Reynoso v Afriyie

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Reynoso v Afriyie 2015 NY Slip Op 31735(U) August 12, 2015 Supreme Court, Bronx County Docket Number: 307329/11 Judge: Howard H. Sherman 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] FILED Aug 18 2015 Bronx County Clerk SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF THE BRONX -------------------------------------------------------------------------)( Jorge Reynoso DECI~;;ION/ORDER Index No.: 307329/11 Plaintiff, -againstBaffour Afriyie Defendant Howard H. Sherman ----------------------------------------------------------------------------)( J.S.C:. Plaintiff seeks damages for injuries allegedly sustained on ~!larch 5, 2011 in a motor vehicle accident that occurred on Ogden Avenue, Bronx, NEw York. This action was commenced in August 2012. To date, no Note of Issue has been filed. Verified Bill of Particulars Plaintiff alleges that he sustained accident-related serious injuries to his lumbar spine including posterior bulging discs at L3-4, and herniations at L4-5, and at LS-Sl, and cervical and thoracic spine strain and sprain, and contusions t,J the right elbow, wrist, and hand, and bilateral knee sprain [Verified Bill of Particulars 'lI 8-9 ]. Plaintiff alleged that he was confined to bed and/or home for ninety out of one hundred and eighty days post-accident [Id. 'JI 10-11]. Motion l) Defendant moves for an award of summary judgment on the grounds that plaintiff did not sustain a serious injury in the underlying motor' ehicle accident, and [* 2] FILED Aug 18 2015 Bronx County Clerk submits in support the affirmed report of an independent orthopedic evaluation conducted June 11, 2013, and a copy of plaintiff's 05/17/13 examinztion before trial testimony. Independent Medical Evaluation Using a goniometer and referencing A.M.A. guidelines, Dr. Uenjamin Nachamie found full range of motion of plaintiff's cervical, thoracic, and lumbar spine in all planes as quantified and compared to normal readings, and on palpation of the musculature, he noted neither tenderness nor muscle spasm in an:r of these regions. There were negative findings on objective testing, including cervic.11 compression and Straight Leg Raising, and on neurological examination, no sensory :leficits were found in either the upper or the lower extremities. The left shoulder 1 was found to have full range of motion in all planes, and there was no impingement sign. Dr. Nachamie opined to a reasonable degree of medical cert.1inty that there was no evidence of any orthopedic disability. Deposition As pertinent here, plaintiff testified that as a result of the rear-end collision's impact, his body went forward and then back [REYNOSO EBT: 1 i]. After the police recorded the accident information, he drove home, and two or three days later, he 1 No left shoulder injury is asserted here. 2 [* 3] FILED Aug 18 2015 Bronx County Clerk visited a Bronx County healthcare facility with complaints of pain in his back, and trouble sleeping [Id. 21]. He commenced a course of physical therapy that continued until sometime in 2011 when he decided that the therapy was not rraking any change in his condition [24]. Plaintiff received no treatment for his right hand, wrist, or elbow, or for his knees [27-28]. He had no period of confinement after the accident [39]. Discussion and Conclusions Upon review of the submissions here including the clinical findings upon objective testing at the recent examination, and the testimony of pl 1intiff concerning the lack of any post-accident confinement, it is the finding of this court that defendant has made his prima facie showing of the lack of accident-related serious injury here. Upon this showing, it is incumbent upon plaintiff to come forward with probative medical proof to raise an issue of that that the injuries sustained in the motor vehicle accident of March 5, 2011 were serious. Plaintiff has failed to do so. In opposition, plaintiff comes forward with no medical records in admissible form, and provides no explanation for the failure to do so, nor doe!; he make any showing that all the records may be considered as not merely refermced, but as "relied upon" by the defendant's expert. The report of the M.R.I. to the <~xtent deemed admissible, is insufficient to rebut defendant's showing in light of the absence of any expert's finding of the traumatic etiology of the positive findings Exhibited in the films. 3 [* 4] FILED Aug 18 2015 Bronx County Clerk Nor is there probative medical evidence establishing a correlation between these findings and clinically observed deficits in plaintiff's lumbar spine. Accordingly, it is ORDERED that the motion be and hereby is granted and it i~· further ORDERED that summary judgment be entered in favor of ddendant as against plaintiff dismissing the complaint. This constitutes the decision and order of this court. Dated: August 12, 2015 4

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