Cary v Brown
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Cary v Brown 2013 NY Slip Op 31127(U) May 16, 2013 Supreme Court, Suffolk County Docket Number: 10-2419 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. 10-24 19 12-023 1 1MV CAL No. SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: I Ion. I-IECTOR D. LaSALLE Justice of the Supreme Court 1-22-1 3 MOTION DATE ADJ. DATE 4-1 6-13 Mot. Seq. # 001 - MD THE SICURANZA LAW FIRM, LLC Attorney for Plaintiff 445 Broad Hollow Road, Suite 25 Melville, New York 1 1747 PICCIANO & SCAHILL, P.C. Attorney for Defendant 900 Merchants Concourse, Suite 3 10 Westbury, New York 1 1590 lipon the rollowing papers numbered 1 to a r e a d on this motion for sumrnary iudgment; Notice of Motion] Order to Show Cause and supporting papers (001) 1 - 9; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 10-20; Rcplying Affidavits and supporting papers 21-22; Other -; ( A tmtim) it is, ORDERED that motion (001) by the defendant, Danielle M. Brown, pursuant to CPLR 3212 for suniniary judgment dismissing the complaint on the basis that the plaintiff, Carol A. Cary, did not sustain a serious iti-iury cis defined by Insurance Law 5 102 (d) is denied. This negligence action arises out ofa motor vehicle accident wherein the plaintiff, Carol A. Cary, seeks da111ages for personal injuries claimed to have been sustained on September 7, 2009, on Route 1 12 at or near its iiiterscction with Hallock Avenue, in Port Jefferson Station, New York, when the vehicle operated by the defendant, Danielle M. Brown, struck the plaintiffs vehicle in the rear while the plaintiffwas yielding the right of \I ay to an ambulance at the intersection. The dcrendant seeks summary judgment dismissing the complaint on the basis that Carol A. Cary did not sustain a scrious injury as defined by Insurance Law 5102 (d). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as H matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends ofArtinids v Associated Fur M r . 46 NY2d 1065, 416 NYS2d 790 [1979]). To grant summary fs, judgment it must clearly appear that no material and triable issue of fact is presented (Sillmait v Twentieth Ceriti~~j~-F~.~ Film Corporatiorz, 3 NY2d 395, 165 NYS2d 498 [ 19571). The movant has the initial burden of proving cntitlcment to summary judgment (Winegrad v N. Y. U. Medical Center, 64 NY2d 85 1, 487 NYS2d [* 2] Cary Y Brown Index No. 09-24 19 Page No. 2 3 1 6 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y. U. Medical Center, supra). 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 i n admissible form ...and must show facts sufficient to require a trial of any issue of fact (CPLR 3212Lbl; Zirckernian 1 City o New York, 49 NY2d 557,427 NYS2d 595 [1980]). The opposing party must f assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable ofbeing established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 19811). Pursuant to Insurance Law 9 5 102 (d), [s]erious injury means apersonal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, niember. 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 nonperniancnt nature which prevents the injured person from performing substantially all of the material 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. The tcrni 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 curtailed f?om performing his usual activities to a great extent rather than some slight curtailnient (Licariv Elliot. 57 NY2d 230,455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of sel-ious iii.jurj as detined by Insurance Law 9 5102 (d), the initial burden is on the defendant to present cvidence in compctenf form, showing that plaintiff has no cause of action (Rodriquez v Goldstein, 182 AD2d 396.582 NYS2d 395, 396 [lst Dept 19921). Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists (DeArtgelo v Fidel Corp. Services, inc.. 171 AD2d 588,567 NYS2d 454,455 [lst Dept 19911). Such proof, in order to be incompetent or admissible form, shall consist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 19921). The proof must be viewed in a light most favorable to the non-moving party, here the plaintifl (Cni.r?~rnrere Villanova, 166 AD2d 760, 562 NYS2d 808, 810 [3d Dept 19901). v In order to recover under the permanent loss of use category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance Inc., 96 NY2d 295, 727 NYS2d 378 (20011). 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 significant limitation of use of a body function or system categories. either a specific percentage of the loss of range of motion must be ascribed or there must hc a suI ficient description of the qualitative nature of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (Toure v Avis Rent A Cur Srsfe/.rts, Inc.. 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considcrcd insignificant within the meaning of the statute (Licari v Elliott, supra). By \iq of her verified bill of particulars, the plaintiff alleges that she sustained injuries consisting of rc\rersalo f norinal cervical lordosis, disc space narrowing with anterior osteophyte ridging most prominent at C4-5, C5-6; subluxation at C2-3 and C3-4; loss of height at the C5 and C6 vertebral bodies; bulging disc at C34 n ith osteophytic ridging of the right uncovertebral joint; hypertrophic degenerative changes of the right facet [* 3] cary v Bro\vn Index No. 09-241 9 Page No. 3 joint \vi th moderate right foramina narrowing and mild impingement upon the right ventral subarachnoid space; diffuse disc bulging associated with osteophytic riding at C4-5 with a small superimposed right parasagittal disc herniation with mild cord impingement and moderate formainal narrowing bilaterally; diffuse disc bulging at CS-6 associated with osteophytic ridging resulting in narrowing of the AP diameter of the spinal canal with mild cord Ilattening to the left side and significant bilateral narrowing; and diffuse disc bulging at C6-7 associated with osteophytic ridging and moderate foramina narrowing bilaterally with narrowing of the AP diameter of the spinal canal with slight cord impingement centrally. I n support of this application, the defendant has submitted, inter alia, an attorney s affirmation; copies ol the pleadings; plaintiff s verified bill of particulars; the reports of Edward J. Toriello, M.D. concerning his indepcndcnt orthopedic examination of plaintiff on June 14,201 1, Beatrice C. Engstrand, M.D. concerning her independent neurological examination of plaintiff on June 30,201 I , and Stephen W. Lastig. M.D. dated June 1. 201 1 concerning his interpretation of the plaintiffs MRls of her cervical spine dated September 2 1,2009; and tlie transcript of the plaintiffs examination before trial dated May 1 1, 20 1 1. I t is determined that the defendant has not established prima facie entitlement to summary judgment dismissing the complaint on the basis that Carol A. Cary did not sustain a serious injury. The defendant failed to support this motion with the medical records and initial test results for the MRI studies of the plaintiffs cervical spine and right hip, CT of the cervical spine, as well as the medical and hospital records which the evaniining orthopedic and radiological expert physicians reviewed and upon which they base their expert opinions i n part, leaving it to the court to speculate as to the contents of those records and MRI and CT scan reports. The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which w r e not in evidence, and that expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 201 11; Mnrzuillo vIsom, 277 AD2d 362,716 NYS2d 98 [2d Dept 20001; Stvingile v Rothmnn, 142 AD2d 637, 530 NYS2d 838 [2d Dept 19881; O Shen v Sarro, 106 AD2d 435,482 NYS2d 529 12d Dept 19841). Dr. Toriello stated that the plaintiff had a prior right total kip replacement with no past medical history and continues to coinplain of numbness and paraesthesis in the thumb, index finger, and middle fingers of both hands, right \\ orse than left, and soi-eiiessin her neck. Upon examination, Dr. Toriello stated that tlie plaintiff had dccreased bilateral rotation of the cervical spine to 45 degrees, whereas the normal is 80 degrees. Whereas Dr. Toriello set forth that the normal cervical flexion is 50 degrees and extension is 60 degrees. Dr. Engstrand has sct forth the normal cervical flexion as 45 degrees and extension is 45 degrees, thus raising factual issues concerning which are the nornial values, as the experts differ in their opinions. Dr. Toriello raises credibility issues by stating that the range of motion examination is a subjective test under voluntary control of the indi~idunl being tested and that there are no objective findings that support the subjective decrease range of motion i n this case. However, the range of motion values are objectively determined with the use of a gonionietcr. thus raising factual issues as well as credibility issues to be determined by a jury (see Wuslrir~gton v Delossnntos, 44 AD3d 748,843 NYS2d 1 86 [2d Dept 20071; Lnlla v Connolly, 17 AD3d 322,79 1 N Y S2d 845 12d Dept 20051). Moreover, defendant s examining orthopedic surgeon failed to address plaintiffs claimed injuries of bulging discs. subluxation, and flattening and impingement of the spinal cord as alleged i n the plaintiffs bill of particulars (,\CY Hirglies v Cui, 3 I AD3d 385,8 18 NYS2d 538 [2d Dept 2006]), raising fhrther factual issues with regard to causalion. Dr. Engstrand does not address the plaintiffs claims of bulging discs or flattening and [* 4] Cary c Brolvll 111de~ 09-24 19 NO. Page No. 4 impingenieiitol the spinal cord as pleaded by the plaintiff, and she does not rule out that such in-jurieswere caused by the sulject accident. Nor does Dr. Engstrand address the plaintiffs complaints ofnuinbness i n her hands and hethcr such condition is causally related to the subject accident. Dr. 1 astig lias submitted his review of the CT of the plaintiffs cervical spine of September 21, 2009 but has not reviewed the MRI films of tlie plaintiffs cervical spines. In that the defendant has not submitted copies of the original reports pertaining to the plaintiffs cervical CT and MRI studies, this court is left to speculate as to the contents of those reports, and if the defendant s expert is in agreement with the interpretation bjn the plaintiff s lreating radiologist, precluding summary judgment. Dr. Lastig indicated that there is unequivocal evidence of advanced multilevel degenerative disc disease and degenerative spondylosis, however lie does not indicate the duration ofhis findings upon reviewing the CT films. Dr. Lastig opined that the endplate ostenph>tes and uncinate osteophytes indicate the presence of long standing degenerative hypertrophic ban!, ~~rocess \vliicli pre-dates the accident as the accident occurred only two weeks prior to the study. He does not gi\zc any basis tor his opinion that the multilevel disc pathology is degenerative in origin and does not indicate the duration of such condition, precluding summary judgment. Additionally, Dr. Lastig does not coninient upon the cervical CT scan of November 8, 201 1. Rased upon the foregoing factual issues and failure to support the application with the appropriate e idencc. i t is detcrniined that the defendant has failed to establish prima facie entitlement to summary \ jiidginent \+it11 regard to the first category of serious injury defined in Insurance Law 95102 (d). It is noted that the defendant s examining physicians did not examine the plaintiff during the statutory pcriod of 1 80 days following the accident, thus rendering the defendant s physicians affidavits insufficient to demonstrate entitlcment to summary judgment on the issue of whether the plaintiff was unable to substantially perform all nftlic material acts which constituted her usual and customary daily activities for a period in excess o f 9 0 days during tlie 180 days immediately following the accident (Bfanclzardv Wilcos, 283 AD2d 821,725 NYS2d 433 [3d Dept 20011; Uddin o Cooper, 32 AD3d 270, 820 NYS2d 44 [lst Dept 20061; Toussnint v Clndio, 23 AD3d 268, 803 NYS2d 564 [ 1st Dept 2005]), and the experts offer no opinion with regard to this categoq of serious injury (see Defaylzaye v CafedoninLimo & Car Service, Inc., 6 1 AD3d 8 14, 877 NYS2d 438 [2d Dept 20091). The plaintiff testified that she was employed by Eastern Suffolk BOCES. Part of her duties invol\vxt moving tlie classroom around and carrying books and packing and unpacking yearly. Prior to the accident. she babysat an autistic child and did medical billing to supplement her income. After tlie accident, she \vas not ablc to perform those income supplementing jobs, as she had to attend physical therapy and attend to doctnr s visits which took up time. Although she tried not to miss any time from work, she was late on occasion. as she was not doing well, and the situation was addressed by the principal. She cannot lift at work an) more. especially on the left side and has to even keep her pocket book on her right side. Shc cannot maintain position at thc computer for more than fifteen minutes due to sharp pains in her neck. It is noted in the plaintif l s opposing papers that she suffers from memory loss, fatigue, and discomfort in her neck with significant loss of range of motion in her neck and numbness in her fingers, dizziness and nausea. Thus. the dcf endant failed to dcmonstrate entitlement to summary judgment on this category of injury as well. The I ictua1 issues raised in defendant s moving papers preclude summary judgment. The defendant I ailcd to satisfy his burden of-establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning ol Insurance Law 5102 (d) (see Agcrtfze v Tuiz Clzen W m g , 98 NY2d 345, 746 NYS2d 865 [2006]); .wc rrlso IVnltevs v Papnnnstassiou, 3 1 AD3d 439, 819 NYS2d 48 [2d Dept 20061). Inasmuch as the [* 5] mo\ ing party I ailed lo establish prima facie entitlement to judgment as a matter of law in the first instance on the issuc of serious iii.jury within the meaning of Insurance Law $ 5102 (d), it is unnecessary to consider i\lietIier tlie opposing papers were sufficient to raise a triable issue of fact (see Yong Deok Lee v Singlz, 56 AD3d 662.867 NYS2d 339 [2d Dept 20081); Krayn v T o r e h , 40 AD3d 588,833 NYS2d 406 [2d Dept 20071: Il nlkcr 1 P //ngc o Ossirzirig, 18 AD3d 867, 796 NYS2d 658 [2d Dept 20051). f Accordingly, motion (00 1) by the defendant for summary judgment dismissing the complaint on the basis that the plaintiff did not suffer a serious injury as defined by Insurance Law $5 102 (d) is denied. l hc foregoing constitutes the Order of this Court. Dated: May 16,2013 Riverhead, NY H F . HECTOR D. LASALLE,J.S.C. . FINAL DISPOSITION X NON-FINAL DISPOSITION
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