Roque-Polanco v Rodriguez

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Roque-Polanco v Rodriguez 2013 NY Slip Op 32135(U) September 9, 2013 Supreme Court, New York County Docket Number: 111000/2011 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] SCANNED ON 911112013 EME COU F THE STAT OF NEW YOR NEW YORK COUNTY R PRESENT: PART 2 2 Justice Index Number : 111000/2011 ROQUE-POLANCO, PEDRO vs. RODRIGUEZ, PEDRO A. SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits - '5 ,were read on this motion tolfor 51- k% - Exhibits IVI (No(s). -Affidavits - Exhibits 5c(.lO Li 5 1 I L1YL: * (No(s). IN o w 3 , Replying Affidavits Upon the foregoing papers, it is ordered that this motion is f FILE 0 CASE DISPOSED pf NON-FINAL DISPOSITION CHECK AS APPROPRIATE: ........................... MOT~BN 0GRANTED is: PENIED 0GRANTED iN PART OTHER CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE I. CHECK ONE: 2. 3. i ..................................................................... [* 2] SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YO=: PART 22 Index No.: 111000/11 Motion Seq 01 Pedro Roque-Polanco and Carlina Valenzuela, Plaintgfs, -against- Pedro A. Rodriguez and Excellent Auto Trans. Corp., Defendants. DECISION/ORDER HON. ARLENE P. BLUTH, JSC Defendants motion for summary judgment dismissing this action on the grounds that ..\.. . . -... plaintiff Pedro Roque-Polanco did not sustain a serious injury within the meaning of Insurance Law $5012(d) is denied. FILED In this action, plaintiff alleges that on Dec&%lSr $,l2a@he sustaihed personal. injuries when his vehicle was struck by defendants vehiclq & @ K m g $ o COUNTY go around a double- parked vehicle. 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 [1992]). 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 [lstDept 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 8 18 [1St Dept 201 01, citing Pommells v Page 1 of 5 [* 3] Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summary judgment 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 Mahlah, 2009 N Y Slip Op 43 [lstDept]). 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 Shim, 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 Sys., 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 the verified bill of particulars, plaintiff claims, inter alia, he suffered injury to his left shoulder (and had arthroscopic surgery to repair a partial cuff tear) and neck (exh B to moving papers). In support of their motion, defendants submit the 1/29/12 affirmed medical report of Dr. Eisenstadt (exh C), a radiologist who reviewed MRIs of plaintiffs left shoulder and cervical Page2of 5 [* 4] spine taken approximately two months after the accident and determined that both scans showed a normal study. Defendants also submit the affirmed report of Dr. Montalbano, an orthopedist (exh D), who conducted an examination of plaintiff on 4/13/12 and found that while plaintiff had some limitations of range of motion in his left shoulder, he attributed this to voluntary muscle guarding; he reported that range of motion in other areas were normal. Additionally, Dr. Montalbano opined that although plaintiff had shoulder surgery, there was nothing in the surgeon s notes that would suggest the injury was caused by the motor vehicle accident, but instead was necessitated by a preexisting condition of subacromial impingement. Finally, Dr. Montalbano noted that plaintiff has a structurally normal spine, and that disc bulging is a normal condition, and not the result of a traumatic event. In support of that branch of the motion dismissing plaintiffs 9011 SO-day claim, defendants cite to plaintiffs deposition transcript wherein he testified that he returned to work two days after this accident (exh K, T. at 97), noting that this contradicts his earlier testimony that he was confined to home for two months after the accident (T. at 92-93). 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 he sustained a serious injury. In opposition, plaintiff submits, inter alia, the affirmed report of Dr. Santos who examined plaintiff one day after the accident and noted that he complained of neck pain, left shoulder and forearm pain and headaches. Dr. Santos examined plaintiff on 211 7/11 , 4/7/11, 8/4/1 I , 1 1/10/11, 12/29/11 and 1/26/12, and opines that his shoulder and cervical injuries, which continue to date and are permanent, are causally related to the subject accident. Additionally, Page3of 5 [* 5] plaintiff submits the affirmed report of Dr. Seldes, an orthopedic surgeon, who first examined plaintiff on May 4,20 1 1 and then performed a procedure on plaintiffs left shoulder on August 29,20 1 1. Dr Seldes states that at the time of the procedure he observed evidence of trauma (tears, impingement and inflammation), and these findings, along with the fact that plaintiff had no symptoms before the accident, leads him to conclude that plaintiffs shoulder injury was caused by the accident and was not due to a degenerative condition. He further states that plaintiff still has only limited use of his left shoulder and neck. In reply, defendants s counsel asserts that it appears that the affirmations from Dr. Seldes and Dr. Santos were drafted by plaintiffs counsel, and as such are conclusory and are insufficient to raise a triable factual question. This Court disagrees; both affirmations address plaintiffs examinations, treatment and diagnostic testing in great detail. Through his doctors reports and findings, plaintiff has raised an issue of fact as to whether he sustained a serious injury as a result of the subject accident. It is up to the jury to decide which doctors to believe. The Court notes that in opposition plaintiff has not demonstrated that he has a medically determined injury restricted him from performing substantially all of his daily activities to a greater extent rather than some slight curtailment. See Thompson v Abbusi, 15 AD3d 95,788 NYS2d 48 (1 Dept 2005). Therefore, as plaintiffs injuries do not fall under the 90/180 category of serious injury as defined by the Insurance Law, defendants motion for summary judgment must be granted as to any claim premised upon that category. However, as set forth above, the motion must otherwise be denied because plaintiff has met his burden of raising a triable issue of fact as to the significant limitation of use of a body function or system category of section 5012 (d) of the Insurance Law. Accordingly, defendants motion for summary judgment dismissing this action on the Page 4 of 5 [* 6] grounds that plaintiff Pedro Roque-Polanco did not sustain a serious injury within the meaning of Insurance Law $5012(d) is denied. However, said plaintiffs 90/180-day claim is dismissed. This is the Decision and Order of the Court. fl Dated: September New York, HON. ARLENE P. BLUTH, JSC 1 FILED j i SEP I 1 2013 ! i RNYORK CCERKS~FFICE Page5of 5

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