Kalabacas v Mediceler

[*1] Kalabacas v Mediceler 2010 NY Slip Op 51097(U) [27 Misc 3d 1238(A)] Decided on June 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2010
Supreme Court, Queens County

Anthony S. Kalabacas, Plaintiff(s),

against

Gokay Mediceler, Defendant(s).



25341/2007

Robert J. McDonald, J.

The defendant moves for summary judgment on the issue of liability pursuant to CPLR 3212 claiming that the plaintiff did not sustain "serious injury". The plaintiff claims that on March 3, 2005 he was a passenger in a 2002 Chevrolet which, at the intersection of Route 106 and Muttontown Road, in Nassau County, was struck in the rear by the defendant's 1971 Audi. The plaintiff when examined was 53 years old, 5' 11" weighing 190 pounds.

The moving defendant 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 [*2]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). 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.

The defendant submits the affirmation of Ravi Tikoo, M.D. a Board Certified Neurologist dated December 9, 2009. Dr. Tikoo states that he conducted a "neurological examination" of the plaintiff. His examination of the plaintiff revealed that the plaintiff was essentially normal although "[t]here was mild tenderness of the cervical and lumbar spine. No associated spasm was noted Straight leg raising was possible up to 90 degrees bilaterally in the sitting position (normal=90)." It was Dr. Tikoo's diagnosis that the plaintiff "has the following diagnosis (1) History of Cervical Strain and (2)History of Lumbosacral Strain."

The defendant submits the affirmation of Dr. Robert J. Orlandi, M.D. a Board Certified Orthopaedic Surgeon, dated December 15, 2009. Dr. Orlandi's examination of the plaintiffs cervical spine revealed no abnormality while he was stationary. "Cervical motion in all directions is restricted voluntarily by the claimant. He resists rotation to the right and left at 40 degrees (normal being 70 degrees). He can forward flex to 45 degrees (normal being 55 degrees). His resistance to cervical extension was extreme as he begins to resist cervical extension at 15 degrees and allows for zero degrees (normal being 50 degrees)." The examination of the plaintiff's left shoulder revealed no deformity. "The claimant resists abduction and forward flexion of the left shoulder beginning at 40 degrees, allowing for 80 degrees of elevation in each of these direction (normal being 180 degrees)." External rotation and Internal rotation were [*3]normal. The examination of the plaintiff's lumbar spine revealed that his movements were essentially all normal. He notes that a report of Dr. Hausknecht refers to prior motor vehicle accidents. Dr. Orlandi's Diagnosis indicates that the plaintiff's "Cervical strain resolved with a false and voluntary restriction of cervical motion (especially extension). False restriction of motion in the left shoulder". Although the plaintiff claims "a left cervical radiculopathy" he found no atrophy of the left versus the right upper extremity. "There is no claim for a left shoulder injury but the claimant offers the same and considerable voluntary resistance to elevating his left shoulder." It is Dr. Orlandi's opinion that the restrictions are not due to injury because the plaintiff has movement of his scapulothoracic joint and he has movement of his shoulder. "The claimant does not have a disability which relates to his false ranges of motion cervical and left shoulder" . Dr. Orlandi notes that "the medical record review was preposterous as 8-10/10" a level of pain indicated by Dr. Brisson on October 16, 2006 which would in Dr. Olandi's opinion prevent the plaintiff from working, when in fact he was working.

Dr. Audrey Eisenstadt, M.D., a Board Certified Radiologist, submitted her affirmation dated February 10, 2010. Dr. Eisenstadt examined the MRI of the plaintiff cervical spine taken July 7, 2006 well after the accident. She opined that there were "bony productive changes seen at the C5-6 and C6-7 levels" which were due to degenerative causes. The plaintiff had disc degeneration at the C4-5, C5-6 and C6-7 levels "typical in appearance for arthritis". There was disc bulging at C4-5 which has a degenerative etiology.

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).

The plaintiff has submitted two affidavits of chiropractors.

One is by Dr. Patrick G. Decarolis, D.C., dated April 28, 2010 in which he opines that the plaintiff's range of motion in cervical spine and lumbar spine based on his examination of July 9, 2010 is roughly half of the normal range of motion. It is Dr. Decarolis' opinion with a reasonable degree of chiropractic certainty that the plaintiff's injuries which include spondylosis and disc hernations are result of the accident of March 3, 2005. That the plaintiff has sustained a permanent partial disability of his cervical and lumbosacral spine.

The second is an affidavit dated June 2, 2010 from Dr. Nicholas Waslyn, D. C. in which he sets forth his findings of March 4, 2005, two days after the accident, finding the plaintiff had sustained a permanent partial disability to his cervical and lumbosacral spine.

The plaintiff submits an affirmation dated May 5, 2010 by Dr. Alexander E. Weingarten , M.D. affirming the contents of his reports dated May 19, 2009 and July 27, 2009. The May 19, 2009 report relates to Dr. Weingarten's Assessment of the plaintiff as having sustained a herniated cervical disc, and July 27, 2009 report finding that the plaintiff had "cervical radiculopathy secondary to herniated cervical disc for which he was given three cervical epidural steroid injections. Dr. Weingarten, M.D. also submitted an affirmation dated May 24, 2010 [*4]affirming his report dated February 22, 2010 finding that the plaintiff had sustained a cervical radiculopathy for which he received cervical epidural steroid injections of Depo-Medrol 80 mg injected at the C7-T1 level.

The plaintiff submits an affidavit of Dr. Harvey L. Lefkowitz, M.D., a radiologist, dated April 12, 2010 in which he swears that the plaintiff submitted himself for an MRI of his lumbosacral and cervical spine on May 10, 2005 and cervical spine again on July 7, 2006. The 2005 MRI of his lumbosacral spine revealed disc herniation at L4-5 and at L5-S1 foraminal involvement, and the MRI of his cervical spine revealed spondylosis at C5-6 and C6-7 levels and disc herniation at the C4-5 midline. The MRI of plaintiff's cervical spine taken on July 7, 2006 showed a decrease in the herniation of C4-5, spondylosis at C5-6 and disc herniation at C6-7.

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 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).

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).

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 herniated disc even 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).

Regarding "permanent limitation" of a body organ, member or system the plaintiff must [*5]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).

In the instant case, while the defendant has through its experts demonstrated questions of fact, the plaintiff through his medical and chiropractic affirmations and affidavits demonstrated that he has satisfied the initial requirements that he has sustained a "serious injury" as defined in Insurance Law 5102.

Accordingly, the defendant's motion is denied.

So Ordered.

Dated:June 14, 2010

_________________________

Robert J. McDonald, J.S.C.