Carmona v Youssef

[*1] Carmona v Youssef 2010 NY Slip Op 51098(U) [27 Misc 3d 1238(A)] Decided on June 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2010
Supreme Court, Queens County

Kennedy Carmona, Plaintiff,

against

Mena K. Youssef and Bulk Taxi, Inc., Defendants.



07413/09

Robert J. McDonald, J.

This is a motion by defendants asserting 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 [*2]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).

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 Dr. Joseph C. Elfenbein, M.D., a Board Certified Orthopedic Surgeon, dated December 22, 2009 who conducted "an independent orthopedic medical evaluation" of the plaintiff. Dr. Elfenbein states under the heading "ORTHOPEDIC EXAMINATION" that he made findings pursuant to orthopedic tests he performed. The examination of the cervical spine revealed that the plaintiff had normal movement without complaint of tenderness. There was no complaint of tenderness with [*3]regard to the plaintiff's thoracic spine. The examination of the plaintiff's lumbar spine was unremarkable. The plaintiff's "hip joint" and the thigh and calf of each leg were normal. Both shoulders were normal and he writes with regard to the plaintiff's right shoulder that "[t]here is no heat, swelling, effusion, erythema, or crepitus appreciated. Impingement sign was negative for subacromial impingement." . Dr. Elfenbein writes: "There is no evidence of a permanent orthopedic disability. The claimant is able to perform activities of daily living without restrictions."

The defendant submits the affirmation of Dr. Charles Bagley, M.D., a Board Certified Neurologist, dated December 22, 2009 who conducted "an independent neurological evaluation" of the plaintiff. Dr. Bagley states that the plaintiff complains of pain in the low-back and right shoulder. Dr. Bagley conducted "Musculoskeletal" examination of the cervical spine and finds that the plaintiff's cervical spine was negative for functional impairment or radicular pain symptoms. The examination of the plaintiff's lumbar spine indicates he had a decreased range of motion in the measurement of flexion which was 50 degrees and the normal result is 60 degrees, the other measurements of the lumbar spine are normal or greater than normal. The plaintiff's straight leg raising test was negative for radiculopathy. The plaintiff's neurological exams were unremarkable. The "Motor Examination" of the plaintiff too was unremarkable. It was Dr. Bagley's Impression that the plaintiff was "Normal". "There is no evidence of a permanent neurological disability"

The defendants submit the affirmations of Dr. Peter A. Ross, M.D., a Board Certified Radiologist, each dated January 7. 2010. He conducted an "independent radiology review" of the MRIs submitted by the plaintiff. With regard to the MRI of the plaintiff's Lumbosacral Spine performed March 5, 2009 he found the vertebrae aligned without fracture or dislocation, and there was no evidence of focal herniations or diffuse annular bulges. He found "mild spondylosis changes involving the L4 through the S1 vertebrae" and "broad-based annular bulges" which were pre-existing before the accident. With regard to the MRI of the plaintiff's Right Sholder performed March 5, 2009 he found "mild hyertrophic changes at the acromioclavicular joint space mildly impinging upon the underling supraspinatus muscle" and found "[t]here is fluid present in the subdeltoid bursa." He found no evidence of "rotator cuff tear or musculotendenous retraction". He writes "[t]here are mild [*4]supraspinatus tendinosis changes present, which is non-specific in appearance and etiology, and is likely degenerative in nature." "There is fluid present in the subdeltoid bursa, which is non specific in appearance and etiology, and is likely inflammatory in nature and reactive to the chronic impingement and tendinosis changes. In any event, this was not caused by the accident which occurred on February 4, 2009". With regard to the MRI of the plaintiff's cervical spine performed February 24, 2009 he found the C2-3, C3-4, C4-5 and the C7-T1 levels show no evidence of focal herniations or diffuse annual bulges. The "C5-C6 level shows a small focal central right parasagittal disc herniation component mildly deforming the ventral subacrachnoid space" and at the "C6-C7 level shows a small focal herniation component minimally deforming the ventral subarachnoid space." It was Dr. Burke's conclusion that the all the findings were pre-existing except for the "C5-6 level shows a small focal central right parasagittal disc herniation component mildly deforming the ventral subarachnoid space, and the C6-C7 level shows a small focal disc herniation component minimally deforming the ventral subacrachnoid space, which are both associated with the degenerative vertebral and discogenic changes, and are therefore also both pre-existing to, and were not caused by, the accident which occurred on February 4, 2009."

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 submits the affirmation of Dr. Mehran Manouel, M.D., a Board Certified Orthopedic Surgeon, dated May 7, 2010. Dr. Manouel indicates that the plaintiff had no prior history of medical or surgical events. He reports the initial evaluation of the plaintiff on February6,2009 and subsequent evaluation on February 20, 2009 and May 23, 2009 which were conducted by a physical therapist which were "confirmed" his own findings. On both dates the plaintiff experienced substantially reduced range of motion in his cervical spine, lumbar spine, and right shoulder. He reported that the "MRI report of the right shoulder demonstrates a partial rotator cuff tear and fluid with bicep tendon consistent with bicep tenosynovitis." He notes that the MRI of the plaintiff's cervical spine demonstrate straightening of the cervical lordosis, a focal bulge at C5-6, focal herniation at C6-7 creating impingement of the neural canal. The MRI of the plaintiff's lumbar spine showed herniation at at L4-5 impinging upon the neural canal. [*5]Dr. Manouel conducted an examination of the plaintiff's cervical and lumbar spine on February1, 2010 and found that the plaintiff still had substantial to moderate reduced motion with regard to his cervical spine, lumbar spine, and right shoulder. Dr. Manouel noted that the plaintiff experienced pain upon reaching the extreme of motion. With a reasonable degree of orthopedic certainty it was Dr. Manouel's opinion that the injuries were the result of the accident on February 4, 2009. That he saw evidence of "partial rotator cuff tear" and he opined that without "arthroscopic intervention" the plaintiff would continue to have "aches and pains and stiffness" in his shoulder. He reports that the plaintiff "does not want to proceed with surgery" and it is his recommendation that he continue with physical therapy. He finds that based on his examination one year after the accident the plaintiff "still exhibits reduced ranges of motion" with regard to his neck, back and right shoulder. The physical therapy has "improved his condition somewhat". It was Dr. Manouel's opinion that the plaintiff "remains with substantial losses of motion in the neck, back and right shoulder. These losses are now likely permanent in nature."

There is an affidavit of Juan C. Romero, PT, a licensed physical therapist, dated April 28, 2010. He reports his initial contact with the plaintiff on February 6, 2009, 2 days after the accident. He reports that the plaintiff had "difficulty bending over and lifting and difficulty extending overhead with the right arm." Therapist Romero states that he was the plaintiff numerous times for physical therapy from February 6, 2009 through August 4, 2009. It was his opinion that the plaintiff would not have benefitted from continued physical therapy and to continue would only have been palliative. With a "reasonable degree of physical therapy certainty" the plaintiff sustained neck, back and right shoulder injury in the automobile accident.

Dr. Mark Shapiro, M.D. a Radiologist, submits his affirmation dated May 4, 2010 in which he states that he conducted the MRIs of the plaintiff's cervical spine, lumbar spine, and right shoulder. His findings are referred to in Dr. Manouel's affirmation,

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 [*6]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).

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) Here, the plaintiff's physical therapist submits an affidavit in which states that continued physical therapy would be palliative.

The plaintiff has failed to demonstrate that he 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 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).Here the plaintiff's doctor indicats that he finds that although the plaintiff has improved somewhat he nevertheless still suffers a substantial loss of motion.

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). 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).Dr. Manouel finds that the plaintiff's injuries are likely permanent in nature.

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, [*7]60 AD3d 992; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383). Dr. Manouel finds that the plaintiff has reduced motion in his cervical spine, lumbar spine and right shoulder.

Accordingly, the defendant's motion is granted to the extent that the plaintiff has failed to demonstrate that he was prevented from performing substantially all of the material acts which constitute his 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, however, the plaintiff has sufficiently demonstrated that he has sustained a "serious injury" as defined in Insurance Law 5102.

So Ordered

Dated: Long Island City, NY

June 18, 2010

ROBERT J. MCDONALD, J.S.C.