Goutos-Drongitis v Amato
Annotate this CaseDecided on April 9, 2010
Supreme Court, Queens County
Asimina Goutos-Drongitis and JOHN GOUTOS, Plaintiff(s),
against
Michael Amato and BENNY J. AMATO, Defendant(s).
01039/2008
Robert J. McDonald, J.
This is a motion by the defendant to dismiss the instant case on the ground that the plaintiff did not sustained "serious injury" as defined in Insurance Law 5102(d).
The underlying case involves an automobile accident on August 4, 2007 at 20th Avenue and the intersection with 31st Street, Queens County, New York.
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) 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.
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 [*2]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.
The defendant submits an affirmation dated September 30, 2009 of Dr. Leon Sultan, M.D., A Board Certified Orthopedic Surgeon, in which he evaluated the plaintiff Asimina Goutas-Drongitis. Dr. Sultan examined the plaintiff's cervical spine, shoulders, thoracolumbar, and hips. Dr. Sultan found that her range of motion were all within normal limits. "Today's examination does not confirm any ongoing causally related orthopedic or neurological impairment in regard to the occurrence of 8/4/07. From a clinical point of view, there is no correlation between today's cervical spine examination and the above-described cervical spine MRI reading."
The defendant submits the affirmed reports of Dr. Alan B. Greenfield, M.D., a Board Certified Radiologist, dated August 25, 2009. Dr. Greenfield examined the MRI and X-rays of the plaintiff's cervical spine, and MRIs of plaintiff's lumbar spine, left hip, right hip, and left shoulder. He found "bone spurs" at C4-C5, C5-C6, and C6-C7 which he felt were unrelated to the accident. He found that the MRI of plaintiff's cervical spine revealed diffuse degenerative disc disease throughout the cervical spine which are "clearly long standing and degenerative". He found the MRI of plaintiff's lumbar spine at the L4-L5 level had degenerative bone spur formation and at the L5-S1 facet joints degenerative arthropathy. He found the MRI of plaintiff's left hip indicated "No significant abnormalities". He found the MRI of plaintiff's right hip indicated "No significant abnormalities". He found the MRI of plaintiff's left shoulder revealed "Chronic tendinosis of the distal supraspinatus tendon without focal tear." This represented chronic degeneration and was not trauma induced.. Dr. Greenfield also found with regard to his examination of plaintiff's left shoulder MRI that there was a "downsloping of the acromion" which is degenerative along the undersurface of the AC joint. These were longstanding. He found "trace intra-articular fluid" of "questionable"clinical significance and he could not with a reasonable degree of medical certainty attribute it to the accident. [*3]
Here the defendant has come forward with sufficient evidence to support her claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955). A bare conclusory statement by the defendant's orthopedist such as the plaintiff's "decreased range of motion is due to degenerative changes that are pre-existing" fails to adequately challenge the plaintiff's position and the plaintiff, therefore, need not respond (Alvarez v Dematas, 65 AD3d 598; Landman v Sarcona,63 AD3d 690; Powell v Prego, 59 AD3d 207).
The plaintiff relies on the affidavit of Dr. Renato Battisti, D.C., a chiropractor, dated February 29, 2010. Dr. Battisti first saw the plaintiff on September 17, 2007, the accident occurring August 4, 2007. He states that he has seen the plaintiff two or three times per week since his first chiropractic examination through the date of the affidavit.
He has conducted range of motion tests of the plaintiff's cervical spine with a goniometer and his latest test revealed a "significant range of motion limitations" as follows:
Flexion limited to 45 (Normal - 60 )
Extension limited to 20 (Normal - 50 )
Right Lateral Flexion limited to 20 (Normal - 40 )
Left Lateral Flexion limited to 25 (Normal - 40 )
Right Rotation limited to 60 (Normal - 80 )
Left Rotation limited to 60 (Normal - 80 )
Dr. Battisti notes that while chiropractic treatment relieves some of the plaintiff's pain it returns by her next treatment date. He opines that for at least six months following the accident she was "unable to perform substantially all of the material acts which constituted her usual and customary activities, as she was rendered totally disabled during that time frame, and has been partially disabled since then to the present time." He opines that based on his review of all the medical records and review of the MRI films and reports, that she "has sustained a significant limitation of her neck, lower back, and left shoulder." That she "has sustained a causally related permanent consequential limitation of her neck, lower back, and left shoulder." She has been "unable to perform substantially all of the material acts which constitute her usual and customary daily activities for at least six months after the accident." That it is his "opinion to a reasonable degree of chiropractic medical certainty, that the injuries she sustained, as described above, are causally related to the motor vehicle accident of August 4, 2007, and these injuries are permanent."
There are other medical writing submitted without affirmation and they may not be considered.
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 [*4]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 question presented as to the difference between the measurements of the plaintiff and defendant create an issue of fact for the jury (Martinez v Pioneer Transportation Corp., 48 AD3d 306).
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). This is particularly so when the defendant's medical reports are conducted after a substantial time since the accident (Miller v Bah, 58 AD3d 815; Carr v KMP Transportation, Inc, 58 AD3d 783). The plaintiff's expert submits sufficient facts to support the allegation that the plaintiff has been unable to perform his usual and customary activities for the first 90 out of 180 days.
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).
Regarding "permanent limitation" of a body organ, member or system the 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).
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). Dr. Battisti's affidavit of February 29, 2009 supports the plaintiff's position.
This Court finds that there is a question of fact presented with regard to the claims that the plaintiff sustained "serious injury" with regard to "permanent limitation", "significant limitation of use of a body function or system", "permanent loss of use", and a "medically determined injury or impairment which has prevented him from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident" as defined in Insurance Law 5102. [*5]
Accordingly, defendant's motion for summary judgment and dismissal pursuant to the Insurance Law 5102 is denied.
So Ordered.
Dated:April 9, 2010
_________________________
Robert J. McDonald, J.S.C.
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