Sypher v Lopez

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Sypher v Lopez 2011 NY Slip Op 32586(U) October 4, 2011 Supreme Court, Suffolk County Docket Number: 08-32590 Judge: Jeffrey Arlen Spinner 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] INDEX NO. CAL. No. 08-32590 10-02292MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 21 - SUFFOLK COUNTY PRESENT: Hon. MOTION DATE 3-9-1 1 7-13-1 1 ADJ. DATE Mot. Seq. # 001 - MD JEFFREY ARLEN SPINNER Justice of the Supreme Court KEEGAN & KEEGAN, ROSS & ROS NER, LLP Attorney for Plaintiff 147 North Ocean Avenue, P.O. Box 918 Patchogue, New York 1 1772 Plaintiff, - against - GERTRUDYS LOPEZ, Defendant. : SOBEL & SCHLEIER, L.L.C. Attorney for Defendant 464 New York Avenue, Suite 100 Huntington, New York 1 1743 X Upon the following papers numbered 1 to 22 read on this motion for summary judgment ;Notice of Motion/ Order ; Answering 1 - 16 ; Notice of Cross Motion and supporting papers to Show Cause and supporting papers Affidavits and supporting papers 17-20 ; Replying Affidavits and supporting papers 2 1-22 ; Other -; (aft$rrker b it is, a ) ORDERED that this motion by defendant Gertrudys Lopez seeking summary judgment d i sni i ssi n g p 1ai nt i f f s compl aint is denied . Plaintiff Steven Sypher coniinenced this action against defendant Gertrudys Lopez to recover damages for injuries he allegedly sustained as a result o f a motor vehicle accident that occurred at the intersection of Horton Avenue and Reeves Avenue in Riverhead, New York on March 20,2008. Plaintiff. by his complaint, alleges, among other things, that he was traveling southbound on Horton Avenue when his vehicle was struck on the driver s side by the vehicle owned and operated by defendant Gel-trudys Lopez after she failed to stop at a stop sign controlling her direction of travel on westbound Reeves Avenue. As a result of the impact between the Sypher and Lopez vehicles, the Syplier vehicle was pushed into a pole. Plaintiff, by his bill of particulars, alleges that he sustained various personal in.juries as a result of the subject accident, including loss of consciousness; abrasion to the left side of the face; scar to the left side of the face; concussion; head injuries to the left side of the head; and post concussion syndrome and headaches. Plaintiff alleges that as a result of the injuries he sustained in the accident he was confined to his bed and home for approximately five months. [* 2] Sypher v Lopez Index No. 08-32590 Page 2 Defendant now moves for summary judgment on the basis that the injuries allegedly sustained by plaintiff as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law $ 5 102(d). In support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the affirmed medical reports of Dr. Ira Chernoff and Dr. Mathew Chacko. At defendant s request, Dr. Chernoff conducted an independent orthopedic examination of plaintiff on August 2, 2010, and Dr. Chacko conducted and independent neurological examination of plaintiff on September 2 7, 201 0. Defendant also submits the unsworn copies of plaintiffs medical records from Stony Brook University Medical Center and Peconic Bay Medical Center. Plaintiff opposes the motion on the ground that defendant has failed to meet her prima facie burden of demonstrating that he did not sustain an injury within the meaning of the Insurance Law as a result of the subject accident. Alternatively, plaintiff asserts that he sustained injuries within the limitations of use categories and the 90/180 category of the Insurance Law as a result of the accident. In opposition, plaintiff submits his own affidavit and a letter, dated May 16, 20 1 1, from his primary care physician, Dr. Kenneth Barry. It has long been established that the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Dufel v Green, 84 NY2d 795,798, 622 NYS2d 900 [1995]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 [2002]). Therefore, the determinattion of whether or not a plaintiff has sustained a serious injury is to be made by the court in the first instance (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [ 19821; Porcano v Lehmnn, 255 AD2d 430,680 NYS2d 590 [2d Dept 19881; Nolan v Ford, 100 AD2d 579,473 NYS2d 5 I6 [ 19841. qff d 64 NYS2d 68 1,485 NYS2d 526 [2d Dept 19841). Insurance Law $ 5 102 (d) defines a serious injury as 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, functiorr or system; 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 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 inimediately following the occurrence of the injury or impairment. To recover under the limitations of use categorics, a plaintiff must present objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration (.we Mngid v Lincoln Slervs. Corp., 60 AD3d 1008, 877 NYS2d 127 [2d Dept 20097; Laruffn v Yui Ming Lau, 32 AD3d 996, 82 1 NYS2d 642 [2d Dept 20061; Cerisier v Tlzibiu, 29 AD3d 507, 81 5 NYS2d 140 [2d Dept 2006); Me-yers v Bobower Yeshiva Bnei Zion, 20 AD3d 456, 797 NYS2d 773 [2d Dept 20051). A sufficient description of the qualitative nature of plaintiff s limitations, with an chjective basis. correlatmg plaintiffs limitations to the normal function, purpose and use of the body part may also suffice (see Toure v Avis Rent A Car Systems, Itic., supra; Dufel v Green. sups). 4 minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (.we Licari v Elliott, 57 NY;!d 230. 455 NYS2d 570 [1982]). Further, evidence ofpain and discomfort alone, unsupported by credible medical evidence that diagnoses and identifies the hjuries, is insufficient to sustain a finding of serious injury (see Sclzeer v Koubek, 70 NY2d 678, 518 NYS2d 788 [ I 9871). [* 3] Sypher v Lopez Index No. 08-32590 Page 3 Unsworn medical reports of a plaintiffs examining physician or chiropractor are insufficient to defeat a motion for summaryjudgment (see Grasso v Angerarni, 79 NY2d 813, 580 NYS2d 178 [1991]). However, a plaintiff may rely upon unsworn MRI reports if they have been referred to by a defendant s examining expert (see Cirulkins v Vicinanzo, 71 AD3d 1224, 895 NYS2d 600 [3d Dept 2010l;Ayzen v Melendez, 299 AD2d 381,749 NYS2d 445 [2d Dept 20021). A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury (see Toure v Avis Rent A Car Sys., supra; Caddy v Evler, 79 NY2d 955,582 NYS2d 990 [I 9921). When a defendant seeking summary judgment based on the lack of serious injury reliies on the findings of the defendant s own witnesses, those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268,270,587 NYS2d 692 [2d Dept 19921). A defendant may also establish entitlement to summary judgment using the plaintiff s deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 AD2d 43 1,733 NYS2d 901 [2d Dept 20011; Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 20001; Vignola v Varrichio, 243 AD2d 464, 662 NYS2d 83 1 [2d Dept 19971; Torres v Miclzeletti, 208 AD2d 5 19,616 NYS2d 1006 [2d Dept 19941). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for serious injury under New York s No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 20031; Pagano v Kingsbury, supra). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see Burns v Stranger, 3 1 AD3d 360,819 NYS2d 60 [2d Dept 20061; Rich-Wing v Baboolal, 18 AD3d 726,795 NYS2d 706 [2d Dept 20051; see generully Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1,487 NYS2d 3 16 [ 19851). Defendant s examining orthopedist, Dr. Chernoff, states in his medical report that an examination of plaintiff revealed that his neck range of motion is hyperextension 20 degrees (normal is 20 degrees), rotation is 30 degrees (normal is 80 degrees), that he is able to forward bend 1-inch chin to chest (normal chest t o chin), and that his power testing is 5/5 in the upper extremities. Dr. Chernoff s report states that an examination of plaintiffs left shoulder revealed flexion to 180 degrees, left to 100 degrees (normal is 180 degrees). Internal rotation to the mid-back on the right and to the hip on the left (normal mid back). Abduction is 90 degrees (normal is 90 degrees). The claimant has mild tenderness over the left 4C. He has a positive impingement of the left shoulder. Dr. Chernoff s report concludes that the alleged cervical sprains that plaintiff sustained as a result of the subject accident have resolved, that plainti lf has a history of Arnold-Chiari malformation, and that plaintiff is not disabled. Likewise, defendant s examining neurologist, Dr. Chacko. states in his medical report that an examination of plaintiffs cervical spine revealed he has full range of motion in that region, that therc is tenderness i n the cervical area, but no muscle spasm was felt upon palpation, and that he has normal tone and strength in his upper and lower extremities. Dr. Chacko s report concludes that plaintiff is not disabled and is capablc of performing his normal daily living activities without restriction, and that his neurological examination does not reveal any clear focal neurological deficits. [* 4] Sypher v Lopez Index No. 08-32590 Page 4 Based upon the adduced evidence, defendant failed to meet her prima facie burden of establishing that plaintiff did not sustain an injury within the meaning of Insurance Law 5 5 102(d) as a result of the subject accident (see Toure v Avis RentA Car S s., supra; Smith v Hartman, 73 AD3d 736, 899 NYS2d 648 [2cl Dept 20101). The medical reports of defendant s examining orthopedist and neurologist were insufikient to eliminate all triable issues of fact (see Granovskijj v Zarbaliyev, 78 AD3d 656, 909 NYS2d 667 [2d Dept 20101). Dr. Chernoff failed to perform adequate range of motion testing of plaintiffs cervical spine, and, during the limited range of motion testing that he performed, found significant range of motion limitations in the cervical region of plaintiffi s spine and in plaintiffs left shoulder during an examination that was conducted more than two years after the accident (see Cues v Tavarone, 85 AD3d 846, 925 NYS2d 346 [2d Dept 201 11; Britt v Bustamnnte, 77 AD3d 781, 909 NYS2d 138 [2d Dept 20101; Quiceno v Mendoza, 72 AD3d 669, 897 NYS2d 643 [2d Dept 20101; Kjono v Fenning, 69 AD3d 581, 893 NYS2d 157 [2d Dept 20101; Held v Heidernan, 63 AD3d 1105, 883 NYS2d 246 [2d Dept 20091). In addition, Dr. Chernoff and Dr. Chacko each noted tenderness in the cervical area, and Dr. Chernoff noted that plaintiff had a positive impingement of the left shoulder. Therefore, their findings belie their conclusions that plaintiff did not sustain a causally related injury as a result of the subject accident (see Sparks v Detterline, 86 AD3d 60 1, 926 NYS2d 9 I4 [2d Dept 20 1 I]; Fields v Hildago, 74 AD3d 740,907 NYS2d 15 [2d Dept 20101; Kjono v Fenlzing, 69 AD3d 581, 893 NYS2d 157 [2d Dept 20101). And while both Dr. Chernoff and Dr. Chacko state that plaintiff has a history of Arnold-Chiari malformation, the records submitted by defendant failed to show that plaintiff, prior to the subject accident, had any symptoms from said condition or that the causes of his headaches were as a result of such condition, and not causally related to the subject accident (see Germain v Irizarry, 82 AD3d 833,918 NYS2d 523 [2d dept 201 11; Clark v Basco, 83 AD3d 1136, 921 NYS2d 345 [3d Dept 201 I]; Kuperberg vMontalbnno, 72 AD3d 903, 899 NYS2d 344 [2d Dept 20101). In fact, the report of plaintiffs treating neurologist, Dr. Michael Guido, submitted by defendant in support of her motion, states thai plaintiffs Chiari malformation is asymptomatic, and that the headachedpost concussion headaches are causally related to the subject accident. Lastly, defendanl. failed to meet her prima facie burden of showing that plaintiff did not sustain a medically determined in.jury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary activities for not less than 90 days during the 180 days immediately following the accident (see Marnzer v IF USA Express, Inc., 73 AD3d 868, 899 NYS2d 884 [2d Dept 20101; Ismail v Tejeda, 65 AD3d 518, 882 NYS2d 91 5 [ 2d Dept 20091; Scinto v Hoyte, 57 AD3d 646, 870 NYS2d 61 [2d Dept 20081). Neither Dr. Chernol f nor Dr. Chacko related any of their findings to the 90/180 category of serious injury (see Ballnrrl v Cunneen, 76 ,4D3d 1037, 908 NYS2d 443 [2d Dept 20101; Hossain v Singh, 63 AD3d 790, 882 NYS2d 137 [2d Dept 20091; Torres v Petfomzance Auto. Group, Inc., 36 AD3d 894, 894, 829 NYS2d 18 1 2d Dept [2007]). While a defendant is permitted to use a plaintiffs deposition testimony to establish that he or she did not sustain a nonpermanent injury that prevented him or her from performing substantially a11 of his or her material daily activities for at least 90 of the 180 days immediately following the accident (.we e.g. Mercarlo-Arifv Garcia, 74 AD3d 446, 902 NYS2d 72 [ I st Dept 20101; Riclinrds v Z yson, 64 AD3d 760,883 NYS2d 575 [2d Dept 20091; Neuburgrr v Sidoruk, 60 AD3d 650, 875 NYS2d 144 [2d Dept 20091; Saetia v VIPRenovations Corp., 68 AD3d 1092, 891 NYS2d 471 [2d Dept 2009]), defendant ,s reliance on plaintiffs testimony in the instant matter is insufficient to meet her burden on the motion (,we Neuburger v Sidoruk, 60 AD3d 650, 875 NYS2d 144 [2009]; Tinsley v Bnli, [* 5] Sypher v Lopez Index No. 08-32590 Page 5 50 AD3d 1019. 857 NYS2d 180 [2008]: Torres vl'erformance Auto. Group, Znc., supru; cf Geliga v Karibiarz, 56 AD3d 5 18, 867 NYS2d 5 19 [2008]). Indeed, plaintiff, at his deposition, testified that Dr. Guido told him not to rei.urn to work, but to rest, and that he was unable to return to work until the end of June or beginning of July 2008. Thus, defendant failed to objectively demonstrate that plaintiff did not sustain a serious injury within the meaning of Insurance Law 4 5 102(d) as a result of the accident (see Astudillo v MV Tramp., Inc., 84 AD3d 1289, 923 NYS2d 722 [2d Dept 201 11; Fudol v Sullivan, 3 8 AD3d 593, 83 1 NYS2d 504 [2d Dept 20071; Abraham v Bello, 29 AD3d 497,8 16 NYS2d 1 18 [2d Dept 20061). Inasmuch as defendant failed to establish her prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiffs opposition papers were sufficient to raise a triable issue of fact (see Pfegfer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971, 900 NYS2d 71 [2d Dept 20101; McKenzie v R e d , supra). Accordingly, defendant's motion for summary judgment is denied. -/ --FINAL DJSPOSITION m$.1-Y X a J,S.C ARLEN NON-FINAL DISPOSITION ,. , t

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