Muraik v McLeod

[*1] Muraik v McLeod 2010 NY Slip Op 50980(U) [27 Misc 3d 1230(A)] Decided on June 3, 2010 Supreme Court, Westchester County Adler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2010
Supreme Court, Westchester County

Margaret G. Muraik, Plaintiff,

against

Doretha McLeod and Earl L. Johnson, Defendants.



21176/08



LAW OFFICES OF CRAIG P. CURCIO

Attorneys for Defendants

One Edgewater Drive

Middletown, New York 10940

LAW OFFICES OF ALAN M. GREENBERG, P.C.

Attorneys for Plaintiff

60 East 42nd Street, Suite 1556

New York, New York 10165

Lester B. Adler, J.

This is an action to recover for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on December 25, 2007 on Route 9 in the Town of Phillipstown, New York. Defendant Earl L. Johnson was the operator of that vehicle, and defendant Doretha McCleod was the owner thereof. On September 29, 2008, plaintiff commenced this action alleging that the accident was caused solely by the negligence of defendants, and that as a result of the accident she sustained a "serious injury" as defined by Insurance Law § 5102(d). Defendants served an answer on or about November 8, 2008. Following joinder of issue, plaintiff served a verified bill of particulars stating that her injuries consisted, inter alia, of:

"Posterocentral disc herniation L3-4; Extruded left paracentral disc herniation L4-5; Lumbar derangement; Sprains/strains of cervical, thoracic and lumbar spines; Exacerbation, [*2]aggravation, precipitation and/or activation of previously asymptomatic neck and/or back injuries * * * Joint effusion, left shoulder."

Quoting the statute, plaintiff specifically alleged that as a result of the accident and the above-described injuries, she sustained:

"a fracture, permanent loss 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 prevented the plaintiff from performing substantially all of the material acts which constituted plaintiff'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."

(Compare Insurance Law §5102[d]).

The bill of particulars further alleges that as a result of the injuries, plaintiff was "generally confined to bed for approximately one (1) week following the occurrence and was continuously confined to home for approximately three (3) months thereafter."

In a supplement verified bill of particulars dated April 10, 2009, plaintiff added the category of "permanent consequential limitation of use of a body organ or member."

Plaintiff testified at her examination before trial that, following her release from the hospital on the day of the accident, she stayed with her son for two days at his home in Newburgh, New York. After two days, her son then drove plaintiff to her sister's home in Yonkers, New York, where she stayed for an unspecified period of time. She further testified that in January of 2008 she was referred by her primary care physician to Dr. Edelson, who prescribed pain medication and physical therapy for her shoulder and back pain. She testified that she has continued to experience shoulder and back pain, was still going to physical therapy twice a week, and was currently taking one Percocet a day for the pain.

On cross-examination, plaintiff testified that prior to the accident, she had been advised by Dr. Edelson that she suffered from a herniated disc in her lower back, but he did not tell her at what level the herniation was or if she had more than one herniation. She also testified that some time in the 1990's, Dr. Edelson had treated her for lower back pain caused by arthritis and shoulder pain. She also testified on cross-examination that because of the injuries caused by the accident at issue, she is no longer able to bowl, has difficulty doing household chores, needs help carrying "bundles," and that she was forced to move from the top floor to the first floor of her home because she is unable to climb the stairs.

On or about December 3, 2009, defendants filed the instant motion for summary judgment on the ground that plaintiff failed to establish that she had sustained a "serious injury" within the meaning of Insurance Law §5102(d). Defendant's argue that unless plaintiff can establish that she suffered a "serious injury" the case should be dismissed. In support of their motion, defendants have submitted various medical records of plaintiff, her deposition testimony, and an affirmed medical report of Douglas Unis, M.D.

The report by Dr. Unis dated September 25, 2009, states that he conducted an independent examination of plaintiff 10 days earlier. Dr. Unis states that plaintiff had advised him that she injured her neck, left shoulder and lower back in the accident. Multiple radiographs [*3]and CT scans were taken at the emergency room and she was released the same day and advised she had no fractures. Plaintiff reported to Dr. Unis that at the time of the examination, she was still experiencing left shoulder pain and that since the time of the accident she has been unable to bowl. She further reported that while she is able to operate a motor vehicle, it is hard for her to clean her home. She had no complaints relative to her neck or ribs. Dr. Unis noted that plaintiff was referred by her primary care physician to Dr. Edelson who treated her for left shoulder, low back, neck and "left-sided rib pain" after the accident. There is no indication in his report as to the nature and frequency of plaintiff's treatments and/or when and if these treatments ceased.

Dr. Unis reviewed two MRI's in connection with his examination of the plaintiff. An MRI of the left shoulder obtained on January 1, 2008 indicated plaintiff had "severe osteoarthritis of the glenohumeral articulation, with no rotator cuff tear demonstrated." An MRI of the lumbar spine obtained on November 26, 2008 "reportedly showed disc herniation at L3-4, with an extruded disc at L4-L5, as well as multiple level degenerative disease."

The report describes the tests Dr. Unis conducted on the plaintiff during the physical examination and the findings of those tests. The range of motion tests on plaintiff's left shoulder indicated as follows: abduction to 95 degrees with 95-100 degrees normal, forward flexion to 115 degrees with 170 degrees normal, external rotation to 10 degrees with 45 degrees normal, and normal internal rotation to the L1-T12 vertebrae. The range of motion tests on plaintiff's lower back indicated extension to 5 degrees with 20 degrees normal and flexion to 80 degrees with 120 degrees normal. Dr. Unis's examination of the lower back further revealed a positive straight-leg raise on the left and a negative straight-leg raise on the right, with both strength and sensation normal.

Dr. Unis concluded that plaintiff had sustained sprains to her left shoulder and lower back, both of which had resolved. As to plaintiff's shoulder pain, he concluded that such pain "was primarily the result of severe osteoarthritis that was certainly present prior to the accident." Opining that while the accident may have temporarily aggravated the condition, he concluded that the accident was "certainly not the cause of it." His diagnosis was that the diminished range of motion was attributable to plaintiff's pre-existing osteoarthritis, and that, in his medical opinion, the plaintiff presented no evidence of orthopedic disability as a result of the accident.

With respect to the lower back, the report indicates that based upon a review of the MRI reports, plaintiff had pre-existing degenerative changes of the lumber spine as well as herniations. Dr. Unis stated, however, that he was unable to "comment on causality of these herniations without viewing an MRI taken prior to the accident." He concluded that, while plaintiff did sustain a sprain of the lumbar spine at the time of the accident, "it is possible that her ongoing symptoms and radicular findings are related to her degenerative condition." It is Dr. Unis's medical opinion that plaintiff has no disability as a result of her lumbar symptoms and that she can perform her usual activities of daily living.

In opposition to the motion, plaintiff argues that defendants have failed to meet their burden of establishing their entitlement to judgment as a matter of law and, therefore, she does not need to raise a triable issue of fact.

LEGAL ANALYSIS

In a motor vehicle case, a defendant moving for summary judgment on the issue of [*4]whether the plaintiff sustained a serious injury bears the initial burden of making a prima facie showing that the plaintiff's injuries do not meet the "serious injury" threshold under the Insurance Law (Linton v. Nawaz, 62 AD3d 434, 438, 879 NYS2d 82; DeAngelo v. Fidel Corp. Services, 171 AD2d 588, 589, 567 NYS2d 454; Chicas v. Catalano, 39 AD3d 686, 687, 833 NYS2d 625). "Serious injury" is defined, in pertinent part, as:

"a personal injury which results in * * * permanent loss of use of a body organ, member, function or system; 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 constitute 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."

(Insurance Law §5102[d]).

A defendant can establish that a plaintiff's injuries are not serious within the meaning of the statute "by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v. Wright, 268 AD2d 79, 83-84, 707 NYS2d 233, citing Turchuk v. Town of Wallkill, 255 AD2d 576, 681 NYS2d 72). If this is established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (Gaddy v. Eyler, 79 NY2d 955, 956-957, 582 NYS2d 990, 591 NE2d 1176).

Plaintiff asserted four statutory categories of injury in her complaint, as amplified by the bill of particulars and supplemental bill of particulars. In opposition to the motion, plaintiff has abandoned her claim with respect to one of the four categories to wit: significant disfigurement, fracture, and permanent loss of use (see Endres v. Shelba D. Johnson Trucking, 60 AD3d 1481, 876 NYS2d 593). For two of the remaining categories — "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system"[FN1] — the Court of Appeals has held that "[w]hether a limitation of use or function is significant' or consequential' (i.e., important * * *) relates to medical significance and 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" (Toure v. Avis Rent a Car Sys., 98 NY2d 345, 353, 746 NYS2d 865, 774 NE2d 1197, quoting Dufel v. Green, 84 NY2d 795, 798, 622 NYS2d 900, 647 NE2d 105 [internal quotations omitted]). The extent or degree of physical limitation can be proven by an expert's designation of a numeric percentage of plaintiff's loss of range of motion (Id. at 350).

Here, the affirmed medical report of defendants' examining physician showed the existence of limitations in the range of motion of plaintiff's left shoulder and lower back. Accordingly, defendants failed to shift the burden to plaintiff to demonstrate that an issue of fact [*5]existed as to whether any of her alleged injuries constituted a permanent consequential limitation of use of a body organ or member and/or a significant limitation of a body function or system (Chun Ok Kim v. O'Rourke, 70 AD3d 995, 893 NYS2d 892; Barrington-Stotsky v. Robinson, 70 AD3d 990, 893 NYS2d 893; Cordero v. Salazar, 10 AD3d 380, 780 NYS2d 771).

However, the Court's analysis does not conclude here, as defendants claim that any limitation of the range of motion in the left shoulder and lower back are not causally related to the accident. After reviewing the MRI obtained in January of 2008, Dr. Unis opined that the limitation in the left shoulder was due to pre-existing osteoarthritis and that while the condition may have been "temporarily" aggravated by the accident, it was not the cause of it. As to the diminished range of motion in plaintiff's lower back, Dr. Unis opined that he was unable to comment on the causality of the herniations in the absence of an MRI taken prior to the accident. Additionally, while acknowledging that plaintiff did sustain a sprain of the lumbar spine at the time of the accident, he stated that given her pre-existing degenerative changes to the spine "it is possible that her ongoing symptoms and radicular findings are related to [that] condition."

With respect to the left shoulder, Dr. Unis concluded that the pain and "diminished" motion were both the result of pre-existing osteoarthritis, and that any aggravation caused by the accident was temporary. He further concluded that plaintiff had no orthopedic disability as a result of the accident. However, as stated above, upon his examination of plaintiff after the accident, Dr. Unis noted various decreases in plaintiff's range of motion in the left shoulder, without establishing any basis upon which it might be concluded that such decreases were neither aggravated nor exacerbated by the accident (see McKenzie v. Redl, 47 AD3d 775, 850 NYS2d 545; Washington v. Asdotel Enterprises, 66 AD3d 880, 8887 NYS2d 623). Accordingly, defendants have failed to demonstrate their prima facie entitlement to judgment as a matter of law with evidence that the injury to the left shoulder was attributable to a pre-existing condition and was not aggravated or exacerbated by the accident (see Cebularz v. Diorio, 32 AD3d 975, 822 NYS2d 118). Furthermore, defendants have not shifted the burden on the question of whether the herniated discs and pain in the lower back were precipitated by the accident. Dr. Unis's statement that "it is possible that her ongoing symptoms and radicular findingsare related to her degenerative condition" is too equivocal to satisfy defendant's prima facie burden (Glynn v. Hopkins, 55 AD3d 498, 498, 867 NYS2d 391l; Linton v. Nawaz, 62 AD3d at 439).

With respect to the last category asserted by plaintiff, commonly referred to as the "90/180 category," the Court finds that defendant did not adequately address plaintiff's claim in her bill of particulars that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. Although plaintiff was retired at the time of the accident, in her bill of particulars she alleged that she was confined to bed for one week and confined to home for a period of three months immediately following the accident.

Dr. Unis examined the plaintiff approximately 21 months after the accident and failed to relate his findings to this category of serious injury for the period of time immediately following the accident (Sayers v. Hot, 23 AD3d 453, 454, 805 NYS2d 571; Talabi v. Diallo, 32 AD3d 1014, 1014-1015, 820 NYS2d 904; Nakanishi v. Sadaqat, 35 AD3d 416, 417, 826 NYS2d 373; Chicas v. Catalano, 39 AD3d 686, 687, 833 NYS2d 625; DeVille v. Barry, 41 AD3d 763, 764, [*6]839 NYS2d 216; Ken Fea Yung v. Eager, 51 AD3d 638, 638, 857 NYS2d 676). While there was some cross-examination of plaintiff at her deposition regarding her physical limitations after the accident, the questions were not specific to the 180-day period immediately following the accident. In fact, most of the questions posed were directed to plaintiff's physical condition at the time of the deposition.

Since defendants failed to make a make a prima face showing of their entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact (DeVille v. Barry, 41 AD3d at 764; Torres v. Performance Auto. Group, 36 AD3d 894, 895, 829 NYS2d 181; McDowall v. Abreu, 11 AD3d 590, 591, 782 NYS2d 866).

Accordingly, it is hereby

ORDERED, that defendants' motion for summary judgment is GRANTED with respect to the category of significant disfigurement, fracture and permanent loss of use; and it is further

ORDERED, that defendants' motion for summary judgment on the remaining categories of serious injury is DENIED.

The foregoing constitutes the Decision and Order of the Court.

Dated: White Plains, New York

June 3, 2010

Hon. Lester B. Adler

Supreme Court Justice Footnotes

Footnote 1:The word "significant," as used in the statutory definition pertaining to "limitation of a body function or system," has been construed "to mean something more than a minor limitation of use," (Licari v. Elliott, 57 NY2d 230, 236, 455 NYS2d 570, 441 NE2d 1088). Accordingly, a minor, mild or slight limitation of use should be classified as insignificant (Id.).