Kester v Sendoya

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Kester v Sendoya 2013 NY Slip Op 32077(U) August 29, 2013 Supreme Court, New York County Docket Number: 101807/11 Judge: Arlene Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] .. - Answering Affidavits - Exhibits 2 z 0 v) Q Cross-Motion: w Ly: c3 0 Yes d No Upon the foregoing papers, it is ordered that this motion OLL FILED \ w- lL- u Q I b I E5 EL Lu SEP 0 6 2013 cc NEW YORK ~ u ~ c L E R ~ o ~ = ,-- Dated: [* 2] SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 22 Index No.:101807/11 Motion Seq 0% Kathryn Kester, Plaintiff, -against- L. . Luis Sendoya and George Cubas, F IL E 0 - , . ..* . D/WISION/ORDER t Defendant. SFP 0 - H 2 ~ NARLENE P. BLUTH, JSC . L 1 i NEW YORK 20uNn C E R a 0 - t Defendants motion for summary judgment dismis ng ;this action on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law $5012(d) is granted, and the action is dismissed. In this action, plaintiff alleges that on February 2,2010 she sustained personal injuries when defendants taxi struck her vehicle. Defendants original motion for summary judgment was denied by Justice Silver on January 17,2013 with leave to renew upon submission of a missing page from a doctor s report; additionally, the Court denied plaintiffs cross-motion for summary judgment on liability as untimely. Defendants now submit the missing page of Dr. Robbins report, explaining that the reason it took their office until July 2013 to do so is that the two attorneys previously assigned to this case both left the f r . i m Accordingly, the Court will now address the serious injury motion on the merits. To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a serious injury (see Rodriguez v Goldstein, 182 AD2d 396 [19921). Such evidence includes affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim (Shinn v Catanzaro, 1 AD3d 195, 197 [1st Dept Page 1 of 4 [* 3] 20031, quoting Grossman v Wright, 268 AD2d 79, 84 [lstDept 20001). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiffs injury was caused by a pre-existing condition and not the accident (Farrington v Go On Time Car Serv., 76 AD3d 818 [lstDept 20101, citing Pommells v Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summaryjudgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v Mahluh, 2009 NY Slip Op 43 [ 1'' Dept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id.). Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 AD3d at 197). A plaintiffs expert may provide a qualitative assessment that has an objective basis and compares plaintiffs limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiffs loss of range of motion (Toure v Avis Rent A Car S. s ', 98 NY2d 345,350-35 1 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiffs expert must address causation (see Valentin v Pomilla, 59 AD3d 184 [lstDept 20091; Style v Joseph, 32 AD3d 212, 214 [lstDept 20061). In her verified bill of particulars (exh. D to moving papers), plaintiff claims she sustained Page 2 of 4 [* 4] injuries to her cervical spine including the aggravation of pre-existing asymptomatic changes to C4-5, C5-6 and C6-7; carpal tunnel syndrome and a right rotator cuff tear which was surgically repaired on March 4,20 1 1. Defendants met their prima facie burden by submitting the affirmed reports of Dr. Fisher, a radiologist, who reviewed the MRI films of plaintiffs cervical spine taken three months after the accident and saw degenerative changes most pronounced at C5-6 and C6-7 but no evidence of trauma (exh E), and Dr. Robbins, an orthopedist, who found that plaintiff may have sustained a cervical soft tissue injury that has since resolved, and stated that her right shoulder surgery was necessitated by a pre-existing shoulder condition (exh F). Additionally, defendants cite to plaintiffs deposition testimony wherein she testified that she was not confined to her bed or home after the accident (exh H, T at 59-60). Based on the foregoing, defendants have satisfied their burden of establishing prima facie that plaintiff did not suffer a serious injury, and the burden shifts to plaintiff to raise a triable factual question as to whether she sustained a serious injury. In opposition, plaintiff submits, inter alia, various certified records from treating providers offices. Exhibit C contains records fkom Downtown Primary Care and exhibit D contains records from NYU Medical Center. To the extent that the medical opinions contained in exhibits are not affirmed, they were not considered. Even if these records had been submitted in admissible form, there is nothing to document that plaintiff ever told any medical provider that she injured her right shoulder in this accident. The only admissible medical evidence submitted by plaintiff is the affirmed report of Dr. Rose (exh E), an orthopedic surgeon who first examined plaintiff on 2/28/11 ,more than one year after the accident, and performed arthroscopic surgery on plaintiffs shoulder on 3/4/11. Thus, Page3of 4 [* 5] plaintiff has failed to present any admissible proof that she saw a medical provider for any evaluation of the shoulder injury she claims in her bill of particulars until one year after the accident. While the Court of Appeals in Per1 "reject[ed] a rule that would make contemporaneous quantitative measurements a prerequisite to recovery" (18 NY3d at 2 18), it confirmed the necessity of some type of contemporaneous treatment to establish that a plaintiffs injuries were causally related to the incident in question. See Rosa v Mejia, 95 AD3d 402, 943 NYS2d 470 (lstDept 2012). Dr. Rose's conclusory speculationthat plaintiffs torn rotator cuff was a traumatically induced injury directly related to the subject motor vehicle accident does not demonstrate causation, and is insufficient to defeat defendants' motion. Nor has plaintiff submitted any medical evidence to raise a triable issue of fact regarding plaintiffs claimed cervical spine injury or carpal tunnel syndrome. Accordingly, it is ORDERED that defendants' motion for summary judgment is granted, and this action is dismissed. This is the Decision and Order of the Court. Dated: August 29,2013 New York, New York Page 4 of 4

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