Windisch v Fasano

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Windisch v Fasano 2012 NY Slip Op 31485(U) May 22, 2012 Sup Ct, Nassau County Docket Number: 298/10 Judge: Joel K. Asarch 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 MICHELE WINDISCH, Plaintiff DECISION AND ORDER - against - Inde" No: 298/10 ANNA G. FASANO, Motion Sequence No: 003 Original Retur Date: 03- 15Defendant. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 4 were submitted on this Notice of Motion on April 12 2012: Papers numbered Notice of Motion and Affirmation in Support Affirmation in Opposition Reply Affrmation Plaintiff, Michele Windisch , moves for an Order of ths Cour pursuant to CPLR 2221 (f) for leave to reargue and renew the Decision and Order of ths Cour dated November 25 , 2011. The motion is determined as set forth below. Ths action stems from a motor vehicle accident that occured on September 25 , 2009 at the intersection of Jerusalem Avenue and AIken Avenue in the Vilage of Seaford , Nassau County. By Decision and Order dated November 25 2011 , this Cour granted the motion by defendant , Anna G. Fasano , for summar judgment dismissal of the plaintiffs complaint on the grounds that her injuries did not satisfy the " serious injur" threshold requirement of Insurance Law 51 02( d). In [* 2] doing so , this Cour also denied , as moot, the motion by the plaintiff for an Order granting her sumar judgment on the issue of liabilty. This Cour determined while the defendant had established a Michele Windisch did not sustain a " serious injur" prima facie case showing that withn the meanng of the Insurance Law, the plaintiff, in opposition, failed to come forward with admissible evidence to overcome the defendant' submissions by demonstrating that a triable issue of fact that a " serious injury " was sustained. Specifically, this Cour determined that in the absence of any evidence substantiating her claim that her injures satisfied the "permanent loss of use categories of the serious injur statute , significant disfigurement" or the " 90/180" the analysis must be restricted to the remaining two categories alleged by the plaintiff; to wit permanent consequential limitation of use of a body organ or member ; and significant limitation of use of a body fuction or system. In that regard , ths Cour noted that the defendat' s admissible evidence consisted of the plaintiffs emergency room report from New Island Hospital and the afrmation of Dr. John C. Kilian, M. D. This Cour rejected the defendant' s submission of the affirmed report of Dr. Jessica F. Berkowitz , M. , a diagnostic and consultative radiologist who " reviewed the radiological e"amination" of the plaitiff chiefly on the grounds that Dr. Berkowitz neither reported an opinion as to causation nor performed her own physical e"amination of the plaintiff so as to pair her findings with the reading of the "radiological e"amination. " Despite rejecting Dr. Berkowitz s report, this Court nonetheless determined that the defendant' s remaining proof established her prima facie entitlement to judgment as a matter of law. However, this Cour held that in opposition, the plaintiff had failed to present any admissible evidence demonstrating a triable issue of fact that a " serious injur " was sustained. Ths Cour noted [* 3] that plaintiffs submissions, to wit: the affirmed reports of Dr. Philip M. Rafiy, M. report of Dr. M. Cohen, M. , and the affirmed report of Dr. WiliamA. Weiner, D. , the affirmed , insufficiently demonstrated that plaintiff had any initial limitations of her cervical spine or left shoulder. Specifically, plaintiff had ane"ed eight reports of Dr. Rafiy, of which the only range of motion measurements set fort were for the left shoulder abduction and fle"ion. Furher, it was not until the fifth evaluation that Dr. Rafiy performed range of motion testing on plaintiffs cervical spine. In addition , none of the range of motions were compared to normals, nor did Dr. Rafy ever identify any objective tests he performed to ascertain the range of motion limitations. Based on this , this Cour found " all of Dr. R:afy s opinions , as to any purorted loss are unounded , and the Cour will not consider such. " Similarly, this Cour found that Dr. Cohen s evaluation was performed nearly one and a half years after the accident and thus was not contemporaneous with the accident. As to Dr. Weiner s report , this Cour noted that it fell short of raising a triable issue of fact because he failed to inter alia report an opinion as to the causality of his findings. In sum , this Cour held that the evidence submitted by the plaintiff was insuffcient to raise a trable issue of fact. In an attempt to reverse this Court' s determination , plaintiff moves , pursuant to CPLR 2221 (f), for leave to reargue and renew this Cour' s Decision and Order dated November 25, 2011. Procedurally, it is noteworthy that the CPLR requires that, when a movant submits a single motion that seeks to both renew and reargue , the movant must take special care to identify and support each individual item of relief separately (CPLR 2221 (fJ). Here , the plaintiff submits that the renewal motion is based on a change in the law as enunciated by the Cour of Appeals in Perl Meher 18 NY3d 208 (November 22 , 2011), decided three days before this Cour' s Decision and [* 4] Order. Reargument is based upon facts submitted in the previous record that the plaintiff argues the Cour either overlooked or misinterpreted. It is well settled that a motion to renew " shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221(e)(2)) and " shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 ( e)(3); v. Barnett Smith 64 AD3d 669 (2 2008)). Although the Cour of Appeals ' decision in relevant to the serious injur threshold v. Chernysheva Dept. 2009); v. Perl Pinchuck 57. AD3d 936 (2 Dept. Meher supra, clarfied the general law issue, it does not change the original determination of the prior motion in this action. Perl Plaintiff claims that due to the decision in v. Meher supra, plaintiffs proof offered in opposition is in fact suffcient to defeat defendant' s motion for sumar judgment because "the requirement for a contemporaneous recitation of loss in range of motion has been abrogated by the Cour of Appeals " and thus the reports of Drs. Cohen and Rafiy sufficiently establish that there were questions of fact sufficient to defeat the defendant' s motion for sumar judgment under the curent stadard. Whle ths Cour agrees with the plaintiff that the requirement that contemporaneous findings be e"pressed quantitatively to constitute competent proof of serious injur Perl v. has been eliminated by Meher the need for a qualitative medical assessment made contemporaneous with the accident nonetheless stands. Perl v. must be read in conjunction with other seminal Cour of Meher Appeals decisins. In 2002 , the Cour of Appeals in Toure in order to satisfy the statutory " serious v. Avis Rent A Car Sys. 98 NY2d 345 , 353 , held that injur" theshold of the Insurance Law, the legislature [* 5] requires objective proof of a plaintiffs injur, such as MRI and CT scan tests. Indeed , to meet the threshold significant limitation of use of a body fuction or system or permanent consequential limitation , the Cour of Appeals noted that the law required that the limitation be more than minor mild , or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injur or condition v. Licari NY2d 955 (1992); Ellot Scheer 57 NY2d 230 (1982); v. (Gaddy v. Eyler , 79 Koubeck 70 NY2d 678 (1987)). Thus , the Cour of Appeals held that when a claim is raised under the "permanent consequential limitation of use of a body organ or member" or " signficant limitation of use of a body system" categories , then , in order to prove the e)Ctent or fuction or degree of the physical limitation, an e)Cpert' s designation of a numeric percentage of plaintiff s loss of range of motion is acceptable. In addition the Cour of Appeals held that an e)Cpert' s qualitative assessment of a plaintiffs condition is also probative , provided that: (1) the evaluation has an objective basis , and (2) the evaluation compares the plaintiffs limitations to the normal fuction , purose and use of the afected body organ member, fuction or system. Subsequently, in 2005 , the Cour of Appeals in Pommels even where there is ample objective proof of plaintiff s injur, v. Perez 4 NY3d 566 , clarfied that certn factors , such as such a gap in treatment , an intervening medical problem , or a pree)Cisting condition , may overrde a plaintiffs objective medical proof of limitations and nonetheless permit dismissal of plaintiffs complaint because said factors interrpt Cour held in Pommels treatment in order to v. the chain of Perez causation between the accident and the claimed injur. The that while "the law surely does not require a record for needless surive summar judgment , where there has been a gap in treatment or cessation of treatment , a plaintiff must offer some reasonable e)Cplanation for the gap in treatment [* 6] or cessation of treatment. " It was in Pommels v. in proving that they sustained a serious injur, must make evidentiar showings based on Dept. 2006); plaintiffs claiming restrctions in range of motion findings that are both contemporaneous to the accident New York City Transit Authority, (see also Felix and recent in relation to the judicial proceeding 32 AD3d 527 (2 that the Cour of Appeals held that to succeed Perez Ramirez Parache 31 AD3d 415 (2 Dept. 2006)). All of these decisions , however , must be read in conjunction with the Cour of Appeals decision in Perl Meher supra, where the Cour held that a plaintiff can raise a trable regarding whether he or she sustained a " serious injur" issue of fact by submitting evidence of a qualitative medical assessment made shortly after the accident and a later quantitative assessment of the severity of plaintiffs injuries. The Cour of Appeals in Perl v. Meher supra, did not eliminate the necessity for any contemporaneous findings to show that the plaintiff has limitations in motion or fuction of a significant natue , as indeed the Cour recognized that such findings are critical to the issue of Meher supra, was to eliminate causation. Rather , the stated intent of the Cour' s decision in Perl the requirement that contemporaneous findings be e)Cpressed quantitatively to constitute proof of " serious v. competent injur. Here , neither Dr. Rafiy nor Dr. Cohen offers any objective medical evidence of limitations of motion or fuction of a significant natue contemporaneous with the subject accident. Specifically, of the eight reports submitted by Dr. Rafiy, only four ofthose reports were contemporaneous with the accident , and none of the four contained any objective medical evidence sufficient to create an issue of fact. Of these four reports , not one contains any menticm of any injur to plaintiffs cervical spine , let alone any objective medical tests performed on her cervical spine. Furer, in these four reports , Dr. Rafiy does not set forth any objective findings with respect to plaintiffs left shoulder. [* 7] In light of Dr. Rafiy or Dr. Cohen s failure to set fort any objective medical findings, even in qualitative terms , contemporaneous with the subject accident to show that the plaintiff has permanent or significant limitations in movement or fuction of her cervical spine , or left shoulder this Cour finds that the plaintiffs proof, despite the Cour of Appeals ' holding in Perl v. Meher supra , is nonetheless insufficient to present an issue of fact. Accordingly, inamuch as plaintiff seeks to renew the prior Decision and Order of this Cour said application is granted, and upon renewal, this Court adheres to its original determination. The plaintiffs motion to reargue the prior Decision and Order is denied. A motion to reargue is addressed to the discretion of the Cour and is designed to afford a par an opportity to establish that the Cour overlooked or misapprehended the relevant facts , or misapplied a controllng principle oflaw (CPLR 2221 (d)(2)). It is not designed as a vehicle to afford the unsuccessful par an Rodner (Gellert v. opportity to argue once again the very questions previously decided Gem Community Mgt., Inc. 20 AD3d 388 (2 Dept. 2005)). Nor is it designed to provide an opportty for a par to advance arguents different from those originally tendered (Amato v. nd Taylor, Inc. 10 AD3d 374 375 (2 Dept. 2004)) or argue a new theory of law or Lord (Levi raise new questions not previously advanced Frisenda Dept. 2004); v. Utica First Ins. Co. 12 AD3d 256 258 (1 X Large Enterprises, Inc. 280 AD2d 514 , 515 (2 Dept. 2001)). Instead the movant must demonstrate misapprehended or overlooked v. the matters of v. (Hoffmann fact or law that she believes the cour has Debello- Teheny, 27 AD3d 743 (2 Dept. 2006)). Absent a showing of misapprehension or the overlooking of a fact, the cour must deny the motion (Barrett v. Jeannot 18 AD3d 679 (2 Here , in Dept. 2005)). requesting reargument , plaintiff claims that ths Cour " overlooked or [* 8] misinterpreted" the facts submitted in the previous record. Specifically, plaintiff claims that this Cour erred in deciding that Dr. Weiner s affrmed report was inadmissible; that this overlooked plaintiff s claimed limitations and the fact that she claimed she retured to work Cour at light duty; and that the Cour raised issues that were not in dispute. These arguments are entirely unsubstatiated and wholly insufficient to warant a rearguent of ths Cour' s prior Order. Specifically, a plain and simple reading ofthis Cour' s prior Order confirms that ths Cour held that "(e)ven if this Cour were to assume that Dr. Weiner, in fact, reviewed the plaintiffs actual MRI fims , in the absence of any opinion as to the causality of his findings in either report * * * neither (of Dr. Weiner s) report(s) (are) sufficient to raise an issue of fact as to plaintiffs injur. " Plaintiff does not address this fact on her instat serious motion. Plaintiff s claim that this Cour overlooked her alleged complaints with regard to her limitations for the puroses of satisfying the 90/180 category of the Insurance Law are also unounded. While counsel for the plaintiff goes to great lengts to quote the plaintiff s testimony in his affirmation in support , no where does counsel argue , much less demonstrate , that the plaintiff was curailed in her usual activities " to Ellott 57 NY2d 230 , 236 (1982); a great e)Ctent rather see also Sands v. than some slight curailment" (Licari Stark 299 AD2d 642 (2 Dept. 2002)) or that she was "medically , i.e. , advised by a doctor , impaired from performing any of her daily activities (Monkv. Dupuis 287 AD2d 187, 191 (3 Dept. 2001)). To prevail under the " medically determined injur or impairment of a non- permanent nature which prevents the injured person from performing substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the [* 9] one hundred eighty days immediately following the occurence of the injur or impairment" category, a plaintiff must demonstrate through competent , objective proof, a "medically determined injur or impairment of a non permanent nature " (Insurance Law ~5102(d)) "which caused the alleged limitations on the plaintiffs daily activities fuhermore , a curailment of the plaintiff s usual activities "to curailment" (Licari v. complaints of recurent Ellott pain , supra; Sands v. Stark (Monk v. would have Dupuis supra), and a great e)Ctent rather than some slight supra). Plaintiffs continuing subjective as e)Cpressed in her e)Camination before tral , without any evidence of a " great" or otherwse medical impairment , are insufcient to raise a triable issue of fact. Finally, plaintiffs claim that because the Cour "raised such issues as a gap in treatment intervening medical problems , and pre-e)Cisting conditions " her motion for reargument should be granted, is equaly meritless. This Cour in its prior Decision and Order merely stated that these thee issues were " certain factors that may overrde a plaintiffs objective medical proof oflimitations and nonetheless permit dismissal of the plaintiff s complaint." At no point did this Cour state that these issues were raised or considered when making its determination. Accordingly, inasmuch as plaintiff seeks to reargue this Cour' s prior Decision and Order , said application is also denied. This shall constitute the Decision and Order of this Cour. Dated: Mineola , New York May 22 2012 . ASARCH , lS. ENTERED MAY 2 4 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE [* 10] Copies mailed to: Michael A. Cervini , Esq. Attorneys for Plaintiff Richard T. Lau & Associates Attorneys for Defendant

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