Lapaix v Consiglio

Annotate this Case

Download PDF

Lapaix v Consiglio 2011 NY Slip Op 32632(U) September 29, 2011 Sup Ct, Nassau County Docket Number: 8839/09 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - TATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court v: Honorable Karen KENNY LAP AIX, Plaintiff(s), Index No. 8839/09 Motion Submitted: 7/27/11 -against- Motion Sequence: 001 JOSEPH G. CONSIGLIO, DPNALD M. RICCILLO and EDMUND ROSENBLUM, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply....................... . Briefs: Plaintiff s/Petitioner ' s........................................ Defendant' s/Respondent' s.................................. Defendant Consiglio moves this Court for an Order granting summar judgment in his favor and dismissing the complaint on the ground that plail)tiffhas not sustained a serious 51 02( d). Plaintiff opposes the requested relief. injury within the meaning ofInsurance Law This action arises from a chain reaction motor vehicle accident that occurred in Nassau County on May 19 2008. Plaintiff alleges that , while his vehicle was stopped for a red light , his vehicle was struck in the rear by defendant Consiglio s vehicle , propellng [* 2] plaintiff s vehicle into the rears ofthe cars in front of him. 1 Plaintiff claims that his back and neck impacted his driver s seat twice , causing a stinging , sensation in those areas and resultant injuries to his cervical and lumbar spine. Plaintiff declined medical attention at the scene. Plaintiff received physical therapy, massage and acupuncture for approximately three months following the accident , but has not used any devices , including a' brace or cane relative to his claimed neck and back injuries. , plaintiff claims that he has sustained permanent parial loss of use of his neck and back; 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 of a non- permanent nature which prevented plaintiff from performing substantially all of the material acts which constitute plaintiff s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. In his Bil of Particulars It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues (Andre 35 N. 2d 361 320 N. E.2d 853 , 362 N. 2d 131 (1974)). Summar judgment should only be granted where the court finds as a matter oflaw that there is no genuine issue 41 A. D.3d 755 , 837 N. 2d 594 (2d Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most offact. v. Pomeroy, s to any material fact. (Cauthers v. Brite Ideas, LLC, favorable to the non-moving part, herein the 18 A. Transportation Authority, A part moving 3d 625 , 796 N. for summary judgment must make a plaintiff. (Makaj v. Metropolitan 2d 621 (2d Dept. , 2005)). prima facie showing of entitlement as a matter oflaw , offering sufficient evidence to demonstrate the absence of any (Winegrad v. New York Univ. Med. Center 64 N. 2d 851 , 476 E.2d642 487N. Zuckerman v. City of New York 49N. Y.2d 557 , 404 2d 718, 427 N. 2d 595 (1980)). Here , defendant must demonstrate that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Section 51 02( d) as a (Felixv. New York City TransitAuth. 32 A. D.3d 527 , 819N. S.2d 835 (2d Dept. , 2006)). Defendant has met her burden. material issues of fact. 2d316 (1985); resultofthis accident A tear in tendons , as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no- fault law in the absence of objective evidence ofthe extent of the (Little v. Locoh , 71 D.3d 837 897 N. 2d 183 (2d Dept. Knox v. Lennihan 65 A. D.3d 615 884 alleged physical limitations resulting from the injury and its duration , 2010); The claims against defendants Riccilo and Rosenblum were discontinued , with prejudice , by stipulation dated September 30 , 2010. [* 3] 2d 171 (2d Dept. , 2009); 789 N. Kearse v. New York City Transit Authority, 16 A. 3d 45, S.2d 281 (2d Dept. , 2005)). In support of his motion for summary judgment , defendant has submitted inter alia the plaintiffs deposition testimony, plaintiffs verified Bil of Particulars , and the affirmed medical report of Dr. Kuldip K. Sachdev, defendants ' examining neurologist. The twenty- four (24)-year-old plaintiff was examined by Dr. Sachdev on December 9, 2010 , two years and approximately seven months after the date of the accident. Dr. Sachdev reviewed a number of plaintiffs medical records , including June and July 2008 MR scans ofplaintiffs cervical and lumbar spine, respectively, a nerve study, evaluation reports from physical therapy and a Dr. Zarina Mandelblat , as well as progress notes from physical therapy, acupuncture and aqua therapy. Upon examination of plaintiff, Dr. Sachdev measured range of motion in plaintiffs cervical and lumbar spine areas , with a goniometer, and he compared those findings to normal range of motion based on published guidelines promulgated by the New York State Division of Disabilty Determination and the American Medical Association. Palpation of the cervical spine revealed no vertebral t nderness, and palpation of the lumbar spine revealed minimal tenderness. Dr. Sachdev noted that there was no spasm in either the cervical or lumbar spine areas. The results of supine and sitting straight- leg-raising tests conducted in conjunction with examination of plaintiffs lumbar spine revealed normal results. Dr. Sachdev set forth his specific findings , comparing those findings to normal range of motion , and he concluded that plaintiff does not exhibit any objective evidence of restriction of range of motion in either the cervical or lumbar spine , and does not exhibit objective evidence of a neurological disabilty. Dr. Sachdev added that , based on his examination on that date , plaintiff is not disabled from working, or from the activities of daily living. May 2010 , establishes that he missed two weeks of work immediately following the subject accident , at the direction of someone from the physical therapist' s office. According to plaintiffs testimony, the physical therapist' office permitted plaintiff to return to work after the two-week period , with the instruction that he should not " lift. " Prior to the accident , plaintiffs job was to stock shelves at a grocery store. Upon his return to the grocery store , he requested to be "repositioned " and approximately a " couple of weeks " later he was placed in the seafood department where he currently remains , waiting on customers. Plaintiff did not testify that this was in any way a demotion , or that he suffered reduced pay as a result of his transfer to the seafood deparment , or that he could not work at all. Plaintiff lives at home with his parents. Plaintiffs deposition testimony, taken in [* 4] Plaintiff further testified that his shifts are between four and six hours in duration , and that he is paid nine dollars per hour. The only loss in earings as testified to by plaintiff were for the two weeks that he did not work following the subject accident. Despite having been treated for approximately three months , plaintiff testified that he was never provided with any medication for the pain in his back or neck. According to his testimony, plaintiff testified that he cannot lift things greater than ten pounds , or play basketball any longer as a result of the accident. Other than those things , there is nothing that plaintiff is unable to do now. Further , aside from trying to lift , nothing else gives him difficulty post-accident. Plaintiffs neck pain is felt rarely, and only when he moves it " too quick." According to plaintiff, he feels back pain "very often. The affirmed medical reports of defendant's physician , as well as the plaintiff that the plaintiffs did not sustain a serious injury in a motor vehicle collsion within the meaning of Insurance Law Tarhan 2d 447 (2d Dept. Park v. Orellana 49 A. D.3d 721 854 N. v. Kabashi 44 A. D.3d 847 , 844 N. S.2d 89 (2d Dept. , 2007)). prima facie deposition testimony can be sufficient to establish , 2008); 5102(d) (see Examining the reports of defendant' s physician , there are sufficient tests conducted set fort therein to provide an objective basis so that their respective qualitative assessments of plaintiff could readily be challenged by any of plaintiffs expert(s) examination at trial 98 N. 2d 345 350 , 774 N. 2d 2d 955 , 591 N. 2d 1176 , 582 N. , and be weighed by the trier of fact Inc., 1197 , 746 N. during cross (Toure v. Avis Rent A Car Systems Gaddy v. Eyler, 79 2d 865 (2002); 2d 990 (1992)). Furthermore , a defendant may establish through presentation of a plaintiffs own deposition testimony that a plaintiff did not sustain an injury of a non-permanent nature which prevented plaintiff from performing substantially all of the material acts which constitute plaintiff s usual and customar daily activities for not less than 90 days during the (Kuperberg v. Montalbano 72 A. D.3d 903 180 days immediately Sanchez v. Williamsburg Volunteer ofHatzolah, Inc. 2d 344 (2d Dept. 899 N. 2d 287 (2d Dept. , 2008)). 48 A. 3d 664, 852 N. following the occurrence , 2010); (Jackson Thus , as noted , defendant's submission ofplaintiffs deposition testimony 2d 424 (2d Dept. , 2005); Batista v. Olivo 17 A. D.3d v. Colvert 24 A. D.3d 420 , 805 N. 2d 54 (2d Dept. , 2005)), and affirmation of defendant' s physician are 494 , 795 N. showing that the plaintiff did not sustain a serious (Paul v. Trerotola 11 A. D.3 d 441 injury within the meaning of Insurance Law 2d 773 (2d Dept. , 2004)), under permanent consequential limitation and 782 N. significant limitation categories of the applicable law, nor under the 90/180 category of the sufficient herein to make a prima facie ~ 51 02( d) law. [* 5] Plaintiff is now required to come forward with viable , valid objective evidence to (Farozes v. Kamran , 22 verify his complaints of pain 2d 706 (2d Dept. , 2005)). Plaintiff has failed to meet his burden. D.3d 458 , 802 N. , permanent injury and incapacity As to plaintiff s 90/180 claim , the Court notes that a plaintiff must set forth competent medical evidence to establish that he sustained a medically determined injury or impairment substantially all of the of a nonpermanent nature material acts which constituted his usual and customar daily activities for 90 ofthe 180 days 2d 482 (2d 60 A. D.3d 1006 , 876 N. Dept. , 2009)). , which prevented him from performing (Ly v. Holloway, following the subject collsion In opposition to defendants ' summary judgment motion , plaintiff has submitted an affidavit dated July 8 , 2011. In that affidavit , plaintiff confirms that he was out of work for two weeks following the accident, and that he returned to work thereafter, in the seafood section of the grocery store. Plaintiff further states inter alia that the pain interferes with his life on a daily basis , and that he has difficulty lifting and carring heavy things , bending and sitting for long periods of time , and sleeping and playing basketball. Plaintiff does not state that he was prevented from performing substantially all of his usual and customar activities for 90 of the 180 days following the accident , nor could he make such a statement in light of his deposition testimony taken in May 2010. The Court finds that plaintiff s self-serving affidavit is an attempt to raise a feigned factual issue , and is insufficient to defeat defendant's motion (see Wu v. City of New York 42 A. D.3d 451 , 839 N. 2d 548 (2d Dept. Semple v. Sterling Estates, LLC 300 A. D.2d 297 , 751 N. 2d 306 (2d Dept. Regina v. Friedman 272 A. 2d 461 , 707 N. S.2d 674 (2d Dept. , 2000)). , for the 90/180 category ofloss , 2007); , 2002); In support of his claims under the permanent parial loss of use of his neck and back permanent consequential limitation and significant limitation categories of the Insurance Law with respect to his cervical and lumbar spine areas , plaintiff has submitted the affirmations of a treating physician (Dr. Khandros), a radiologist (Dr. Lyons), and an examining neurologist (Dr. Lerner), as well as therapy progress notes. The Court wil consider all reports on plaintiff-s motion which were listed as being (see Willams v. Clark 54 A. D.3d 942 864 relied upon by defendant' s expert (Dr. Sachdev) 2d 493 (2d Dept. , 2008); Barry v. Valerio, 74 A. D.3d 996 , 902 N. 2d 97 (2d Dept. 2010)). The affirmed report of plaintiffs treating physician , Dr. Khandros, is dated August , 2008 and chronicles one initial examination of plaintiff, conducted by the doctor , the day after the subject accident. Thus , plaintiffhas not submitted to this Court for its consideration [* 6] a recent finding from his treating physician to verify his subjective complaints of pain and limitation of movement (see Tudisco v. James 28 A. DJd 2d482 (2dDept. &2d 396 (2d Dept. , 2005)). 536, 813 N. 2006); Hernandez v. DIVA Cab Corp. 22 A. D.3d 722 804 N. Furthermore , Dr. Khandros ' report refers to the MR examinations of plaintiffs cervical and lumbar spine areas , highlighting the disc bulges and the herniation found as a result of conducting those MRs. Dr. Khandros fails to account for the other finding clearly documented in the lumbar spine MR report , which is that (tJhere is a levocurvature. In the given clinical setting, clinical evaluation is required to differentiate among accelerationdeceleration vector injury (muscle spasm), positioning, and/or scoliosis. " Dr. Khandros report does not address whether scoliosis is ruled out, or in , as a cause ofthe levocurvature; (see Iovino v. Scholl 69 A. D.3d 799, 893 N. thus 230 (2d Dept. , 2010)). , her report is rendered speculative The MR report ofplaintiffs cervical spine (June 5 , 2008) reveals a single disc bulge at the C 5- 6 level , without any canal or foraminal narrowing, and reversal of the normal lordotic curve with an associated dextrocurvature. Moreover , the radiologist stated that , with respect to the latter findings , they are " compatible with" acceleration- deceleration vector injury (muscle spasm whiplash" The MR report of plaintiff s lumbar spine reveal two disc bulges (L 3- , L 4- 5), a tear and herniation at L 5- , and a levocurvature. Dr. Lyons, the radiologist , stated that , with clinical evaluation is required to differentiate among acceleration- deceleration vector injury (muscle spasm), positioning, and/or scoliosis. " As discussed above , the differentiation was apparently never made. respect to the levocurvature Thus , the radiologist's findings have not been directly related to the subject accident Munoz v. 2d 171 (2d Dept. , 2009); (see Knox v. Lennihan 65 A. 3d 615 , 884 N. Collins v. Sheridan Stone 2d 111 (2d Dept. , 2007); Koyfman 44 A. D.3d 914 844 N. 2d 79 (2d Dept. , 2004)). Without more , the radiologist's findings 8 A. D.3d 321 , 778 N. (see Knox, supra; Kearse v. New York City Transit are not evidence of a serious injury 2d 281 (2d Dept. , 2005)). Authority, 16 A. D.3d 45 , 789 N. on in Dr. Lerner , plaintiffs examining neurologist , conducted his examination of plaintiff July 11 , 2011. His affirmed report characterizes plaintiffs range of motion restrictions plaintiffs lumbar spine as " a moderate degree of impairment and disabilty, " and plaintiff s range of motion restrictions in plaintiff s cervical impairment and disabilty. spine as a mild degree of Dr. Lerner s characterizations are borne out by his documented range of motion findings , which show normal flexion in cervical range of motion, and normal left and right [* 7] tilt of the cervical spine. According to Dr. Lerner , plaintiff has suffered only a 6 idoss of range of motion upon rotation of the cervical spine , and a 17% loss in extension. As to the lumbar spine , plaintiff has suffered a 17% loss in flexion and a 20% loss in extension. Dr. Lerner furter reported that straight leg raising is negative bilaterally, and that plaintiffs gait is normal and steady. As such , plaintiffs injuries are not significant within the meaning of Licari v. Elliot 57 N. 2d 230 , 236 , 441 2d 729 2d 1088 455 N. (1982);cf Evans v. Pitt 77 A.D.3d 611 908 N. Parker 2d 743 (2dDept. Kangv. Cho 74 A. D.3d 1328 904 N. Azor v. Torado 59 A. D.3d 2d 437 (2d Dept. v. Singh 71 A. D.3d 750 , 896 N. 2d 655 (2d Dept. , 2009)). 367 , 873 N. Insurance Law ~ 5102(d) (Gaddy, supra at 957; 2d 570 , 2010); (2dDept., 2010); , 2010); Dr. Lerner also fails to address the issue of scoliosis despite acknowledging having reviewed the lumbar spine MRI report of July 2 , 2008 , thus rendering his opinion regarding (Iovino, supra). plaintiffs lumbar spine speculative in nature Based on the foregoing, defendant Consiglio s summary judgment motion is granted and the co plaint against him dismissed. The foregoing constitutes the Order of this Cour. Dated: September 29 2011 Mineola , N. ENTERED OCT 04 2011 NASSAU COUNTY S OFFICE COUNTY CLERK'

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.