Francois v Socci

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Francois v Socci 2012 NY Slip Op 32457(U) September 18, 2012 Supreme Court, Suffolk County Docket Number: 10-20437 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] [NDEX No. CALNo. SHOI<T FORM ORDER 10-20437 11-02207MV SUPREME COURT - STATE OF NEW YORK [AS. PART 37 - SUFFOLK COUNTY PRESENT: lion. MonON DATE 10-21-11 (#001) MOTION DATE 12-22-11 (#002) ADJ. DATE 3-29-12 Mot. Seq # 001 - M]) #002 - MG JOSEPH FARNETI Acting Justice Supreme Court ---------------------------------------------------------------X MARJE JUDE FRANCOIS, Plaintiff, EW AL & EW AL, ESQ. Attorney for Plaintiff 946 Park Avenue Huntington, New York 11743 - against DANIEL J. SOCCI and JOANN L. MARJNO, Defendants. DESENA & SWEENEY, ESQS. Attorney for Defendants 1383-32 Veterans Memorial Highway Hauppauge, New York 11788 ---------------------------------------------------------------)( Upon the following papers numbered 1 to _'_8_ read on this motion and cross motion for summary judgment; Notice of Motion! Order to Show Cause and supporting papers with Memorandum of Law ~; Notice of Cross Motion and supporting papcn;~; Answering Affidavits and supporting papers 10 - 14 , Replying Affidavits and supporting papers 15 - 18 ; Other _;itis, ORDERED that this motion (seq. #001) by defendants for an Order, pursuant to CPLR 3212, granting summary judgment in their favor dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d) is denied; and it is further ORDERED that this cross-motion (seq. #002) by plaintiff for summary judgment on the issue of liability is granted. Plaintiff seeks to recover damages for serious injuries allegedly sustained in a rear-end motor vehle Ie accident on October 3, Z008, near the intersection of Park Avenue and Main Street in Huntington, New York. Plaintiff was stopped at a red light behind a line of traffic in the southbound lane of Park Avenue when her vehicle was rear-ended by the vehicle owned by defendant JoAnn Marino and operated by defendant Daniel Socci. [* 2] h',lllCOIS V SOCCI Index NO.1 0-:20437 P,lgl: No. :2 In her complaint as amplified by her blll of particulars, plaintillalleges that she sustained various lI1julles, including il1ultiple disc bulges, and str,lllls/sprains and spasms in her cervical, thoraCIC and lumbar regions, WhICh have resulted In pain and limitations In the nmgc ormotion of her spine, hIps and lower cxtremliles. Plaillti IT also alleges that she was totally disabled and lllcapacitated from employment as a nurslllg assistant [or approximately eIght weeks and partially dIsabled thereafter to date. In support oCthe motion lor summary judgment dIsmIssing the eOl1lplaint. deCendants have submitted, illlN ([//(/, the pleadings, the transcript ofplaintifl's deposition testimony, and reports from Mana Audrie DeJesus, M D., a ncurologist, Michael J. Katz, M D .. an orthopediC surgeon, and DaVId A. Fish,:r, M.D., a radIOlogist. PlaintiiTtestiCied that prior to the accident she worked full-time as a nursing aSSIstant at Huntington Hospital, and on a per diem baSIS at the Northport VA Medical Center Her duties entailed lifting patients mto and out of beds and chairs and patient care whIch Included takmg their vital signs, cleaning, feedll1g, clothing and transporting them. PlallltifCtestified that atter the subject accident on October 3, 2008, she did not return to either job until the beginning of December 200~,. PlaintifTalso testified that when she returned to both Jobs, she \\'as able to perform her dutIes with'Jut restrictions or limitations, but needed help lifting patients. Dr Dejesus, who was hired by the defendants, examined plaintiffon June 28, 2011. At that time" plaintiffcomplall1ed of on and off Jocalized pain to her lower back and occasional localized neek paIn. Dr. DeJesus, with the assistance of a gOlllometer and comparing the measurements to nonnnl, found no lllmtations in range of motion or spasms in plaintiffs cervical spIlle and thoracic/lumbar SplllC; however, upon lateral bending plainti ff complained of pain (4/1 0) III the thoracic/lumbar spme. Patnck and Kernig's tests were negative. Plaintiffs mcntal Cunctlons were n0ll11al as were her cranial nerves, fundi and visual fields. Upon motor examinatIon, no atrophy, \veakness or faseiculations were noted and plaintiffs muscle tone and bulk were normal Reflexes were symmetric in the upper and lower extremities, and sensory examination and cerebellar functions were normal. Dr. Dejesus reports that plaintiffs neurologic examination was normal and diagnosed cervical, thoracic and lumbar spme sprain/strain, resolved. Dr. Dejesus opmes that there IS no llldleation ora neurologic disability as a result of the subject accident and that plaintiff can work and perform all usual daily actwities without" restnction or limitation. Dr. Katz, hired by defendants, examined plaintIIT on July 12, 2011, at which time she complained of neck and back pam Dr. Katz reports that upon physical examination, using a goniometer and comparing the measurements to what is nonnal, he found no limitations in the rangc of motion 111 plall1tifrs cervIcal and thoracolumbosacral sjJllle, her shoulders. thighs, hIpS, knees or legs. Dr. Katz also found no muscle spasms, no swelling or contusions. He sets forth the ohjective tests pcrfomlcd, 1.C., Adson's and straight leg raising testing, and states 1118tthey were ncgative. Dr. Katz diagnOSIs indicates that plaintlff's cervical and thoracolul11bosacral strains are resolved, as are the contuslOllS to her shoulders, arms, legs, thighs and knees. Dr. Katz also noted (he siglllficance of the MRI report ortlle cervIcal spine lI1dicating changes that arc degenerative in nature. Dr. Kalz opmes that plaintiff IS not dIsabled and IS capable ofworklllg full time as a nursing assistant and is capable of performing the actlvities of daily living. [* 3] FrallcolS v Socci Index No. 10-20437 Pag~ No.3 The August 23, 20 I I alTinllcd reports of defendants' radiologist. Dr. Fisher, indicates that he r~vi~wcd the M Rl images t)f plainti ITs cervical spine and lumbar spine fl'om November 2008. Dr. Fisher indicates that there are no disc hemiatiolls or bulges and that the studies were Il01l11aLDr. Fisher concludes that there were no findings that could bc attributed to the subject accident of October 3,2008. Based on the defendants' submission, thcy have met their prima jilcie burden of demonstrating entillement to judgment as a matter of law by showing, through the affinned reports of their medical experts and plaintiffs deposition testimony, that the plaintiff did not sustain a "senous injury" within the mcaning of Insurance Law § 5 I02 (d) as a result of the subject accident (see Hayes l' Vasilios, 96 AD3d 1010,947 NYS2d 550 l2d Dept 2012]; Seollglw Clwi v Guerrero, 82 AD3d 1080.918 NYS2d 897l2d Dept 2011]; Hflrris v BOl/dart, 70 AD3d 643, 893 NYS2d 631 [2d Dept 201 OJ; Meely l' 4 G\" Truck Relllillg Co., IIlC., 16 AD3d 26, 789 NYS2d 277 [2d Ocpt 20051). It is indisputable that plaintiffs alleged mjuries are not "total" and, thus, do not constitute a serious injury under the permanent loss of use categolY set forth in Insurance Law § 5102 (d) (see Obedy v Ballgs Ambulilllce.lllc., 96 NY2d 294, 727 NYS2d 378 [2001]). Morever, based on the defendants' evidence, none of the injuries plaintiff allegedly sustained constitute a serious injury under the pennanent consequential limitation of use or the sigmficant limitation of use categories of Insurance Law § 5102 (d) (see Gaddy v J::.)J/er.79 NY2d 955, 582 NYS2d 990 11992]; Quilltana l'Arena Trumport, fllc .. 89 AD3d 1002,933 NYS2d 379 [2d Dcpt 20 I J]). Defendants also established prima facie that plaintiff did not sustain a serious injury under the 90/180 category of Insurance Law § 5102 (d) (see Knox v Lellllihllll, 65 AD3d 615, 884 NYS2d 171 [ld Dept 2009; Rico v Piguero, 48 AD3d 778, 853 NYS2d l2912d Dept 2008]). Thus, the burden shifts to planttiffto submit competent evidence based upon objective mcdicallindings and diagnostic tests to raise an Issue or fact ncccssal)' to satisfy the threshold reqL11rcmcntthat a scrious injury was sustained (see. Gaddy v Eyler, supra). A pl<lintirrchl1111inginjury within the "limitation orusc" categories !'nust substantiate his or her complaints of pain with objective medical evidence showing the extent or degree orthe !Jmitation of movelllent caused by the injury and its duration (see Ferraro v Ridge Car /j'erv., 49 AD3d 498, 854 NYS2d 408 [2e1Dcp! 2008]; Mejia v DeRase, 35 AD3e1407, 825 NYS2e1 772 [2e1Dep! 2006]; Larujfa I' Ylli '!'ling Lan, 32 AD3d 996, 821 NYS2d 642 [2d Ocpt 2006]; Cerisier.' Thibiu, 29 AD3d 507, 815 NYS2d 140 [2d Dept 200GJ; Meyers v Bobower Yeshiva 81lei Zion, 20 AD3d 456, 797 NYS2d 773 [2d Dept 2005]). In this regard, "[wJhether a limitation of use or function is 'slgnificant' or 'consequential' (i.e., important: see Countermifle l' Galka, 189 AD2d 1043, 1045,593 NYS2d 113) relates to medical signi fieance and involves a comparative detenninatlon of tbc degree or qualitative nature of an Injury hased on the normal function, purpose and use of the body part" (Tow'e v A I'is Rent A Car Sys., Illc., 98 NY2e1345, 353,746 NYS2e1865 [2002J, Dafe! v Creea, 84 NY2d 795, 798,622 NYS2e1900 [1995]). In opposition, plallltiffhas submitted, illter alia. her own affidavit and sworn statements and rep011s from Dr. Marc Albert Lewandoski, an osteopathic physician, Dr. William F. Palmer. her treating clmopractor, Thomas J. Dowling, Jr., hcrtreating orthopedist, and Dr. Richard Rosenberg, a radiologist Plaintiff avers that more than three years after the accident she still suffers neck and back pain, and a bunrng sensation in her lower back, that she has back pain whenever she pcrfonns her regular \\'ork lifting patients and now needs daily assistance perfomling this task when prior to the subject accident [* 4] FrancoIs v SOCCI Index NO.1 0-2()4]7 Page No 4 she did not PlaintifTstates (hat alter \vork she goes home IIIpall1\\.']lIChISnot rully alleviated with Illcdicallllil. Plainiiffalso asserts she has neck palll that causes frequent headaches, making it diCficult to concentrate and dlsturbmg her sleep. PlaintlfT stales that she gets neck pall1 \vhen she reads for an hour or writes lor more than 30 minutes, and back pall1 whcn she sits or slands for more than an hour or drlvl:;s. She can no longer shovel snow or push her lawnmowcr without pain. Plamtlffc1aims that the p~lInhmlts her ability to pull or 1111 objects, bend, stoop or squat. PlamtilTalso claims thaI clue to her phy~,icallllnitations, she has lmed a landscaper and must rely on her children's help to perform hou~:eh()ldchores, lill groceries and do the laundry. PlamtifTasserts that prior to the accident she was a healthy adult raIsing her three children, and did not even have a primary care physIcian: now she IS in pam, lensc and anxious and under the care of doctors. An x-ray of plain tifT's cervical spine was conducted on October 8, 2008. Dr. Richard Rosenberg, a radiologist, interpreted the films, and in his .r anuary 23, 2012 affirmation, opines that the films reveal straightening of the upper cervical lordosis. MRls of piam tiffs spll1e performed III November 2008 reveal a disc bulge at T111l2, and disc bulgGSat C3/4, C4/5, C5/6 and C6/7 Dr. Lewandoski evaluated and treated plaintiffon October 7, 2008 for injuries she sustamed 111 the subject accident. in his January 23,2012 affirmation, Dr. Lwcandowski states that consistent with her complaints ofpa1l1, and the x-ray taken on October 8, 2008 which revealed straightening of tile upper eervlcal spll1e, his exammation of pIamtiff revealed evidence of sternocleidomastoid strain, upper trapezius stram, muscle spasms, and a sprained shoulder and upper a1l11.He opined that plamtiffwas totally disabled and unable to work at the time of his examll1ation and he advised her to remain out of I,vork for one \veek, with her return being dependent on her symptoms. Dr. Palmer treated plaintiff continuously from October 6,2008 to December 15,2008. Dr. Palmer asserts that throughout the course of treatment, plainti ff complained of pam in her neck and her upper and mid-back regions consistent with findmgs of spasm, palpated tenderness, trigger points, hypertonicity in her trapezius musculature and fixed segmentslrestricted range of motion in her spmc which he causally related to the October 3, 2008 motor vehicle accident. Dr. Palmer lists the tests he performed which he characterizes as objective, and revealed positive results. namely, Becherew Testiseatecl straight leg raising test, Lindner's Test, Spurling's Test and Soto-Hall Test. Dr. Palmer also Indicates that upon palpation plaintitThad spasms m her shoulder and cervical spine. Based on these findmgs, Dr. Palmer took x-rays, a review of which revealed straIghtening of the cervical spme \Vlth sllght reduction in llexion and extension. In his affidavit, Dr. Palmer explains that spasms are an mvoluntary muscle contraction and is an objective findmg, and that tngger points arc areas oflocali/ed tenderness that cause radiating pam or spasm in other parts orthe body. Dr. Palmer further explains that hypertolllcity is an ll1creased tension of the llluscles where the muscle lone is abnonnally rigid, hampering proper movement, which can calise jomt compression, excess lactic acid and a decrease in 1ll0VI~l1lenL Palmer asserts that as a result of the subject accident, plaintiff was totally disabled and Dr. unable to return to work as ofOclober 6, 2008. Dr. Palmer notes that plaintiffretumed to work on December 1, 2008, but states that she was not asymptomatic and that her injUries were not resolved as she continued to have neck and mid back pain With marked tenderness, hypertollic trapezialmusculatul"e and lngger points. Dr. Palmer states that plaintiff had made limited progress, that further chiropractic [* 5] FrancoIs v SOCCI Index No. IO-lU4:J7 Page No.5 treatment would have only been palliative 1llnature and could not cure her ll1jury or climlllate the cause or her palll Dr. Dowll1lg, plaintiff's treating orthopccllst asserts that he performed an 1111lial evaluation on Oct(,ber 29, 1008, and saw her III follow-up visits on November 14, lOOS. January 2,2009, and February 13, ~~O()9, nd most recently on January 10,2012. At each examination, Dr Dowling reports that he a performed passIve range ofmorion testing by visual observations, and found restricted movement and l1luscle spasms and tenderness 111 spinal reglOn. and aner each vIsit, advised plalJ1tifrto continue with the the chiropractic treatments. When the treatments became Hleffective, on January 2, 2009, Dr Dowllllg referred plaintiff to phYSIcal therapy. Dr Dowling concludes that the restricted movement in plaintiff's spinc is causally related the subject accident. He quantIfies the loss of range of motion in plaintiffs SPlJ1C, and although he does not compare the findmgs to thc normal range ormotion, he sets forth a qua1Jtative assessment of her limitations as compared to the normal function ofthc spinc_ Hc ormes to a reasonable degree of medical certainty that plamti ff sustamed serious pCl111anent isabling injuries to her d neck and back with permanent 11111itationnd loss of use of her neck and back secondary to dlscogemc a neck and back pain. Dr. Dowling relates his assessment to plaintlfT's complaints of pain when engaged In prolonged activltles such as sitting, standing, reachlJ1g, and carrying heavy objects, lifting and moving patients, gardeIllng, cooking and household chores. Dr. Dowling opines that plaintifrs inJunes will IJkcly continue to cause acute aggravations and exacerbations wlth pain and restrictions offunctlon III the effected body parts, thereby requiring future care. Plamtiffs treating chiropractic and physicians opined, based upon contemporaneous and recent examinatIOns. as well as upon their VIew of the reports ofMRI scans which sho\ved bulging discs that plaintiffs cervical and thoracolumbosacral spine injunes and the observed range of motion l1mitatlOns are permanent, significant and causally related to the subject aCCIdent. Therefore, the cvidence submitted in opposition to the motion is suffiCIent to raise an Issue of fact as to whether plaintiff sutTered a senous injury as <1 result of the subject accident (see TOllre v Avis Rent A Car SYs., fnc., 98 NY2d 345, supra; Johnson v Cristino, 91 AD3d 604, 936 NYS2d 275 [2d Dept 2012]; Sill vSillgh, 74 AD3d 1320,904 NYS2d 744 [2d Dept 201 OJ). Also, plallltifTs treating doctors' findings that her l11.Junes were traumatic and causally related to the collJslOn are sufTicient to 11llplicitly address the defendants' contention that the injuries were degenerative (see Fraser~Bllptiste v New York City Tr. A lith .. 81 AD3d B7S, 917NYS2c1 670 [2c1 Dcp! 2011 J; Harris v BOllderr, 70 AD3c1 643, B93 NYS2c1 631 [2c1Dept 2010]). Furthermore, the contlicting medical opinions of the plaintiffs and the defendants' radiologists regard1l1gthe nature and etiology of the lllJuries to her spine, i.e., degenerative or traumatic and causally related to the subject accident, raise a triable issue of f~lct(see Gm'iria v Alvardo. 65 AD3d 567, 884 NYS2d 134 [2d Dept 2009]; see also SeeCOOllll1l1 IlLy, 43 AD3d 900. 841 NYS2d 624 [2d Dcpt 2007J) Adchtionally. contrary to the defendants' contention, plallltilTs treating doctors sufficiently addressed a prior work-related injury to plaintiffs back 15 years before the subject accident noting that she v;as asymptomatic and without treatment, returning to work approximately two months thereafter (see Harris v Boudert, supra). Further, there were no "gaps" IIImedical treatment since the plaintiff's treating doctors each explained that continued chIropractic and physical therapy would be palliative and she would experience no further improvement (see (,'{(I'iria I' Alvardo, sl/pm: see also Seecoofllllfl v Ly. [* 6] FrancoIs v SOCCI Index No. 10-20437 Page No. () Moreover, plall'ltlfTexplained that her 1l0-1~lUlt bcndlls were terminated, that allcr the subject accident she separated fl'om her husband and had Lareturn Lawork, and thaLalthough her health inswancc covered physicallhcrapy treatments, she could not affeml the co-payments, but continued 011 hcr own to do the home therapy cxercises prescnbed by her treating chiropractic and the physical thcnlpist (::w(' Gaviria v Alvardo, supra; DOlllanas I'Delgado TJ'{fve/Agellq, file., 56 AD3d 717, 8M:; NY~:2d 1321.2d Dept 2008]). Accordingly, as pl,-untilT!las nllscd an issue of blCt, the defendants' mollon for sUlllmary judgment dlsmlssmg the complaint based on plilintifT's failure to meet the serious injury threshold is denied. slIpra). Tuming to plaintiffs cross-motion for sUlllmary judgment on the issue of liability, a rear-end colli~ion with a stopped vehicle creates aprill/afacie case ofncgligence on the part oUhe dnver of the rearmost vehicle, and Imposes a duty on that driver to proffer a non-negligent explanation for the colIi~ion (Tlitral/i I' Coullty of Suffolk, 10 NYJd 90(), 861 NYS2d 610 [2008]; Cortes v Wlte/llll, 83 AD3d 763, 922 NYS2d 419 [2d Dept 2011]; Plummer v Nourddil/e, 82 AD3d 1069, 919 NYS2d 187 [2d Dcpt 2011]; Volpe v Limoucelli, 74 AD3d 795, 902 NYS2d 152 [2d Dept 2010]; })itrapaui v Marduflte, 10 AD3d 628, 781 NYS2d 611 [2004]). The presumption of negligence in rear-end cases arises from the duty of the driver of the vehicle behind to keep a safe distance and not collide with the traffic ahead (see Vehicle and Traffic Law § 1129 [a] ["The driver of a motor vehicle shall not follow another vehicle more closely than 1Sreasonable and prudent, bavll1g due regard for the speed of such vehicles and the traffic upon and the condition of the highway"]). r rthe drIver of the offending vehicle cannot come forward with evidence to rebut the inference ofneghgence, the driver of the lead velllc1c is enl1tled to summary Judgment on the Issue of habillty (see Cortes v Wlteltm. supra). Here, based on evidence before the Court, including the deposition testimony of plaintiff and her affidavit wherein she attests that she was stopped at a red light when she was rear-ended by defendants' vehicle, plaintiff has sustained her burden of cstablishing a prima facie case of the defendant driver's negligcnce and entitlement to judgment as a matter of la\v. Having made the requisite prima facie showll1g, the burden shifts to defendant to rebut the inference of negligence by offering a non-negligent explanation fen the happcn1l1g of the accldent. Defendants have not come forward With any eVidence that plaintilTneghgently operated her vehicle. Rather, submitted in opposition is the affirmation of defendants' counsel wherein it is asserted that plaintiff's proofis facially deficient for lack of an aff-idavlt armerit and incomplete unsigned deposition transcripts. Ho\vever, the ent1re unSigned but certified transcript of plaintiffs deposition is anne~cd to the defendants' papers 111 support of their motion, the relevant pages of which arc annexed to the plaintiffs cross-motion. Plaintiffs transcrIpt is certdlecl by! the reportcr, and the excerpts are being used to support her own motion, and therefore, adoptce! as accurate (see Z(ll()( v Zieba, 81 AD3d ()35, C) 7 NYS2d 285 l2d Dept 20 II], Iv dellied 17 NY3d 703, 929 NYS2d 93 [20 I I]: Ashifv Won Ok Lee, 1 57 AD3d 700, 868 NYS2d 906 [2d Dcpt 2008]). Moreover, the papers before the Court include an affie1::1vit plain tilT wherein she sets forth that her veh1cle was hit in the rear by the defendants' vehicle, of thereby satIsfying CPLR 3212 (b). FUlihcrmore, the defendant drIver acknowledgcd during his dcpo~itlOn and III a written statement that the aCCIdentoccurred \vhen he looked down to check hiS ruel gaug~. thereby cstablishlllg his ncgligence {,ee Hal/swirtlt \' Tra/tscare Nell' York, Inc., 97 AD3d 792, [* 7] Francois v Socci Index No 10-20437 Pag': No.7 949 NYS2d 154 [2d Dept 1012]; Gibson v Levine, 05 AD3d 1071,944 NYSld C>() [lei Dept lOlll}· I f'he:"cforc, pla!lltllT IS entitled to summary Judgment In hcr favor on the ISSUC of habi lity. As defendant is lIable tor the collision ulld hus I~\ilcd to establish lhut plaintiJT did not sustain u senUllS 1 llJury wllhlll the meamng of Insurance Law ~ 5101 (d), plamtifTls enUtled to partial summary j udgmcil t all the issue 0 f liElbility (sel? Ditrapalli I' Marciante, supra) The extent of pi a1l1tiff"s inj uries, includ1l1g whether she suffered a serious injury as a result of the Jccldent, will bc adjudIcated dUring the trial on damages (see Vall Nostrand v Froehlich, 44 AD3d 54, 844 NYS2J 293 [2d Dept 20071, appeal dls/f,issed 10 NY3d 837, 859 NYS2d 609 [2008J). Accordingly, plallltifflS granted the motion by defendants for summary judgment is denied and the cross-lllotion .. ~< Dated: September 18, 2012 ,,J-fon. I FINAL DISPOSITION ~Farneti 111g Justice Supreme X -------Court NON~FINAL DISPOSITION by

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