Lyons v Ogno

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Lyons v Ogno 2013 NY Slip Op 31993(U) August 16, 2013 Sup Ct, Suffolk County Docket Number: 26766-2009 Judge: Peter H. Mayer 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. 26766-2009 SHOK'T FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 17 - SUFFOLK COUNTY PRESENT: MOTION DATE 1- 10- 12 ADJ. DATE 1-8-13 Mot. Seq. # 003 - MD Hon. P E T E R H. MAYER Justice of the Supreme Court ............................................................... X PATTI LYONS and JEFFREY G. LYONS, Plaintiff(s), - against - FRANK V. OGNO, : Steven R. Zimmer, Esq. Attorney for Plaintiff 400 Town Line Road Hauppauge, New York 1 1788 Picciano & Scahill, P.C. Attorneys for Defendant 900 Merchants Concourse Westbury, New York 11590 IJpon the reading and filing ofthe following papers in this matter: (1) Notice ofMotion by the defendant, dated November 30, 201 1 , and supporting papers; (2) Affirmation in Opposition by the plaintiff, dated November 12, 2012, and supporting papers; (3) Reply Affirmation by the defendant, dated December 13,2012, and supporting papers; and now UPON IIUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that the defendant's motion (003), which seeks an order granting summary judgment pursuant to CPL,R $3212, is hereby denied; and it is further ORDERED that counsel for the movant shall promptly serve a copy ofthis Order upon counsel for the plaintiff, and shall promptly thereafter file the affidavit of such service with the County Clerk. This is an action to recover damages for injuries allegedly sustained by plaintiff, Patti Lyons, as a result of a motor vehicle accident that occurred on July 28,2006 in the southbound lane of County Road 83 at its intersection with Coram Mount Sinai Road. According to the plaintiff, she was stopped at a red light when the defendant's vehicle made contact with the rear of her vehicle. In her bill of particulars, plaintiff alleges that she sustained various lumbar and cervical spine injuries as a result of the subject accident. [* 2] Lyons v Ogno Index No. 26766-2009 Page 2 Defendant moves for summary judgment on the grounds that plaintiffs alleged injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law $5 102(d). In support of the motion, defendant submits a copy of the pleadings, plaintiffs deposition transcript, the August 22, 201 1 sworn medical report of neurologist, Dr. Mathew M. Chacko, the September 6,201 1 sworn medical report of orthopedist, Dr. Michael J. Katz, and two August 30,201 1 sworn medical reports of radiologist, Stephen W. Lastig. Defendant contends that the evidence submitted presents a prima facie showing of entitlement to summary judgment as a matter of law. Among the injuries alleged in the plaintiffs bill of particulars is posterior disc herniation at the C45 level, which is encroaching upon the ventral aspect of the thecal sac and lateral recesses bilaterally. The bill of particulars further alleges her injuries, including the cervical herniations at that level, are permanent in nature and the plaintiff suffers from ongoing pain, stiffness and discomfort as a result therefrom. In her affidavit in opposition, the plaintiff states that she continues to have neck and low back pain, the neck being worse, with the pain traveling down both arms. She also states that her daily activities cause pain or discomfort, which shortens the activity time and causes residual pain. In relevant part, CPLR §3212(b) provides that a motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. It is well settled that the remedy of summary judgment is a drastic one and there is considerable reluctance to grant summary judgment in negligence actions (Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable since it deprives a party of his day in court (Id; see also, Schwartz v Epstein, 155 AD2d 524,547 NYS2d 382 [2d Dept 19891; Henderson v Ct oflvew York, 178 AD2d 129, iy 576 NYS2d 562 [lst Dept 19911). Issue finding rather than issue determination is the key to the procedure (Sillman v Twentieth CenturyFox Film Clorp., 3 NY2d395,165NYS2d498 [1957]). Since summaryjudgment is theprocedural equivalent of a Irial, if there is any doubt as to the existence of a triable issue, or where a material issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor & Co., 3 1 NY2d 307, 338 NYS2d 882 [1982]); Rotuba v Cepcos, 46 NY2d 223, 413 NYS2d 141 [1978]; Freeman v Easy Glider Roller Rink Inc., 114 AD2d 436,494 NYS2d 35 1 [2d Dept 19851). Furthermore, the proof of the party opposing the motion must be accepted as true and considered in a light most favorable to the opposing party (Dawsey v Megerian, 12 1 AD2d 497, 503 NYS2d 59 1 [2d Dept 19861; Museums at Stony Brook v The f Village o Patchogue Fire Department, 146 AD2d 572, 536 NYS2d 177 [2d Dept 19891; Matter of Benincasa v Garrubbo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [2d Dept 19881). In part relevant to this matter, Insurance Law $5102(d) defines a serious injury as a personal injury which results in . . . significant limitation of use of a body function or system . . . It 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 [2d Dept 19951; see also Toure 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 Ellioit, 57 NY2d 230, 455 NYS2d 570 [1982]; Porcano v Lehman, 255 AD2d 430, 680 [* 3] Lyons v Ogno Index No. ,26766-2009 Page 3 NYS2d 590 [2d Dept 19881; Nolan v Ford, 100 AD2d 579, 473 NYS2d 516 [2d Dept 19841, aff d 64 NYS2d 68 1,485 NYS2d 526 [ 19841). In order to recover under the limitation of use category, a plaintiff must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained (see Mugid v Lincoln Servs. (Jorp.,60 AD3d 1008,877 NYS2d 127 [2d Dept 20091; Lurujfu v Yui Ming Lau, 32 AD3d 996, 821 NYS2d 642 [2d Dept 20061; Cerisier v Thibiu, 29 AD3d 507, 815 NYS2d 140 [2d Dept 20061; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456, 797 NYS2d 773 [2d Dept 20051). A sufficient 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 may also suffice (see Toure v Avis Rent A Car Systems, Inc. , 79 NY2d 955,582 NYS2d 990 [ 19921; Dufer v Green, 84 NY2d 795,622 NYS2d 900 [ 19951).A minor, mild or slight limitation ofuse is considered insignificant within the meaning of the statute (see Licuri v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]). A defendant seeking summary 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 did not sustain a serious injury (see Toure v Avis Rent A Cur Sys., supra; Guddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [ 19921). Once defendant has met this burden, plaintiff must then submit objective and admissible proof of thenature and degree of the alleged injury in order to meet the threshold of the statutory standard for serious injury under New York s No-Fault Insurance Law (see Dufel v Green, 84 NY2d 795, 622 NYS2d 900 [ 19951;Puguno v Kingsbury, 182 AD2d 268,587 NYS2d 692 [2d Dept 19921). However, if a defendant does not establish aprima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see Burns v Stranger, 3 1 AD3d 360,8 19 NYS2d 60 [2d Dept 20061; Rich- Wing v Buboolul, 18 AD3d 726,795 NYS2d 706 [2d Dept 20051; see generally, Winegrud v New York Univ. Med. Ctr., 64 NY2d 85 1,487 NYS2d 3 16 [ 19851). In his August 22,20 1 1 report, defendant s orthopedist, Dr. Chacko, notes that the plaintiffs cervical ranges of motion were, in effect, normal. More specifically, he noted that with regard to cervical extension, plaintiffs range of motion was 60 degrees, whereas 60 is normal. Dr. Chacko found that there is no objective evidence of any neurological injuries noted on clinical examination and no objective clinical evidence of any neurological disability. He further noted that plaintiff is working and is capable of performing normal activities of daily living. Dr. Chacko concluded, however, that if the history is accurate, there is a causal relationship between the claimant s original symptoms and the accident of 7/28/06. Although Dr. C hako reviewed MRI reports, he did not read the cervical MRJ films themselves. In his September 6,201 1 report, defendant s neurologist, Dr. Katz, also noted that his examination of the plaintiff :i cervical spine revealed cervical extension to 60 degrees, with 60 degrees being normal. Dr. Katz s diagnosis was that the plaintiff did experience cervical and lumbosacral strains, which were resolved. Based on his examination, the review of records and the history as provided by the plaintiff, Dr. Katz concluded that it appears that the mechanism of injury is consistent with the injury sites described. As with Dr. Chacko, although Dr. Katz reviewed the MRI reports, he did not read the MRI films themselves. [* 4] Lyons v Ogno Index No. 26766-2009 Page 4 Defendant s radiologist, Dr. Lastig, did read the 9/15/2006 MRI study of the plaintiff s lumbar spine, as well ils the 9/12/2006 MRI study of the plaintiffs cervical spine. Among the findings in his August 30, 201 1 report regarding the MRI study of the lumbar spine, Dr. Lastig notes that at the L3-L4 level, there is a small shallow midline disc protrusion which mildly impresses upon the ventral thecal sac. In his summary regarding the lumbar films, Dr. Lastig concludes that in my opinion, the described disc pathology at both the L3-L4 and L4-S- 1 levels is most likely degenerative in origin and, therefore, unrelated to the accident of 7/28/2006. Among his findings with regard to review ofthe plaintiffs 9/12/2006 cervical MRI study, Dr. Lastig noted that [alt C4-C5, there is a small shallow right paracentral disc herniation which mildly impresses upon the ventral subarachnoid space. Posterior, left-sided spondylitic changes are seen at C5-C6 composed of osteophytic ridg,ing and annular bulging which impresses upon the ventral subarachnoid space. With regard to the C5-6 level, Dr. Lastig concluded that in my opinion, the described disc pathology at C5-C6 is degenerative in origin and, therefore, unrelated to the accident of 7/28/2006. The osteophytic ridging and uncinate osteophyte formation indicate the presence of a long standing degenerative hypertrophic bony process which, in my opinion, definitely pre-exist the accident of 7/28/2006 which occurred only six weeks prior to this imaging study. With regard to the C4-C5 level reading, Dr. Lastig confirmed that there is a small disc herniation at C4-C5 which impresses upon the ventral subarachnoid space, but does not compress the cervical cord. As a result, he recommended that [c]linical correlation is advised. Significantly, unlike his findings regarding the plaintiffs lumbar spine and the C5-C6 levels, Dr. Lastig does not opine that the disc herniation at C,4-C5 is not causally related to the 7/28/2006 motor vehicle accident. He also does not conclude that such herniation at the C4-C5 level is not related to the limited range of motion in the plaintiffs cervical spine. In opposition to the defendant s motion, plaintiff submits reports from the plaintiffs treating providers at Health 1 Medical P.C. On July 28,2006, the date of the accident, Dr. Raymond Ortiz of Health 1 Medical noted that the plaintiffs cervical spine active range of motion extension had a limitation of 40/50. The August 1,2006 examination performed by Dr. Stephanie Bayner of Health 1 Medical revealed limitation of 30/60 for the plaintiffs cervical spine extension testing. By report of September 13,2006, Dr. Ortiz again noted that plaintiffs cervical extension limitation was 40/50. Dr. Gary DiCanio of Health 1 Medical further noted that the plaintiffs August 23, 2007 cervical spine range of motion extension test showed a limitation of 50/60, and he opined that Mrs. Lyons [sic] condition is directly related to the accident. The ,4ugust 28, 2007 report executed by both Dr. DiCanio and Dr. Ortiz of Health 1 Medical P.C. concludes that [blased upon the history given by the patient and above objective findings, diagnostic testing including decreased range of motion, it is my opinion that as a direct result of the traumatic injuries sustained by Ms. Lyons on July 28, 2006, there were extremes of joint movement with concomitant overstretching of the supporting structures of the cervical ... spine. Based upon these findings, Dr. DiCanio and Dr. Ortiz concluded in their August 28,2007 report that the plaintiff sustained multiple cervical spine disc herniations which were causally related to the subject accident. In relevant part, these conclusions were based upon review of the plaintiffs 9/12/2006 cervical spine MRI films, which revealed posterior disc herniation at the C4-5 level encroaching upon the ventral aspect of the thecal sac and the lateral recesses bilaterally. [* 5] Lyons v Oguo Index No. 26766-2009 Prrge 5 The plaintiff also submits a November 30, 2012 report from Dr, Ortiz regarding his updated examination of !.he plaintiff. In his report, Dr. Ortiz again notes a limited range of motion in the plaintiffs cervical spine extension of 40/60, and states that Mrs. Lyons [sic] present condition is directly related to the accident. Dr. Ortiz concludes that Mrs. Lyons has sustained a permanent partial weakening of these regions with consequential limitation of use. Dr. Ortiz based his conclusions upon the history given by the patient and objective findings, as well as upon diagnostic testing including decreased range of motion. Although the defendant s experts report normal range of motion in the plaintiffs cervical region, neither Dr. Chacko nor Dr. Katz read the 09/12/2006 MRI studies of the plaintiffs cervical spine. While Dr. Lastig did read those films, he failed to state that the disc herniation at C4-C5 is not causally related to the 7/28/2006 motor vehicle accident, or that such herniation at that level is not related to the limited range of motion in the plaintiffs cervical spine. Therefore, the defendant has failed to make aprima facie showing of entitlement to judgment under Insurance Law 95 102(d), which precludes summary judgment in defendant s favor (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 [2002]; Straussberg , NYS2d [2d Dept 201 31). v Marghub, 2013 NY Slip Op 5442, -AD3d Even if the defendant had made a prima facie showing of entitlement to summary judgment, the plaintiffs treating providers have consistently reported limitations in plaintiffs cervical extension range of motion from the date of the accident up to and including November 30,20 12 when the plaintiff had an updated examination. Those contemporaneous and recent examinations, which revealed range of motion limitations of plaintiffs cervical spine extension, coupled her treating providers conclusions that the MRIconfirmed cervical herniations and range of motions limitations are causally related to the subject accident, present triable questions of fact (see Kanard v Setter, 87 AD3d 714, 928 NYS2d 782 [2d Dept 201 11; Awadh v Moronta, 86 AD3d 524,926 NYS2d 172 [2d Dept 201 I]). Furthermore, the conflicted findings between defendants s experts and plaintiffs treating providers regarding plaintiffs cervical range of motion -particularly when coupled with Dr. Lastig s failure to opine as to whether or not the plaintiffs C4-5 disc herniation is causally related to the accident - raise questions of fact concerning whether or not the plaintiffs C4-C5 herniation and reports of pain and other symptoms are causally related to the accident (see Pommells v. Perez, 4 NY3d 566,577-578,797 NYS2d 380 [2005]; Straussberg v Mavghub, 2013 NY Slip Op 5442, - AD3d ~, - NYS2d [2d Dept 20131; Osario-Salcedo v. A4azarova, 100 AD3d 976,954NYS2d 642 [2d Dept 20121; Awadh vMoronta, 86 AD3d 524, 926 NYS2tl 172 [2d Dept 201 I]). ~ Lastly, despite plaintiffs arguments to the contrary, plaintiff has provided an adequate explanation for the gap in her treatment history by explaining that she continued to treat at Health 1 Medical for almost 2 years on a regular basis and, after the no-fault carrier stopped paying her doctors, she treated when she was financially able to do so (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005];Awadh v Moronta, 86 AD3d 524,926 NYS2d 172 [2d Dept 201 1I; Evans v Pitt, 77 AD3d 61 1,908 NYS2d 729 [2d ) Dept 20101; Delorhe v Perez, 59 AD3d 491, 873 NYS2d 198 [2d Dept 20091; Black v Robinson, 305 A.D.2d 438, 7551 NYS2d 741 [2d Dept 20031). [* 6] Lyons v Ogno Index No. 26766-2009 Page 6 Based upon the foregoing, the defendant's motion for summary judgment is denied. Dated: August 16, 20 13 PETER H. MAYER, J.S.C. [ ] FINAL DISPOSITION ' [ X ] NON FINAL DISPOSITION

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