Brito-Fernandez v Han

[*1] Brito-Fernandez v Han 2010 NY Slip Op 50395(U) [26 Misc 3d 1234(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 This opinion is uncorrected and will not be published in the printed Official Reports.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

Braulio E. Brito-Fernandez, Plaintiff(s),

against

Eulsun Han and DONG H. HAN, Defendant(s)



14752 - 2008

Robert J. McDonald, J.

The instant motion involves a motor vehicle accident on April 5, 2008 on Queens Boulevard and 70th Street, Queens, New York.

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:

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. [*2]

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).

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.

Dr. Ravi Tikoo, M.D., a Board Certified Neurologist, conducted an "independent neurological evaluation" of the plaintiff on behalf of the defendants on April 29, 2009 and submitted his affirmation. It was Dr. Tikoo's "Diagnosis" that the plaintiff has "(1)History of Cervical Strain (2) History of Lumbosacral Strain, and (3) History of Soft Tissue Injuries." Dr. Tikoo found "with a reasonable degree of medical certainty that my neurological exam of Braulio Brito-Fernandez was essentially normal. Despite his subjective complaints, there were no objective findings to substantiate these complaints. Braulio does not need any further treatment or diagnostic testing. Maximal medical improvement has been reached. He is able to work in his normal capacity. It is my opinion that he does not have significant clinical evidence of neuropathy, radiculopathy, or disc herniation. Furthermore, Braulio is not disabled from a neurological basis. It is my opinion that a permanent injury has not been sustained."

There is an affirmed report from Dr. Robert J. Orlandi, M.D., a Board Certified Orthopaedic Surgeon, dated May 26, 2009 in which he examined the plaintiff's cervical spine, lumbar spine and left knee. The examination of plaintiff's spine was unremarkable. The examination of plaintiff's left knee revealed "two arthroscopic portals which are medial and lateral infrapatellar. There is no angular or rotary deformity nor is there atrophy or dystrophy. There is no intraarticular effusion and no capsular or other soft tissue swelling." The plaintiff's knee has a normal range of motion. It was Dr. Orlandi's diagnosis that "Cervical strain resolved and normal lumbar examination and no clinical residuals post left knee arthroscopy (6/10/08)." Dr. Orlandi noted that the plaintiff's prognosis was excellent.

The defendants posit that the plaintiff has not sustained any injury which would meet the criteria set forth in Insurance Law 5102 which would support a finding that he has sustained a [*3]"serious injury".

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). Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.

The plaintiff submits the affirmation of Dr. Garbriel L. Dassa, D.O. a Board Certified Orthopedic Surgeon dated February 18, 2010. Dr. Dassa examined the plaintiff on October 13, 2009 for the purpose of "assessment and evaluation" of plaintiff's neck, lower back, and left knee as it relates to the alleged accident of April 5, 2008. Dr. Dassa's examination of the plaintiff on October 13, 2009 was subsequent to his arthroscopic surgery performed on June 10, 2008 by Dr. Harvey Manes, M.D. to repair a torn medial and lateral menisci and partial tear of the anterior cruciate ligament.

Dr. Dassa's examination of the plaintiff's Cervical Spine, Thoracolumar Spine, and left knee were "performed objectively by geometric examination" in which he compared the plaintiff's range of motion compared to "normal". The plaintiff had decreased range of motion in his cervical spine. He had a decreased range of motion in his thoracolumar spine. Plaintiff had a decreased range of motion in his left knee of 21%.

It was Dr. Dassa' evaluation that the plaintiff had a restricted range of motion. He has "cervical and lumbar root irritation and inflamation as well as ongoing internal derangement of the left shoulder". Dr. Dassa writes that "It is my professional opinion with reasonable degree of medical certainty that the patient has objective evidence to indicate that he has ongoing orthopedic disabilities that pertains to his left knee, neck and lower back." It is Dr. Dassa's opinion that the disabilities which the plaintiff sustained are as a result of the accident and "that his disabilities are permanent."

Dr. Dassa found "with reasonable degree of medical certainty that the patient has objective findings to indicate that he has ongoing orthopedic functional disabilities" and these "disabilities are permanent." Dr. Dassa found that the plaintiff has sustained "a permanent consequential limitation of his cervical and thoracolumbar spines, and his left knee and a significant limitation of use of a body function or system as described" which prevents the plaintiff from "performing her [sic] usual daily activities as she [sic] did prior to the accident of April 5, 2008."

Dr. Harvey Manes, M.D., A Board Certified Orthopedic Surgeon, submits his affirmation dated January 29, 2010 in which he states that he performed surgery on June 10, 2008 on the plaintiff's left knee for internal derangement due to the plaintiff's injury on April 5, 2008. The [*4]surgery was for torn medial and lateral meniscus and partial tear of the anterior cruciate ligament and multiple loose bodies.

The question presented as to the difference between the conflicting measurements of plaintiff's ability to move creates an issue of fact for the jury (Martinez v Pioneer Transportation Corp., 48 AD3d 306).

Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali, 24 AD3d 256 aff'd 6 NY2d 868) Adiagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment (Pommells v Perez, 4 NY3d 566). Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment (Toure v Avis Rent A Car Systems, 98 NY2d 345; Turner-Brewster v Arce, 17 AD3d 189).

With regard to the 90/180 rule, the defendant's medical expert must relate specifically to the 90/180 claim made by the plaintiff before dismissal is appropriate (See, Scinto v Hoyte, 57 AD3d 646; Faun Thau v Butt, 34 AD3d 447; Lowell v Peters, 3 AD3d 778). In any case, the plaintiff has demonstrated that he was substantially unable to perform his daily life activities from April 5, 2008 to the present.

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 mere existence of a tear in a tendon is 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). Here the plaintiff has established for the purpose of the instant motion that the injury which he sustained was the result of the accident on April 5, 2008 and that surgery was necessary and conducted by Dr. Manes. Substae plaintiff must demonstrate that he 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, he 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 established that his injury may meet this standard. [*5]

Accordingly, the defendants' motion to dismiss the instant action because the plaintiff has not sustained a "serious injury" as defined within Insurance Law 5102(b) is denied in all respects.

So Ordered.

Dated: March 3, 2010

___________________________

ROBERT J. MCDONALD, J.S.C.