Hughes v O'Connor

[*1] Hughes v O'Connor 2010 NY Slip Op 52118(U) [29 Misc 3d 1232(A)] Decided on October 22, 2010 Supreme Court, Kings County Silber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2010
Supreme Court, Kings County

Ringo Halister Del Cid Hughes, Plaintiff,

against

Kurt C. O'Connor and SEGUNDO F. VERA, Defendants.



4259/09



Russell LiBrizzi, Esq. for Plaintiff

Lozner & Mastropietro

1901 Emmons Avenue

Brooklyn, NY 11235

Law Offices of Nancy Isserlis for defendant Vera

36-01 43rd Avenue

Long Island City, NY 11101

Thomas M. Bona, P.C. for defendant O'Connor

123 Main Street

White Plains, NY 10601

Debra Silber, J.

Defendants move and cross-move for summary judgment dismissing the complaint against them and all cross-claims against them on the grounds that plaintiff did not suffer a "serious injury" as defined by §5102(d) of the NYS Insurance Law. Plaintiff opposes. For the reasons set forth herein, defendants' motions are denied.

Plaintiff claims he sustained personal injuries as a result of an automobile accident on July 18, 2008 at the intersection of Johnson and Garner Avenues in Kings County. Plaintiff was a passenger in a vehicle driven by defendant O'Connor when it was involved in a collision with a vehicle owned and operated by defendant Vera. Plaintiff was 39 years old at the time. Plaintiff left the scene in an ambulance and was taken to Elmhurst Hospital. Plaintiff subsequently sought treatment from Dr. Jean [*2]Gilles, Dr. Frida Goldin, Dr. Stuart Remer and Dr. Zia Jaghory. Plaintiff commenced the within negligence action against defendants. Plaintiff claims (Bill of Particulars) he has suffered injuries to his right shoulder (traumatic synovitis, traumatic bursitis, sprain/strain, and a traumatic partial rotator cuff tear, which required arthroscopic surgery), lumbar spine (disc bulges and radiculopathy, and straightening of the normal concavities, which required epidural injections), and cervical spine (disc bulges, sprain/strain and myofascitis). Examinations Before Trial and Independent Medical Examinations of the plaintiff have been conducted.

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 cases 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. Joseph Cole performed Independent Medical Examinations of plaintiff on November 19, 2008 and February 4, 2009 to evaluate his claims. See affirmation of Dr. Cole, annexed to defendant's moving papers as Exhibit E. It is noted that defendants have not included in their motion papers Dr. Cole's report of the November 19, 2008 examination.

In his report of February 4, 2009, Dr. Cole notes that plaintiff has not worked since the accident. He states that examination of plaintiff's gait revealed a "normal reciprocating pattern." Plaintiff was able to go from sit to stand, stand to sit, and to maintain a seated position at 90 degrees of lumbar flexion in no apparent distress. Examination of the spine revealed a normal cervical and lumbar lordosis. No paraspinal muscle spasm was noted. Spurling's test was negative bilaterally.

Range of motion testing of the cervical spine revealed flexion 45 degrees (45 normal); extension 45 degrees (45 normal); left lateral flexion 45 degrees (45 normal); right lateral flexion 45 degrees (45 normal); left rotation 80 degrees (80 normal); right [*3]rotation 80 degrees (80 normal). Range of motion testing of the lumbar spine revealed flexion 90 degrees (90 normal); extension 30 degrees (30 normal); left lateral flexion 30 degrees (30 normal); right lateral flexion 30 degrees (30 normal); left lateral rotation 30 degrees (30 normal); right lateral rotation 30 degrees (30 normal). Range of motion testing of the shoulders revealed forward elevation left 150 degrees (150 normal); forward elevation right 150 degrees (150 normal); backward elevation left 40 degrees (40 normal); backward elevation right 40 degrees (40 normal); abduction left 150 degrees (150 normal); abduction right 150 degrees (150 normal); adduction left 30 degrees (30 normal); adduction right 30 degrees (30 normal); external rotation left 90 degrees (90 normal); external rotation right 90 degrees (90 normal); internal rotation left 40 degrees (40 normal); internal rotation right 40 degrees (40 normal).

Dr. Cole found finger and hand dexterity to be normal, with no muscle spasm and no atrophy of the musculature. Straight leg raising and cross straight leg raising were negative bilaterally. Lasegue's sign was negative bilaterally. Fabre-Patrick's test was negative bilaterally. Examination of several joints of the upper and lower extremities, including shoulders, elbows, wrists, knees, ankles, fingers and toes, revealed no redness, heat swelling, effusion, crepitation, ligamentous laxity or instability. Examination of the shoulders revealed a negative Hawkin's test, negative Neer's test and negative apprehension test. There were well-healed portal sites at the right shoulder. Motor testing of the upper and lower extremities was 5/5 at all pivots. Sensation was intact to light touch, pinprick and vibration. Reflexes were 2+ and symmetrical. There was no clonus at the ankles and plantar responses were downgoing. There were no trophic changes of the skin or nailbed. No circulatory deficits were noted.

Dr. Cole diagnosed the plaintiff with "status post right shoulder surgery" and "right shoulder sprain, resolved." He found no need for additional testing, household help, ambulatory service, medical equipment, physical therapy or physiatric intervention. He found no disability, saying, "He may seek gainful employment. He may perform household activities and activities of daily living without restriction." The Court notes that Dr. Cole states he reviewed a chiropractic IME, but it was not included in the defendant's motion papers.

It is interesting to note the contrast with Dr. Cole's report of November 19, 2008 (Exhibit B of plaintiff's opposition). In that report, Dr. Cole notes the plaintiff has not worked since the time of the accident, which was four months prior. He also states that "if the history of the accident is correct," then there is a cause and effect relationship between the original complaints (currently noted as right shoulder pain, neck pain and back pain, with plaintiff status post right shoulder surgery a month before and participating in physical therapy four times a week) and the reported accident. Dr. Cole opines under "Need for Treatment" "physical therapy three times per week for eight weeks with follow-up is indicated." He notes under disability, "The claimant has moderate disability with regard to his job as a carpenter. He should avoid lifting objects of 20 pounds or greater. He should avoid overhead lifting. He should avoid repetitive activities of his right shoulder."

Dr. Lisa Nason, an orthopedist, performed an Independent Medical Examination of plaintiff on December 3, 2009, to evaluate his claims. See affirmation of Dr. Nason, [*4]annexed to defendant's moving papers as Exhibit F.

In her report, Dr. Nason notes that plaintiff has not returned to work since the accident. She states that examination of the cervical spine revealed no structural abnormalities. There is no tenderness to palpation along the upper trapezius, suprasinatus and infraspinatus muscles or spasms present throughout. Foraminal compression test is negative. There is no evidence of muscle atrophy. Range of motion testing of the cervical spine revealed flexion 50 degrees (50 normal); extension 50 degrees (60 normal); bilateral bending 50 degrees (50 normal); bilateral rotation 70 degrees (80 normal).

Dr. Nason states that examination of the lumbar spine reveals no tenderness to palpation along the lumbosacral paraspinal muscles. There are no spasms present throughout. Heel/toe walk is normal. Straight leg raising and Lasegue's test are negative. There is no evidence of muscle atrophy. Range of motion testing of the lumbar spine was attempted, with what was noted as "limited attempt from claimant." The results were flexion 60 degrees (90 normal); extension 20 degrees (25 normal); lateral bending flexion 20 degrees (25 normal); lateral rotation 35 degrees (45 normal).

Dr. Nason states that examination of the right shoulder revealed no tenderness to palpation at the acrimioclavicular joint. Drop arm test is negative. Well healed arthroscopic scars are noted. Hawkins test is negative bilaterally. Impingement sign is negative. Range of motion testing of the shoulders revealed forward flexion left 150 degrees (150 normal); flexion right 140 degrees (150 normal); abduction left 150 degrees (150 normal); abduction right 150 degrees (150 normal); adduction left 30 degrees (30 normal); adduction right 30 degrees (30 normal); external rotation left 90 degrees (90 normal); external rotation right 90 degrees (90 normal); internal rotation left 80 degrees (80 normal); internal rotation right 80 degrees (80 normal).

Dr. Nason found all muscle testing and reflexes to be normal. She also states plaintiff is "female." (page 2-general observations).

Dr. Nason's assessment was "status post cervical and lumbar sprain/strain" and "status post right shoulder arthroscopic surgery." Dr. Nason opined that no orthopedic treatment was needed as plaintiff had no objective evidence of an orthopedic disability or of permanency . Dr. Nason stated that "the diminished range of motion of the lumbar spine and of cervical extension is not correlated with the remainder of the orthopedic exam. There was no spasm and all tests . . . were negative. The minimal decrease in range flexion of the right shoulder is a subjective symptom with no other correlated findings" (emphasis added).

It is noted that defendants have not included in their motion papers a transcript of plaintiff's deposition testimony.

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].

In the instant matter, defendants' evidence, comprised of experts' affirmations, does not support the conclusion that plaintiff did not sustain a "serious" injury.

Concerning the 90/180 category, defendants have failed to provide any evidence [*5]whatsoever showing that plaintiff did not sustain a medically determined injury which prevented him from performing all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the first 180 days following the accident. In fact, the only assertions made in either affirmation of any relevance to the issue (and not in support of the motion) are each doctor's notation that plaintiff has not returned to work since the accident. Neither Dr. Cole nor Dr. Nason addressed plaintiff's claim that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. Talabi v Diallo, 32 AD3d 1014 [2nd Dept 2006]); Galarza v Baci, 14 Misc 3d 1215A [Sup Ct. Kings Co. 2007] . Therefore, their affirmed reports do not rule out the possibility that plaintiff may have sustained a medically determined injury or impairment of a non permanent nature for not less than 90 days during the 180 days immediately following the accident. Talabi v Diallo, supra; Sayers v Hot, 23 AD3d 453 [2nd Dept. 2005]; Galarza v Baci, supra. In fact, both affirmations describe examinations long after the accident and have no evidentiary value on the 90/180 issue, which in any event, they do not discuss. Sayers v Hot, supra.

In fact, defendants have seemingly withheld from the Court the report of an examination by Dr. Cole which does raise some question of plaintiff's condition in the time period following the accident; and that report certainly qualifies as objective evidence which substantiates that plaintiff's usual and customary activities were restricted during this period and creates a triable issue of fact as to his inability to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident. Sainte v Ho, 274 AD2d 569 [2nd Dept 2000]; Welcome v Diab, 273 AD2d 377 [2nd Dept 2000]; Jackson v New York City Tr. Auth., supra Bennett v Reed, 263 AD2d 800; Taylor v Taylor, 260 AD2d 571. Moreover, Dr. Cole, defendants' IME doctor, doesn't dispute causation as asserted by plaintiff.

As defendants have failed to satisfy their burden in this category, it is unnecessary to consider whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact. Pijuan v Brito, 35 AD3d 229 [2nd Dept 2006]; Talabi v Diallo, supra; Sayers v Hot, supra. Under these circumstances, summary judgment must be denied without regard to the sufficiency of the opposition papers. See, Julemis v Gates, 281 AD2d 396 [2nd Dept 2001]; Hyacinth v U-Haul Co., 278 AD2d 369 [2nd Dept 2002]; Weiss v D'Auria Transport, 278 AD2d 316 [2nd Dept 2000].

However, in the other applicable categories of serious injury, defendants' evidence, comprised of experts' affirmations, as well as medical reports, supports the conclusion that plaintiff did not sustain a "serious" injury, and thus defendants have met their prima facie burden of proof. These are: a significant limitation of use of a body organ or member and a permanent loss of use of a body organ, member, function or system.

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 C), plaintiff states he [*6]severely injured his right shoulder, neck and back. He experiences pain in his right shoulder every day. It is a stabbing pain. His right shoulder is weaker than the left. His arm goes to sleep. He has persistent neck pain radiating to both shoulders. He has lower back pain every day, radiating into his legs. His pain gets worse at night. His pain gets worse with movement. His pain gets worse when it gets cold or the weather is damp. He cannot lift his right arm completely over his head. He has difficulty lifting heavy objects, throwing out garbage, bending, turning his head, and finding a comfortable position to sleep in. He had physical therapy, epidural steroid injecting and surgery on his right shoulder. He stopped treatment when his no-fault benefits were cut off, as he did not have insurance. He was still in pain when he stopped treatment.

In his deposition testimony (Exhibit A), plaintiff states that he has several continuing problems. There are things he cannot hold with his right arm. He can no longer play with his children. He can no longer carry his youngest child. He can no longer play soccer. He cannot exercise. He cannot assist his wife with domestic duties such as taking out the garbage. He could not go back to work at his job as a carpenter.

The affirmation of Dr. Stuart Remer, an orthopedic surgeon (Exhibit E), dated April 5, 2010, affirms to the truth of his annexed medical report, which is dated October 6, 2008 and describes an operation on the plaintiff's shoulder which took place that day. It notes the preoperative diagnosis was a right shoulder traumatic partial rotator cuff tear. The procedure was outlined "Examination under anesthesia; operative arthroscopy of the right shoulder, major synovectomy of the glenohumeral joint, debridement of the partial rotator cuff tear, arthroscopic subacromial decompression and bursectomy, and injection of Marcaine into the joint."

Dr. Remer's findings include "extensive synovitis of the glenohumeral joint . . . The synovitis was traumatic, associated with blood and edema. There was also a partial rotator cuff tear . . . The partial rotator cuff tear was traumatic." "We saw there was extensive bursitis, which was traumatic associated with blood and edema." The post-operative diagnosis was "right shoulder traumatic partial rotator cuff tear, traumatic synovitis, and traumatic bursitis."

Another affirmation of Dr. Remer, dated 4/5/10, affirms the truth of a medical report dated October 16, 2008. Range of motion testing of the right shoulder revealed abduction to 90 degrees (180 normal), forward flexion to 100 degrees (160 normal), external rotation to 40 degrees (45 normal), internal rotation to 80 degrees (90 normal). Pain was reported on the extremes of motion. Range of motion testing on the left shoulder revealed full range of motion. Diagnosis was status-post right shoulder arthroscopy. Dr. Remer recommended a course of physical therapy to alleviate pain, strengthen muscles and increase range of motion. He prescribed Lodine 400mg for pain. He noted the plaintiff continued to have a moderate disability as a result of the accident.

There are three affirmations from Dr. Zia Jaghory, (Exhibit F), dated September 30, 2008, October 21, 2008 and November 4, 2008. In each of her affirmations, Dr. Jaghory noted plaintiff's preoperative and postoperative diagnosis as lumbar radiculopathy. The procedure administered each of those days was an L5-S1 lumbar epidural steroid injection.

The affirmation of Dr. Frida Goldin, dated July 7, 2010 (Exhibit H), reports that [*7]plaintiff complains of right shoulder pain at rest and increased pain with movement, as well as persistent neck pain radiating to both shoulders and lower back pain radiating to both legs.

Dr. Goldin states that examination of the plaintiff's upper extremities revealed tenderness over the right shoulder. Range of motion testing of the right shoulder revealed elevation to 0-130 degrees (150 normal), extension to 40 degrees (40 normal), abduction to 120 degrees (150 normal), adduction to 30 degrees (30 normal), external rotation to 30 degrees (45 normal), internal rotation to 20 degrees (54 normal). Range of motion was full in the other joints tested. Good grasp was 4+ on the right and 5/5 on the left. Impingement test was negative bilaterally. Drop arm test was negative bilaterally. Dr. Goldin's account of the examination of the lower extremities was unremarkable.

Dr. Goldin states that examination of the cervical spine revealed muscle spasms and tenderness. Range of motion testing revealed flexion 30 degrees (45 normal), extension 40 degrees (45 normal), right and left lateral bending to 30 degrees (45 normal), right and left rotation to 60 degrees (80 normal). Foraminal compression test was positive bilaterally. Cervical Distraction test was positive.

Dr. Goldin states that examination of the lumbar spine revealed spasms and tenderness. Range of motion testing revealed flexion to 45 degrees (90 normal), extension to 20 degrees (30 normal), right and left lateral bending to 20 degrees (30 normal), right and left rotation to 20 degrees (30 normal). Straight leg raising test was positive on the right.

Dr. Goldin states the neurological exam revealed normal muscle strength and sensation. Reflexes were 2+ except for right knees and ankles, which were 1+. Gait pattern was slow.

Dr. Goldin diagnosed plaintiff with status post traumatic partial right shoulder rotator cuff tear, traumatic Synovitis and traumatic bursitis; status post arthroscopic surgery of the right shoulder; status post cervical spine strain/sprain; discogenic cervical spine derangement; status post lumbar spine sprain/strain; and discogenic lumbar spine derangement. Dr. Goldin opines that, based on the information available, it appears that the plaintiff's symptomology and the accident are causally related. She states the right shoulder, cervical spine and lumbar spine conditions are chronic, and that, "with a reasonable degree of medical certainty," there is permanency in relation to these conditions, and they are likely to get worse over time. She further notes that any conditions that may have pre-dated the accident were asymptomatic and caused to be exacerbated by the accident. She also states "claimant could benefit from physical therapy."

Plaintiff 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.

The plaintiff has demonstrated significant restrictions in the range of motion of his right shoulder. 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. [*8]

In opposition to the motion for summary judgment, the plaintiff has presented ample evidence of specific and documented restrictions in his range 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].

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) significant limitation of use of a body function or system. As stated above, defendants have not made out a prima facie case for dismissal with regard to whether plaintiff has 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. 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, 65 AD3d 567 [2nd Dept 2009].

Although the defendant did not raise the issue, the Court also notes that plaintiff adequately explained the gap in his treatment. As noted, plaintiff's treatment was discontinued when he was told No Fault wouldn't pay for any further treatment and he states "I did not have health insurance" (plaintiff's affidavit Paragraph 5).

The foregoing constitutes the Decision and Order of the Court.

Dated: Brooklyn, New York October 22, 2010

____________________________

Hon. Debra Silber, A.J.S.C.