Young Bae Kim v Salaumeh

[*1] Young Bae Kim v Salaumeh 2010 NY Slip Op 51126(U) [28 Misc 3d 1202(A)] Decided on June 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2010
Supreme Court, Queens County

Young Bae Kim, Plaintiff,

against

Massim M. Salaumeh, MIAN AKHTAR and R & F LIMOUSINE, Defendants.



00075/2009

Robert J. McDonald, J.

Upon the foregoing papers it is ordered that this motion is determined as follows:

The underlying action is one for serious personal injuries allegedly sustained in a motor vehicle accident on November 25, 2008 on the Delta Terminal exit ramp at LaGuardia Airport, County of Queens, New York.

The defendant R & F claims that the plaintiff did not sustain "serious injury".

"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 [*2]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).

The defendant R & F submits the undated affirmation of Dr. Robert J. Orlandi, M.D., a Board Certified Orthopedic Surgeon of his examination of November 9, 2009. Dr. Orlandi's examination was conducted with an interpreter. His examination of the cervical spine and shoulders revealed "no abnormalities". The range of motion tests conducted were all normal and there was no "localizing areas of tenderness and with no subacromial, acromioclavicular or scapulothoracic crepitation." The examination of plaintiff's lumbar spine indicated "a reduction in lumbar lordosis to 20 degrees (normal being 40 degrees)." The plaintiff had full forward flexion and normal extension and lateral bend. The examination of the plaintiff's left knee revealed "no angular or rotary deformity nor is there atrophy or dystrophy." It appears that the plaintiff had a procedure on March 3, 2009 at the "Flushing Medical center was debridement of the anterior cruciate ligament, partial synovectomy and partial meniscectomy of the medial as well as the lateral meniscus.". It is Dr. Orlandi's opinion that the cervical MRI scan which showed "central disc herniations were unasssociated with T2 annular tears, and, therefore, preexistent(1/22/09)." The cervical and lumbar strains were resolved and there are no residuals post arthroscopy of his left knee of March 31, 2009. Dr. Orlandi opined that the plaintiff's "reduction in his lumbar lordotic curvature is very commonly found in Asians and, especially males, on a developmental basis." Dr. Orlandi states it is his opinion "it is unlikely that his left knee arthroscopy relates to the minor incident which occurred on 11/25/08." [*3]

The defendant R & F submits three affirmations by Dr. David R. Fisher, M.D. a Board Certified Radiologist two dated May 26, 2009 and a third dated June 5, 2009. Dr. Fisher reviewed the MRI of the plaintiff's left knee taken at Queens Radiology taken January 7, 2009. Dr. Fisher reports that his study demonstrates "intrasubstance degenerative change within the posterior horn of the medial meniscus." There is no evidence of traumatic or causally related injury. Dr. Fisher reviewed the MRI of the plaintiff's cervical spine taken at Excel Imaging taken January 22, 2009. Dr. Fisher reports that his study shows "mild diffuse degenerative changes throughout the cervical spine." Mild disc bulges at C5/6 and C6/7. "There is no radiographic evidence of recent traumatic or causally related injury to the cervical spine." Dr. Fisher reviewed the MRI of the plaintiff's Lumbar Spine taken at Excel Imaging taken January 22, 2009. Dr. Fisher reports that his study demonstrates degenerative changes at the L3/4 and L4/5 levels. "The mild disc bulges noted, as well as the small annular tear at the L4/5 are compatible with the amount of degenerative change present. There is no clear radiographic evidence of recent traumatic or causally related injury to the lumbar spine."

The defendant R & F submits affirmation dated February 9, 2009 of the plaintiff's physician, Dr. Harhad C. Bhatt, M.D. Dr. Bhatt notes the plaintiff's left knee shows "swelling, fullness in the suprapatellar, Para patellar, lateral tibial, and femoral condylar area" as well as "[c]repitus is present over the knee joint & patelo femoral joint. Patient has medial & subluxation of patella."

The defendant R & F submits the letter of the plaintiff's Osteopath Dr. Marc J. Rosenblatt, D.O., dated February 4, 2009 whose letter indicates "Past surgical history includes right knee surgery" and whose "IMPRESSION" was "Left knee derangement."

The defendant R & F submits the reports of the plaintiff's MRIs referred to in Dr. Fisher's affirmation both taken January 22, 2009.

The plaintiff submits the undated affirmation of Dr. Marc J. Rosenblatt, D.O. Dr. Rosenblatt states that he first examined the plaintiff on November 25, 2008 and continued until July 8, 2009 because the plaintiff was denied "no fault coverage", however, Dr. Rosenblatt opines "patient's condition is permanent and any medical treatments he receives are palliative in nature". On November 25, 2008 the plaintiff was given objective Range of Motion tests which indicated that he had a restricted range of motion for cervical flexion, cervical extension, cervical left rotation, cervical right rotation, cervical right lateral bending and cervical left lateral [*4]bending. On May 26, 2010 he was again tested and the plaintiff's range of motion was "severely restricted with pain" given the same tests as he was on November 25, 2008. A similar scenario was found to exist with regard to plaintiff's lumbar spine and the plaintiff had a restricted range of motion in his lumbar flexion, lumbar extension, lumbar right lateral side bending and lumbar left lateral side bending on November 28, 2008 and May 26, 2010. Similar restrictions were found to exist with regard to plaintiff's left shoulder with regard to flexion and abduction on the same dates. While no degree of restriction was noted Dr. Rosenblatt determined that the plaintiff sustained a restriction in the range of motion with regard to left knee. The plaintiff also showed "impaired function as evidence by loss of active range of motions in the cervical spine, lumbar spine, shoulder, and knee" and "straight leg raising test results suggesting traumatic injury to the soft tissues of the lower back." The MRI of plaintiff cervical spine conducted January 22, 2009 revealed "straightening of the cervical lordosis and central herniations at C3-4, C4-5 and C5-6 , creating impingement on the neural canal." The plaintiff had an MRI conducted on lumbar spine the same day which revealed "herniations at L3-4, creating impingment [sic] on the neural canal; central herniation at L4-5, creating central spinal stenosis." The plaintiff had an MRI performed January 22, 2009 on his left knee which "revealed joint effusion; sprain, anterior cruciate ligament; spain, medial collateral ligament; tear, posterior horn of the lateral meniscus; tear, anterior horn of the medial meniscus; and grade II signal, body of the lateral meniscus." The plaintiff had arthoscopic surgery on his left knee of March 3, 2009. The plaintiff's most recent examination conducted May 26, 2010 reveals that the plaintiff still has the same injuries. Dr. Rosenblatt that the plaintiff's prognosis is "guarded" and the "injuries are permanent in nature and are all causally related to the motor vehicle accident of November 25, 2008. This patient has sustained a permanent, marked disability. The patient will continue to manifest marked difficulties sitting, standing, climbing steps, prolonged walking" and has difficulty lifting objects of more that ten pounds over his shoulders. He will "require lifetime conservative care" and any medical treatment will be "palliative".

There is attached affirmations by Dr. Mark Shapiro, M.D. and Dr. Richard A. Heiden, M.D. with regard to the 2009 MRIs.

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 [*5]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.

Here the defendant has come forward with sufficient evidence to support its claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955).

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 relies on the affirmation of his osteopath Dr. Rosenblatt who has seen the plaintiff over a period time and on May 26, 2010.

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).

The diagnosis of permanency made by Dr. Rosenblatt, 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). Further, a statement by the plaintiff that he stopped treatment after no-fault benefits were terminated because of his penury is not, but itself, grounds for dismissal (Delorbe v Perez, 59 AD3d 491).

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 [*6]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).

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). Dr. Rosenblatt has so sworn in his affirmaton.

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).

The plaintiff has through the affirmation of Dr. Rosenblatt demonstrated that he has sustained the injuries which are alleged.

Accordingly, the defendants' motion to dismiss the complaint on the grounds that the plaintiff has not demonstrated that he has sustained a "serious injury" as defined in the Insurance Law is denied.

So Ordered.

Dated: Long Island City, NY

June 24, 2010

______________________________

ROBERT J. MCDONALD

J.S.C.