Hur v Lease Plan USA Inc.

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Hur v Lease Plan USA Inc. 2013 NY Slip Op 32089(U) August 28, 2013 Supreme Court, Suffolk County Docket Number: 11-34693 Judge: Peter Mayer 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] INDEX NO. 11-34693 SHORT :ORM ORDER SUPREME COURT - SI'ATE OF NEW YORK I.A.S. PART 17 - SlJFFOLKCOUNTY PRESENT: Hon. MOTION DATE 6-18-13 ADJ. DATE Mot. Seq. # 002 - MD PETER H. MAYER Justice of the Supreme Court MICHAEL S. LANGELLA, P.C. Attorney for Plaintiff 888 Veterans Memorial Highway, Suite 410 Hauppauge, New York 11788 SUHYUN HUR, Plaintiff, - against - NANCY R. WEINER, ESQ. Attorney for Defendants 734 Franklin Avenue, Suite 644 Garden City, New York 11530 LEP.SE PLAN USA INC. and ROBERT S CF[NAIER, Defendants. i Upon the reading and filing of the following papers in t i s matter: ( I ) Notice of Motion/Order to Show Cause by the defendznt, dated May 20. 2013, and sulpporting papers (1-8); (2) Notice of Cross Motion by the , dated , supporting papers; (3) Affirmition in Opposition by the plaintiff, dated May 23,2013, and :;upporting papers 9-19; (4) Reply Affirmation by the defendant, dated June 17,20 13, and supporting papers 20-2 1; (5) Other 22 by p aintiff-Mem. of Law (~ ); and now m - UPON DUE I>ELIBERATION AND CONSIDERATION BY THE COURT of the foregoing paper:;, the motion is decided as follows: it is ORDERED that this motion by defendants, Lease Plan USA and Robert Schnaier, brought prior to the filing of the note of issue, pursuant to CPLR 32 12 for summary judgment dismissing the complaint on the basis that the plaintiff, Suhyuii Hur, has not sustained a serious injury as defined by Insurance Law $510; (d), is denied. In this action premised upon the alleged negligence of the defendants, Lease Plan USA and Robert Schnaier, the plaintiff; Suhyun Hur seeks damages for pzrsonal injuries alleged to have been sustained in a motor vehicle accident on July 20, 201 0, at or near exit 3 1 eastbound Cross Island Parkway near Northern Boulevard, Queens New York. The plaintiff was a passmger in a host vehicle which was struck by the defendants' vehicle operated by Robert Schnaier and owned by Lease Plan USA, Inc. The defendants now seek summary judgment dismissing the plaintiffs complaint on the basis that he did not sustain a serious injury as defined by Insurance Law 55 102 (d). [* 2] Hur v Lease Plan USA, Inc. Index No. 1 1 -34693 Page N o . 2 The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidexe to eliminate any material issues of fact from the case (Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]). To grant sumrr aly case judgment it must (clearlyappear that no riaterial and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has t h e initial burden of proving entitlement to summary judgment (Winegrad v N Y. U. Medical Center, 64 NY2d 85 1,487 NYS2d 3 16 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Wi,uegradv 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 in admissible form ...and must show facts sufficient to f require a trial of any issue of fact (CPLR 3212[b]; Zuckerman v City o New York, 49 NY2d 557,427 NYS2d 595 [ 19801). The opposing party must assemblt:, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 19811). In support of this motion, the defendants have submitted, inter alia, an attorney s affirmation, copies of the summons and complaint, defendants answer, and plaintiffs verified bill of particulars; and unsigned and uiicertified copy of the transcript of the plaintiffs examination before trial which is not in admissible form (seeMartinez v 123-16 Liberty Ave. Realty Corp.: 47 AD3d 901, 850 NYS2d 201 [2d Dept 20081; McDonald v Maus, 38 AD3d 72 7, 832 NYS2d 291 [2d Dept 20071; Pina v FIik Intl. Corp., 25 AD3d 772, 808 NYS2d 752 [2d Dept 2006]), is not accompanied by an affidavit or proof of service pursuant to CPLR 3 1 16; a photograph; and the sworn report of Michael J. Katz, M.D. concerning his independent orthopedic examination of the plaintiff. Pursuant to Insurance Law 5 5 102 (d), [s]erious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or memtler; significant limitation of use of a body function or system; or a medically determined injury or impai :ment of a non-permanent 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 immedis,tely following the occurrence of the injury or impairment . The term 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 ( urtailed from performing his usual activities to a great extent rather than some slight curtailment (Licari v 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 serious injury as defined by Insurance Law § 5102 (d:l, the initial burden is on the defendant to present evidence in competent 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 aprima facie case that such serious injury exists (DeAngelo v Fidel Corp. Services, Inc., 171 AD2d 588, 567 NYS2d 454, 455 [lst Dept 19911). Such proof, in order to be in c:ompetent or admissible form, shall consist of affidavits or affirmations (Pagan0 v Kingsbury, 182 [* 3] Hur v Lease Plan US 4, Inc. Index NO. 11-34693 Page Y o . 3 AD2cl 268, 587 NYS2d 692 [2d Dept 19921). The proof must be viewed in a light most favorable to the non-moving party, here the plaintiff (Cammarere v Villmova, 166 AD2d 760, 562 NYS2d 808, 810 [3d Dept 19901). 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 [2001]). To prove the extent or degree of physical limitation with respect to the permanent consequential limitation of use of a body or $an or member or significant limitation of use of a bodiy. function or system categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the qualitative nature of plaintiffs limitations, with an oblective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (Tbure v Avis Rent A Car Systems, Inc., 98 NY2d 345,746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, supra). By way of her bill of particulars, the plaintiff alleges that as a result of this accident, she sustained injuries consisting of C2-3 small central disc herniation indenting the thecal sac; C3-4 small central disc herniation indenting the thecal sac; C4-5 central and slightly left paracentral disc herniation indenting the thecal sac; C5-6 moderate left paracentral and foramina disc herniation compressing the thecal sac which indirectly compresses the cord with mild spinal stenosis and proximal left neural foraminal encroachment; C6-7 large extruded left paracentral and foramina disc herniation compressing the thecal sac and left ventral aspeci of the cord and impinging upon the left C7 nerve root with left sided neck pain with radiation down the left upper extremity into the thumb with numbness; -ight foramina disc herniation at L4-5 contacting the right 1,4 nerve root, right paramedian posterior protruded disc herniation at the L5-S 1 level coming in contact with the right S 1 nerve roots in the lateral recess, minimal retrolisthesis L5-S 1 with a small central disc herniation with electro-diagnostic evidence of peroneal neuropathy bilaterally and absent H reflex on the lelt with right low back pain with radiation down the right lower extremity to approximately the ankle level; left shoulder tendinopathy supraspinatus and infraspinatus with articular fraying of both tendons more noted at the infraspinatus; left wrist severe arthrosis b a d joint of the thumb, insertional abductor pollicis longulj tendinosis, low grade intra substance tear and ovlxlying soft tissue edema; Torado 60 mg. IM trigger point injections on 8/18/10, 9/11/10, and 10/16/10; acute severe sprairdstrain of the cervical spine with severe pain and stiffness in the neck and upper back reg1 ons, aggravated by all head or neck motions with radiation of pain from the neck down the cervical, thoracic, and lumbar regions of the spine resulting in limitation of motion of the head and neck and generalized weakness; acute severe sprain of the lumbar spine with radiculitis and nerve root irritation right and left lower extremity, accompanied by severe pain, tendeiness and stiffness in the middle and lower back regions, resulting in the inability to bear and lift weight, with limitations of rotation, flexion, and extensi m ; abnormal electrocardiogram and echoc ardiogram. lJpon careful review and consideration of the evidentiary submissions, it is determined that the defendants have not established prima facie entitlement to summary judgment dismissing the complaint on the basis that Suhyun Hur did not sustain a serious injurq as to either category of injury as defined by Insurance Law 5 5 102, (d). It is further determined that the defendants moving papers raise triable issues of fact Nhich preclude summawjudgment. [* 4] Hur v Lease Plan USA, Inc. Index No. 11-34693 Page No. 4 The defendants have failed to support their motion with copies of the many medical records and test results for the MRI and CT studies of the plaintiffs cerdical and lumbar spine, and MRIs of the left wrist and left shoulder; and the EMGhJCV report reviewed ky the defendants examining physician, Dr. Katz, and set forth in his report, leaving this court to speculate as to the contents and findings in those records and reports. The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which were not in evidence, and that the expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025,919 NYS2d 179 [2d Dept 201 11; I).karzuillov Isom, 277 AD2d 362,716 NYS2d 98 [2d Dept 20001; Stringile vRothman, 142 AD2d 637, 530 NYS2d 838 /2d Dept 19881; O Shea v Sarro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841; Hornhrook v Peak Resorts, Inc. 194 Misc2d 273,754 NYS2d 132 [Sup Ct, Tomkins Clounty 20021). It is further noted that Dr. Katz has not provided a copy of his curriculum vitae lo qualify as an expert to render opinions in this matter. Thus, defendants application is insufficient as a matter of law. Although the plaintiff has alleged she suffered radiculopathy as demonstrated by the EMG/NCV testing, Dr. Katz does not report onthe findings and no report from an examining neurologist has been submitted by the defendants to rule out such injury (Browdame v Candura, 25 AD3d 747, 807 NYS2d 658 [2d Dept 20061; Rodriguez v Schickler, 229 AD2d 326, 645 NYS2d 3 1 [ 1st Dept 19961, Iv denied 89 NY2d 810,656 NYS2d 738 [19917]). Dr. Katz has diagnosed the plaintiff with cervical sprain with radiculopathy-resolved; status post left shoulder tendinopathy by history-resolved; left wrist basal joint arthritis preexisting and unrelated to the event of July 20,201 0; thoracolumbosacral strain with radiculitisresolved; and left shoulder contusion. However, he does not set forth a basis for his determination that the plaintiffs cervical or lumbar radi culopathy has resolved, raising factual issues to further preclude summary judgment. Disc herniation and limited range of motion based on objective findings may constitute evidence of serious injury (Jankowsky v Smi,th, 294 AD2d 540,742. NYS2d 876 [2d Dept 20021). Dr. Katz does not opine as to the cervical and lumbar MRI findings and whether or not the plaintiff sustained herniated discs as a result of this accident. Notably absent from Dr. Katz s report is any comment ruling out the claimed cervical and lumbar disc herniations, although he opined that the radiologic studies indicate degenerative changes. He does not indicate the basis for his opinion that the changes are degenerative. He does not indicate the duration, or causes o F such changes, and whether or not such changes and conditions predate the subject accident (Dufel v Green, 84 NY2d 795,622 NYS2d 9000; Carmona v Youssef, 27 Misc3d 1238(a) 910 NYS2d 761 [Sup. Ct. Queens County 2010]), precluding summary judgment. It is noted that the defendant s examining physician did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering the defendant s physician s affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident (Blanchard v Wilcox, 283 AD2d 821,725 NYS2d 433 [3d Dept 20011; Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 [ 1st Dept 20061; Toussaint v Claudio, 23 AD3d 268,803 NYS2d 564 [ 1st Dept 2005]), and the expert offers no opinion with regard to this category of serious injury (see Delayhaye v Caledonia Limo & Car Service, Inc., 61 AD3d 814, 877 NYS2d 438 [2c Dept 20091). [* 5] Hur v Lease Plan USA, Inc. Index No. 11-34693 Page No. 5 Additionally, although the defendant has not submitted an admissible copy of the plaintiffs transcript of her examination before trial, the plaintiff references it in her opposing papers. The plaintiff testified that she worked as an assistant teacher at the Montessori School in Stony Brook, in September 2010. she changed classrooms following the accident as she could not lift up the gym equipment. In the classroom, she could not lift the two year old children. Immediately after the accident, she felt neck pain, stiffness in her neck, and a headache and was treated in the emergency room. Thereafter, she treated with Dr. Hussain for pain in her neck, lower back, right anklz, and numbness from her neck into her left arm and hand, which she still experiences. She also has pain that radiates from her back into both legs. She had three injections for the pain in her neck and thumb. She saw Dr. Sathi who recommended surgery for her neck. She had a second opinion with Dr. Epstein who also recommended that she have neck surgery. She also received acupuncture and massage therapy for four months with Dr. Wu. She had physical therapy for two months, two days a week. She used the TENS unit for several months, had neck traction, a neck brace and a back brace. She takes Lyrica for the pain daily. She feels better when she does not do anything, and experiences pain with activities. She developed cardiac: problems after the accident and had cardiac ablation. Prior to the accident, she ran three times a week for two hours, but has not been able to run since. She also walked and made jewelry, but can no longer engage in those activities due to the pain in her neck. She is unable to vacuum, unload the dishwasher, garden, read, or go to the hair salon. The plaintiffs testimony raises factual issues with Dr. Katz opinion that the plaintiff is capable of her full time work and activities of daily living. Thus, the defendants failed to demonstrate entitlement to summary judgment on this category of injury as well. It is therefore determined that the defendants have failed to demonstrate their entitlement to summary judgment on either category of injury defined in Insurance Law 8 5 102 (d) (see Aguthe v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [20061); see also Wulters v Papunastussiou, 3 1 AD3d 439, 8 19 NYS2d 48 [2d Dept 20061). Inasmuch as the moving parties have failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of serious injury within the meaning of Insurance Law 5 5 102 (d), it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see Yong Deok Lee v Singh, 56 AD3d 662, 867 NYS2d 339 [2d f Dept 20081); Kruyn v Toreflu,40 AD3d 588, 833 NYS2d 406 [2d Dept 20071; Walker v Village o Ossining, 18 AD3d 867, 796 Nk S2d 658 [2d Dept 20051). However, even if the court were to review the plaintiffs opposing papers, it is determined that the plaintiff has raised factual issues which would preclude summary judgment. The affirmed reports of Dr. Fredrick A. Mendelsohn, by way of the EMG/NCV report demonstrates the the H-reflex studies indicate that the left tibial H-reilex has no response; that the right peroneal motor nerves showed decreased conduction velocity, and the 1,ighttibial motor nerve showed decreased conduction velocity. There was no response in the left superficial peroneal sensory and right superficial peroneal sensory nerves in the lower leg. His interpretation of the plaintiffs left shoulder MRI confirms diffuse tendinopathy and spraying of the supraspinatus and infraspinatus with AC joint arthropathy, with capsular scarring. Dr. Elizabeth P. Maltin, 1vl.D. set forth in her affirmed report that the plaintiffs MRI of the lumbar spine revealed right foraminal disc herniation at L4-5 clmtacting the right L4 nerve root; minimal retrolisthesis at L5-S 1 with small central disc herniation. As to the cervical MRI, she diagnosed small disc herni3tions at C2-3, C3-4, C4-5, left paracentral and foraminal disc herniation at C5-6 with cord flattening [* 6] Hur v Lease Plan USA, Inc. Index No. 11-34693 Page Bo. 6 and mild spinal stenosis. There is a large extruded left paracentral and foraminal disc herniation at (26-7 with cord flattening, spinal stenosis and left C7 nerve root impingement. Dr. Nancy E. Epstein, M.D. has affirmed in her report that upon her examination of the plaintiff and review of the MRI and electro diagnostic studies, she has recommended that Ms. Hur undergo anterior cervical corpectorny, partial at C.5, total at C6, partial at C7, and complete and total major discectomy at C5-6, C6-7, with resection of disc/spondylostenosis/OI LL with left iliac crest autograft placement. Dr. Alex Rosioreanu, M.D. affirms that his review of the plaintiffs lumbar MRI of November 1, 201 1, reveals right foraminal protruded disc herniation at the L4-5 level coming in contact with the exiting right L4 nerve roots; right paramedian posterior protruded disc herniation at the L5-S 1 level coming in contact with the right S 1 nerve rloots in the lateral recess. He added that the disc herniation is now larger than on the MRI of August 20 10,. Dr. Con0 W. Gallo, M.D. set forth in his affirmation that the MRI of November 2, 201 1 of the plaintiffs left wrist demonstrateld severe arthrosis basa:.joint of the thumb; insertional abductor pollicis longus tendinosis, low-grade intra substance tear and overlying soft tissue edema. Dr. David Beneliyahu, D.C. set forth in his affidavit the range of motion findings and restrictions he found upon examining the plaintiffs cervical and lumbar spine, as compared to the normal ranges of motion, as recently as December 10, 2012. It is his opinion that based upon his record of treating the plaintiff and review of all her diagnostic tests, and the duration of her symptoms and restrictions in ranges of motion, that she has sustained a permanent consequmtial limitation of her musculoskeletal system as a result of the subject motor vehicle accident, and that she had a category 4 impairment of both the cervical and lumbar spines. These reports submitted hy the plaintiff in opposition to defendants motion for dismissal raise factual issues which preclude summary judgment from being granted. * Accordingly, motion (002) is denied. Dated:

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