Roach v Citywide Mobile Response Corp.

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Roach v Citywide Mobile Response Corp. 2011 NY Slip Op 34045(U) August 25, 2011 Sup Ct, Bronx County Docket Number: 306230/2009 Judge: Lucindo Suarez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Aug 29 2011 Bronx Coun1v_Clerk NEW YORK SUPREME COURT - COUNTY OF BRONX 2 9 ZOtl u PART 19 Mot. Seq. 02 Mot. Seq. 03 Case Disposed Ill Settle Order 0 Schedule Appearance 0 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: ---------------------------------------------------------------------X Index N~. 0306230/2009 ROACH, ROBERT Hon. LUCINDO SUAREZ, - against - Justice. CITYWIDE MOBILE RESPONSE CORP. ---------------------------------------------------------------------X The following papers numbered 1 to 17 read on this motion, SUMu A~·' "JDGMENT LIABILITY Noticed on March 28. 2011 and duly submitted as No. 53 on ~~on Calendar-of August 19. 2011 and the following papers numbered 18 to 22 read on this motion, 'ARGUE/RENEW/RESETTLE/RECONS Noticed on Anril 21. 2011 and duly submitted as No. 54 on Motion Calendar of Auuust 19- 2011 tii I PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits AI/iexed (Motion Sequence# 2) Answering Affidavit and Exhibits !, 2, 3 4 Replying Affidavit and Exhibits 5,6 Notice of Cross-Motion - Order to Show Cause - Exhibits and Affic vits Annexed 7, 8, 9, 10, 11 Answering Affidavit and Exhibits 12, 13, 14, 15, 16 / Replying Affidavit and Exhibits \ ""- Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed (Motion Sequence# 3) _,,/ / 7 18, 19, 20 Answering Affidavit and Exhibits 21 Replying Affidavit and Exhibits 22 Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the foregoing papers, plaintiff's motion for partial summary judgment on liability (Motion Sequence # 2), defendants' cross-motion for summary judgment dismissing plaintiff's complaint, and defendant's motion seeking renewal (Motion Sequen 3) are consolidated for decision herein and disposed of in accordance with the annexed de · ion rder. Dated: 08/25/2011 [* 2] FILED Aug 29 2011 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: l.A.S. PART 19 --------------------------------------------------------------------)( ROBERT ROACH, DECISION AND ORDER Plaintiff, Index No. 306230/2009 - against CITYWIDE MOBILE RESPONSE CORP., JENNIFER RICH, and BRIAN CALDWELL, Defendants. --------------------------------------------------------------------)( PRESENT: Hon. Lucinda Suarez Upon plaintiff's notice of motion dated March 4, 2011 and the affirmation and exhibits submitted in support thereof(Motion Sequence# 2); the affirmation in opposition dated April 5, 2011 of defendants Citywide Mobile Response Corp. and Jennifer Rich; plaintiff's reply affirmation dated August 3, 2011 and the exhibit annexed thereto; the amended notice of cross-motion dated May 24, 2011 of defendants Citywide Mobile Response Corp. and Jennifer Rich and the affirmation, physicians' affirmed reports (2) and exhibits submitted in support thereof; the affirmation in support of defendant Brian Caldwell dated April 11, 2011; the affirmation in support of defendant Brian Caldwell dated May 25, 2011; plaintiffs affirmation in opposition dated July 29, 2011 and the physician's affirmation and exhibits annexed thereto; the reply affirmation dated August 18, 2011 of defendants Citywide Mobile Response Corp. and Jennifer Rich; and the notice of motion dated March 29, 2011 of defendant Brian Caldwell and the affirmation and exhibits submitted in support thereof (Motion Sequence# 3); the affirmation in opposition dated April 11, 2011 of defendants Citywide Mobile Response Corp. and Jem1ifer Rich; the reply affirmation dated April 11, 2011 of defendant Brian Caldwell; and due deliberation; the court finds: This action stems from a motor vehicle accident that occurred on March 22, 2009 at the [* 3] FILED Aug 29 2011 Bronx County Clerk intersection of Second Avenue and East Twenty-Third Street, New York, New York. Plaintiff was a passenger in a vehicle owned and operated by defendant Brian Caldwell ("Caldwell") when it was involved in a collision with an ambulance owned by defendant Citywide Mobile Response Corp. ("Citywide") and operated by defendant Jennifer Rich ("Rich") (collectively "Citywide"). Plaintiff now moves pursuant to CPLR 3212 for partial summary judgment against defendants Citywide and Rich on their liability for causing the accident (Motion Sequence# 2). Citywide and Rich cross-move for summary judgment dismissing plaintiffs complaint on the ground that plaintiff did not sustain a "serious injury," as defined in Insurance Law § 5102( d). Caldwell moves pursuant to CPLR 2221 for leave to renew on the basis that a change in law affects the court's prior determination that denied Caldwell's motion for summary judgment (Motion Sequence# 3). The motions and the crossmotion are consolidated for decision herein as they involve common questions of law and fact. Plaintiff alleges in his verified bill of particulars to have sustained injuries including a torn medial and lateral meniscus of the left knee with chondromalacia and synovitis; disc herniations at L3L4 through LS-SI; disc bulges at Ll-L2 and L2-L3; disc herniations at C3-C4 and C5-C6; a disc bulge at C6-C7; and sprains and pain. Plaintiff underwent arthroscopic surgery on his left knee, a left knee intrarticular injection, and epidural steroid injections to his spine. Plaintiff also admits he was confined to his bed and his home for one week after the accident. He claims to have sustained injuries in the categories of permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and a medically determined injury or impairment of a non-permanent nature that prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than ninety (90) of the first one hundred eighty (180) days after the accident ("90/180 claim"). 2 [* 4] FILED Aug 29 2011 Bronx County Clerk In support of the motion, Citywide submits copies of plaintiffs deposition transcript and medical records and affirmed reports from orthopedic surgeon Robert Israel, M.D. and neurologist Maria Audrie De Jesus, M.D. The opinion of radiologist Lewis M. Rothman, M.D., who reviewed plaintiffs MRl films taken five weeks after the accident, is unswom and unaffirmed and is therefore inadmissible. See CPLR 2106; Ojfman v. Singh, 27 A.D.3d 284, 813 N.Y.S.2d 56 (!st Dep't 2006). Dr. Israel performed an orthopedic evaluation of plaintiff on June 11, 20 I 0. His examination revealed normal ranges of motion without tenderness or spasm to palpation in the cervical, thoracic and lumbar spine. Tests such as cervical compression, Spurling's, and straight leg raising were all negative. Examination of the left knee after surgery revealed two well-healed portals with no tenderness or effusion and range of motion within normal limits. He determined that plaintiffs spine sprains had resolved and that the status of his left knee was post-arthroscopic surgery. Dr. Israel opined that plaintiff had no disability as a result of the accident and medical treatment was unnecessary. There was no permanency or residuals related to the accident, and Dr. Israel concluded plaintiff was capable of performing his work and daily living activities without restriction. Dr. De Jesus performed a neurological examination of plaintiff on June 28, 20 I 0. She found plaintiffs motor, reflex, sensory and gait and coordination skills were normal. Examination of the neck, thoracic and lumbar spine revealed normal ranges of motion with no tenderness or muscle spasm. Dr. De Jesus opined that plaintiffs cervical, thoracic and lumbar sprains/strains had resolved and there was no need for treatment. She found no evidence of a neurological permanency or disability after an otherwise normal neurological examination and concluded plaintiff could perform his usual occupation and daily living activities without restriction. Although plaintiffs medical records are not certified, "a defendant may rely upon unsworn medical reports and uncertified records of an injured plaintiffs treating medical care providers in order 3 [* 5] FILED Aug 29 2011 Bronx County Clerk to demonstrate the lack of serious injury." Elshaarawy v. U-Haul Co. of Miss., 72 A.D.3d 878, 881, 900 N.Y.S.2d 321, 324 (2d Dep't 2010). Plaintiff's lumbar spine MRI confirmed disc herniations at L3-L4 and L5-S 1 and disc bulges at L l-L2 and L2-L3. The scan also revealed mild degenerative endplate changes, marginal osteophytes at multiple levels, and degeneration oflumbar intervertebral discs. The cervical spine MRI showed multilevel disc dessication and facet degenerative changes causing mild spinal stenosis and neural foraminal narrowing. Disc herniations were confirmed at C3C4 and C5-C6 and a disc bulge was found at C6-C7. The left knee MRI showed degenerative tears of the posterior horn of the medial and lateral meniscus and sprains of the medial collateral ligament, distral suprapatellar tendon, and anterior cruciate ligament. The findings were suggestive of early arthritic disease. Plaintiffs other medical records reveal complaints of back and knee pain prior to the accident. Plaintiff testified at his deposition that he was unemployed when the accident occurred. He admitted he was diagnosed with psoriatic arthritis several years before the accident. The condition has caused pain in his back and left knee, and he treated the condition with prescription painkillers and antiinflammatory medicine. Plaintiff testified he was confined to his home for only two days after the accident. Citywide has met its burden of establishing that plaintiff did not sustain a serious injury through the affirmed reports of his medical experts. See Porter v. Bajana, 82 A.D.3d 488, 918 N.Y.S.2d 414 (1st Dep't 2011 ); La Rosa v. Gomez, 84 A.D.3d 665, 924 N. Y.S.2d 59 (1st Dep't 2011 ). Citywide has also demonstrated entitlement to summary judgment on plaintiff's 90/180 claim based on his deposition testimony and verified bill of particulars. See Dennis v. New York City Tr. Auth., 84 A.D.3d 579, 923 N. Y.S.2d 473 (1st Dep't 2011); Lopez v. Eades, 84 A.D.3d 523, 921 N.Y.S.2d 858 (1st Dep't 2011 ). The burden now shifts to plaintiffs to demonstrate, through objective proof, the nature and 4 [* 6] FILED Aug 29 2011 Bronx County Clerk degree of the injury sustained or that there are questions of fact the purported injury was "serious." See Charley v. Goss, 54 A.D.3d 569, 863 N.Y.S.2d 205 (1st Dep't 2008), affirmed, 12 N.Y.3d 750, 904 N.E.2d 837, 876 N. Y.S.2d 700 (2009). In opposition, plaintiff submits an affirmation from Howard Levy, M.D. and an unsigned report from neurologist Douglas Schottenstein, M.D. dated October 15, 2009 Plaintiff fails to raise a triable issue of fact that he sustained a permanent consequential or significant limitation of use of a body function or system. "Bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury." DeJesus v. Paulino, 61A.D.3d605, 608, 878 N.Y.S.2d 29, 32 (1st Dep't 2009);Arjona v. Calcano, 7 A.D.3d279, 776N.Y.S.2d49 (lstDep't 2004). Similarly, a tom meniscus, standing alone, is not evidence of a serious injury. See Gibbs v. Hee Hong, 63 A.D.3d 559, 881 N.Y.S.2d 415 (!st Dep't 2009). The report of Dr. Schottenstein is unsigned and inadmissible. See CPLR 2106; Burgos v. Vargas, 33 A.D.3d 579, 822 N.Y.S.2d 297 (2d Dep't 2006). There is no indication that Drs. Israel and De Jesus expressly relied on it in forming their opinions nor did they submit the report with their own reports. See Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 905 N.Y.S.2d 31(1st Dep't 2010). Even if the report were considered, Dr. Schottenstein' s examination of plaintiff seven months after the accident is insufficient to establish a limitation of range of motion contemporaneous with the accident. See Soho v. Konate, 85 A.D.3d 522, 925 N. Y.S.2d 456 (I st Dep 't 2011 ); Rossi v. Alhassan, 48 A.D.3d 270, 851 N.Y.S.2d 193 (JstDep't2008); Thompson v. Abbasi, 15 A.D.3d 95, 788 N.Y.S.2d48 (lstDep't2005). Although plaintiff testified he received treatment from numerous physicians immediately after the accident, none of those records were submitted. Dr. Schottenstein also failed to identify the objective methods he used to measure the range of motion. See Gibbs v. Hee Hong, supra; Lloyd v. Green, 45 5 [* 7] FILED Aug 29 2011 Bronx County Clerk A.D.3d 373, 846 N.Y.S.2d 29 (!st Dep't 2007). Dr. Schottenstein did not account for or acknowledge plaintiffs arthritis as a possible contributing factor. He offered no opinion as to the permanency of the injuries to plaintiffs cervical and lumbar spine, and plaintiff has not submitted the results of a more recent medical examination to rebut Citywide's expert findings ofa full range of motion in the spine. See Shu Chi Lam v. Dong, 84 A.D.3d 515, 922 N.Y.S.2d 381 (!st Dep't 2011); Townes v. Harlem Group, Inc., 82 A.D.3d 583, 920 N.Y.S.2d 21 (!st Dep't 2011); Thompson v. Abbasi, supra. Dr. Levy's examination of plaintiffs left knee seven months after the accident is also insufficient to constitute objective proof contemporaneous with the accident of a limitation or restriction, which is a prerequisite even where plaintiff has undergone surgery. See Soho v. Konate, supra. His more recent examination of plaintiff revealed pain and weakness in the left knee, but Dr. Levy did not identify what objective tests or methods, if any, he used in making those findings. See Lloyd v. Green, supra. Similarly, Dr. Levy did not perform any range of motion tests to refute Citywide's expert findings of a full range of motion in the left knee. See Shu Chi Lam v. Dong, supra. While Dr. Levy concluded that plaintiff would suffer permanent limitations in walking or performing high-impact activities, he did not "explain the significance of his findings, or provide a sufficient description of the qualitative nature of the limitations based on the normal function and use of the knee." See Colon v. Vincent Plumbing & Mech., Co., 85 A.D.3d 541, 542, 925 N.Y.S.2d458, 459 (lstDep't201 l). Furthermore, Dr. Levy failed to exclude plaintiffs psoriatic arthritis as a possible cause of his more recent complaints. Neither plaintiff nor Dr. Levy offered an explanation as to the lack of medical treatment after surgery, see Zhijian Yang v. Alston, 73 A.D.3d 562, 903 N.Y.S.2d 4 (!st Dep't 2010), and plaintiff testified at his deposition that he felt "zero" pain after surgery. Plaintiff also fails to raise an issue of fact in the category of permanent loss of a body organ, member, function or system. To establish a claim for the permanent loss of use, only a total loss of use 6 [* 8] FILED Aug 29 2011 Bronx County Clerk is compensable. See Oberly v. Bangs Ambulance Inc., 96 N. Y.2d 295, 751 N.E.2d 457, 727 N.Y.S.2d 378 (2001). Here, Dr. Levy's opinion that plaintiff was permanently partially disabled is insufficient to establish he sustained a total loss of use of the left knee. As to his 90/180 claim, both Dr. Schottenstein and Dr. Levy examined plaintiff beyond the statutory period. Plaintiff offers no other objective medical proof sufficiently contemporaneous with the accident to establish he was unable to perform substantially all his daily living activities. See Taylor v. Am. Radio Dispatcher, 63 A.D.3d 407, 880 N.Y.S.2d 54 (!st Dep't 2009); Rossi v. Alhassan, supra. Since plaintiff is unable to meet the threshold for serious injury, summary judgment is granted to Caldwell as well. See Ikeda v. Hussain, 81 A.D.3d 496, 916 N.Y.S.2d 109 (I st Dep't 2011 ); Taylor v. Vasquez, 58 A.D.3d 406, 871N.Y.S.2d89 (!st Dep't 2009). In light of the foregoing, plaintiffs motion for partial summary judgment on the issue of Citywide's liability for causing the accident and Caldwell's motion for renewal are denied as moot. Accordingly, it is ORDERED, that the cross-motion of defendants Citywide Mobile Response Corp. and Jennifer Rich for summary judgment dismissing plaintiffs complaint is granted (Motion Sequence# 2); and it is further ORDERED, that the motion ofplaintiffRobert Roach for partial summary judgment on the issue of the liability of defendants Citywide Mobile Response Corp. and Jennifer Rich for causing the accident is denied as moot ("Motion Sequence # 2); and it is further ORDERED, that the motion of defendant Brian Caldwell for leave to renew the decision and order of the undersigned dated September 7, 2010 is denied as moot; and it is further ORDERED, that the clerk of the court is directed to enter judgment in favor of defendants Citywide Mobile Response Corp. , Jennifer Rich, and Brian Caldwell dismissing plaintiffs complaint. 7 [* 9] FILED Aug 29 2011 Bronx County Clerk This constitutes the decision and order of the court./1 Dated: August 25, 2011 Lucindo Suarez, J.S.C. 8

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