Fishburne v State of New York

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Fishburne v State of New York 2013 NY Slip Op 33971(U) September 25, 2013 Court of Claims Docket Number: 119146 Judge: Judith A. Hard 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] -----·-- ------· --·--·-- COURT OF. CLAIMS STATE OF NEW YORK JACQUELYN FISHBURNE, Claimant; DECISION AND ORDER -vTHE STATE OF NEW YORK, Claim No. Motion No. 1 119146 M-83106 Defendant. FILED BEFORE: .HON. JUDITH A. HARD Judge of the Court of Claims APPEARANCES: For Claimant: Law Offices of David J. Clegg, Esq. & AssociC!ltes By: David J. Clegg, E~q. For Defendant: Hon. Eric T. Schneiderman, NYS Attorney General By: Joan Matalavage, Assistant Attorney General, Of Counsel Claimant Jacquelyn Fishburne commenced the underlying claim seeking damages for a number of injuries that she alleges occurred as a result of an August 24, 20 I 0 motor vehicle . accident between claimant's vehicle and a .vehicle driven by a New York State Trooper. . . Defendant now moves for summary judgment on the sole ground that claimant did not sustain a "serious injucy" as det:med by Insurance Law § 5102 (d) and, thus, cannot maintain a clai~ for her alleged personal injuries. Claimant opposes the motion on the grounds that defendant failed to make its prima facie showii:ig of entitlement to judgment as a matter of law, or alternatively, 1 Caption amended to reflect the only properly named defendant. [* 2] Claim No. 119146, Motion No. M-83106 Page 2 · · even if defendant did meet its initial burden on the motion. claimant's responding papers raise material questions of fact that require a trial. For the reasons set forth below, defendant's motion is denied. On August 24, 2010, claimant was stopped in the southbound lane int~nding to make a left tum in~o a residential driveway on Route 209 i.q Kerhonkson, New York. At this location, Route 209 has one southbound lane and one northbound lane for traffic. New York State Investigator Thomas Fortuna was traveling southbound towards a third vehicle that was stopped behind claimant's vehicle. Investigator Fortuna pulled his vehicle into the northbound lane as . . claimant was in the middle of her left turn. Consequently, Investigator F9rtuna struck the front driver's side· of claimant's vehicle. Claimant alleges that the force of the impact caused her right hand to jam into the manual gear shift arm. • • • • • • • • • • • • • • • • • S~e alleges the following injuries in her.Amended,Verified Bill.of P~iculars: right wrist ulnar styloid fracture nerve damage loss of range of motion or right wrist loss of use of right wrist abnormal sudomotor activity in right arm pathological changes in bone.and skin of right arm extreme sensitivity to touch of right arm · mental and emotional distress reflex sympathetic dystrophy complex regional pain syndrome· (CRPS) muscle wasting contracture of muscles and tendons in right arm traumatic arthritis causalyia chronic pain ch~ges to skin color loss of enjoyment of life (Defendant's Af!irmation in Support, at Exhibit c,' 1 15). [* 3] Page3 Claim No. 119146. Motion No. M-83106 Claimant was taken to ~llenville Regional Hospital im1!1ediately after the accident (Affirmation in Support, at Exhibit -F). She complained of pain in her right ann (Id.). x-rays taken . . . at the emergency room revealed a.non-displaced ulnar styloid fracture in her right wrist (Id.). The· following day, she presented to Kingston Bospital with continued pain in her right wrist. (Affirmation in Support, at Exhibit G). She underwent x-rays again that cqnfirrned she had a non- · displaced fracture in the distal ulnar styloid in her right wrist @. Claimant began treatmen~ with orthopedic surgeon Dr. Mark Aierstok of Orthopedic Associates of Dutchess County on August 27, 2010 (Affirmation in Support, at Exhibit E, bates number 58). Dr. Aierstok diagnosed claimant with a: right 'Wrist ulnar styloid fracttire (IQ.,). Dr. Josep4 Carli examined claimant on September 20, 2012 (Affirmation in Opposition, at Exhibit 2). Claimant complained of constant pain in the right wrist, hand and f9rearm {IA). He diagnosed claimant with complex regional pain syndrome type I (IQJ. As stated above, defendant's.basis for relief on this motion is that claimant failed to . sustain a "serious injury" as defined in section 5102 of the Insurance Law and, thus," the claim for personal injuries should be dismissed. Claimant was involved in a prior motor vehicle accident in 2006 where s~e sustained a fracture to her right wrist (Carli Report p ~ attach~d to Carli Affirn.iation). Defendant highljghts that claimant alleged she suffered the same ulnar styloid fracture in a prior lawsuit filed as a result of the 2006 motor vehicle accident (see Verified Bill of Particulars dated July 26, 2007, annexed to defendant's Affirmation in Support as Exhibit D, at 1f · 4). Defendant contends that the fracture in her right wrist and the allegedly resulting complex regional pain syndrome are attributable not to the f\ugust 24, 2010 motor vehi~le accident. but from injuries ~he aheged she sustained in_ 2006. ..... [* 4] •"'\ Claim No. 119146, Motion No. _M-83106 P.age 4 · Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Tht: Court,s function in a motion for summary judgn1ent is not to resolve issues of fact, but to determine . .. whether issues of fact exist (see Barr_ v County of Albany, 50 NY2d 24 7Jl 980]). The proponent of a motfon for summ~ judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate_ the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY7d 320 [1986]). Failure to make such a . showing requires denial of a summary judgment motion, regardless of the su:fficiency of the ·opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evide~tiary proof, in admissible form, sufficient to establish the existence of i:nateri~l issues of fact which require a trial of the action (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 (1980]). The evidence must be viewed in the light most favorable ~o the opponent of the motion, and that party should be given every favorable inference (see McKinnon· v Bell Sec., 268 AD2d 220 [1st Dept 2000]). In New York State, a c~ve~ed person2 may not recover for non-economic loss against another covered person, for personal injuries arising out of a motor vehicle acci~ent, except where a serious injury has been sustained _(Insurance Law§ 5104 [a]). Accordingly, in order to recover .for non-economic loss against d~fendant, a claimant is required to plea~ and prove that she sustained a serious injury as defined by Insurance Law § 5102 (d) (Zecca v Riccardelli, 293 AD2d 31 [2d Dept 2002];Licari v Elliott, 57 NY2d 230; 235 [1982]). A "covered person" is defined in section 5102 (j) of the Insurance Law as "any pedestrian injured t~ough the use or operation of, or any owrier, operator or occupant of, a motor vehicle which has in effect the financial security required" by the Vehicle and Traffic Law. 2 [* 5] Claim No. 119146, Motion No. M-83106 Pages A "serious injury" is defined in section 5102 (d) of.the Insurance law a5: "a personal _injury which results in death; dismembennent; significant disfigurement; a fracture; loss of a fetus; pennanent loss of use of a body organ, member, 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 non-permanent nature which prevents the injured person from performing substantialiy 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 impainnent." On a motion for summary judgment, where the issue is whether claim~t has sustained a . . serious injury within the meaning of Insurance Law § 5102 (d), defendant bears the initial burden of establishing, through the submission of competent medicaf evidence, that claimant did not suffer a serious injury causally related to the accident (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In doing so, defendant may rely on the medical records and reports prepared by · , claimant's treating physicians (Franchini v Palmieri. 1NY3d536 [2003); Cody v Parker, 263 AD2d 866 [3d Dept 1999]). If the initial burden is met by defendant, the burden shifts to claimant to produce sufficient evidence to overcome defendant's motion by demonstrating that claimant sustaine~ a serious injury within the meaning of the No-Fault Insurance Law (Gaddy, 79 NY2d at 957). The evidt'.nce submitted rriust be based upon objective medical findings and diagnostic tests, so as to create a genuine triable issue of fact concerning the existence of a serious injury (John v Engel, i AD3d 1027 [3d Dept 2003]; Trotter v Hart, 285 AD2d ?72, 773 [3d Dept 2001)). Defendant contends that claimant has not met the "serious injury" threshold issue because she_ alleges the same right wrist.ulnar styloid. fracture which she all~gedly suffered as a result of her 2006 accident. Hence, her fracture existed at the,time of her August 24, 20 l 0 accident and [* 6] .. Page& Claim No. 119146, Motion No. M-83106 . . she was still receiving treatment for this pre-existing injury._19efendant also argues that claimant's alleged complex.regional pain syndrome and complaints of pain do not satisfy the . . "serious injury" threshold. In support of the motion, defendant has provided th~ Court with . . . extensive medical records pertaining to ~laimant's orthopedic and other medical treatments from 2006 to the present~ as well as the affidavit and independent medical examination report of -Robert C.. Hendler, M.D., a board certified orthopedic surgeon, who provided defendant with an evaluation of claimant and her medical history following. the 2006 and 20 I 0 accidents {Defendant's Exhib.it N). In his in.dependent medical examination (IME) reports, Dr. Hendler states that he . . . ~ reviewed all of claimant's medical records, including x-rays taken of her right wrist from Ellenville Regional _Hospital and Kingston Hospital (Affirmation in Support, at Exhibit N, 1f 2). Dr. Hendler notes that he previously examined claimant after her motor vehicle accid~nt in 2006 ffiLl. He reviewed clai~ant's medical records from the time of her 2006 accident, including an xray of her right wrist taken on Jut?-e s;2006 that showeq an ulnar styloid :fracture, through h~r treatments r~lating to the injuries alleged in this action (Dr. Hendler' s 11/19/12 report, annexed to Exhibit.N, at Exhibit 2). pr. Hendler noted that claimant underwent arthroscopy ~urgery on her \ right wrist on April '27, 2011 by Dr. Ristic at Orthopedic Associates of Dutchess County (NJ. . . Dr. Hendl~r examined claimant on November 14, 2012, and took an· x-ray of both of her wrists (kL). He noted a lucency in the tip of the ulnar styJoid in her right wrist but it did not appeai:_to be a fracture®.,.). He stated this lucency was identical ·t~ what was seen in the 2006 and 2010 x-rays taken at Orthopedic Associates of Dutchess Coun~ (fd.). Dr. Hendler opined that the alleged new right wrist fracture pre-existed the 2010 motor vehicle accident, and that this fracture was present in the imaging studies taken after her prior accident in.2006 (Exhibit N, at 1 l . • •• [* 7] Page7 Claim No. 119146, Motlo·n No. M-83106 4). Dr. Hendler also opined· that claimant did not have complex regional pain syndrome in her right wrist (IQJ. Defendant also submitted medical records from claimant's primary care physician.and · pediatrici~ that indicate that she complained of paresthesia in her upper extremities in 2007, and numbness and tremors in her right hand an_d wrist in 2008 and 2009, respectively (Reply. Affidavit, at Exhibits A-1, bates number 5 and 13, and B-1, bates number 7). The Court finds that defendant met its burden through medical records that claimant did not suffer a serious injury causally related to the motor vehicle accident tharoccurred on August 24, 2010. Defendant sufficiently raised enough doubt that the alleged fractured right wrist in 2010 preexisted the 2010 motor vehicle accident. (Dabiere v Yager, 297 AD2d 831 [3d Dept 2002]). The bur~en shifts to claimant to present "competent medical evidence based upon . . .. objective medical :findings and tests to support [the] claim of serious injury and to connect the . . condition.to the accident (citations omitted) (Franchini v Palmieri, 307 AD2d 1056 [3d Dept 2003]). In opposition, claimant presents her own affidavit as well as the affirmations of her treating physicians, Dr. Mark Aierstock and Dr. Joseph Carfi (Affirmation in Opposition, at Exhibits 1 and 2). Claimant attests.that the impact from the accident with Trooper Fortuna's vehicle.was severe and her right hand was jammed into bei vehicle's gear shifter (Claimant's Affidav~t, at , 2). She complained o.f pain in her right wrist and was told she had a fracture in her right wrist at both Ellenville and Kingston Hospitals (kLl. She begap orthopedic treatment with Dr. Aierstock a few days after the accident who put a cast on her wrist for a month followed by ~ wrist brace (Id., at if 3). She undenyent arthroscopic surgery in April of 2Ql 1 but the pain in her wrist only got worse (lll, at, .4): She was referred to a pain 'management doctor, Dr. Virk, with . [* 8] Page& Claim No. 119146, Motion No. M-83106 whom she continues treatment, but the pain and dysfunction in her wrist, including burning, nwnbness, tingling, swelling, stiffuess and spasms, have only worsened over time (Id., at 1 5). Claimant acknowledged that she previously fractured her right wrist in a motor vehicle accident in 2006 (kt, at ir 2). She stated that her prior wrist fracture healed completely ~thin a few months after that accident and she had no pain or problems from that fracture prior to the motor vehicle accident on August 24, 2010 (IQJ.' Claimant's orthopedist, Dr. Aierstock, affirmed that he examined claimant on August 27, . I ' 2010, confirmed she had a nondisplaced ulnar styloid fracture, and placed a short ca~t on her ..,. right aim and wrist (Affirmation in Opposition, at Exhibit 1, ~ 2). He examined cl~ant again on September 24, 2010,'and took an x-ray that revealed her fracture was healing {M:., at if 3). Dr. Aierstock examined cl~mant next on November 16, 2010, and x-rays taken revealed that her ulnar styloid fraeture was healed (ML, at~ 4). Dr. Aierstock reviewed all of claimant's right wrist treatment records and x-rays from 2006 to the prese'nt, as well as Dr. Hendler' s report and affirmation. His conclusion was that claimant's nondisplaced ulnar stylOid fracture that he treated was a new fracture caused solely by the motor vehicle accident on August 24, 20 I0,. and which ,:, had subsequently healed with. immobilitzation after approxi~ately three months fuL., at W6 and 7). Dr. Aierstock acknowledged that claimant suffered a prior fracture in.her right wrist in ·. . 2006, but he stated it haq healed and no record of any right wrist complaints were noted in her medical records from June 5, 2006 up to the accident on August 24, 20.10 (Id., at 1f 7). He disagreed with Dr. Hendler's opinion that her fr~cture preexisted the latter accident and stated no medical evidence supported Dr. Hendler's opinion fuL.). [* 9] Page9 Claim No. 119146, Motion No. M-83106 . I Claimant's physiatrist, Dr. Carli, affirmed that he examined heron September 20, 2012, reviewed her various medical records and x-rays from 2006 to the present, and it was his medical opinion that she sustained an ulnar fracture caused by the motor veh:icle accident on August 24, ·• 2010, which subsequently resulted in a diagnosis of and complications relating to Complex Regional P~n Syndrome Type I (CRPS) (Affirmation in Opposition, at Exhibit .2. 12)·. Dr. Carli stated that his examination found claimant's right wrist ranges of motion were reduced by 10° as • compared to the ranges of motion in her left wrist-cJil, at, 6). 3 Dr. Carfi. di5agreed with Dr. liendler's opinion that claimant did not have CRPS and concluded that her condition was perman~nt, debilitating and restricted her ability to use her dominant right hand (ML, at 11f 8 and 9). Dr. Carli acknowledged, in his medical report dated Npvember 6, 2012, that claimant ·suffered major fractures in her lower limbs as a result of a motor, vehicle accident in 2006 (Carfi . ' Report, annexed to Affirmation in Opposition, at Exhibit 2, p 3). H~ specifkally noted that during her rehabilitation from her lower extremity injuries in the 2006 accident, claimant used crutches which caused pain in her right wrist, bufall symptoms had resolved, including her . . . fracture, prior to the August 24, 2010 motor vehicle accident (Id.). It is .clear that.the parties do not dispute that claimant sustained a right ~stfracture as a result of her 2006 motor vehicle accident. The Court finds that claimant's affidavit and the affirmations from her treating physicians, which state that her prior right wrist fracture from 2006 was healed, directly contradicts defendant's expert's affirmation that the fracture pre-existed the . ,. August 24, 2010 accident. This is sufficient competent and objective evidence that raises an issue 3 Claimant is right-hand dominant (Affinnation in Opposition, at Exhibit 2, 1f 6). . \ [* 10] Page 10 Claim No. 119146, Motion No. M-83106 of fact whether t~e. proximate cause of her right wrist ulnar styloid fracture alleged in this action was the motor vehicle accident on August 24, 2010 (tranchini v Palmieri, 307 AD2d 1056 [3d Dept 2003]). Although defendanCs expert affirmation, medical reports and ot~er relevant evidence are compelling, questions of fact remain whether claimant's wrist fracture is a "serious ,injury" as defined by Insurance Law § 5102 (d), and was caused by the August 24, 20 ~ 0 or the . 2006 accident which precludes summary judgment dismissing the claim. . ~e Court would benefit from the direct and cross-examination of all the experts as to the healing process for a wrist fracture ~d their reviews of the x-rays with the Court at trial: In his affirmation and IME report, Dr. Hendler did not address whether claimant's prior fracture could have fully healed before the 2010 accident, whether she may have only exacerbated a healed wrist fracture, how likely it is for a significantly similar or identical wrist fracture to occur · appro?CimateJy four years after an initial fracture, and whether claimant's complaints of right hand tremors, numbness and paresthesia in between the two accidents may have resulted from conti.nued use of crutches while recovering from her prior hip and leg fractures, as Dr. 'Carfi mentioned in his report, or as permanent lingering symptoms of her 2006 wrist fracture. Since the Court _fintjs claimant raised an issue of fact regarding the cause. o~ her fracture, . the issue of whether her alleged CRPS may qualify as a "serious injury" under the statute need . - not be decided on this motion. A clrumantwh~ establishes a prima fa.cie case that any of her ! injurie~ resulting from a motor vehicle accident were "serious" as defined by Insurance Law § 5102 (d) may recover for all injuries proximately caused by the accident <Preston v young, 23 9 AD2d 72·9 (3d Dept 1997]; O'Neill v O'Neill, 261 AD2d 459 [2d Dept 1999]). The Court notes that claimant has a significant burden at trial to establish that her right wrist fracture was -caused . by the 2010 accident.and ~at it did not preexist or becom~ merely exacerbated by such accident. ~ [* 11] Page 11 Claim No. 119146, Motion No. M-83106 If she is successful, then sh~ also face~ .the additional burden of connecting the causation of her CRPS to the wrist fracture and the August 24, 20 I 0 motor vehicle accident. In light of the foregoing, claimant raised an issue of fact whether she sustained an ulnar styloid fracture in her right wrist as ~result of the August 24, 20 I 0 motor vehicle accident with Trooper Fortuna and, accordingly, defendant's motion for summary judgment t? dismiss the. claim is denied. Albany, New York September 25, 2013 JUDITH A. HARD . Judge of the Court of Claims Papers considerecl: 1. Notice of Motion for Summary Judgment, dated March 7, 2013, and Affidavit 9f Joan Matalavage, AAG, Support of Defendant's Motion for Summary Judgment and Memorandum of Law, dated March 7, 2013, with Exhibits. 2. Affirmation of David J. Clegg, Esq. in'Opposition to Defendant's Motfon for Summary Judgment, dated April 9~ 2013, with Exhibits. · 3. Reply Affidavit of Joan Matalavage, AAG, dated April 17, 2013, with Exhibits. in

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