Faitrouni v Chuan Hao Jin

[*1] Faitrouni v Chuan Hao Jin 2015 NY Slip Op 51952(U) Decided on December 23, 2015 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2015
Supreme Court, Queens County

Najwa Faitrouni, Emile Salfitti, Majda Georges and Fadi Mahfouz, Plaintiffs,

against

Chuan Hao Jin and Yan Guang Jin, Defendants.



22815/2013
Robert J. McDonald, J.

The following papers numbered 1 to 9 read on this motion by defendants for an order pursuant to CPLR 3212 granting defendants summary judgment and dismissing plaintiffs' complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law §§5104(a) and 5102(d):

Papers

Numbered

Notice of Motion-Affirmation-Exhibits....................1 - 4

Affirmation in Opposition-Exhibits.......................5 - 7

Reply Affirmation........................................8 - 9

In this negligence action, plaintiffs seek to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on June 1, 2013 on the Brooklyn Queens Expressway in the eastbound lane near Atlantic [*2]Avenue in Brooklyn, New York. Plaintiff Najwa Faitrouni was the operator and plaintiff Majda Georges was a passenger in vehicle involved in the accident. In her verified bill of a particulars, Faitrouni alleges that she sustained serious injuries to her cervical spine, lumbar spine, left shoulder, left knee, and left ankle. Georges alleges that she sustained serious injuries to her cervical spine, lumbar spine, and left shoulder.

Plaintiffs commenced this action by filing a summons and complaint on December 10, 2013. Issue was joined by service of defendants' answer dated February 19, 2014. Plaintiffs then filed an amended complaint on July 25, 2015 and defendants' served an answer dated August 18, 2014. The derivative claims by plaintiffs' spouses, Emile Salfitti and Fadi Mahfouz, were discontinued on June 22, 2015 by Stipulation of Discontinuance. Defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing plaintiffs' complaint on the ground that plaintiffs did not suffer a serious injury as defined by Insurance Law § 5102.

In support of the motion, defendants submit an affirmation from counsel, Raymond Nabhani, Esq.; a copy of the pleadings; a copy of the combined demands; a copy of the preliminary conference order; a copy of the verified bill of particulars; a copy of plaintiff's note of issue; a copy of the so-ordered stipulation; a copy of the stipulation of discontinuance; a copy of the transcripts of the examinations before trial of Faitrouni and Georges; copies of the affirmed medical reports of neurologist Robert Y. Pick, M.D.; and copies of the affirmed medical reports of radiologist David A. Fisher, M.D.

Plaintiffs assert that they sustained a serious injury as defined in Insurance Law § 5102(d) in that they each sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented plaintiffs from performing substantially all of the material acts which constitute their 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.

Dr. Pick examined Faitrouni on February 16, 2015. Faitrouni reported to Dr. Pick that she was involved in motor vehicle accident and was taken by ambulance to Methodist Hospital. No x-rays were taken. She was advised to rest, given medication and [*3]released. Faitrouni presented to Dr. Pick with complaints of pain in the neck that goes into the extremities with a sharp pain in the elbow and hand, pain in the mid back, sharp pain in the low back that goes to the extremities and goes to the leg with cramping in her foot, pain in her left shoulder, pain in her left knee, and headaches. Dr. Pick identifies that records he reviewed and performed objective range of motion testing with a goniometer on Faitrouni's cervical spine, lumbar spine, left shoulder, left knee, and left ankle and foot. Dr. Pick's report reveals normal range of motion in Faitrouni's left knee and left ankle and foot. He reports a decreased range of motion in Faitrouni's cervical spine, lumbar spine, and left shoulder, but attributes the decreased ranges of motion to suboptimal effort. Dr. Pick's diagnosis is resolved cervical, thoracic and lumbar spine sprains/strains, left shoulder sprain, left knee sprain, and left ankle sprain. He concludes that there is a causal relationship between the subject accident and Faitrouni's claimed injuries.

Dr. Fisher reviewed the MRI of Faitrouni's left shoulder dated November 6, 2013 and found that there was no rotator cuff or labral tear and there was no evidence of traumatic or causally related injury. Dr. Fisher reviewed the MRI of Faitrouni's cervical spine dated October 27, 2013 and found a small disc herniation at C4-C5. He states that this disc herniation could be degenerative or traumatic in nature. Dr. Lerner reviewed the MRI of Faitrouni's left knee taken on November 17, 2013 and found no meniscal or ligament tear and no evidence of traumatic or causally related injury.

At her deposition taken on January 12, 2015, Faitrouni testified that she missed three non-consecutive days from work as a result of the subject accident. She did return to her same duties at work. No doctor has told her that she is disabled or partially disabled as a result of the subject accident.

Dr. Pick also examined Georges on February 16, 2015. Georges reported to Dr. Pick that she was involved in the subject accident and was transported by ambulance to Methodist Hospital. No x-rays were taken at Methodist Hospital. She was given medication and released. She presented with current complaints of pain in her neck, low back with numbness, and right shoulder. Dr. Pick identifies the records he reviewed and performed range of motion testing with a goniometer. He found decreased ranges of motion in Georges' cervical spine, lumbar spine, right shoulder, and left shoulder. He attributes the decreased ranges of motion to suboptimal effort. Dr. Pick's diagnosis is resolved cervical and lumbar spine sprains/strains and resolved left shoulder sprain. He concludes that there is a causal relationship between [*4]the subject accident and Georges' claimed injuries.

Dr. Fisher reviewed the MRI of Georges' left shoulder taken on October 23, 2013 and found that there was no rotator cuff or labral tear and that there was no evidence of traumatic or causally related injury. Dr. Fisher also reviewed the MRI of Georges' lumbar spine and found no disc herniations or evidence of traumatic or causally related injury.

At her deposition taken on January 12, 2015, Georges testified that she missed a total of four days of work due to the subject accident. She was not confined to her home or bed following the accident and no doctor told her that she is disabled or partially disabled as a result of the subject accident.

Defendants' counsel contends that the medical reports and plaintiffs' testimony are sufficient to demonstrate that plaintiffs have not sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented plaintiffs from performing substantially all of the material acts which constitute their 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.

In opposition plaintiffs submit an affirmation from their counsel, Scott L. Sherman, Esq.; the affirmed medical reports of Howard Baum, M.D.; the affirmed radiological reports of Thomas M. Kolb, M.D.; and supplemental verified bill of particulars.

Faitrouni began treating with Dr. Baum on June 13, 2013. Dr. Baum performed range of motion testing with a goniometer which revealed decreased ranges of motion in Faitrouni's cervical spine and lumbar spine. Most recently, Dr. Baum examined Faitrouni on September 17, 2015. She presented with pain in her neck, back, left knee, left ankle, and left shoulder. Dr. Baum found continued decreased range of motion in her cervical spine and lumbar spine. He opines that Faitrouni suffered herniated discs in her neck and back with spinal cord impingement and left shoulder partial tears of her rotator cuff and coracohumeral ligament and left knee partial tear posterior horn meniscus and medial collateral ligament. He concludes that the diagnosed injuries will cause a significant limitation and permanent consequential limitation of use of Faitrouni's cervical spine, [*5]lumbar spine, left knee, and left shoulder and will result in a substantial disruption to Faitrouni's normal and customary activities of daily living. He further concludes that the injuries are causally related to the subject accident and that it is likely that in time she will require injections, stronger medications, and surgeries to the left shoulder. Additionally,Dr. Kolb reviewed Faitrouni's MRI films and found, inter alia, tears, join effusion, disc herniations, and disc bulges.

Georges began treating with Dr. Baum on June 17, 2013. He performed range of motion testing with a goniometer and found decreased ranges of motion in Georges' cervical spine, lumbar spine, and left shoulder. Most recently, Dr. Baum examined Georges on September 17, 2015. She presented with complaints of pain in her neck, back, and left shoulder. He found continued decreased ranges of motion in Georges' cervical spine, lumbar spine, and left shoulder. In Dr. Baum's opinion, Georges suffered a significant qualitative loss in her functional capacity due to severe spinal nerve damage.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A] defendant can establish that a plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]; Zuckerman v City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

This Court finds that plaintiffs raised triable issues of fact by submitting the affirmed medical reports attesting to the fact that each plaintiff sustained injuries as a result of the [*6]accident, finding that each plaintiff had significant limitations in ranges of motion both contemporaneous to the accident and in recent examinations, and concluding that their limitations are permanent and causally related to the accident (see Perl v Meher, 18 NY3d 208 [2011]; David v Caceres, 96 AD3d 990 [2d Dept. 2012]; Martin v Portexit Corp., 98 AD3d 63 [1st Dept. 2012]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 AD2d 367 [2d Dept. 2009]).

As such, plaintiffs demonstrated issues of fact as to whether they sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091 [2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]). In light of this finding, the court need not address the 90/180 category.

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the motion by defendants for an order granting summary judgment dismissing plaintiffs' complaint is denied; and it is further

ORDERED, that this matter remains on the calendar of the Trial Scheduling Part for March 2, 2016.

Dated: December 23, 2015

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.