Percik v Ustundag
Annotate this CaseDecided on November 1, 2010
Supreme Court, Kings County
Julio Percik, Plaintiff,
against
Mustafa Ustundag and Ersan Ustundag, Defendants.
12388/09
Debra Silber, J.
Defendants move for summary judgment dismissing plaintiff Julio Percik's action on the grounds that he did not suffer a "serious injury" as defined by § 5102(d) of the NYS Insurance Law. Plaintiff opposes the motion.
For the reasons set forth herein, the defendants' motion is denied.
Plaintiff Julio Percik (hereinafter "plaintiff") claims he sustained personal injuries as a result of an automobile accident on March 13, 2009, at the corner of Fort Hamilton Parkway and 65th Street in Kings County, when his vehicle was hit in the rear by a vehicle owned and operated by defendants Mustafa and Ersan Ustundag, respectively. Plaintiff states he later sought treatment from Dr. Boris Tsatskis, Dr Alan Dayan and Dr. David Ziemba, and subsequently commenced the within negligence action against defendants. Plaintiff claims (Bill of Particulars) he has suffered injuries including cervical sprain with a herniated disc and radiculopathy, lumbosacral sprain with disc bulges and radiculopathy, and internal derangement of the left knee. Plaintiff was 45 years old at the time of the accident. Examinations Before Trial and Independent Medical Examinations of the plaintiff have been conducted.
As an initial matter, plaintiff claims that defendant's motion was not timely made. Plaintiff filed his Note of Issue on February 1, 2010. Defendants filed a prior motion for [*2]Summary Judgment (Motion Sequence #3) on April 21, 2010, within the sixty - day time limit provided for in the Uniform Civil Term Rules for the Supreme Court, Kings County. Defendants then filed this "Amended Motion" on June 10, 2010. The difference between the two motions is that the "Amended Motion" adds the Independent Medical Examination report of Dr. Audrey Eisenstadt, a radiologist. On August 19, 2010, the date on which this motion was marked submitted, defendants were asked by the Court to withdraw their first motion to avoid confusion, as there were two motions for the same relief. Plaintiff is correct that the amended motion is late, and that defendants' papers do not offer a showing of good cause for their untimeliness (CPLR 3212(a). As defendants' original motion was timely, the court will consider the motion, but not Dr. Eisenstadt's IME report, which was first included in the amended motion. In hindsight, the court should have marked the first motion "submitted" and denied the second one as both late and duplicative.
Defendants contend the complaint must be dismissed because plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102(d) which provides:
"Serious injury" means a personal injury which results
in death; dismemberment; significant disfigurement; a
fracture; loss of a fetus; permanent loss of use of a body
organ, member, function or system; permanent con-
sequential 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.
As former Chief Justice Judith Kaye explained in Pommells v Perez, 4 NY3d 566, 570 [2005], "No fault thus provides a compromise: prompt payment for basic economic loss to injured persons regardless of fault, in exchange for limitation on litigation to case involving serious injury...There is...abuse of the No-Fault Law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident cases, which may not."
Dr. S. Farkas performed an Independent Medical Examination of plaintiff on January 18, 2010, to evaluate plaintiff's condition. See affirmation of Dr. Farkas, annexed to defendants' moving papers as Exhibit 4. Dr. Farkas states that plaintiff complained of pain to his neck and back and left knee, with no mention of his shoulder.
Dr. Farkas states that examination of the plaintiff's lumbar spine revealed no spasm or crepitus to palpation. Plaintiff can forward flex to approximately 95 degrees (90 degrees or more normal). Lateral bending was 30 degrees (30 normal). Left and right rotation is to 45 degrees (45 normal). Dr. Farkas says that plaintiff "complains of pain over the low back". Plaintiff can toe and heel walk with no difficulty. Deep tendon [*3]reflexes were normal at both the Achilles tendon and patellar tendon regions. Motor exam is 5+. Straight leg raising was negative.
Dr. Farkas states that examination of the plaintiff's cervical spine revealed plaintiff to have 30 degrees of rotation to the right and 10 degrees to the left (70 to 80 degrees normal) and 20 degrees of flexion and extension (30 to 50 degrees normal). After noting these deceased range of motion findings, Dr. Farkas then induced plaintiff to observe him as he moved about the examination room, and states that "this individual then looks about to follow me, rotating the cervical spine at least 70 degrees with no indication of discomfort". There was no spasm or crepitus to palpation. Deep tendon reflexes are 2+ and motor examination is 5+. Tinel's sign was negative at the elbow and wrists bilaterally.
Dr. Farkas then states that both knees were examined. He noted no effusion or bogginess. He states "The claimant complains of pain while walking, yet he ambulates without a limp." Knees are noted as stable. Negative Appley's, McMurray's and Drawer Signs were noted bilaterally. There is no retropatellar crepitus. "Bilateral range of motion in the knees was from full extension (0 extension normal) to 100 degrees of flexion (normal range 0 to 130-135 degrees flexion".
Dr. Farkas diagnoses the plaintiff with resolved cervical sprain, resolved lumbar sprain and resolved sprain of the left knee. He states that there is no need for orthopedic treatment, physical therapy or surgery. Dr. Farkas opines that he found no orthopedic disability and that the plaintiff may perform his usual duties and may carry out the activities of daily living without restriction. He notes, "This individual presents with gross exaggeration of symptoms given his show of such decreased range of motion of the cervical spine, followed by full rotation as he follows me about. There is no clinical correlation to any alleged disc bulges or herniations."
Dr. Chandra Sharma, a neurologist, performed an Independent Medical Examination of plaintiff on January 12, 2010, to evaluate plaintiff's condition. See affirmation of Dr. Sharma, annexed to defendants' moving papers as Exhibit 5.
Dr. Sharma states that plaintiff's motor tone is normal in the arms and legs. There is no atrophy or deformity. Strength in legs is normal. Deep tendon reflexes in the biceps, triceps, supinator, patellar and Achilles are normal. There is no spasticity or clonus. Plaintiff reports numbness in his fingers at times, but no current numbness. Tinel's sign and Phalen's test are negative. Plaintiff has a normal gait. There is no limp or ataxia. He can stand on toes and heels and walk in tandem. He was able to squat. Rapid alternating movement and finger - nose testing were normal. Hands show normal grasp and coordination. Arms and legs are inspected and symmetrical. There is no atrophy or deformity. Skull and spine are normal. There is normal posture.
Range of motion testing on the cervical spine revealed flexion 50 degrees (50 normal), extension 60 degrees (60 normal), right and left flexion 45 degrees (45 normal), right and left rotation 80 degrees (80 normal). Range of motion testing in the lumbar spine revealed flexion 60 degrees (60 normal), extension 25 degrees (25 normal), right and left flexion 25 degrees (25 normal), right and left rotation 30 degrees (30 normal).
Dr. Sharma says that standing upright, plaintiff can bend forward and touch his feet. In the supine position, the leg elevation is 80 degrees on both sides. He was able [*4]to place the right foot on the left knee and left foot on the right knee. Movements of the neck are normal in all directions. Movements of the shoulder are normal without pain.
Dr. Sharma's diagnosis is cervical and lumbar sprain/strain, resolved and a normal neurological examination. She states that there are no neurological limits to plaintiff's continuation of usual work and activities of daily living and no neurological manifestations of disc bulges or disc herniations.
Dr. Sharma indicates she reviewed a MRI report of plaintiff's left knee, but makes no mention of plaintiff's knee in her report. Dr. Sharma indicates that plaintiff "states he has improved but the pain in the neck, back and shoulders still bother him off and on". Plaintiff did not mention his knee either.
Defendants also cite testimony in plaintiff's EBT, taken on December 8, 2009, that he still has pain in his back, neck and both knees, that the back pain he experiences while driving (he is a limo driver) is somewhat alleviated by a back support, that his neck makes a "clicking noise" when he moves it right or left, that he can walk only about ten blocks before he feels discomfort in his knees, and that he is unable to play basketball or run. Plaintiff also admitted that due to two prior accidents in 2007, he had to cut down his jogging and basketball playing to once a week prior to this accident. He had a accident in a Costco Store, when a display of paper towels fell on him, and an accident in Macy's, where his knee were cut by a sharp display, which accidents required about two months of chiropractic treatments to his knees, neck and back for each of these two accidents. Before the Costco accident, he jogged three times per week. (Page 90 and 91). He also testified that he is the primary caretaker of his mother, and that her depression and declining medical condition take up much of his time. When asked to clarify his reduction in activity before this latest accident, he said he couldn't jog after the Costco incident as he had "pain in my knees". Page 90 line 23. Upon further questioning, plaintiff said the reason he wasn't running after the Costco accident was "because my mother is sick". Page 93 line 3.
Where a motion for summary judgment is predicated on a determination of "serious injury"
the moving party has the initial burden of submitting sufficient evidentiary proof in admissible
form to warrant a finding that the plaintiff has not suffered a "serious injury". Lowe v Bennett,
122 AD2d 728 [1st Dept], affirmed 69 NY2d 701 [1986].
Defendants' evidence, comprised of experts' affirmations, supports the conclusion
that plaintiff did not sustain a "serious" injury, and thus defendants have met their prima facie
burden of proof.
The Plaintiff then has the burden of overcoming the motion. Grossman v Wright 288 AD2d 79 [2nd Dept 2000].
Plaintiff opposes the motion. In his affidavit (Exhibit E), plaintiff states that as a result of the accident he still has pain in his neck, lower back and left knee. He does not mention his shoulder. He states that he began treating with Dr. Boris Tsatskis shortly after the accident, and received treatment approximately two or three times a week for approximately three or four months. He also treated with Dr. Alan Dayan, an orthopedist, and Dr. David Ziemba, his personal physician. He was referred for MRIs. He states that he stopped consistent treatment after four months because his mother was ill and he needed to care for her. However, he states that he continued to treat with [*5]Dr. Dayan and Dr. Ziemba every month or two. He says that as a result of the accident, he can no longer play basketball or run and has difficulty walking, driving, sitting, sleeping, standing up, and lifting his client's luggage. Plaintiff states he missed approximately seven to eight weeks of work as the result of the accident.
The affirmation of Dr. Boris Tsatskis (Exhibit A), dated June 7, 2010, states he first evaluated the plaintiff on March 17, 2009, four days after the accident. Range of motion testing of the cervical spine revealed flexion to 20 degrees (45 normal); extension to 25 degrees (40 normal); left rotation to 35 degrees (40 normal); right rotation to 25 degrees (40 normal); left lateral flexion to 25 degrees (40 normal); right lateral flexion to 20 degrees (40 normal).
Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 15 degrees (30 normal); left rotation to 10 degrees (30 normal); right rotation to 15 degrees (30 normal); left lateral flexion to 20 degrees (30 normal); right lateral flexion to 25 degrees (30 normal).
Examination and range of motion testing of the left knee revealed flexion to 95 degrees (normal is 120) and extension to -10 degrees (normal is 0).
Dr. Tsatskis states he conducted EMGs of plaintiff on 4/20/09 and the findings were consistent with C5-7 cervical radiculopathy. He conducted EMGs on 5/7/09, with findings consistent with L5-S1 lumbar radiculopathy.
Dr. Tsatskis states he also treated plaintiff after an accident in a department store (Macy's) in October, 2007, when his right knee struck a sharp corner of a table. Plaintiff was treated primarily for his right knee, though there was also slight neck and lower back pain. Plaintiff's left knee was unaffected by that accident. Dr. Tsatskis states that at his last examination of plaintiff related to that accident, on January 7, 2008, plaintiff had a full range of motion in his cervical and lumbar spine. Specifically, Dr. Tsatskis reports that range of motion testing of the cervical spine revealed flexion to 45 degrees (45 normal); extension to 40 degrees (40 normal); left rotation to 40 degrees (40 normal); right rotation to 40 degrees (40 normal); left lateral flexion to 40 degrees (40 normal); right lateral flexion to 40 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 90 degrees (90 normal); extension to 30 degrees (30 normal); left rotation to 30 degrees (30 normal); right rotation to 30 degrees (30 normal); left lateral flexion to 30 degrees (30 normal); right lateral flexion to 30 degrees (30 normal). He avers that, to the extent that plaintiff had any limitations to his neck and lower back after the October, 2007 Macy's accident, or any prior accident, his neck and back were healed well before the March, 2009 auto accident. He states he never treated plaintiff for the other 2007 accident at Costco. Plaintiff says he went to Dr. Zimba and Dr. Tsatskis for two months of chiropractic treatment for the Costco incident (Page 81 of plaintiff's EBT) and three months for the Macy's incident (Page 87). Plaintiff then says in his affidavit that he was confused about this, and acknowledges he did not seek treatment for the Costco incident, although he brought lawsuits for both the Costco and the Macy's accident.
Dr. Tsatskis avers that, as a result of the March 2009 accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee. He asserts that he reviewed the MRI reports (not the films) and the results are not degenerative in nature. However, his summary of [*6]the MRI reports is hearsay, and may not be considered by the Court. Dr. Tsatskis never saw plaintiff before the accident. Further, defendant's IME doctors do not allege that plaintiff has any degenerative condition.
The affirmation of Dr. Alan Dayan (Exhibit B), dated June 21, 2010, states he first evaluated the plaintiff on August 4, 2009, and then again on September 2, 2009, October 13, 2009, and April 26, 2010. He too never saw plaintiff before the accident.
Dr. Dayan states his most recent examination of plaintiff was on April 26, 2010. On that date, range of motion testing of the cervical spine revealed flexion to 50 degrees (50 normal); extension to 60 degrees (60 normal); left gaze of 80 degrees (90 normal); right gaze of 80 degrees (90 normal); left lateral bending to 25 degrees (30 normal); right lateral bending to 25 degrees (30 normal).
Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 20 degrees (40 normal); left lateral bending to 25 degrees (30 normal); right lateral bending to 25 degrees (30 normal).
Examination and range of motion testing of the left knee revealed flexion to 135 degrees (normal is 140).
Dr. Dayan opines that, as a result of the accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee.
The affirmation of Dr. Michael Shapiro (Exhibit D), a radiologist, dated May 3, 2010, affirms to the truth of his MRI reports concerning plaintiff's cervical spine and left knee MRIs conducted on May 11, 2009.
Dr. Shapiro's report of the cervical spine MRI notes under "impression" a "right paracentral and right lateral C5-6 disc herniation. Encroachment on the right nerve root sleeve; and "central C4-5 herniation encroaching on the anterior thecal sac". Dr. Shapiro's report of the left knee MRI notes a "Grade II signal posterior horn of the medial meniscus, a medial collateral ligament sprain and a small joint effusion".
The affirmation of Dr. Jack Baldasar (Exhibit D), dated May 3, 2010, affirms to the truth of his report concerning the MRI of plaintiff's lumbar spine conducted on May 18, 2009. Dr. Baldasar's report of the lumbar spine MRI notes under "impression", "central bulges of the L4-5 and L5-S1 discs compressing the anterior dural sac".
The plaintiff has failed to proffer competent medical evidence that he sustained 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.
At his deposition, the plaintiff acknowledged that he missed less than 90 days of work as a result of the subject motor vehicle accident; specifically, he acknowledged that he missed seven to eight weeks from work. Morris v Edmond, 48 AD3d 432 [2nd Dept 2008]; McIntosh v O'Brien, 2010 NY Slip Op 115 [2nd Dept]. To establish this prong of the statute, plaintiff's doctor would have had to inform him that he could not return to work - that is the prerequisite for a medically determined injury. See Sainte v. Ho, 274 Ad2d 569 [2nd Dept 2000]; Welcome v. Diab, 273 AD2d 377 [2nd Dept 2000]. There is no such evidence in any of his medical reports. The important element in [*7]establishing injury under the 90/180 day category is that the injury be medically determined. Abrahamson v Premier Car Rental of Smithtown, 261 AD2d 562 [2nd Dept 1999]; Kaplan v Gak, 259 AD2d 763 [2nd Dept 1999]. Absent some objective proof of disability to perform the activities of daily living for 90 out of 180 days following an accident, there is no showing of a serious injury from mere allegation. Rum v Pam Transport, Inc., 250 AD2d 751 [2nd Dept 1998]; Harney v Tombstone Pizza Corp, 279 AD2d 609 [2nd Dept 2001].
Plaintiff also contends that he has suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.
Plaintiff has overcome the motion with regard to these two categories of injury. The radiologists, of course, have no opinion on the issue of causation. Dr. Tsatskis and Dr. Dayon set forth the requisite language establishing their opinion that plaintiff's injuries were caused by the accident. Plaintiff testified at his EBT to visiting his primary care physician, Dr. David Ziemba, several times each year through 2007 to the present and presumably prior to 2007 but there is no affirmation from him. His opinion on the issue of causation would be helpful, but it is not necessary.
Plaintiff returned to work as a limo driver 6-8 weeks after the accident and is still working. He complains he still experiences pain.
The plaintiff has demonstrated significant restrictions in the range of motion of his left knee and his cervical and lumbar spine. As such, he has overcome the motion with regards to whether he has suffered a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system, and has raised a triable issue of fact as to these two prongs of the statute.
In opposition to the motion for summary judgment, the plaintiff has presented ample
evidence of specific and documented restrictions in his ranges of motion, both from a recent
examination by his doctor and from tests which were contemporaneous with the subject accident.
See, Levin v Khan, supra; Morris v Edmond, 48 AD3d 432, 433; McIntosh v O'Brien,
2010 NY Slip Op 115 [2nd Dept]; Yunatanov v Stein, 2010 NY Slip Op 249 [2nd Dept].
He has also adequately addressed the issue of the prior accidents.
The evaluation of competing evidence (the battle of the experts) falls within the
provence of the trier of fact at trial, and it is not appropriate for the Court to dismiss the
complaint on a motion for summary judgment. See, Dietrich v Puff Cab Corp. 63 AD3d 778
(2d Dept 2009); Duffel v Green, 84 NY2d 795 [1995]; Lopez v Sanatore, 65 NY2d
1017 [1985]; Mercafe Clearing, Inc. v Chemical Bank, 216 AD2d 231 [1st Dept 1995];
Kaiser v Edwards, 98 AD2d 825 [3rd Dept 1983]; Slack v Crossetta, 75
AD2d 809 [2nd Dept 1980].
The Court finds that the evidence submitted by the plaintiff has raised a triable issue
of fact (see CPLR 3212[b]) with regard to the categories of 1) permanent con-sequential
limitation of use of a body organ or member; and 2) a significant limitation of use of a body
function or system. Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v
Eyler, 79 NY2d 955 [1992]; Levin v Khan, supra; Yunatanov v Stein, 2010
NY Slip Op 249 [2nd Dept]; Yun v
Barber, 63 AD3d 1140 [2nd Dept 2009]; Gavria v Alvarado, [*8]65 AD3d 567 [2nd Dept 2009].
The Court finds that plaintiff has provided an adequate explanation for his gap in treatment, if there is in fact a gap. After four months of treatments, he became the primary caregiver for his mother. He sees his primary care physician and his orthopedist on an as-needed basis, approximately once per month. Black v Robinson 305 AD2d 438 (2nd Dept 2003).
The foregoing constitutes the Decision and Order of the Court.
Dated: Brooklyn, New York
November 1, 2010
____________________________
Hon. Debra Silber, A.J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
