Halladay v Cicero

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Halladay v Cicero 2011 NY Slip Op 33476(U) December 15, 2011 Sup Ct, Suffolk County Docket Number: 00472/2009 Judge: William B. Rebolini 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] Shun Forlll Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Susan Halladay and Christina Halladay, Plaintiffs, -agalnst- Motion Sequence No.: OOL 1\10'1'.D Motion Date: S/6/l1 Submitted: 8/26/11 Index No.: 00472/2009 Joseph Cicero, AHornev for Plaintiff: Defendant. Robert J. Cava, P.c. 1038 Little East Neck Road West Babylon, NY 11704 AHornev for Defendant: Clerk of the Court Cascone & KlucpfeJ, LLP 1399 Frunklm Avcnuc, SUIte :;02 Garden City, NY 11530 Upon the following papers numbered 1 to 55 read upon thIS motion by defendant for summary Judgment: Notice of Motion and supporting papers, 1 - 29; Answering Affidavits and supporting papers, 30 - 49; 50 - 53; Replying Affidavlts and supporting papers, .')4 - 55. Plaintiffs Susan HalJaday and Chnstina Halladay commenced this action against defendant Joseph CIcero to recover damages for 1nJulies they allegedly sustained as a result of a motor vehIcle ;'lcC/dent that occurred i t1 the High Occupancy VehIcle ("HOV") lane of the eastbound Long Island Exprcssway ("LIE"), near EX.lt 51, 111 the Town of HuntIngton on October 30, 2007 The ;'1Ccldenl allegedly occurred when the vehIcle owned and operated by Joseph Cicero struck lhe rear of rhe vehIcle operated by Susan HalladllY whlie 11\vas stopped In traffic. At the time of the aCCIdent, Chnstllla I-lulladay was riding as a front seat passenger In the Halladay vehicle. By her bill of particulars, SLlsan Halladay alleges that she sustained various pcrsonallnJ urics as a result of the subject llecident II1cluding disc bulges at level C6/C7 and Icvel L4/L5, a dISC [* 2] Halladav v. Cic('('o Index No.: 0047212009 Page 2 protrusion at level C4/C.5, hcmangioma of the L3 vertcbral body und an intradural eX-twmcdullay lesIOn pOSlerlOr to the T6 vertebral body. Susan Halladay further alleges that as a result of tile lI1.Juries shc sustallied in the accident she has been incapac1tated from her employment as ,I \vairress since the dale of the accident ,md that she mIssed approxl1nately 17 days frolll her employment as a teacher's assistant. Christina Hajladay, by her bill of particulars, also alleges that she SLlst<.lincd v~lrious pcrsonalll1Juries as a result of thc subject uccldent including disc herniations at levels L4 through S I ,cervlCal stram syndrome, thoracolumbosacral strain syndromc and postcrior spondylosIs ~Itlevel T Il/TI2. Clmstlna Halladay further alleges that as a result of the In.Juncs she sustained In the :1Ccident she m1ssed approximately one month from school and work. Defendant now moves for summary .Judgment 011 the asserted basJs that the Jnjuries plainti Ils allege to have sustained as a result of the subject accident do not meet the "serious injury" threshold rCCjLllrcmcnt of Insurance Law § 51 02(d). In partIcular, defendant contends that the JIl.luries Susan Halladay claims she sustained due to the subject accident were caused by a prior shp and fall accJdent w!llch occurred in July 2005. Defendant also asserts that the alleged injuries sustained hy Chnstina Halladay to her neck and back are not causally related to the subject accident. In support 01- the motion, defendant submits copies of the pleadings, phlintiffs' deposltinn transcripts and uncerl'JI-"icdcupies ofplUlntiffs' medical records. Defendant also submits the Svl/om medical reports of Richard Lechtenberg, M.D , and Edward Tonello, M.D. At defendant's request, Dr. Lechtcnberg conducted an llldependent neurological examination of Susan Halladay on October 18, 20 I0, and hc Clll1ducted an independcnt neurological examination of Clmstina Halladay on October 19, 20 I O. At defcndant's requcst, Dr. Toriello conducted indepcndent olthopcdic examinations of Susan Halladay and Christina Halladay on October 26, 2010. In addition, defendant submits COPICS the of pleadings and a deposllioll transcnpt from an action brought by Susan Halladay ag:llnst Coram Country Lanes, LLC in 2006. It has long been established that the "legislative intent underlying the No-Fault LI\V W:ISto weed out I'riV()lolls clalills and limIt recovery to slgmficant 1nJunes" (DuCel v. (,recn, 84 NY:2d 795 I I99.'}"I,see also, Toure v. A vis Rent A CarSys., 98 NY2d 345 [2002]). Therefore, thcdcterminaLIoll of whether or not a pl:.:llntiff has sustatned a "serious lIljury" 1Sto be made by thc court in the first Instance (see, Lican v. EllioH, 57 NY2d 230 [1982J; Porcano v. Lehman, 255 AD2d 430 [2ml Dept., 19881; Nolan v. Ford, lUO i\.D2d 579 [2,,,1 Dept., 1984], aff'd 64 NY2d 6S1 [1984]). Insurance Llw ~)I02 (d) defines a "serious injury" as "a personal tn.1ury whIch results in death, dismemberment sIgnll-icant disfigurement; a fracture; loss of a fetus, permanent loss of lIse of a body org:lll, memher, fUllctlon nr system: permanent consequential 11lTIltation of use of a body organ or mcmhcr: Significant IIlmtation of use of a body fUllction or system; or a medlc<.lIly determined inJury or Il1lp,llrmcnt of a non-permanent nature wh1ch prevents the Injured person from pcrformlI1g substantially all of the material acts which constitute such person's usual and custornary daily ,Ictl vJties for not less than ninety days during the one hundred eighty days Immediately follOWIng the llccurrcnce of the injury or 1mpairment." A defendant seeking summary judgment on the ground that a plalnri ff s negllgcnce clai m IS b,llTl'd under the No-Fault' Insurance Law bears the inttial burden of establishIng d fJl"IIlIClI({cie case [* 3] I-Ialladav v. Ckc[o Index No.: 0047212009 Page J that Ihl: plamtiff did 1101 suslain a "serious injury" (see, Toure v. Avis Rent A Car Svs., 98 NY~d 345 l~OO~j:Gaddv v. Evler, 79 NY2d 955 [19921). When a defendant seeking summary judgmcn[ based on the lack of serious injury relies on the findings of the defendanc's own witnesses, ··those findings l11ustbe in admissible form, [such asJ, affidavits and affirmations, and not unsworn repons" (Pa~.wno v. KIllQsburv, 182 AD2d 268, 270 [2"J Dept., 1992]) to demonstrate entitlement LO judgment as a maLterof law. A defendant may also cstablish entitlement LO summary Judgmcnt using the phllnti Irs depusitiontestimony and medical reports and records prepared by the phli nti fr'g own physicians (see, I~·nll?,lie . Geuzer. 288 I\D2d431 [2"JDept., 2001]; Grossman v. Wri£ht, 268 A02d 79[-2,,,1 v Depl., 20001, VIsmola v. Vurriehio, 243 AD2d 464 12,,,1 ept., 1997]; Toncs v. Micheletti, 208 A02d 5 19 D 12'1<1 Dept., 1994]). Once a defcndant has met this burden, the plaintiff must then submit obJective and admissible proof of the nature :md degree of the alleged injury in order to meet the threshold of the statutory standurd for "serious injury" under New York's No-Fault Insurance Law (see, Dufcl v. Green, 84 NY2d795 [1995]; Tornabene v. Pawlewskl, 305 AD2d 1025 [4,10 ept., 2003]; PaQano D v. Kin~sburv, 182 AD2d 268, 270 [2otI Dept., 1992]). However, If a defendant docs not es[ablish a prill/ajacie case that llle plallltiff's injUlies do not meet thc seliollS injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see, Burns v. Stnll12:er,31 AD3d 360 [2"J DepL, 2006J; Rich-Wing v. Baboolal, 18 AD3d 726 [2nd Dept., 2005]; see generallv, Wineerad v. New York Univ. Med. Clr., 64 NY2d 851 [19851). Based upon [he evidence adduced, defendant rai led to establish, pril/lajttcie, his entitlement to judgment as a matter of law on the ground asserted, to wit, that Susan Halladay did not sustain a serious injury within the meaning of Insurancc Law §5102(d) as a result or the subject accident (see, Toure v. Avis Rent A Car Svs., 98 NY2d 345 [2002]; Licmi v_ Elliott, 57 NY2d no ['19821). lkspile the fact that defendant's examining neurologist, Dr_ Lechtenberg, concludes that Susan Halladay does not have any neurological deficits, he states in his medical rep0rllhat the extension of Susan Halladay's cerVical spine is 10 degrees (normal is 60 degrees) and that the lateral flexion In her lumbur SPII1C IS 20 degrees on the right and 10 degrees on the left (n()nn~d is 15 degrees) Aclclllwnally, defcndant's ex.amining orthopedist, Dr. Toriell0, st,ltcS in his mcdlcal report that thc in.jurles Susan Halladay sustained to her neck as a result of the subject ,lccidcnt arc "an acute exacerbation of a pre-existing condition." Thus, the findings of defcndant' s experts fai Icd to show that Lheaggravation of a pre-exlstlllg cervical condition and the ]IIll1tations noted In Susan HaJbJay's cerVIcal and lumbar regions were not caused by the subJcct aCCident but, instead, were the result of a prior accident (see, Pero v. Transervice L.o~istics. Inc., 83 AD3d 681 l2,,<1 ep!., 10 III: Keenum D v. Aikins. 81 AD3d 843 [1d Dept., '201IJ; Rabinowitz v. KahI, 78 AD3d 678 [2"J DepL.10101: Pfeiffer v. New York Cent. Mul. Fire Ins. Co., 71 AD3d 971 [2"J Dept., 2010]). In addition, while Dr. Lechtenberg opines Ih:.Jt usan Halladay voluntarily restlicted her range of motion in hercervicil S ,Illd lumbar spinc. he failed to explain or substantiate. with ohjective medical evidence. tile hasis for his conclUSion that Ihe noted limItations were self-imposed (see, Astudillo v. M V. Transp._ Inc.. 84 1\03d 1'289 [2"J Dep\.. 20111; Iannello v. Vasquez, 78 AD3d 112Il2,,,J Dept., 2011]: Reitz v. Sca~ate Trllckin~. Inc., 71 AD3d 975 [1"J Dept.. 20101: Hi Ock Park-Lee v. Volcriaperia, 67 1\D3d 734 ['l"tI Dept., 2009']). As a result, the proof submitted by defendant failcd to objectively dernonstratc that Susan llalladay did not suffer a serious injury wlthin the meani ng of Insurance Law ~ ."i I02( dl as a result or the subject accident (see, Abraham v. Bcllo, 29 ADJd 497 r'l"J Ocp\., 2006 [: [* 4] H:1llada" v. Cicero Indt'x No.: 00-1-7212009 IJa~l' -I- Jones v. Jacob, 1 AD3d 485 [211.1 Dept., 2003]). Having determined that defendant fai led to estahlish his lllitia! burden, It is unnecessary for the coun to consider whether Susan Iialladay's opposition papers were sufficient to raise a triable issue of fact (see, Bn2ht v. Moussa, 71 ADJd 859 [2 Dept.. 10101: Kouros v. Mendez, 41 AD3d 786 [2"dDept., 2007]: Alma v. Samedv, 24 AD3d 398 [~II,j Dept., ~005J). 11 " 1[owevcr, defendant dId establt sh hiSprillw/acie enti t!cmen t to .Iudgl1lcll as a malter 0 f law t Ilwl Christma Halladay did noLsustam a did noLsustain a "serious injury" as required by Insurance LIW ~5 I02(d) as a rcsult or the subject accident (sce Tourc v. Avis Rent a Car Sys., 98 NY2d 345 [200~1: Gaddy v. Eyler, 79 NY2d 955 [1992.1;]-Iasner v. Budmk, 35 AD3d 366 ]2'1<1 Dcpt., 2006]). The Court notcs that sprains and strains arc not serious injuries within the lllct\nillg of Insurance Law ~5 I02(d) (see, Catalano v. Kopmann, 73 AD3d 963 [2 Dep!., 20 I0); Carah:1I10v. Kim, 63 AD3d 97(, [2HJDepL 2009J; Kilakos v. Mascera, 53 AD3d 527 [2"" Dept., 2008]). Dr. Toriello states in his medical repol1that un examination of Chnstina Halladay reveals that she has full range of motion in her spine's cervical and thoracolumbosacral regions, and III her nght and left shoulders. Dc Toricl[o opines that the cervical hyperextension injury and the strains to Christina Iialladay's lower back and thoracolumbosacral region (hat she sustained in the subject accident have all resolved. Dr. Toricl[o concludes his repol1 by stating [hat Christina Halladay is capable of performing the dUlles of her occupation and that she has no evidence of an o11hopedic disability as a resu[t of the accident. Likewise, Dr. Lechtenberg states in hiS rep011that Christina Halladay sustained spine Slrams as a result of the accident, that she cUITentlyhas no objective neurological deficits and that there IS no need for any fun her neurologic treatment. Dr. Lechtenberg states that Christina l-1alladay is not disabled and IS capable of performing any job for which she is qualified. JlJ hlrthermorc, reference to Chlistina Halladay's own depOSition tcsLlmony sulTicicntiy refuLes Ihc '·90!lSO" category under lnsurance Law ~ 5102(d) (see, Jack v. Acupulco Car Serv", Inc.. 72 AD::ld 64612"J Dept., 20[OJ; Bleslo: v. Hiscock, 69 ADJd 890 [2",1 Dcpt., 20101: Lopez v. AhclulWahah, 67 ADJJ )98[ I" Dept., 20091: Kuchcro v. Tabaeh111kov,54 AD3d 72l) 1~lld Dcpt.. 2(081). in Lhatuefendant met hISinitial burden of proof, the burden shi fled 10Christina Ha[laday Lo comc forward With evidence 111dmissible form to raise a matenal tnable Issue of fact as to whether a she susl<lincd an injury within the meanlllg of the Insurance Law (see, Pommclls v. Perez, 4 NY3d 566 [2005j: see £enerallv, Zuckelman v. CitvofNew York, 49 NY2d 557 [I 980J). To recover under the "[Imltation of use" categories, a plaintiff mu!\t present objecli ve mcdical evidence of the extent, perccntage or degree of the limitation or loss of range of motion and its duration (see, Ma~id v. Lincoln Se-rvs. COI)).. 60 AD3d 1008 [2nd Dert., 20091: Laruffa v. Yui Mim! Lau. J~ AD3d 996 f2'od De-pt. 20061: Cerisierv. Thlbiu. 29 ADJd 507 [2,1<1 Dept.. 2006]: Mevers v. Bobower Yeshiva Bnei ZiOll. 20 ADJd 456 [2'Jd DepL 2005]). A sufficient descriplion of (he "qualitative nature" of p[allllilT's limitations, with an objective basis, correlating plainliffs limilations to the normal function. purpose and use of the body pan may also surrice (see, Toure v. A vis Rent A Car Systems. Inc., 98 NY2d 345 [20021: Dufel v. Green, 84 NY2d 795 [1995]). A mInor, mi[dorslight lImitation ul· use is considered Illsignifieant within the meaning of the statute (see Licari v. Ellioll, 57 NY~d 2:10 [1982]). Further, evidence of pam and discomfort alone, unsupported by credible mcdica[ [* 5] I-Ialhidav v. Cicero Index No.: 00472/2009 Page 5 evidence that diagnoses and idcnti fies the injuries, is Insufficient to sustain a finding of sClious injury (see, Scheer v. Koubck, 70 NY2d678 [1987]). Unswom medical reports of a plaintifl's examining physici,lIl or chiropractor are JIlsufficlent to defeat a motion for summary judgment (see, Grasso v. An~crami. 79 NY2d 813 [1991]). However, a plaintiff may rely upun unswol11 MRI repons if they have been refelTed to by a defendant's examiningcxpcI1 (see, Caulkins v. Vicinanzo, 7 i AD3d 1224 N [3 Dept., lOlOl: Ayzen v. Melendez, 299 AD2d 381 [l"d Dept., 2002]). Christina Halladay opposes thc motion on the ground that defendant failed to demonstrate that she diu not sustain an injury within the "limitation of use" categories or the "901180" category of Insurance Law § 51 02(d) as a result of the subject acciuenl. In support of the motion, Chnstina Halladay submits rhe swam medical repon of Frank Oli veto, M.D., an uncertiried copy of rhe police accident repOl1, the unswol11 medical repol1 of Robert Galler, M.D., and her own uffidavit. In opposition to defendant's pn1llafaeie showing, Christina Halladay faileu to raise a triable issue of fact as to whether she sustained a "serious injury" within rhe meaning of Insurance Law § 5 I02(u) as a result or the subject accident (see GaddY v. EYler, 79 NY2d 955 (1992], Licuri v. Ellion, 57 NYlcl230 l1982J; Air v. Khan, 50 AD3d454 [I't Dept., 2008]). Christina Halladay's examining orthopedist, Dr. Oliveto, states in hiS medical report that she has full rangc of motion in her ccrvical anclthoracolumbosacral regions, that there IS no causally related cvidence of a disabi lity as a result or the subject aCCident and that she IS capable ofperformtng all or her dally hying activities withoLll restrictions. Dr. 011veto states that although there were subjecti ve limitations of motion 1llChnstina Halladay's thoracolul1lbosacral area, there were no significant objectivc findings, such as palpable l1luscle spasm. Dr. Oliveto opines that the cervical and thoracolumbosacral stram synurome that Christina Halladay sustained as a result oCthe accident has resolved and that there IS 110 mdication I'llI'any further orthopcdic treatment or testi ng. Auditionally, thc mcdical report of Dr. Robert Galler IS IIlSulliciel1\ to raise a triable ol'lssue of fact SInce it is unallirmccl and, therefore, in inadmissible form (see, Grasso v, Angeri.\lTli, 79 NY2d 81,3 [1991]; Lively v. Fcrnande/', 85 AD3d 981 [2nJ Dep!., 2011]). In allY event, even If the Court were to conSider Dr. Chller's report, Dr. Galler states lh~lt Christina lIalluday's low back pain "may be related to her uisc dessication al L:'i/Sl," <.Inuthai despite her hl1ving a left-sided disc hCllliution at level L5/S I, she docs not have any radicular-type symptoms. Consequently, Chnstina Halladay has proffered Illsullicicnt medicul evidence to uemollsrra\e that she sustained an injury within the "11l111tat'ionor use" categones (see Licari v. EllioLt.:'i7 NY2d 230 [19821: Pierson v. Edwurds, 77 AD3u 642 [2 Dept., 20101), or withm the "SlO/I SO" category (see, Jack v. Acapulco Car Serv .. Inc., 72 AD:id 646 l2"J Dept., 2010J: Bles/'cl': v. Hiscock. 69 AD3d 890 [2"d DepL 2010]: N2uycn v. Abdel-liamed, 61 AD3J 429l1sl Dept., 20091: Sainte-Ainl(~ v. Ho, 274 AD2d 569 [2nd Dept., 2000]). The term "significant" !lImtatioll must hc construcu as more than a minor limitafion of use (see, Licari v. EllIOt!, 57 NY2d 230 [1982]: Leschcll v. Kollants, 1-1AAD2d 122 l3rd DepL, 19881: Gaatz v. Kellv, 140 AD2d 874 [3rd Dept.. 19881). Lastly. Christina Halladay's affidavit was insufficient to raise a triable issue of fad as iO whether she sustalllcd anilljury within the meaning of Insurance Law §5102(d) (see, Villantc v. Mitcrko, AD:;d 757 [2,,<1 Dept., 2010]: SJn2h v. Citv of New York, 71 AD3d 1121 [2!l<1 ept.. D 2010J: Luna v. Mann, 58 AD3d 699 [2"d Dept., 2009]). 11l1 n [* 6] Halladav v. Cicero rndn No.: 00472/2009 Page 6 Accordingly. 111:> on, BE RED that this matlan by defendant for Slll11mary judgment IS granted to the ex.tent that Chnstina Halladay's cause of action lS dismlssed, but It 1$ denIed as to Susan .Halladay's cause of aCllon. Dated: . / / /"/'" / ",,,"/! I) rr t. I 11'1 ,,i. 'j"'- ",'vi\...., /C ! I!,J/ f ' !..~'/0[..<V,-,L/ ,/.f/,/?;i 'C) I (. /' '-l."' {',.(,--1.",-/._, __ ," RON. WILLIAM B. REBOLlNI, J.S.c. ___ FINAL DISPOSITION x NON-FINAL DISPOSITION

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