Werthner v Lewis

Annotate this Case

Download PDF

Werthner v Lewis 2013 NY Slip Op 30505(U) March 8, 2013 Supreme Court, Suffolk County Docket Number: 10-11344 Judge: Hector D. LaSalle 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. 10- 11344 CAL. NO. 12-00476MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: Hon. MOTION DATE 4- 18-12 (#003 & # 10) . 04 MOTION DATE 5-30-12 (#005) 07 MOTION DATE 7-1 8-12 (#006 & # 10) ADJ. DATE 12-18-12 Mot. Seq. # 003 - MD # 004 - XMD # 005 - MD # 006 - MG # 007 - XMG; CASEDISP HECTOR D. LaSALLE Justice of the Supreme Court MARK E. WEINBERGER, P.C. Attorney for Plaintiff 50 Merrick Road Rockville Centre, NY 1 1570 ROBERT J . WERTERJER, Plaintiff, PICCIANO & SCAHILL, P.C. Attorneys for Defendants Lewis 900 Merchants Concourse, Suite 3 10 Westbury, New York 11590 - against - DAVID J. SOBEL, P.C. Attorney for Defendants Shiffer and DiMartini 8 1 1 West Jericho Turnpike, Suite 20 1P i Smithtown, New York 1 1787 PAUL D. I,EWIS, MICHELLE L. LEWIS, CIIRIS'I'A 1. SHIFFER, ANTHONY J. DIMARTINI & MIREAM E CRUZ, Defendants. / DESENA & SWEENEY, ESQS. Attorneys for Defendant Cruz 1383-32 Veterans Memorial Highway Hauppauge, New York 11788 Upon the following papers numbered 1 to 85 read on these motions for summary iudnment; these cross motions for summary iudginent; and this motion to coinpel ; Notice of Motion/ Order to Show Cause and supporting papers 1-1 7; 33-4 1; 42-S3 ;Notice ofcross Motion and supporting papers 18-32; 54-56 ;Answering Affidavits and supporting papers 57-65; 66-67; 68-69; 82-83 : Replying Affidavits and supporting papers 72-73; 74-75; 76-77; 78-79; 80-81; 84-85 ; Other defendant h4iream Cruz's affirmation in support - 70-71 ; ( fis, i ' ) it [* 2] Werthner v Lewis Index No. 10- 1 1344 Page No. 2 t3RDERED that the motion (#003) by the defendant Miream Cruz, the cross motion (#004) by the defendants C hrista Shiffer and Anthony DiMartini, the motion (#005) by the defendant Miream Cruz, the motion (#006) by the defendants Paul Lewis and Michelle Lewis, and the cross motion (#007) by the defendants Christa Shiffer and Anthony DiMartini hereby are consolidated for the purposes of this determination; and it is ORDERED that the motion by the defendant Miream Cruz seeking summary judgment in her favor on the issue of liability is denied, as moot; and it is ORDERED that the cross motion by the defendants Christa Shiffer and Anthony DiMartini seeking summary judgment in their favor on the issue of liability is denied, as moot; and it is ORDERED that the motion by the defendant Miream Cruz for, inter alia, an order compellirig the plaintiff to provide the documents and information requested in the supplemental notice of discovery dated August 10, ;!0 1 1 is denied, as moot; and it is ORDERED that the motion by the defendants Paul Lewis and Michelle Lewis seeking summary judgment dismissing the complaint on the ground that the plaintiff failed to meet the serious injury threshold requirement of Insurance Law $ 5 102 (d) is granted; and it is ORDERED that the cross motion by the defendants Christa Shiffer and Anthony DiMartini seeking summary judgment dismissing the complaint on the ground that the plaintiff failed to meet the serious iijury .threshold requirement of Insurance Law fj 5102(d) is granted; and it is further ORDERED that the Court, sua sponte, grants summary judgment dismissing the complaint aj;ainst the defendaiit Miream Cruz. The plaintiff Robert Werthner commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred in the right lane of eastbound Sunrise 1 Iighway, approximately one-half mile west of Exit 58 South, in the Town of Brookhaven on November 30, 2009. It is alleged that the accident occurred when the vehicle operated by the defendant Michelle Lewis and owned hy the defendant Paul Lewis (hereinafter collectively referred to as the Lewis defendants ) struck the rear of the vehicle operated by the defendant Anthony DiMartini and owned by the defendant C hrista Shiffer (hereinafter collectively referred to as the DiMartini defendants ). As a result of the collision. this DiMartini vehicle was propelled forward and struck the rear of the vehicle operated by the defendant Pvl iream Cruz. When the accident occurred the DiMartini vehicle was traveling at approximately 25 miles per hour in the right lane of eastbound Sunrise Highway and the plaintiff was a front seat passenger i n the vchicle. By his bill of particulars, the plaintiff alleges, among other things, that he sustained various personal injuries as a result of the subject accident, including cervical and lumbar spraidstrain. The plaintiff alleges Ihat as a result of the accident he underwent cervical spine surgery on January 20,2010, and that he rcmained in the hospital until January 23,2010. The plaintiff further alleges that he was confined to his bed and homc for approximately two months immediately after the subject accident, and that he was confined to his bed arid home for approximately six months following his spinal surgery. [* 3] Wertliner v Lewis Index No. 10-1 1344 Pagc No. 3 Initially, the plaintiff commenced his action against the defendants Paul Lewis, Michelle Lewis, Christa Shiffer and Anthony DiMartini ( Action 1 ). Thereafter, the plaintiff commenced a separate action, assigned indl=xnumber 19006/10, against the defendant Miream Cruz ( Action 2 ). By order of the court, dated March 4,20 1 1, Judge Cohalan granted the plaintiffs motion and the defendant Cruz s cross motion to consolidale Action 1 and Action 2, and determined that the consolidated matter shall be carried under index niunbt:r 1 1 344110, and that the caption shall be stated as Robert Werthner, pZaintifJ againsl Pawl D. Lewi.v, ~!4iich?//C L Lewis, Christa I. Sh@ier, Anthony J. DiMartini and Miream Cruz, defendants. [heLewis defendants now move for summary judgment on the basis that the injuries alleged by the plaintiff fail to meet the serious injury threshold requirement of 9 5102 (d) of the Insurance Law. The Lewis defendants, in support of the motion, submit copies of the pleadings, the plaintiffs dcposition transcript, and the sworn medical reports of Dr. Isaac Cohen and Dr. Alan Greenfield. At the Lewis defendants request, Dr. Cohen conducted an independent orthopedic examination of the plaintiff on November 10, 201 1. Also, at the Lewis defendants request, Dr. Greenfield performed an independent radiological review of the magnetic resonance images ( MRI ) films of the plaintiffs cervical spine performed on October 9,2009 and December 22,2009. In addition, Dr. Greenfield independently reviewed the MR[film of the plaintiffs lumbar spine performed on October 10, 2009, December 22, 2009, and January 5.20 1 0. The DiMartini defendants cross-move for summaryjudgment on the basis that the plaintiff did not sustain a serious injury within the meaning of the Insurance Law as a result of the subject collision. The Dib4artini defendants rely on the same evidence presented in support of the Lewis defendants miotion for sumiiiary judgment. The plaintiff opposes the motions on the ground that the evidence in opposition demonstrates that he sustained injuries within the limitations of use categories and the 90/180 category of the Insurance Law. The plaintiff, in opposition to the motions, submits the sworn medical report of Dr. Rarry Katzn-Ian, his uncertified medical reports, and the unsworn medical reports of Dr. Davida Panasci, Dr. Melissa Sapan and Dr. Con0 Gallo. [t has long been established that the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Dufel v Green, 84 NY2d 795,798,622 NYS2d 900 119951; see Torrre v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a serious injury is to be made by the court in the first instance (see Licari v Elliott, 57 NY2d 230,455 NYS2d 570 [1982]; Porcano v Lehman, 255 14D2d 430.680 NYS2d 590 [2d Dept 19881;Nolan vFord, 100 AD2d 579,473 NYS2d 5 16 [2d Dept 19841,ufjd 64 NY2d 68 1,485 NYS2d 526 [ 19841). Insurance Law ij 5 102 (d) defines a serious injury as a personal injury which results in death; dismeiiiberriient: significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, iiinction or system; permanent consequential limitation of use of a body organ or member; significant 1 imitation 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 niatcrial acts which 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 seeking suinrnary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff [* 4] Werthner v Lewis Index No. 10-1 1 344 Page No. 4 did not sustain a serious injury (see Toure v Avis RentA Car Sys., supra; Caddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [ 19921). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant s own witnesses, those findings must be in admissible form, I[such as]. afficlavit,s affirmations, and not unsworn reports to demonstrate entitlement to judgment as a matter and of law (I ngnno v Kingsbury, 182 AD2d 268,270,587 NYS2d 692 [2d Dept 19921). A defendant may also establisli entitlenient to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 AD2d 43 1, 733 N YS2d 901 [2d Dept 20011; Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 20001; Vignola v Vnrricltio, 243 AD2d 464, 662 NYS2d 831 [2d Dept 19971; Torres v Micheletti, 208 AD2d 519, 616 NYS2d 1006 [2d Dept 19941). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold ofthe statutory standard for serious injury under New York s No-Fault Insurance Law (see Dufelv Green, , s i p v ; Zorntrbene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 20031; Pagano v Kingsbury, siqmi). Here, the Lewis defendants and the DiMartini defendants, by submitting competent medical evidence and the plaintiffs deposition transcript, have established a prima facie case that the plaintiff did not sustain a serious injury as a result of the subject accident (see Toure v Avis RentA Car Sys., supra; Caddy v Eyler, s24pra; Estrella v Geico Ins. Co., - AD3d , 2013 NY Slip Op 00173 [2d Dept 20131; I1 Clzung Lim v Chrabnszcz, 95 AD3d 950,944 NYS2d 2 3 6 E d Dept 20121; Belliard v Leader Limousine Corp., 94 AD3d 931, 942 NYS2d 591 [2d Dept 20121). The defendants examining orthopedist, Dr. Cohen, used a goniomr:ter i o test the plaintiffs ranges of motion in his spine, shoulders and hands, set forth his specific findings, and compared those findings to the normal ranges (see Martin v Portexit Corp., 98 AD3d 671,948 NYS2d 21 [lst Dept 20121; Staffv Yshua, 59 AD3d 614, 874 NYS2d 180 [2d Dept 20091; DeSulme v Stnnyn, 12 AD3d 557,785 NYS2d 477 [2d Dept 20041). Dr. Cohen, during his examination ofthe plaiintiff, found that the range of motion limitations in the plaintiffs lumbar spine were attributable to a pre-existing degenerative condition, and that the limitations in his cervical spine were attributable to the cervical spine fusion surgery that the plaintiff underwent on January 20, 201 0, and were degenerative in nature (see e.g. Vnlentiit v Pomilla, 59 AD3d 184,873 NYS2d 537 [ 1st Dept 20091). Dr. Cohen states in his medical report that palpation of the plaintiffs paraspinal muscles revealed no evidence of spasm, that the paraveriebral muscles were supple and non-tender, that the straight leg raising test was negative, bilaterally, and that his heel-toe gait was normal. Dr. Cohen states that palpation of the scar from the bone grafting in the right posterior pelvic area demonstrated that it was well-healed and pain-free. Dr. Cohen further states that an examination of the plaintiffs hands revealed his hand grip, pinch and grasp were normal, that there was no evidence of a neurological deficit, atrophy, weakness, or trophic changes. Dr. Cohen opines that the spinal strains that the plaintiff sustained as a result of the subject collision have resolved, and that the examination of the plaintiff did not reveal any objective evidence of disability causally related to the subject accident. !3iinilarly, the medical reports of the defendants radiologist, Dr. Greenfield, state that diffuse degenerative disc disease with multilevel degenerative disc bulging and herniations is present throughout the plaintiffs spine, and that the straightening of the plaintiffs cervical lordosis predates the subject accidcni . DI. Greenfield further states that he made a comparison between the MRIs taken of the plaintiffs cervical and lumbar regions performed on October 9,2009, and the MRIs performed on December 22,2009, [* 5] Werthner v Lewis Index No. 10-1 1344 PageNo. 5 that the findings on the MRI taken before the subject accident and the one taken after the accident were virtually idelltical. The Lewis defendants and the DiMartini defendants, having made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of the statute, shifted the burden to the plaintiff to demonstrate the existence of a triable issue of fact as to whether he sustained a serious injury (see Pommells v Perez. 4 NY3d 566, 797 NYS2d 380 [2005]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree ofthe limitation caused by the injury and its duration (see Ferraro vRidga Car Serv.. 49 ADl3d 498,854 NYS2d 408 [2d Dept 20081; Mejia vDeRose, 35 AD3d 407,825 NYS2d 772 [2d Dept 20061; Larirffrr v YuiMing Lau, 32 AD3d 996,821 NYS2d 642 [2d Dept 20061; Kearse vNew York City Tr. Auth., 16 AD3d 45, 789 NYS2d 281 [2d Dept 20051). Whether a limitation ofuse or function is significant or consequential (i.e. important . . .), relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (Dufel v Green, supra at 798). To prove tlie extent or degree of physical limitation with respect to the limitations ofuse categories, either objective evidence ofthe extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use ofthebody part (see PerlvMelier, 18NY3d208,936NYS2d 655 [2011]; TourevAvisRentACarSysiems, Iiic., . s z q m at 350; see also Valera v Singh, 89 AD3d 929,923 NYS2d 530 [2d Dept 201 I]; Rovelo v Volcy, 83 AD3d 1034, 921 NYS2d 322 [2d Dept 201 I]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaiieous range of motion limitations is not a prerequisite to recovery (see Per/ v Meher, supra; Paulino vRodriguez, 91 AD3d 559, 937 NYS2d 198 [lst Dept 20121). I n opposition, the plaintiff has failed to raise a triable issue of fact as to whether he sustainled an injury within tlie meaning of the serious injury threshold requirement of 5 5 102 (d) of the Insurance Law (see Tiri-ynncflvKuna, 98 AD3d 501,949 NYS2d 203 [2d Dept 20121; Kreimerman vStunis, 74 AD3d 753, 902 NYS2d 180 [ad Dept 20101; Barnundo v Fiero, 88 AD3d 831, 931 NYS2d 239 [2d Dept 201 11). Despite the t act that the plaintiff has submitted the affirmed medical report of Dr. Katznian, who found that the plaintiff sustained significant limitations to his spine and left shoulder, Dr. Katzman s report only is based on an examination of the plaintiff conducted on September 14,20 12, and fails to demonstrate that the plaintiff sustained any range of motion limitations contemporaneous with the subject accident (see Mmzsalz v Batlu, 68 AD3d 945, 892 NYS2d 428 [2d Dept 20091). Although the plaintiff is not required to proffer proof of a quantitative assessment contemporaneous with the accident (see Per/ vMeher, 18NY3d 2013,936 NYS2d 6 5 5 [2011]; Ortiz v Salalzuddin, - AD3d -, 2013 NY Slip Op 00544 [lst Dept 2013]), he is rcquirecl to offer proof i n admissible form demonstrating that he sustained some form of impairment contemporaneous with the accident (see Ostroll v Nargizian, 97 AD3d 1076, 949 NYS2d 283 [3d Dept 20 121). Significantly, Dr. Katzman s report does not state that he is aware of the plaintiffs prior medical history wheii concluding that the plaintiffs injuries are causally related to the subject collision (qJ:Putnant v SJWO Corp., 101 AD3d 1571, 957 NYS2d 506 [ 1st Dept 2012]), nor does he address the findings of degenerative disc disease with multilevel degenerative disc bulging and herniations by the defendants experts and, as such, his report is insufficient to rebut the defendants prima facie showing (see Beltran v [* 6] Werthner v Lewis Index No. 10-11344 Page No. 6 POIYOIY Linzo, Znc., 98 AD3d 1070,95 1 NYS2d 23 1 [2d Dept 20121; Sort0 v Morales, 55 AD3d 71 8, 868 NYS2d 67 [2d Dept 20081; Collins v Stone, 8 AD3d 321,778 NYS2d 79 [2d Dept 20041; cJ:Per/ v Meher, szpw;Snyder v Rivera, 98 AD3d 1104, 951 NYS2d 233 [2d Dept 20121). He also failed to address the defendants experts finding that the plaintiffs restricted range of motion in his cervical spine is attributable to the cervical spine surgery that he underwent (see e.g. Depena v Sylla, 63 AD3d 504,880 NYS2d 641 [ 1st Dept 20091, /I, denied 13 NY3d 706,887 NYS2d 4 [2009]). Evidence of complaints ofpain and discoinfort alone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insufficient to sustain a finding of serious injury (see Sclzeer v Koubek, 70 NY2d 678,5 18 NYS2d 788 [ 19871; Young v Russell, 19 AD3d 688,798 NYS2d 101 [2d Dept 20051; Grant v Fofana, 10 AD3d 446,781 NYS2d 160 [2d Dept 20041). Moreover, although a plaintiff may rely upon his or her examining physicians unsworn mcdical reports once the defendant has proffered such evidence to establish his or her prima facie case (see Dietrich v Piqf Cub Corp., 63 AD3d 778, 881 NYS2d 463 [2d Dept 20091; Kearse v New York Ct Tr. Autli., 16 iy AD3d 45,789 NYS2d 281 [2d Dept 20051; Pagano vKingsbury, 182 AD2d 268,587 NYS2d 692 [2d Dept 1992]), in this instance, neither the Lewis defendants nor the DiMartini defendants submitted any of the uncertified rnedical reports that the plaintiff relied upon to attempt to raise a triable issue of fact as to whether he sustained an injury within the serious injury threshold requirement of 5 5 I02 (d) of the Insurance Law (sec Khan v Finchler, 33 AD3d 966, 824 NYS2d 340 [2d Dept 20061). As a result, the numlerous unsworn medical reports submitted by the plaintiff in opposition are not sufficient to defeat defendants motions for summary judgment (see Shamsoodeen v Kibong, 41 AD3d 577, 839 NYS2d 765 [2d Dept 20071; Luckejt v Bnuch, 17 AD3d 41 1,792 NYS2d 624 [2d Dept 20051; ElJky v Harris, 301 AD2dt624, 754 NYS2d 59 [2d Dept 20031). In any event, the medical reports of the plaintiffs radiologists statle that the plaintiff suffers from multilevel degenerative disc disease in his spine. Further, Dr. Panasci states in his report that tliere was no change in findings between the plaintiffs prior MRIs of his cervical and lumbar regions performed on October 9,2009, and the MRIs taken of the same areas after the subject accident on December 22,2009 (see Deperm v Sylla, supra). Thus, the plaintiffs medical evidence fails to demonstrate that he sustained an injury within the meaning of the Insurance Law as a result of the subject collision (see Lnrrnbee vBrnds/znw,96 AD3d 1257,947 NYS2d 659 [3d Dept 20121; Picott v Lewis, 26 AD3d 319,809 NYS2d 541 [2d Dept 20061). Finally, the plaintiff failed to submit competent medical evidence demonstrating that he was rendered unable to perform substantially all of his normal daily living activities for at least 90 days of the 1801 days iy immediately following the accident (see Parise v New York Ct Tr. A d z . , 94 AD3d 839,941 NYS2d 868 [2d Dept 20121; Lnnznrorze v Goldmnn, 80 AD3d 667, 915 NYS2d 144 [2d Dept 20111; Hemsley v Veutrrrn,50 AD3d 1097,857 NYS2d 642 [2d Dept 20081). Accordingly, the Lewis defendants motion for sumniary judgment and the DiMartini defendants cross motion for summary judgment dismissing the plaintiffs complaint on the ground that the plaintiffs injuries failed to meet the serious injury threshold requirement are granted. Having determined that the plaintiff failed to sustain a serious injury within the meaning of the Insurance Law, the Court, sua sponte, grants summary judgment dismissing the complaint again,st the defendant Cruz (see CPLR 321 2 [b]). The DiMartini defendants and the defendant Cruz s motions seeking summary.iuclgmentin their favor on the issue of liability are denied, as moot. The defendant Cruz s mLotion [* 7] Werthner v Lewis Index No. 10- 1 1344 Page No. 7 for an order compelling the plaintiff to provide the documents and information requested in the supplemlental notice of discovery dated August 10, 201 1 also is denied, as moot. The f oregoing constitutes the Order of this Court. Dated: March 8,2013 Riverhead, NY FINAL DISPOSITION X NON-FINAL DISPOSITION

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.