Quattrochi v Sorto

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Quattrochi v Sorto 2011 NY Slip Op 32306(U) August 15, 2011 Supreme Court, Nassau County Docket Number: 25714/09 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------------------ ------------- ----------- ----- -- -- ---------------------- )( [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU GENA QUATTROCHI MICHELE M. WOODARD Plaintiff . TRIAL/IAS Par Index No. : 25714/09 Motion Seq. No. : 02 -against- DECISION AND ORDER RONALD A. SORTO and JOSE MARQUEZ Defendants. Papers Read on this Motion: Defendants ' Notice of Motion Plaintiffs Affrmation in Opposition Defendants ' Reply Affirmation Defendants ' Supplemental Reply Defendants , Ronald A. Sorto and Jose Marquez , move pUrsuant to CPLR 93212 , for an order granting sumar judgment dismissing the plaintiffs complaint, together with any and all cross- claims asserted against them. The underlying action was commenced by the plaintiff, Gena Quattrochi , to recover for injuries she sustained as a result of an automobile accident , which occured on July 26 2009 , when the vehicle she was operating was strck defendant , Jose Marquez (see by the vehicle owned by defendant , Ronald A. Sorto and operated by Profita Affirmation in Support at E)(h. A at 25). The plaintiff claims that a consequence thereof, she has sustained serious injuries as defined in Article 51 of the New York State Insurance Law (id. at As recited in the Verified Bil , 33 , 34). of Pariculars , the plaintiff alleges that the following injuries were pro)(imately caused by the subject accident: Disc herniations at C3- , C4- 5 and C5- 6 impinging on the anterior aspect of the spinal canal centrally; cervical myofasciitis; cervical radiculopathy; cervical sprain/strain; disc herniations at L4- 5 and L5- S 1 impinging on the anterior aspect ofthe spinal canal [* 2] and on the nerve roots bilaterally at L4- 5; lumbar myofasciitis; lumbar radiculopathy; lumbar sprain/strain (id. at E)(h. F at ~9). In support of the instant application , the defendants provide the affirmed medical reports of Dr. Shara, M. radiologist (see , a neurologist , Dr. Robert Israel , M. , an orthopedist and Dr. Robert Tantleff, M. ,a Profita Affirmation in Support at E)(hs , G , H , I). Dr. Shara conducted a neurologic e)(amination of the plaintiff on November 22 2010 , at which time he reviewed various medical records including an MRI of the plaintiff s cervical spine done on September 8 , 2009 , which revealed "posterior disc herniations at * * * C3- , C4- , and C5- well as an MRI of the lumbar spine conducted on September 9 2009 , which revealed "posterior herniations at * * * L4- 5 and L5- S1" (id. " as disc at E)(h. H). Dr. Sharma s e)(amination included an evaluation of the following: mental status , cranial nerves , motor system , refle)(es , sensory, gait and coordination as well as the skull and spine (id.). Dr. Shara noted normal findings throughout the course of his e)(amination and with paricular respect to Phalen s sign (were) negative (id). his sensory evaluation he stated that " (t)he Tinel' s sign and Range of motion testing of the cervical and lumbar spines also revealed normal findings and Dr. Shara opined that " (t)here is no neurological disability" and " neurological limitations with regard to continuation of usual work and activities of daily living (id.). Dr. Israel conducted an orthopedic e)(amination of the plaintiff on November 23 2010 (id. E)(h. I). Range of motion testing of the cervical spine revealed normal findings and Dr. Israel noted the . Cervical Compression Test , the Valsava Test , the Spurling test , as well as the Soto- Hall test were all negative (id.). As to the lumbar spine , range of motion testing again revealed normal findings and Dr. Israel noted the absence of either tenderness or paraspinal muscle spasm and that straight leg raising was negative at 75 degrees , which Dr. Israel stated was "normal" (id.). Dr. Israel fuher noted that (t)he Bechterew , Hubert and Kernig tests were all negative " and ultimately concluded that the plaintiff had sustained " sprain/strains of the cervical spine and lumbar spine " which had resolved and that there [* 3] was no " objective orthopedic disability as a result of this alleged injur (id). Dr. Tantleff conducted an independent radiologic review with respect to the two aforementioned MRI studies conducted as to the plaintiffs cervical and lumbar spines (id at E)(h. G). As to the cervical MRI , Dr. Tantleff opined that same "reveals longstanding chronic degenerative discogenic disc changes and cervicothoracic spondylosis (id). Dr. Tantlefffuher stated that " (t)he findings are consistent with the individual's age and are not causally related to the incident of 7/26/09 * * * as the findings are chronic longstanding processes requiring years to develop as presented and are consistent with wearand-tear of the normal aging process (id). As to the MRI of the lumbar spine , Dr. Tantleff similarly opined that said test revealed " longstanding chronic degenerative disc disease and thoracolumbar spondylosis with advanced changes at L4/5" and that the findings " are consistent with the individual' (id). age and not causally related to the date of incident of 7/26/09" It is well settled that a motion for summar judgment is a drastic remedy that should not be granted where there is any doubt as the e)(istence of a triable issue of fact Century Fox 3 NY2d 395 (1957); Bhatti (Silman Twentieth Roche 140 AD2d 660 (2d Dept 1998)). To obtain summar judgment , the moving par must establish his or her claim or defense by tendering sufficient proof, in admissible form , suffcient to warant the Cour to direct judgment in the movant's favor Animals Associated Fur Mfrs. 46 NY2d 1065 (1979)). Such evidence may include deposition transcripts as well as other proofane)(ed to an attorney Lines, (Friends of s affirmation (CPLR 93212 (b); Olan Farrell 64 NY2d 1092 (1985)). If a sufficient prima facie showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the e)(istence of a material issue of fact the e)(istence of which necessarly precludes the granting of sumar judgment and necessitates a trial (Zuckerman City of New York, 49 NY2d 557 (1980)). It is incumbent upon the non-moving par lay bare all of the facts which relate to the issues raised in the motion (Mgrditchian Donato , 141 [* 4] AD2d 513 (2d Dept 1998)), When considering a motion for summar judgment , the function of the cour is not to resolve factual issues but rather to determine if any such material issues of fact e)(ist (Barr County of Albany, 50 NY2d 247 (1980)). Within the paricular conte)(t of a theshold motion which seeks dismissal of a personal injury complaint , the movant bears the specific burden of establishing that the plaintiff did not sustain a serious injur " as enumerated in Aricle 51 of the Insurance Law 5102(d) Eyler 79 NY2d (Gaddy 955 (1992)). Upon such a showing, it becomes incumbent upon the nonmoving par to come forth with sufficient admissible evidence to raise an issue of fact as to the e)(istence of a " serious injury (Licari Ellott 57 NY2d 230 (1982)). Within the scope of the defendant's burden , the defendants ' medical e)(perts must specify the objective tests upon which the stated medical opinions are based , and when rendering an opinion with respect to the plaintiffs range of motion , must compare any findings to those ranges of motion considered normal for the paricular body par under evaluation Dept 2003); Dept 2001); Qu Shahabi Min/ionica 2006); Toure Doshna Junco 296 AD2d 569 (2d Dept 2002); 12 AD3d 578 (2d Dept 2004); Avis Rent A Car Systems, Inc. Robinson 305 AD2d 438 (2d (Black Mondi 98 NY2d 345 (2002); Ranzi, 288 AD2d 440 (2d Keahan 32 AD3d 506 (2d Dept Dufel Green 84 NY2d 795 (1995)). In the instant matter , the plaintiff is alleging that her injuries fall within the following enumerated categories as defined in Insurance Law use of a body organ or member medically determined injur or 5102(d): " permanent consequential limitation of significant limitation of use of a body fuction or system " and; " impairment which prevents the injured person from performing substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred and eighty days immediately following the [* 5] occurence of the injur or impairment" (hereinafter the " 90/180 category (see Ferrante Affirmation in Opposition at ~~4 , 20). Having carefully reviewed the record , the Cour finds that the moving defendants have established their prima facie NY2d 955 (1992), supra). Eyler, 79 (Gaddy case entitling them to judgment as a matter of law A review of affirmed medical reports of Dr, Shara and Dr, Israel indicates that said e)(perts recited the specific tests upon which their respective medical opinions were predicated and compared the plaintiffs Robinson Mondi range of 305 AD2d 438 (2d Dept 2003), Keahan NY2d 345 (2002), Doshna supra; Qu 32 AD3d 506 (2d Dept 2006), supra; Dufel (Black motion measurements to those which are deemed normal supra; Toure Green supra; 12 AD3d 578 (2d Dept 2004), Avis Rent A Car Systems, Inc. , 98 supra), 84 NY2d 795 (1995), Additionally, with pa,icular respect to the 90/180 category, the Court notes that Ms. Quattochi (Sanchez clearly testified she did not lose any time from work as a result of the subject accident Willamsburg Volunteer ofHatzolah, Inc. Cantavev Gelle 518 (2d Dept 2008); Geliga 48 AD3d 664 (2d Dept 2008); 60 AD3d 988 (2d Dept 2009); Berson Karibian 56 AD3d Rosada 62AD3d 636 (2d Dept 2009)). Thus , the burden now shifts to the plaintiff to demonstrate a triable issue of fact with respect to the e)(istence of a " serious injury (Licari Ellott 57 NY supra), d 230 (1982), In opposing the instant application , in addition to proffering the plaintiff s medical records counsel strenuously challenges the medical evidence submitted by the defendants (see Ferrante Affirmation in Opposition at ~~12- 17). Initially, counsel asserts that the while each of the defendants e)(amining e)(perts opine that the plaintiff e)(hibited full range of motion , there is a discrepancy in relation to that which each e)(pert considers a normal measurement , thus waranting denial of the instant application (id. at ~13). With paricular respect to the report of Dr. Israel , counsel posits that same should be summarily disregarded (id. at ~14). To this point, counsel contends that while Dr. Israel [* 6] recites herein what he deems to be normal ranges of motion , said ranges are markedly different from those upon which he has alternatively recited in medical reports submitted within the conte)(t of other actions at ~14). (id. In addition to the foregoing, counsel for the plaintiff contends that even assuming the moving defendants have demonstrated their entitlement to judgment as a matter of law, the plaintiff has raised a triable issue of fact by the submission of various medical reports authored by her treating physicians (id. at ~20), The medical evidence provided by the plaintiff herein includes an Affidavit of Dr. Robert Gelman , D. , together with his accompanying medical reports , an affirmation from Dr. Richard Rizzuti , M. , an affirmation from Dr. Bradley Cohen , D. D. , and an affirmation of Dr. David Benatar at E)(hs. A , B , C , D , E). (id. Dr. Gelman initially e)(amined the plaintiff on July 27 2009 at which time range of motion testing was accomplished by use of a goniometer and revealed restrictions in the plaintiffs lumb(U spines cervical and at E)(hs. A , B). Dr. Gelman noted that Kemp s test , Ely s test and the Yoeman s test (id. were each positive bilaterally Thereafter , Dr. Gelman continued to treat the plaintiff and recently (id). reevaluated her physical condition on April 26 , 2011 , the results of which again revealed restrictions in the plaintiffs cervical and lumbar spines (id.). At this recent e)(amination , Dr. Gelman stated that digital palpation revealed severe tenderness and marked myospasm in the cervical and lumbar regions and that the Jackson s Foraminal Compression test , the Shoulder Compression test , Kemp s test , Ely test and Yoemans s test , were all positive suffered a permanent injur subject accident (id.), to her (id.). Dr. Gelman ultimately concluded that the plaintiff " has neck and low back" and that such injur Dr. Rizzuti has submitted thee affirmations , 2010 and the third of which is dated April 2011 (id. was causally related to the two of which are dated October 18 at E)(h. C). As to those affirmations dated October ," [* 7] 18, 2010 , Dr. Rizzuti avers that he "personally read" the MRI' s taken of the plaintiffs cervical and lumbar spines and attests "to the accuracy of the information inscribed on the attached MRI including all the diagnosis , impressions and findings (id.). As to the affirmation dated April 2011 , Dr. Rizzuti states that he has reviewed the reports of Dr. Tantleff and upon said review disagree ( s) with his opinion that a longstanding chronic degenerative discogenic disc disease e)(ists in plaintiffs cervical and lumbar spine (id.). Dr. Bradley Cohen affrms that on April 28 , 2010 , he conducted " Electrodiagnosis and Electromyography" in relation to the plaintiff s upper and lower e)(tremities , the results of which revealed "bilateral C5- C6 radiculopathy, " as well as " bilateral radiculopathy within bilateral L4lumbar segments " both of which are " associated with a mild to a moderate degree of denervation (id. at E)(h. D). When alleging a serious injury which falls within the ambit ofInsuranceLaw 95102(d), a plaintiff is required to provide inter alia objective medical evidence contemporaneous with the subject accident , which demonstrates the e)(tent and degree of the alleged physical limitation resulting from the injur (see Ifach 2003); Felix (2d Dept 2007); Neiman New York City Tr. Auth. Bestman Jason 306 AD2d 380 (2d Dept 2003); Danar 1 AD3d 398 (2d Dept 32 AD3d 527 (2d Dept 2006); Garcia Sobles 41 AD3d 426 Seymour 41 AD3d 629 (2d Dept 2007)). Furher , in addition to providing medical proof contemporaneous with the subject accident, the plaintiff must also provide competent medical evidence containing verified objective findings , which are based upon a recent e)(amination wherein the e)(pert must provide an opinion as to the significance of the injur AD2d 365(2d Dept 1999); Constantinou Surinder 8 AD3d 323 (2d Dept 2004); (Kauderer Barzey Penta , 261 Clarke, 27 AD3d 600 (2d Dept 2006)). The Cour has carefully reviewed the medical submissions provided by the plaintiff herein , and [* 8] applying the foregoing principles thereto , finds that the plaintiff has raised a triable issue of fact as to those categories denominated "permanent consequential limitation of use of a body organ or member and supra). significant limitation of use of a body fuction In the matter sub judice the Neiman (Ifrach (Licari Ellott 57 NY2d 230 (1982), the medical records of Dr, Gelman are contemporaneous with the subject accident and specifically set fort cervical and lumbar spines or system initial range of motion restrictions as to the plaintiffs Moreover , in supra). 306 AD2d 380 (2d Dept 2003), rendering his assessment , Dr, Gelman set forth the objective tests upon which his medical conclusions were based and properly compared his findings to those which are deemed normal for the paricular Edmund (Morris body pars under evaluation Rosada Cab Corp. Berson AD3d 645 (2d Dept 2010); Tranquile , 70 Johnson 48 AD3d 432 (2d Dept 2008); supra; Peri 62 AD3d 636 (2d Dept 2009), Meher 74 AD3d 930 (2d Dept 2010)). Furher , in addition to providing medical evidence contemporaneous to the subject accident , the plaintiff has proffered the above-referenced medical report of Dr. Gelman of April 26 , 2011 , wherein the plaintiffs treating chiropractor clearly noted that upon ree)(amination , the plaintiff e)(hibited (Kauderer restricted ranges of motion in the cervical and lumbar spines Constantinou Dept 1999), supra; Surinder 8 AD3d 323 (2d Dept 2004), Penta 261 AD2d 365(2d supra). However , with respect to the 90/180 category, the Court finds that the plaintiff has failed to raise a triable issue of fact (Licari Ellott 57 NY2d 230 (1982), supra). In order to establish an injur this category, the plaintiff must demonstrate that he or she "has been curiled her) ususal activities to a great e)(tent rather than some slight curailment" NY2d 955 supra (id. in from preforming his (or at 236; at 958). Here , the record herein contains an opposing affdavit Gaddy Eyler , 79 proffered by the plaintiff wherein she avers that " during the first si)( months post-accident (she) was limited in many [* 9] activities but was able to work because my employer was fle)(ible with hours and the type of work I Ferrante Affrmation in Support at E)(h. F at ~2). However , even fully crediting the plaintiffs did" (see assertions as tre , her " ususal same do not establish that she was prevented from performing " substantially all" of activities to a great e)(tent" (id.; Insurance Law 951 02( d)). Moreover , as noted above , the (Sanchez plaintiff testified that she did not lose any time from work as a result of the subject accident Wiliamsburg Volunteer of Hatzolah, Inc. AD3d 518 (2d Dept 2008), Rosada 48 AD3d 664 (2d Dept 2008), Gelle supra; Cantave Karibian , 56 supra; Geliga supra; Berson 60 AD3d 988 (2d Dept 2009), supra). 62 AD3d 636 (2d Dept 2009), Therefore , based upon the foregoing law and analysis , the application interposed by defendants Ronald A. Sorto and Jose Marquez , which seeks an order granting sumar judgment dismissing the plaintiffs complaint is hereby DENIED as to those categories denominated " permanent consequential limitation of use of a body organ or member and significant limitation of use of a body fuction or system " and GRANTED as to the 90/180 category. All applications not specifically addressed are DENIED. It is hereby ORDERED, that the paries are directed to appear in DCM for trial on August 17 2011 at 9:30 This constitutes the Decision and Order of the Cour. DATED: August 15 2011 Mineola, N. Y. 11501 ENTER: HON. MICHELE M. WOODARD F:\Quattrochi v Sorto , Mot Seq 2, wpd ENTERED AUG 232011 NASSAU COUNTY COUNT CLERK' S OFFICE

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