Richardson v Bradford
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Richardson v Bradford 2012 NY Slip Op 32384(U) September 10, 2012 Supreme Court, Suffolk County Docket Number: 11-16686 Judge: Joseph Farneti 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] INDEX No. SIIORT HlRM (j1,DU{ 11-]668(, SUPREME COURT - STATE OF NEW YORK IAS. PART 37 - SUFFOLK COUNTY cof't PRESENT: lIon. JOSEPH FARNETf Acting Justice Supreme Court MOTION DATE 5-29-]2 ADJ. DATE 8-9-12 Mot. Seq. II 001 - MD ---------------------------------------------------------------X MARY JANE RICHARDSON, Plaintiff, LEWIS JOHS AVALLONE A VILES, LLP Attorney for Plaintiff 425 Broad Hollow Road Melville, New York 11747 - against WILLIAM BRADFORD, Defendant. RUSSO & TONER, LLP Attorney for Defendant 33 Whitehall Street, 16th Floor New York, New York 10004 ---------------------------------------------------------------X Upon the following papers numbered I to.1..lL read on this motion for summarv jude:ll1cnt ; Notice of Motion/ Order to Show Cause and supporting papers (00l) 1-10 ; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers _; Replying Affidavits and supporting papers _; Other _; it is, ORDERED that this motion (seq. #001) by defendant William Bradford, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the basis that the plaintiff did not sustam a serious injury as defined by Insurance Law § 5102 (d) is denied. MarYjane Richardson seeks damages for serious injuries allegedly sustained as a result of a motor vehicle accident on April 18,2010, on Montauk Highway at its intersection with Gazzola Drive, Brookhaven Town, Suffolk County, New York, when the vehicle in which she was a passenger, and the vehicle operated by defendant William Bradford, collIded. As a result oft1115accident, the plamtiff alleges that she sustained personal inj my consisting of a right shoulder adhesive capsulitis with subacromial impingement, which required arthroscopic surgery of the right shoulder consisting of arthrolysis, capsulotomy, and subacromial decompression, resulting In scarring of the right shoulder. The defendant seeks summary judgment on the basis that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). The proponent of a summary judgment motion must make a prima jacie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to eliminate any matenal issues of fact from the case (Friends of Animals v Associated Fur jlffrs., 46 NY2d 1065,416 NYS2d 790 [1979]). To grant summary judgment it must clearly appear that no matenal and triable issue of fact IS presented [* 2] Richardson v Bradford Index No. 11-1(J686 Page No.2 (Sillmull v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 408 [1057]). The movant has the initial burden of proving entitlement to summary j Lldgment (Wincgi'lul N. Y.U. il1edicuf Center, 64 NY2d 85 J, 487 NYS2d 316 [1985]). Failure to make such a Showlllg requIres clema! or the motIon, regardless orthe suffiCIency orthe OppOSll1g papers (Willeg1'lul v IV.Y.u. Jl1edicul Center, sUjira). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence 111 dmissible fonn ...and must "show a faett>su!Ticlent to require a trial of any issue of fact" (CPLR 3212[bJ; Zuckerman 11 City (~fNew York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being cstabl1shed (Ctfstro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981]). ~J Pursuant to Insurance Law § 5102 (d), '''[s]erious injury' means a personal injury which results 111 eath; dismemberment; significant disfigurement; a fracture; loss of a fetus; pennanent loss of use of d a body organ, member, function or system; permanent consequential limitation of use ofa body organ or member; significant limitation of use of a body function or system; or a medical determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantla]]y all of the material acts which constitute such person's usual and customary daily actlvities for not less than nmety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." The term "significant," as it appears in the statute, has been defined as "something more than a minor limitation of use," and the term "substantially all" has been construed to mean "that the person has been cU11ailedfrom perfom1ing his usual activ1ties to a great extent rather than some slight curtal!ment (Licari v Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint for failure to set forth aprimajilcie case of serious injury as defined by Insurance Law § 5102 (d), the initial burden 1Son the defendant to "present evidence in competent fonn, showing that plaintiff has no calise of action " (Rodriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [1st Dept 1992]). Once the defendant has met the burden, the plal11tiffmust then, by competent proof, establish aprimafacie case that such serious ll1Jury exist'; (DeAngelo v Fidel Corp. Services, Inc., 171 AD2cl588, 567 NYS2d 454, 455 [1st Oept 1991]). Such proot: in order to be in competent or admissible [oml, shall consist of affidavits or affimlations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692[2d Ocpt 1992]). The proof must be viewed In a light most favorable to the non-moving party, here the plaintiff(Cammarere v Villanova, 166 A02d 760, 562 NYS2d 808, 810 [3d Dept 1990]). !n order to recover under the "permanent loss of use" category, a p1ainti ff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Ballgs Ambulauee file., 96 NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member'" or "sigmficant limitation of use of a body funct1ol1or system" categories, either a specific percentage o1'1he loss ohange of 1110t1011 must be ascribed or there must be a sufficlent descnption of the "qualitative nature" of plaintiffs limitations, with an objective basis, cOITe1atingplal11tiffs limitations to the nonnal function, purpose and [* 3] Richardson v Bradford Index No. ]1-1(1686 Page NO.3 use oFthe body part (Toll1'e v Avis Rent A Car ,Systems, fIlC., 98 NY2d 345, 746 NYS2d 865 [2000]). !\ millor, mild or shght limitation oruse is considered inslgl1lficant \vlthin the mcanlllg of the slaLute (Licari v Elliott, supra). In support of this application, the deFendant has submitted, inter alia, an attorney's affirmation: copIes orthc pleadings; plaintiff's venfied bill of particulars; the reports of Stanley Sprecher, M.D dated January 24, 2012 concernmg his review of the MRI of the plamtiffs right shoulder dated September 22. 2010, Stuart N. Kandel, M.D. dated January ]3,2012 concerning his independent orthopedic examinaLion ofplmnti ff, and Matthew M. Chacko, M.D. dated January 12,2012 conccmlllg IllS mdependent neurological examination of the plaintiff; and the transcript of the examination before trial of Maryjane Richardson dated November 23, 2011. Upon review and consideration of the defendant's evidentiary submissions, it IS determined that the defendant has not establishedprimalacie entitlemcnt to sununary judgment dismissing the complaint on the basis that Maryjane Richardson did not sustain a serious injury as defined by Insurance Law 5102 (d). * The defendant has failed to support this motion with the medical records and initial test results for the MR.1and radiographic studies obtained by the plaintiff relative to her claimed injuries, thus leavJl1g it to this Court to speculate whether the findings by Dr. Sprecher, concerning his revie\v of the films, are consistent with the interpretation and impression of the plaintiff's radiologist who interpreted the films. Although Dr. Kandel and Dr. Chacko indlcated 111heir rcspective reports the various medical t records and MRI study they reviewed, the same have not been provided in support of their opimons. Expert testimony IS limited to facts 111 evidence, and an expert cannot base an opinion on facts he did not observe and WhlCh\vcre not in evidence (see also Allen v Uft, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 201'1]; Jl1arzuillo v /SOIll, 277 AD2d 362,716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d ('37, 530 NYS2d 838 [2d Dept 1988]; O'Shea ¢ Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dcpt 1984]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins CounLy 200:,]). Dr. Kandel has set forth in his report that the plaintiff is a 54 year-old registered nurse who sustained an injury to her right shoulder on April 18, 2010, \vhen the vehicle in which she was a passenger became involved in a motor vehIcle accident. Due to continued pain 111 her right shoulder, her treating orthopedist, Dr. Kottmeier, after having obtained an MRl, perfoTIned an arthroscopic surgical procedure on her shoulder on February 24, 2011. She Lhereafter recelved physical therapy 2 to 3 times a week for approximately six months. He continued that she was out of work for approximately six weeks following the surgery and camp lamed to him of a feeling of achiness 111 shoulder with residual her limitation in motion. Upon examination of the plaintiff, Dr. Kandeliloted that she has three healed arthroscopic surgical portals, however, no report from a plastic surgeon who examined the scars has been submitted by the defendant (see Brmvdame v Cant/ura, 25 AD3d 747, 807 NYS2d 658 [2d Ocrt 200()"j),thus raising factual issues concen1mg the size and appearance of these scars, and precluding summary Judgment. [* 4] Richardson v Bradford Index No. 11-1 (1686 Page No 4 Dr. Kandel, IIIdetel1llining the plaintiffs range of motion 1Ilher right shoulder, compared hiS J1ndings to a spectrUnlln the range of motion rather than a specific normal valuc. When the normal rallge or motion is set forth within a rangc or spectrum, it leaves it to this C01ll1 to speculatc as to the actual normal ranges of mOlions without variations, and under whIch conditions such vanations \vould be applicable (.veeHypolite v Illtematiollal Logistics Mgt., Illc., 43 AD3d 461, 842 NYS2d 453[2d Dept 2007], Somers v Macphersoll, 40 AD3d 742,836 NYS2d 620 [2d Oept 2007]; Browdumc v Cat/dura, 25 AD3d 747, 807 NYS2d 658 [2d Dept 2006J; Manccri v Bowe, 19 AD3d 462,798 NYS2d 441 [2d Dcpt 2005]; see also Rodriguez v Schickler, 229 AD2d 326, 645 NYS2d 3 I I: I st Dcpt 1996], Iv denied 89 NY2d 810,656 NYS2d 738 [1997]). Addltionally, Dr. Kandel docs not rule out that the lI1Juryto the right shoulder and subsequent surgery were not proximately caused by the withlll accident. Thus, Dr Kandel's findings raise factual issues whIch preclude summary judgment. While Dr. Chacko indicated in his report that the plaintiff did not have any other injuries from this accident, except for her nght shoulder, he performed range of motion testing on her cef\IJcal spine, but faIled to provide any range of motion findings relative to her right shoulder. Dr. Chacko does not indicate that he examined the plaintiffs shoulder, however, he opined that she was status post arthroscopy of the right shoulder with residual symptoms, and that her neurological examination was nonnal. He does not rule out that the injury for which she had surgery is not related to the accident. Based upon the foregoing, it is detcffilined that the defendant has faLledto establish prima facie clllitlcment to summary judgment on this category of serious injury as defined by Insurance Law § 5102 (d), It is noted that the defendant's examining physician did not examl11ethe plaintiff during the statutory period of J 80 days following the accident, thus rendering the defendant's physicians' affidavlls I1lsufficlcnt to demonstrate entitlement to summary judgment on the Issue of whether the plamtiffwas unable to substantially perform all of the material acts which constituted her usual and customary daily actIvities for a period in excess of90 days during the 180 days immediately following the accident (Blauclwrd v Wilcox, 283 AD2d 821, 725 NYS2d 433 [3d Oep! 2001J; see Uddin v Cooper, 32 A03d 270, 820 NYS2d 44 [1st Ocp! 2006]; Toussoiut v Claudio, 23 AD3d 268, 803 NYS2d 564 [I s! Oep' 2005]), and the experts offer no opinion with regard to this category of serious injury (see Delayhaye v Caledonia Limo & Car Service, Illc., 61 AD3d 814, 877 NYS2d 438 [2d Dept 2009]). Additionally, the plal11tifCtestificd to the extent that following the accident, she experienced pam.in her right shoulder. The pain in her right shoulder continued to Jncrease, so she received follow up care WIth Dr. KottmelCr, her orthopedist, who treated her with steroid injections into her shoulder. She also received physical therapy' for her shoulder. She stated that Dr. Kottmeier perfomled surgery on her right shoulder on February 24, 2011, for which she was out of work for six to seven weeks. Prior to the subject aCCIdent, shc never expenenced pain in her right shoulder- Since the accident and surgery, she has difficulty extending her a1l11 and rotating her shoulder. She cannot lIft anything weighing more than five pounds. Based upon the foregoing, It is determined that the defendant has failed to demonstrate entitlement to summary Judgment on this category of injury as well. [* 5] Richardson v Bradford Index No. I I-I ()686 Pagc No.5 The factual issues raised in defendant's moving papers preclude summary judgment, as the uct"::ndant failed to establish that plaintiff did not sustain a "serious injury" within the meanmg of Insurance Law § 5 I02 (d) (see Agathe v Tun Chell Wallg, 98 NY2d 345, 746 NYS2d 865 [2006 J); see a/so Walters v PapaJUlstassiou, 31 AD3d 439, 819 NYS2d 48 [2d Dcpt 2006]). The plamtiffhas not opposed thIs motion, however, inasmuch as the moving party has faIled to establishprimafilcie entitlement to judgment as a matter of law in the first instance on the Issue of"senous injury" it is unnccessary to consider whether any opposing papers wcre sufficient to raise a triable issue of fact (see YOllg Deok Lee l' Singh, 56 AD3d 662, 867 NYS2d 339l2d Dcpt 2008]); KraYI1 v Torel/a, 40 AD3d 588,833 NYS2d 40{) [2d Dept 2007J; Walker v Village (~lOssilli"g, 18 AD3d 867, 796 NYS2d 658 [2e1 DC!'t 2005]). Accordingly, this motion by the defendant [or summary judgment dismissing the complaint on the basis that the plainti ff did not suffer a serious injury as defined by Insurance Law § 5102 (d) 1S denied. ~- Dated: September 10, 2012 oseph Farneti cting Justice Supreme Court Q FINAL DISPOSITION X . NON·FINAL DISPOSITION
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