Brandon v Blowers

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Brandon v Blowers 2012 NY Slip Op 31414(U) May 24, 2012 Sup Ct, New York County Docket Number: 101138/2009 Judge: George J. Silver 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. SCANNED ON 512912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. G e o r a e J. ~~ si1ver , Justice ~ TERRI BRANDON and CHERYL BRANDON VS 22 PART 101138/2099 INDEX NO. . MOTION DATE KARl A. BLOWERS, MAXWELL J. RAZDOW, AMARY E. COULIBALY and JAMES A. LEASING The following papers, numbered I to 4 MOTION SEQ. NO. 002 MOTION CAL. NO. were read on thla motion tolfor SUMMARY JUDGMENT Notice of Motion10rder to Show Cause - AMdavits- Ex Answering Aafldavlts - Exhlbits 2 Replylng Affldavits Cross-Motlon: Yes 0 No 4 NEW YORK Upon the foregoing papem, It le ordered that thls motion COUNTY CLERKIS OFFICE In this action to recover for personal injuries arising out of a motor vehicle accident, Defendants Amary Coulibaly and James A. Leasing (collectively Defendants ) move pursuant. to CPLR $3212 for an order granting summary judgment and dismissing Plaintiffs Terri Brandon and Cheryl Brandon s (collectively Plaintiffs ) Complaint on the grounds that Plaintiffs did not sustain an injury that qualifies as serious as defined by New York Insurance Law $5 102(d). Co-defendants Kari A. Blowers and Maxwell J. Radzow (collectively Co-defendants ) cross move for the same relief, relying upon Defendants submissions. Under New York Insurance Law $5 102(d), a seriousinjury is defined 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, function 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 whch constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. [A] defendant can establish that [a] plaintiffs injuries are not serious within the meaning of Insurance Law $5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim (Grossmanv Wright,268 AD2d 79,83-84 [Ist Dept 20001). If this initial burden is met, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant s submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (id. 84). The Plaintiff is required to present nonconclusory at zxpert evidence suficient to support a finding not only that the alleged injury is serious within the meaning of §5102(d), but also that the injury was causally related to the accident (Vulentin v Pomilla, 59 AD3d 184 [ 1st Dept 20091). . Check one: ....................................... 0CASE DISPOSED H NON-FINAL DISPOSI~ION . Check as appropriate: ...... MOTIONk GRANTED 0DENIED GRANTED IN PART 0OTHER d . Check as appropriate: ...................... SElTLE ORDER 0 SUBMIT ORDER a DO NOT POST 0FIDUCIARY APPOINTMENT [7 REFERENCE [* 2] Plaintiff Chew1 Br& Plaintiff alleges in her Verified Bill of Particulars that, as a result of the accident, she sustained a serious injury including cervical and lumbosacral radiculopathy, bilateral muscle spasms in lumbar area radiating to both legs and generalized anxiety. Plaintiffs Supplemental Bill of Particulars alleges injuries including Grade I anterolisthesis of L4 on L5, L3-L4 and L4L5 disc bulges, L 5 4 1 disc herniation, C3-C4 and C4-C5 through C6-C7 disc bulges. In support of this motion, Defendant submits the expert reports of Dr. R.C. Krishna, Dr. S.W. Bleifer and Dr. Sheldon Feit. Dr. Krishna performed a neurological examination of Plaintiff on June 9, 20 10. He conducted range of motion testing using an inclinometer and found no limitations in Plaintiffs range of motion for her cervical and thoracolumbar spine, Dr. Krishna concluded that Plaintiff may have sustained a cervical and lumbar strain injury, but that those injuries had resolved. He did not find any neurological indication for disability. Dr. Bleifer conducted an orthopedic examination of Plaintiff on June 8, 2010. He performed range of motion testing and found no limitations in Plaintiffs range of motion for her cervical spine, shoulders and lumbar spine. Dr. Bleifer concluded that Plaintiff had sustained a cervical and lumbosacral sprain, both which had resolved. Dr. Feit reviewed Plaintiffs cervical spine MRI film. He identified bulging discs at C3-C4, C4-C5, and C6-C7, degenerative spondylosis and no evidence of herniations. Dr. Feit reported that the bulging discs are not posttraumatic, but degenerative in nature. Dr. Feit also reviewed Plaintiffs lumbar spine MRI films and concluded that the two MRIs revealed pre-existing degenerative changes. Further, he specified that the disc bulges identified at L4-L5 and L5-S 1 are degenerative in nature. Defendants have satisfied their burden of establishmg prima facie that Plaintiff did not suffer a serious injury (Yagi v Corbin, 2007 NY Slip Op 7749 [ 1st Dept]; Becerril v Sol Cab Corp, 50 AD 3d 26 1, 854 NYS2d 695 [ 1st Dept 20081). In opposition, Plaintiff submits the expert reports of Dr. Stanley Liebowitz and Dr. Ronald Wagner, Dr. Liebowitz s affirmation begins by stating I have been treating the plaintiff Cheryl Brandon for various injuries... However, the next paragraph states that [tlhis affirmation is based on the medical file maintained by my office on Ms. Terri Brandon ... As such, Dr. Liebowitz s report has zero probative value and cannot rebut Defendants prima facie case as to serious injury. Dr. Wagner reviewed Plaintiffs July 6,2008 cervical spine and lumbar spine MRJ films. He reported posterior disc bulges from C4-CS through C6-C7 and C3-C4. Dr. Wagner also found posterior disc bulges at L3-L4 and L4-5, L5-S1 disc herniation and straightening of the normal lumbar lordosis. Additionally, Dr. Wagner reviewed Plaintiffs June 29,201 1 lumbar spine MRI film. He reported L3-L4 disc bulge without interval change, new L4-L5 disc herniation, foraminal disc bulge at L4-L5. Dr. Wagner further noted that the previously identified L5-S 1 disc herniation had resolved. Dr. Wagner did not opine as to causation of his radiological findings and as such his report is insufficient to rebut Defendants prima facie case (Nieves v Castillo, 74 AD3d 535, 902 NYS2d 91 [lst Dept 20101; Gibbs v Hee Hong, 63 AD3d 559,559,881 NYS2d 415 [2009]). Under the permanent consequential limitation and significant limitation categories of New York Insurance Law 55 102(d), Plaintiff must submit medical proof containing objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system (Gorden v. Tibulcio, 2008 NY Slip Op 3382 [lst Dept] quoting John v Engel, 2 AD3d 1027, 1029 [3d Dept 20031). Further, to qualify under the consequential or significant injury definition, the injury must be more than minor or slight (Gaddy v Eyler, 79 NY2d 935 [ 19921). Plaintiff has not submitted any evidence to rebut Defendants prima,facie case. Index No.: 101 138/2009 Page2of 5 [* 3] Further, Plaintiff simply did not address the affidavit of Defendants' radiologist, Dr. Feit, stating that the disc bugles revealed on an MRI films were the result of a degenerative condition unrelated to the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]). In any event, even if Plaintiffs alleged limitations were attributable to disc bugles that are not degenerative in nature, "bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration o f the disc injury" (DeJesus v Paulino, 61 AD3d 605, 608 [2009], citing Pommells, 4 NY3d at 574). Plaintiff offered no such objective evidence. With respect to Plaintiffs claim under the 90/180 category of Insurance Law $5 102(d), Plaintiffs injuries must restrict her from performing "substantially all" of her daily activities to a 32 great extent rather than some slight curtailment (Szabo v. 2', Two Way Radio Tuxi Ass'n, Inc. , 700 NYS2d 179 [ 19991; Thompson v. Abbmi, 788 NYS2d 48 [l st Dept 20051; Hernandez v. Rodriguez, 63 A.D. 520 [lst Dept ZOOS]). Plaintiffs Verified Bill of Particulars states that she 3d was confined to bed and home for one week and that she w s incapacitated from working for a one week. Though Plaintiff testified regarding activities that she can no longer engage in, Plaintiff has not sufficiently shown that her curtailment of these activities was medically determined (see Antonio v Gear Trans Corp., 2009 NY Slip Op 6370 [treating physician's statements that they were "medically disabled," and were to refrain from any work or activities that caused pain were too general to raise the inference that plaintiffs confinement to bed and home was medically required]; see Gorden v Tibulcio, 50 AD3d 460, 463, 855 N.Y.S.2d 515 [2008]). Accordingly, Defendants' summary judgment motion as to Plaintiffs 90/180 claim under New York Insurance Law $5 102(d) is granted. .. Plaintiff Teni Brandon Plaintiff alleges in her Verified Bill of Particulars that, as a result of the accident, she sustained a serious injury including C4-C5, C5C6 and C6-C7 herniated discs, cervical radiculopathy, L4-L5 bulging disc, lumbosacral radiculopathy, bilateral muscle spasms in lumbar area radiating to both legs, and generalized anxiety. Plaintiff's Supplemental Bill of Particulars alleges additional injuries including a C3-C4 disc bulge. In support of this motion, Defendants submit the expert reports of Dr. R.C. Krishna, Dr. S.W. Bleifer and Dr. Robert Tantleff. Dr. Krishna performed a neurological examination of Plaintiff on June 9,2010. He reported a history of a prior accident in 2005 where she injured her neck and back. Dr. Krishna conducted range of motion testing using an inclinometer. He found no limitations in range of motion of Plaintiffs cervical and thoracolumbar spine. Dr. Krishna concluded that Plaintiff had a normal examination and that she may have sustained a cervical and lumbar strain injury, which has resolved. Dr. S.W. Bleifer conducted an orthopedic examination on June 8, 2010. He conducted range of motion testing and found no limitations to Plaintiffs cervical spine, shoulders and lumbar spine. Dr. Bleifer concluded that Plaintiff had sustained cervical and lumbosacral sprains, which have resolved. Dr. Tantleff reviewed Plaintiff's lumbar spine MRI films and reported degeneration and desiccation throughout the lower thoracic and lumbar region consistent with spondylosis and longstanding chronic degenerative discogenic disc disease. He conclude that the MRI findings are degenerative and unrelated to the accident. Defendants have satisfied their burden of establishing prima facie that Plaintiff did not suffer EL serious injury (Yagiv Corbin, 2007 NY Slip Op 7749 [lst Dept]; Becerril v Sol Cab Corp, 50 AD 3d 261, 854 NYS2d 695 [lst Dept ZOOS]). In opposition, Plaintiff submits the expert reports of Dr. Stanley Lkbowitz, Dr. Glen Schwartz, Dr. Ronald Wagner and Dr. Ronald Roskin. Dr. Liebowitz first treated Plaintiff on Index No.: 101138/2009 Page 3 of 5 [* 4] June 23,2008. At that examination, he conducted range of motion testing and found limitatjons in Plaintiffs cervical and lumbar range of motion, Dr. Liebowitz stated that he referred Plaintiff to physical therapy, which she continued with for you and half years. He stated that she stopped treating because any further treatment would not help. Dr. Liebowitz recently examined Plaintiff on October 10, 201 1. He reported limitations in Plaintiffs cervical and lumbar spinal motion. Dr. Liebowitz concluded that Plaintiffs injuries were caused by the motor vehicle accident and are permanent in nature. Specifically, Dr. Liebowitz states that there has been a trauma to her spine which has caused her vertebrae to be mis-aligned, with nerves irritated and various soft tissues affected. Dr. Schwartz reviewed Plaintiffs lumbar spine MRI film. He reported an L4-L5 disc bulge and facet arthropathy at L3-L4 and L5-S 1. Dr. Wagner reviewed Plaintiffs cervical spine MRI film and reported disc herniations of C4-C5, C5-C6 and C6-C7. He also reported a C3-C4 disc bulge, ventral cord abutment at C4-C5 and C5-C6, and foraminal narrowing at C4-CS. Dr. Roskin reviewed Plaintiffs lumbar spine MRI film taken on September 7,2005, prior to the present accident. He reported that the MRJ was normal. Dr. Roskin also reviewed the August 24,2005 MRI film of Plaintiffs thoracic spine and reported that it was normal. Under the permanent consequential limitation and significant limitation categories of New York Insurance Law $5 102(d), Plaintiff must submit medical proof containing objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system (Gorden v. Tibulcio, 2008 NY Slip Op 3382 [Ist Dept] quotinghhn v Engel, 2 AD3d 1027, 1029 [3d Dept 20031). Further, to qualify under the consequential or significant injury definition, the injury must be more than minor or slight (Gaddy v Eyler, 79 NY2d 955 [ 19921). Dr. Liebowitz provided objective evidence of Plaintiffs injuries both contemporaneous with the accident and based on a recent examination. Though Defendants have sufficiently raised causation concerns regarding Plaintiffs prior accident and degeneration, Plaintiff has adequately rebut these issues through Dr. Liebowitz s affirmation and by the submission of MRI reports predating the present accident. Accordingly, Plaintiff has rebut Defendants prima facie case. With respect to Plaintiffs claim under the 90/180 category of Insurance Law $5 102(d), Plaintiffs injuries must restrict her from performing substantially all of her daily activities to a great extent rather than some slight curtailment (Szabo v. flZ Two Way Radio Taxi Ass n, Inc., 700 NYS2d 179 [ 19991; Thompson v. Abbasi, 788 NYS2d 48 [lst Dept 20051; Hernandez v. Rodriguez, 63 A.D. 520 [Ist Dept 20091). Plaintiffs Verified Bill of Particulars states that she 3d was confined to bed and home for ten days and that she was incapacitated from working for ten days. Though Plaintiff testified regarding activities that she can no longer engage in, Plaintiff has not sufficiently shown that her curtailment of these activities was medically determined (see Antonio v Gear Trans Corp., 2009 NY Slip Op 6370 [treating physician s statements that they were medically disabled, and were to refrain from any work or activities that caused pain were too general to raise the inference that plaintiffs confinement to bed and home was medically required]; see Gorden v Tibulcio, 50 AD3d 460,463, 855 N.Y.S.2d 515 [2008]). Accordingly, Defendants summary judgment motion as to Plaintiffs 90/180 claim under New York Insurance Law $5 102(d) is granted. Accordingly, it is hereby, ORDERED that Defendants motion and Co-defendants cross motion for summary Index No.: 101138/2009 Page4of 5 [* 5] judgment is denied as to Plaintiff Terri Brandon s claim under permanent consequential limitation and significant limitation categories of Insurance Law $5 102(d); and it is further ORDERED that Defendants motion and Co-defendants cross motion for summary judgment is granted as to Plaintiff Cheryl Brandon s claim under permanent consequential limitation, significant limitation and 90/180 categories of Insurance Law 55 102(d) and Plaintiff Cheryl Brandon s complaint is dismissed in its entirety, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that Defendants motion and Co-defendants cross motion for summary judgment is granted as to Plaintiff Terri Brandon s claim under the 90/180 category of Insurance Law $5 102(d); and it is further ORDERED that Defendants are to serve a copy of this order, with Notice of Entry upon all parties, within 30 days, and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 15S), who are directed to mark the court s records to reflect the change in caption herein. This constitutes the decision and order of the court.. /* d MAY 2 4 2Ot2 Dated: New York, New York GEORGE J. SILVER FILED NEW YORK COUNTY CLERKS OFFIC: Lndex No.: 101138/2009 Page 5 of 5 , J.S.C.

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