the accident of 9/8/06. I do not find any objective abnormality of any permanency resulting from the accident." Dr. Lloyd submitted an addendum dated October 30, 2009 based on a review of her medical records already reviewed plus an x-ray of her pelvis and right hip dated June 14, 2007. Dr. Lloyd's impression was that "The claimant told me that she had occasional pain in the right knee but had not required any surgical treatment. There records clearly indicate that she had significant problems with both knees extending over many years and had documented degenerative arthritis and meniscal tears, probably in both knees. These records, therefore, reinforce my opinion and confirm my opinion as stated in the report of 9/23/09."

There is a copy of the plaintiff's emergency record which indicates in her radiology report from New York Hospital Queens dated September 8, 2006 that the examination "is limited severly by the patient's obesity."

Dr. Fred Cushner, M.D. apparently saw the plaintiff in 2005 with regard to "knee pain". He [*3]determined that she had "Degenerative Arthritis". He notes in his report dated October 6, 2005 , "[s]he was seen in the past for the right knee" . "She does appear to have a medical meniscal tear" Dr. Cushner, wrote on December 12, 2005 and an MRI was suggested. In a note dated May 2, 2005 Dr. Cushner writes "She was seen two and a half years ago for the right knee." In his note dated September 17, 2002 it is apparent that the plaintiff's "chief complaint" was her right knee. There is a letter from Dr. Anthony Italiano, M.D. to Dr. Cushner relating to an MRI of the plaintiff's right knee taken September 21, 2002 which indicates that she had only small joint effusion of her right knee. A "NONCONTRAST MRI" was taken on May 13, 2005 at Main Street Radiology where the first MRI was taken. It was the impression of the doctor that the plaintiff has "1. Joint effusion. W. Mild degenerative changes, medial compartment of the knee as described above. Degenerative tear at the free margin of the body of the medial meniscus cannot be excluded." Arthroscopy of the plaintiff's right knee was to be performed on the plaintiff in 2005.

There is an affirmation dated "February ___ , 2010" by Dr. John Himmelfarb, M.D., Board Certified Radiologist who states that he conducted an MRI of the plaintiff's left shoulder on January 5, 2007. His report indicates that his reading of her MRI indicated that she had subcortical cystic changes in the greater and lesser tuberosities, a "mildly hooked acromion", a "partial tear and/or tendinitis", and a small amount of fluid in the subacromial/subdeltoid bursa "which may be related".

There is an affirmation dated February 8, 2010 by Dr. Richard J. Rizzuti, M.D. , who conducted an MRI of the plaintiff's right knee on November 18, 2006. He found "sprains" of her medial collateral and anterior cruciate ligaments which was consistent with a tear in the posterior horn of the medial meniscus.

The plaintiff submits the affirmation of Dr. William J. Kulak, M.D. dated February 26, 2009 in which states that he saw the plaintiff for an "orthopedic consultation" on November 19, 2008 concerning her accident on September 8, 2006. He notes that she is "well-nourished". He found that she had sustained a "partial disability in regard to the left cervicodorsal region and left knee". He notes that "Based on the medical records reviewed and the history obtained, the current clinical findings are felt to be causally related to the traumatic events of 9/8/06." His findings do not indicate how he determined the degree of the plaintiff's limitation of motion. For example, he writes "The left and right knees have no swelling, crepitus or deformity, stability is present on testing and there is equal range of motion bilaterally with full extension to 0 but only 90 degrees of flexion without symptoms."

Dr. Kulak notes in his prognosis that at "the present time, there is a definite partial disability in regard to the left cervicodorsal region and right knee, which due to the chronicity of the symptoms is expected to be permanent in nature with, at least intermittent symptoms occurring, which are expected to increase in frequency, at least in regard to the right knee in the future."

There is an affirmation by Dr. Leo E. Batash, M.D., a "Disability Analyst and Fellow American Board of Disability Analysts" dated February 17, 2010. He recites that he first saw the plaintiff on September 29, 2006. He noted that the plaintiff who weighed "350 lbs." was "well nourished." He gives his findings of the plaintiff but fails to state whether his findings are objective [*4]other then state "Sensation to pinprick was decreased from the left 6-7-8 and L4-5 dermatomes."

Dr. Batash notes in his February 17, 2010 report under "CURRENT COMPLAINTS" that the plaintiff saw him on February 11, 2010 complaining of "on-and-off" neck pain, "on-and-off" left shoulder pain, and "on-and-off" aching lower back pain.

Dr. Batash as his "FINAL IMPRESSION" writes that based on physical examination, follow-up, visits, specialist evaluations, and reports from several diagnostic tests finds 7 categories of "injuries". The injuries to which he refers are not measured. He notes "Within a reasonable degree of medical certainty and if the history of occurrence presented by the patient was correct" he believes that "the existing traumatology was causally related to the accident". However, it appears that Dr. Batash was not informed of the plaintiff's prior accident, to which she admitted in her deposition. The only measurement given is that it is Dr. Batash's opinion that the plaintiff has sustained "up to a 25% loss and limitation of use of her left shoulder and right knee." The non-specific assertions can be ascertained by examining Dr. Batash's comments, such as, "The patient's disability is partial, permanent and has a tendency to result in chronic localized pain with progressive downhill course of remission and exacerbation during cold weather and over-exertion."

The plaintiff testified under oath at a pre-trial deposition held on April 28, 2009. She acknowledged a prior accident and she had pain in her knee since "early 90's" [30]. She stated that she had seen an "orthopedic doctor" just once but that there was "no treatment" at that time [31]. "Q Did you have any complaints in either of your knees from the date of early 90s, when you saw this doctor up until the time of accident 2006 ? A No."[32]. She then stated that she had a prior accident in "like 91 or 92. I don't - - maybe it was earlier than that." [33]. "Q What part of your body did you injure in that accident ? A My lower back and I think my forearm, I'm trying to remember." [33]. She testified that she had physical therapy for that injury [34]. She testified that the case arising from the "1991, 1992" case was resolved by settlement. [38]. She testified that she "faintly" recalled seeing a doctor about her knee and torn miniscus before 2006. [56]. She stated that she had treatment for that in 91 or 92 but it was not from the accident. She testified that her current weight was 356 pounds [59].

The defendants indicate that the plaintiff had brought a prior personal injury action in 1996 in Supreme Court, Queens County, entitled Beryl Major v Road Express, Inc, under Index Number 255505/96.

Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

Here the defendants have come forward with sufficient evidence to support their claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955). [*5]

To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration (Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (Dufel v Green, 84 NY2d 795). The medical reports submitted fail to meet the plaintiff's burden on this issue.

The plaintiff has failed to demonstrate that she has a "medically determined" injury or impairment which has prevented his from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident. (Ayotte v Gervasio, 81 NY2d 1062; Johnson v Berger, 56 AD3d 725; Roman v Fast Lane Car Service, Inc., 46 AD3d 535).

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life (Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination (Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828). The medical reports submitted by the plaintiff are not evidence of serious physical injury without other objective evidence (Sapienza v Ruggiero, 57 AD3d 643; Piperis v Wan, 49 AD3d 840). Merely referring to the plaintiff's "subjective quality of the plaintiff's pain does not fall within the objective definition of serious physical injury" (Saladino v Meury, 193 AD2d 727, see, Craft v Brantuk, 195 AD2d 438).

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that she has sustained such permanent limitation (Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" (Gaddy v Eyler, 79 NY2d 955). Once the question has been raised, in order for the plaintiff to sustain proof of permanency, she must demonstrate the existence of such injury through objective medical tests which demonstrate the duration and extent of the injuries alleged (Gobas v Dowigiallo, 287 AD2d 690).

The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration (Dufel v Green, 84 NY2d 795; Fung v Uddin, 60 AD3d 992; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383). The plaintiff has failed to do this.

As noted by Dr. Batash his findings are based on the plaintiff's statements to him which did not include any recitation by her of any prior accident or injury to which she admitted in her deposition.

Summary judgment based on the fact that the plaintiff has failed to demonstrate that she has sustained injuries which fall within that class of injury enumerated in Insurance Law 5102(d) as [*6]"serious injury" has been sustained by the defendants (Licari v Elliot, 57 NY2d 230). The plaintiff has not demonstrated that she has a genuine factual issue as to whether she has sustained a "serious injury" (Hezekiah v Williams, 81 AD2d 261).

Accordingly, the defendant's motion for summary judgment is granted.

So Ordered.

Dated: March 3, 2010

___________________________

Robert J. McDonald, J.S.C.