Castillo Arroyo v Hamilton

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Castillo Arroyo v Hamilton 2014 NY Slip Op 31391(U) May 21, 2014 Supreme Court, Suffolk County Docket Number: 11-35076 Judge: Jerry Garguilo 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] COP~ INDEX No. 11-35076 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 47 - SUFFOLK COUNTY PRES E 1 T: V Hon. JERRY GARGUILO .Justice of the Supreme Court MOTIONDATE 11-26-13 ADJ. DATE 3-19-14 Mot. Seq. # 002 - MD -~~~~ ---------------------------------------------------------------X ROB ERTO CASTILLO ARROYO, MARIA VILLA HERRERA , YOLANDA GUTIERREZ, DILCIA APARICIO and EVELYN GUADALUPE GUILLEN-RIVERA, Plaintiffs, - against - CANNON & A COSTA, LLP Attorney for Plaintiffs 1923 New York A venue Huntington Station, New York 11746 DESENA & SWEENEY, ESQS. Attorney for Defendants 1500 Lakeland A venue Bohemia, New York 1171 6 A.L. HAMILTON and MARIAN L. HENDRICKSON , Defendants. ---------------------------------------------------------------X Upon the following papers numbered I toj_§_ read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (002) 1-19; Notice of Cross Motion and supporting papers_; Answering Affidavits an d sup porting papers 20-34; Replying Affid av its and suppOI1ing papers 35-36; Other_; (1md 11fk1 he111 i11g eot1115el in 5ttpport 1111d oppo5ed tu tl1c 111otio11) it is. ORDERED that motion (002) by defendants A. L. Hamilton and Marian L. Hendrickson pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that none of the plaintiffs susta ined a serious injury as defined by Insurance Law§ 5102 (d) is denied as to all plaintiffs. Thi s neg] igence action arises out of an automobi le accident which occ urred on January 25 , 20 11 , 011 Rout e 11 0 at or near its intersection with Melville Park Road, in Melville, New York, when the automobile operated by plaintiff, Roberto Castillo Arroyo, came into contac t with the vehicle operated hy defendant /\. L. I lamilton and owned by defendant Marian L. Hendrickson. Plaintiffs, Maria Villa l lerrera . Yolanda (iutierrez. Dilcia Aparicio, and Eve lyn Guadalupe Guillen-Rivera were passengers in the vehicle operated by plaintiff Arroyo. The plaintiffs allege they each sustained a serious injury as defined by Insurance Law§ 5102 (d). The defendants have interposed an answe r, asserting a countercl aim against plaintiff Robert Castillo Arroyo for judgment over aga in st him for contribution based upon hi s proportionate share of liability. However, it is noted that such counterclaim against plaintiff on the counten,:laim \Vas di scontinued by defendants by stipulation dated April 15, 20 13 . [* 2] Arrovo ' I Jamil ton Index No. l l-35076 Page \;o ::: or In support motion (002). the defendants submitted. inter alia, an attorney's affirmation: copies of the summons and complaint. and answer with counterclaim and plaintiffs' verified bill of particulars: expert disclosure and reports dated April 4, 2013 by Isaac Cohen, M.D. concerning his independent orthopedic examination of each plaintiff; copies of the transcripts of the examinations before trial of Roberto Castillo Arroyo, Maria Villa Herrera. Yolanda Gutierrez. Dilcia Aparicio, and Evelyn Guadalupe Guillen-Rivera. Pursuant to Insurance Law§ 5102 (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 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 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 immediately 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 curtailed 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), 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 [1st Dept 1992]). Once the defendant has met the burden. the plaintiff must then, by competent proof, establish aprimafacie case that such serious injury exists (DeAngelo v Fidel Corp. Services, Inc., 171 AD2d 588, 567 NYS2d 454, 455 [I st Dept 1991 ]). Such proof in order to be in competent or admissible form, shall consist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). The proof must be viewed in a light most favorable to the non-moving party, here the plaintiff (Cammarere v Villanova, I 66 AD2d 760. 562 NYS2d 808. 810 [3d Dept 1990]). In nrdcr 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 l\IY2d :::95. 727 NYS2d 378 [20011). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or ··significant limitation of use of a body 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 objective basis, correlating plaintiffs limitations to the normal function, purpose and USC or the body part (Toure 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. s111m1). [* 3] o \ I Jamil ton lnde\: No. I l-_15076 Page No. 3 i\JTO\ It is determined that motion (002) is insufficient as a matter of law. The reports by defendants' expert. Isaac Cohen. M.D. are unsupported with evidentiary proof such as medical records and reports of diagnostic testing relating to the plaintiffs' care and treatment for the injuries claimed to have been sustained in this accident, as required pursuant to CPLR 3212. Expert testimony is limited to facts in evidence (see Allen v Ult, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Marzuil/o v Isom, 277 AD2d 362. 716 NYS2d 98 [2d Dept 2000]: Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]: O'Shea v Sarro. 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]; Hornbrook v Peak Re.rnrts, Inc .. 194 Misc2d 273. 754 NYS2d 132 [Sup Ct, Tomkins County 2002]), which evidence has not been provided in this case. Thus . defendants' moving papers are insufficient as a matter oflaw, Iea vi ng the court to speculate as to the contents of the medical records and reports. ROBERT CASTILLO ARROYO Robert Castillo Arroyo alleges that as a result of this accident, he sustained injuries consisting of C4-4 disc herniation indenting the dural sac; C5-6 disc herniation indenting the dural sac; C6-7 disc herniation indenting the dural sac; C3-4 disc bulge; L4-5 disc bulge; LS-S 1 disc bulge; and multiple epidural injections. Defendants' expert, Isaac Cohen, M.D., performed an independent orthopedic examination of Robert Castillo Arroyo. He stated that plaintiff Arroyo is a 32 year old male from Mexico who speaks Spanish. Dr. Cohen stated that Arroyo spoke to him in his native language so no communication problem exists. However. Dr. Cohen's proficiency in Spanish has not been established for this court to determine comprehension and understanding. While Dr. Cohen indicated that he performed range of motion testing and employed either the goniometer and/or a bubble inclinometer, he did not indicate which was used, and whether the method was used for all range of motion testing. While he indicated that cervical compression testing was negative. he did not indicate what testing was employed. Dr. Cohen reviewed plaintiff's cervical and lumbar MRI reports, the reports, however, copies of the reports setting forth the findings have not been provided, leaving this court to speculate as to the content in those reports. He reported that the MRI of the cervical spine demonstrated "minimal Jcgencrati\'C' disc herniation at multiple levels. but did not provide measurements to establish that the hcrni~1tions were minimal. and or define what he meant by degenerative disc herniation, or the duration '1f the same (Estella 1 ¢ Geico Insurance Company. 102 AD3d 730. 959 NYS2d 2'10 r2d Dept 2013]: Partlow v 1Hee/u111. 155 AD2d 64 7, 548 NYS2d 239 [2d Dept l 989J). Although the plaintiff was treated hy Dr. /\nand and FMG/NCV testing was performed, those reports have not been provided. It is additionally noted that no report from a neurologist who performed an independent neurological L'Xamination of the plaintiff have been provided (see McFadden v Barry, 63 AD3d 1120, 883 NYS2d 83 I2d Dept 2009]: Browdame v Candura, 25 AD3d 74 7, 807 NYS2d 658 [2d Dept 2006]; Lawyer v Albany OK Cab Co .. 142 AD2cl 871, 530 NYS2d 904 [3d Dept 1988]; Faber v Gaugler, 2011 NY Slip Op 32623U. 2011 NY Misc Lexis 4742 [Sup Ct Suffolk County 201 l l). [* 4] Arroyo\ I Iamilton lndl..'.x: No. 11-35076 Page '.\o -1Dr. Cohen stated in a broad and conclusory opinion that he found no indication for the performance uf epidural injections which the plaintiff received. raising factual issues due to the differing opinions between the plaintiff's treating physician who provided the epidurals, and Dr. Cohen as a physician who \Vas not treating the plaintiff at the time and did not combine his opinion with a contemporary clinical ex:amination of the plaintiff Robert Castillo Arroyo testified to the extent that he missed three weeks from work due to the injuries sustained in this rear-end car accident. At the time of the accident, he was coming home from work at a factory where he was off-loading trailers with a forklift with a manual pump. He began attending therapy for about one year, three times a week at first, then reducing frequency to once a week for pain in his neck. back, and right shoulder. He had two MRis, then received epidural injections into his back on three separate occasions. When he returned to work after the accident, he switched to packing pieces and reduced his work hours. Most of the work was off-loading trailers, which he could not do because of the pain in his back and inability to bend. He denied prior injuries and subsequent injuries to his neck. back, and shoulder. He can no longer lift heavy items or go to the gym. If he rides a bicycle. he gets tired and has to sit because of the pain in his back, so he no longer rides. He has difficulty sitting. fie used to play in the soccer league, but is no longer able to do so. He can not do his prior job and is now washing cars instead. He walks to work and gets back pain. It is noted that the movants' examining physician did not examine Arroyo during the statutory period of 180 days following the accident, thus rendering their 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 his 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 2001]; see Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 f I st Dept 2006]; Toussaint v Claudio, 23 AD3d 268, 803 NYS2d 564 [ lst 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 [2d Dept 2009]). Based upon the aforementioned factual issues raised in the moving papers, it is determined that the defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint on the basis that Arroyo did not sustain a serious injury as defined by Insurance Law§ 5102 (d). :V1ARL/\ VILLA JI ERRERA .\Ilaria Villa llerrera alleges that as a result of this accident. she sustained injuries consisting of I 5-S I disc herniation abutting the nerve root and epidural fat: C5-6 disc herniation deforming the dural sac: C 6- 7 disc herniation deforming the dural sac: and lumbar epidural injections. lk Cohen performed an independent orthopedic examination of Maria Villa Herrera on April 4, ::'O 13. and set forth that she is a 28 year old female who was a front seat passenger in a vehicle when it \\as involved in an accident. She denied any prior trauma or significant medical or surgical history. He stated that she was four months pregnant at the time of the ex:amination. As a result of this accident, she lust about two weeks from work as a cosmetic packer. Initially, she was treated and released at an [* 5] :\rro\'O v I familton lnde:-.: No. 11-35076 Page No. 5 emergency room where she complained of neck, back, and right shoulder pain. At the time of Dr. Cohen· s examination. she complained of ongoing back pain. Although Dr. Cohen reviewed MRI reports her lumbar and cervical spine, and records concerning lumbar epidural records, none of plaintiffs records and reports reviewed by him have been provided to this court. While Dr. Cohen stated that the f\1Rl examination the plaintiffs lumbar spine was essentially unremarkable, he continued that there \\as a small right paraccntral disc herniation deforming the epidural fat, and that the disc abutted the S 1 nerve root hut did not impinge upon it. He stated that an independent radiographic review of the film is \varranted. however, none was provided with the moving papers, raising factual issues. Additionally, l'vls. Herrera testified that she had numbness in her right lower extremity and underwent "needle testing." Dr. Cohen did not comment on this, and no report from a neurologist who examined her on behalf of the defendants has been submitted (see McFadden v Barry, supra; Browdame v Candura, supra; Lawyer v Albany OK Cab Co., supra; Faber v Gauger, supra). Dr. Cohen indicated that she had epidural injections in her back, but stated in a conclusory and unsupported opinion that there was no clinical indication to perform epidural injections, thus raising factual issues. or or Dr. Cohen set forth that the MRI examination of Herrera's cervical spine was unremarkable, but continued that there were degenerative changes at C 5-6 and C6-7 of no clinical significance. However, this opinion which is conclusory, raises factual issues, as he does not address causation, duration of the degenerative changes, or what those degenerative changes were, precluding summary judgment (Estella v Geico Insurance Company, supra; Partlow v Meehan, supra). Dr. Cohen did not specify whether he employed the use of the goniometer or the bubble inclinometer in obtaining range of motion values of the cervical and lumbar spine, nor did Dr. Cohen indicate whether he spoke Spanish or English to the plaintiff during her examination. Maria Villa Herrera testified through a Spanish interpreter that upon impact to the vehicle from behind, her head struck the dashboard, and her back, neck and shoulders twisted. After the pain in her neck, back. and right shoulder continued for about three weeks, she sought additional medical care and treatment, including physical therapy three to four days a week for eight months. MRis were conducted and she later received tests with needles due to there being no feeling in her right lower side. She underwent three epidural injections into her back. She stated that the injuries have affected her in L'Verything from her job to her personal life. She continues to experience neck and back pain and headaches, and gets numbness in her legs and her right hand. For three weeks, she could do nothing followinu the accident and had to stiff in bed. At \Vork. she now lrns difficult\.' bcndinl'. down. or liftinu ..._ ·' ._. heavy things, She used to play basketball, but due to the pain in her shoulder, she cannot. She used to !:'Oto thL' gym three or four days a week. but she is not able to run or lift any weights any longer. At home. she cannot move furniture. .,; / - '- It is noted that the movants' examining physician did not examine Herrera during the statutory period or 180 days following the accident, thus rendering their 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 fur a period in excess of 90 days during the 180 days immediately following the accident (Blanchard v Wilcox. suprn: see Uddin v Cooper. suprn: Toussaint v Claudio, supra) and the expert offers no opinion \\ ith regard to this category of serious injury (see Delaylwye v Caledonia Limo & Car Service, Inc., [* 6] \rn)\ o \ l !amilton Indc:-.: No. 11-35076 Page No. 6 \llj!l'U). Based upon the aforementioned factual issues raised in the moving papers, it is determined that the defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint on the basis that Herrera did not sustain a serious injury as defined by Insurance Law§ 5102 (cl). YOLANDA GUTIERREZ Yolanda Gutierrez alleges that as a result of this accident, she sustained injuries consisting of L5S 1 disc herniation: L3-4 disc bulge; L4-5 disc bulge; C4-5 disc bulge; CS-6 disc bulge; right shoulder tenosynovitis for which surgery has been recommended; and epidural injections. Dr. Cohen stated that Yolanda Gutierrez is not proficient in English and that he interviewed her in her native language, Spanish. As set forth previously, his expertise in Spanish has not been demonstrated to this court. He stated that she is a 23 year old female who was a restrained passenger in a car when it was rear-ended. As a result of this accident, she was treated and released in the emergency room and claims continuing pain in her back, neck, and shoulder. Dr. Cohen set forth the materials and reports which he reviewed, including MRI studies of the plaintiff's cervical spine, lumbar spine, and right shoulder. However, he has not provided copies of these reports. Although the plaintiff alleges to have sustained lumbar disc herniation and bulges, cervical disc bulges, and right shoulder tenosynovisitis, Dr. Cohen, in conducting his independent orthopedic examination, did not comment on those injuries. His opinion that MRI examinations of the cervical spine and right shoulder are completely unremarkable and that there was no need for the cervical epidural injections received by the plaintiff is unsupported, raising factual issues. Dr. Cohen did not comment upon the plaintiff's claim that surgery has been recommended for her right shoulder tenosynovitis, although he reviewed the records of her treating and consulting orthopedists. The failure to address this injury and claim raises further factual issues precluding summary judgment. Dr. Cohen opined that the neurological examination was unremarkable in both upper and lower c:-.:tremities, but did not indicate what testing, if any, was conducted to make such determination, raising !actual issues. No report from an examining neurologist has been submitted on behalf of the moving defendants (see ,McFadden v Barry, supra; Browdame v Candura, supra; Lawyer v Albany OK Cab Co .. \11/'f'it: Faber 1 ¢ Gauger, supro). '{ olanda Gutierrez testified through a Spanish interpreter that as a result of this accident, she sustained injuries to her back, neck. and both shoulders. She was treated at the emergency room and released. then sought follow-up care and treatment, including MRI studies of her neck, back, and right shoulder. and nerve conduction studies. She underwent physical therapy and chiropractic treatment. At !irst she went three clays a \Veek, then two days a week, then once a week. She had cervical epidural injections. which she stated helped her neck a little. One of her doctors recommended surgery to her right shoulder to remove liquid. She missed two to three weeks from work packaging bluetooth cellular phones. During that time. she was confined to bed. As a result of the injuries, she cannot bend down or run. and has dirJiculty lilting and sitting. Prior to the accident. she ran three to four times a week about a half hour each time. She belonged to the gym prior to the accident, but can no longer attend due to the [* 7] .:\rro'o ,, l!amilton lmkx ~o, 11-35076 Page \io 7 pain in her back and legs and both knees, which were struck at the time of the accide nt. She still suffers from pain in her shoulders, neck and back, She denied prior or subsequent injuries to those parts of her body \\'hich sh e claimed were injured in this accid ent, It is no ted that the rn ovants' examining physician did not examine G uti e rrez during the statutory period 180 days rollowing th e acc ident, thus re nderi ng thei r phys ician ' s affidav it in sufiicient to demons trate entitlement to summary judgment on the issue of whether the plaintiff was unable to subs ta ntially perform a ll 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 acc ident (Blanchard v Wilcox, supra: see Uddin v Cooper, supra; Toussaint v Claudio, supra) , and the expert offers no op inio n with regard to this category of serious injury (see Delayhaye v Caledonia Limo & Car Service, or Inc. , supra), B ased upon the aforementioned factual issues raised in the moving papers, it is determined that the defendants failed to establish prima facie entitlement to summary judgment dismiss ing the complaint on the basis that Yolanda Gutierrez did not sustain a serio us injury as defined by Insurance Law§ 5102 ( d), DlLCJA APARICIO Dilcia Aparici o alleges that as a result of thi s accident, she sustained inj uries consisting of ce rvica l sprain/strain; thorac ic sprai n/strain; right hip contusion; exaggerated lumbar lordosis; Ioss of normal cervical lordo sis; and sho ulder contusion, Or, Cohen examined Dileia Aparicio on May 2, 2013 and indicated that she is a 27 year old Spanish speaking female, and that the interview was conducted in Spanish with no communication problem. Or, Cohen does not set forth his proficiency in Spanish, It is noted that DL Cohen indicated in his report that the plainti ff is the mother of three healthy children, At her depositi o n o n March 6, 2013 , the plaintifTtcstificcl that she had one child who was three months of age . Thus, there are factual issues co ncerning information re lated during the independent examination conducted w ithout an interpreter being present, rk or Cohen indic ated the reports and record s he reviewed, including MRis Aparicio's cer vical -;pine and lumhosacral sp ine. and EMG and nerve co nducti on st udies, These records have not been provided with the movin g papers, Relative to the MRI studies. he opined in a conclusive and unsupported statement that th e cervical and lumbosacra l MRis were essentially unremar kable. hut he did not state \\ hat he meant by "esse nti all y unremarkabl e" and did not provide a statem e nt of the findings. Suc h fr1ctua l iss ues preclude s ummary judgment, l)r, Cohe n opined in a co nc luso ry and un suppo rted statement that the e lectrica l studies were L'Ssc nti a ll y unremarkable. however, he did not provide the results of the st udi es. a nd no report from an L','\<tmi ning ne urologist has been s ubmitted on behalf of the moving defendants (see McFadden v Ban:11, 1u;m1: Browdame v Candura , supra : Lawyer v Albany OK Cab Co., supra: Faber v Gauger. supra), [* 8] \rro\O \ f larnilton Index l\lo. 11-35076 Page No. 8 raising l~ictual issues precluding summary judgment. Dilcia Aparicio gave testimony through a Spanish interpreter. She was a seat-belted passenger in the rear of tl1e plaintiff vehicle at the time of the accident. The impact caused her to move forward, but she stayed in her scat. She felt pain in her back when her body moved forward and there was a bruise on her back. She received treatment at an emergency room for pain in her neck and back and was released. She denied prior and subsequent injuries to those parts of her body. Thereafter, the pain would not stop, so she received treatment from Advanced Physical Therapy, three times a week for about four months, then continued for a total of six months. She had MRis of her neck and back. She is currently employed full time as a machine operator at LNK, which she described as a laboratory for medication. She pours powder into a machine which makes the powder into tablets. Her job requires that she stand all day. At the time of the accident, she was working in a factory at an assembly line. She missed 15 days from work following the accident, but then returned full time. She now experiences difficulty doing laundry due to the pain in her neck and back, so her husband helps her. She experiences pain in her neck and back and difliculty lifting 16 kilo boxes at work. She was not restricted prior to the accident. It is noted that the movants' examining physician did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering their 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, supm: see Uddin v Cooper, supra; Toussaint v Claudio, supra), and the expert offers no opinion with regard to this category of serious injury (see Delayhaye v Caledonia Limo & Car Service, Inc., supra). Based upon the aforementioned factual issues raised in the moving papers, it is determined that the defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint on the basis that Dilcia Aparicio did not sustain a serious injury as defined by Insurance Law§ 5102 (d). EVELYN GUADALUPE GUILLEN-RIVERA Evelyn Guadalupe Guillen-Rivera alleges that as a result of this accident, she sustained injuries <.:ull::oisting uf'C7-Tl disc herniation indenting the ventral tbccal sac; L5-Sl disc herniation vvhich effoces the epidural fat: cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain/ and left shoulder contusion. Dr. Cohen performed an independent orthopedic examination on Evelyn Guadalupe GuillenRivcrn on May 2. 2013. Dr. Cohen stated that Ms. Rivera was Spanish speaking and that they communicated in her native language without any problem. \Vhile Dr. Cohen indicated that she has one healthy son. she testilied that her husband. sister. and brother live with her. and she has no children. \gain. Dr. Cohen ·s proficiency in Spanish raises factual issues precluding summary judgment. Dr. Cohen indicated that Guillen-Rivera was a 3 l year old female who was a passenger in the \rroyu vehicle at the time of the accident. She alleged that she sustained cervical and lumbosacral spine [* 9] .\rrm o ' l lamilton ln ck x l\iu. 11-350 76 Page !\io 9 injuriL·s. Dr. Cohen stated that he reviewed the cervical and lumbar spine MRf studies and EMG and nerve conduction studies, but these records and reports, as well as the additional materials reviewed by him. ha\\: not been provided. He opined, without basis, that the C7-TI small centrally herniated disc, and the 15-S I disc herniation , are of no clinical significance. He did not rul e out that her injuries are causally related to the accident and further indicated that there is no neural compromise. However, he did not comment upon the findings reported on the EMG and nerve conduction studies in support of that opinion. l\o report from a neurologist has been submitted on behalf of the defendants to rule out neural compromise or involvement (see McFadden v Barry, supra: Browdame v Candura, supra; Lawyer v Albany OK Cab Co .. supra: Faber v Gauger, supra), precluding summary judgment. Ms. Guillen-Rivera gave testimony through a Spanish interpreter. She indicated that she is currently employed at LNK, full time, packages medicine in an assembly line, and seals the boxes. This requires that she stand. At the time of the accident, she was working full time as an assembler at a factory on Daniel A venue. As a result of the injuries to her neck and back, she missed eight days from work. Hovvever, \vhen she returned to work, she could no longer lift the heavy boxes, and someone else had to do the lifting. The company closed about five months later. She went home following the accident. but had pain in her neck. She took medication for about ten days, but then started going to Advanced Physical Therapy for her neck and back, three times a week for six months. She had MRis of her neck and back which she was told showed problems with her discs. Prior to the accident, she did all her O\Vll housework, laundry, and shopping. Since the accident, she requires help from her husband. Based upon the aforementioned factual issues raised in the moving papers, it is determined that the dc!'cndants have failed to establish prima facie entitlement to summary judgment dismissing the complaint on the basis that Evelyn Guadalupe Guillen-Rivera did not sustain a serious injury as defined by Insurance Law § 5 I 02 (d) . Inasmuch as the moving parties failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of "serious injury" as to each plaintiff within the meaning of Insurance Lmv ~ 5102 (d), it is unnecessary to consider whether the opposing papers are sufficient to rai se a triable issue of fact (see Yong Deok Lee v Singh , 56 ADJd 662, 867 NYS2d 339 [2d Dept .?008 j ): f(rayn v Tore/la. 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007]; Walker v Village of Ossining, 18 AJ) Jcl 867. 796 NYS2d 658 [2d Dept 2005]) . .\ccordingly. motion (002) for summary judgmen t dismissing the complaint is denied in its ,:ntiret\ I )atcd :_ . 5_/;2J}_l1i_ __ I FINAL DISPOSITION X

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