Jaisingh v Samnarine

[*1] Jaisingh v Samnarine 2015 NY Slip Op 51953(U) Decided on December 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2015
Supreme Court, Queens County

Nicole Jaisingh, an Infant over the Age of Fourteen (14) Years by David Jaisingh, Her Father and Natural Guardian and David Jaisingh, Individually, Plaintiffs,

against

Preerea Samnarine, Andrew Jaisingh, Jerome Ramkhelawan and Kareem Ramkhelawan, Defendants.



706042/2014
Robert J. McDonald, J.

The following papers numbered 1 to 16 read on this motion (seq. no. 2) by defendant JEROME RAMKHELAWAN for an order pursuant to CPLR 3212 granting defendant summary judgment and dismissing plaintiffs' complaint on the ground that infant plaintiff did not sustain a serious injury within the meaning of Insurance Law §5104(a); and on this motion (seq. no. 3) by defendants PREEREA SAMNARINE and ANDREW JAISINGH for same:

Papers

Numbered

Notice of Motion (seq. no. 2)-Affirmation-

Memo. of Law-Exhibits...............................1 - 5

Affirmation in Opposition-Exhibits.......................6 - 8

Reply Affirmation........................................9 - 10

Notice of Motion (seq. no. 3)-Affirmation-Exhibits......11 - 14

Affirmation in Opposition-Exhibits......................15 - 16

In this negligence action, plaintiffs seek to recover damages for personal injuries that the infant plaintiff allegedly sustained as a result of a motor vehicle accident that occurred on May 25, 2014 at the intersection of 189th Street and 104th Avenue, in Queens County, New York. Plaintiff alleges that she sustained serious injuries to her left knee as a result of the impact.

Plaintiffs commenced this action by filing a summons and verified complaint on August 26, 2014. Defendants Preerea Samnarine and Andrew Jaisingh joined issue by service of a verified answer with cross-claim dated September 23, 2014. Defendant Jerome Ramkhelawan joined issue by service of a verified answer with cross-claim dated November 21, 2014. Defendant Kareem Ramkhelawan was added as a party defendant by stipulation dated September 9, 2015. Defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing plaintiffs' complaint on the ground that infant plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

In support of the motion, defendants submit separate affirmations from counsel, Shawn P. O'Shaugnessy Esq. and Richard B. Sullivan, Esq.; a copy of the pleadings; a copy of infant plaintiff's verified bill of particulars; a copy of the affirmed medical report of Raymond A. Shebairo, M.D.; a copy of the affirmed radiological report of Jonathan Lerner, M.D.; a copy of the transcript of the examination before trial of infant plaintiff; and an e-law printout reflecting that no note of issue has been filed in this case.

Infant plaintiff asserts that she sustained a serious injury as defined in Insurance Law § 5102(d) in that she sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or 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 plaintiff from performing substantially all of the material acts which constitute her 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. Shebairo examined infant plaintiff on August 24, 2015. Plaintiff reported to Dr. Shebairo that she was involved in a motor vehicle accident on May 25, 2014 at which time she sustained injuries to her left knee. She presented with pain to her left knee. Dr. Shebairo identified the medical records he [*2]reviewed and performed objective range of motion testing with a goniometer, which revealed decreased ranges in motion of plaintiff's right knee and left knee. He opined that there was no evidence of a permanent disability and that the ranges of motion are considered subjective in the absence of any objective clinical findings. Dr. Shebairo also stated that there is no evidence of any contributing preexisting condition.

Dr. Lerner reviewed the MRI study of plaintiff infant's left knee taken on June 27, 2014. Dr. Lerner found that myxoid degeneration within the posterior horn of the medial meniscus without tear; diffuse thinning of the articular cartilage overlying the medial and lateral patellar ridges; and chondromalacia patellae. He states that there is no causal relationship between the claimed injuries and the subject accident.

At her deposition on July 10, 2015, plaintiff testified that she was confined to her bed and home for a few days following the accident. She also testified that she had a left knee dislocation prior to the subject accident which resulted in surgery in 2012.

Defendants' counselors contend that the medical reports, together with plaintiff's testimony that she was only confined to bed and home for a few days, are sufficient to demonstrate that plaintiff has not sustained 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 plaintiff from performing substantially all of the material acts which constitute her 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 counsel, Thomas P. Murray, Esq.; a stipulation adding Kareem Ramkhelawan as a defendant and amending the caption to reflect such; and a copy of the affirmed medical report of Dov J. Berkowitz, M.D.

Plaintiff was first examined on June 24, 2015 by Dr. Berkowitz. She originally presented with pain in her left knee with recurrent episodes of buckling. Plaintiff reported that she had a patella dislocation with an avulsion fracture of the patella prior to the subject accident. She had surgery to her left knee prior to the subject accident. She had some symptoms of pain on and off post-operatively, but after the subject accident [*3]the pain in her left knee had significantly intensified. Plaintiff also denied having episodes of buckling in her left knee prior to the subject accident. Dr. Berkowitz performed range of motion testing and found decreased ranges of motion in plaintiff's left knee. On August 6, 2014, Dr. Berkowitz performed an arthroscopic procedure to the left knee with synovectomy, partial lateral meniscectomy, removal of loose body of the anteromedial portal in the medial compartment and chondroplasty of the patella-femoral joint.

Recently, on October 15, 2015, Dr. Berkowitz re-evaluated plaintiff. Upon physical examination, plaintiff was able to fully extend and flex her left knee. Dr. Berkowitz concludes that post-operatively plaintiff still has pain in the left knee during weather changes or cold weather and has some range of motion loss.

Dr. Berkowitz also reviewed the independent medical examination report of Dr. Lerner and opines that contrary to Dr. Lerner's assertion, as plaintiff was only sixteen years old at the time of surgery, she does not have any degeneration or arthritis in her left knee. Dr. Berkowitz also disagrees with Dr. Lerner's interpretation of the MRI because Dr. Berkowitz was able to see plaintiff's left knee intra-operatively. He concludes that in his opinion, the injury to plaintiff's left knee and subsequent treatment is related to the subject accident and that plaintiff has a permanent injury to her left knee.

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 (see Licari v Elliott, 57 NY2d 230 [1982]).

Where defendant's 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 [*4]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]).

Plaintiffs allege that defendants failed to meet their prima facie burden because the affirmed report of Dr. Shebairo demonstrates limitations in range of motion in plaintiff's left knee. Moreover, Dr. Shebairo's report differs from Dr. Lerner's MRI findings. As contradictory medical reports create an issue of fact and credibility, summary judgment should be denied (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Garcia v Long Island MTA, 2 AD3d 675 [2d Dept. 2003]).

Although in reply defendants contend that plaintiffs have failed to demonstrate that the claimed injuries and symptoms are the result of the subject accident, rather than the result of the prior accident, Dr. Shebairo even acknowledged that there was no evidence of any contributing preexisting condition. Under the circumstances of this case, defendants' submitted affirmed medical reports were insufficient to establish, prima facie, that infant plaintiff did not sustain an aggravation and/or exacerbation of her prior left knee injury as a result of the subject accident (see Pfeiffer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971 [2d Dept. 2010]; McKenzie v Redl, 47 AD3d 775 [2d Dept. 2008]); Cebularz v Diorio, 32 AD3d 975 [2d Dept. 2006]).

As Dr. Shebairo found decreased ranges of motion in plaintiff's left knee, defendants failed to make a prima facie showing of entitlement to judgment as a matter of law that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]). Where a defendant fails to meet the defendant's prima facie burden, the court will deny the motion for summary judgment regardless of the sufficiency of the opposition papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Barrera v MTA Long Island Bus, 52 AD3d 446 [2d Dept. 2008]; David v Bryon, 56 AD3d 413 [2d Dept. 2008]).

In any event, this Court finds that plaintiffs raised triable issues of fact by submitting the affirmed medical report attesting to the fact that plaintiff underwent left knee surgery as a result of the accident and finding that plaintiff had significant limitations in range of motion both contemporaneous to the accident and in recent examinations, and concluding that [*5]plaintiff's limitations are permanent and causally related to the accident (see David v Caceres, 96 AD3d 990 [2d Dept. 2012]; Perl v Meher, 18 NY3d 208 [2011]; Azor v Torado,59 ADd 367 [2d Dept. 2009]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]). As such, plaintiff raised a triable issue of fact as to whether she 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]).

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

ORDERED, that the motion by defendant JEROME RAMKHELAWAN (seq. no. 2) for an order granting summary judgment dismissing plaintiffs' complaint is denied; and it is further

ORDERED, that the motion by defendants PREEREA SAMNARINE and ANDREW JAISINGH (seq. no. 3) for an order granting summary judgment dismissing plaintiffs' complaint is denied.

Dated: December 24, 2015

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.