Kloete v McArdle

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Kloete v McArdle 2016 NY Slip Op 32178(U) September 8, 2016 Supreme Court, Suffolk County Docket Number: 13-34018 Judge: Jr., Andrew G. Tarantino 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] SHORT FORM ORDER INDEX No. 13-34018 CAL.No. 15-01 552MV SUPREME COURT- STATE OF NEW YORK I.A.S. PART 50 - SUFFOLK COUNTY PRESENT: Hon. ANDREW G. TARANTINO. JR. Acting Justice of the Supreme Court MOTION DATE 1-25-16 ADJ. DATE 3-22-16 Mot. Seq.# 001 - MG; CASEDISP ---------------------------------------------------------------X KRISTINA KLOETE and KEITH KLOETE, Plaintiffs, ROBERT K. YOUNG & AS SOCIATES PC Attorney for Plaintiffs 2284 Babylon Turnpike Merrick, New York 11566 - against PHILIP McARDLE, Defendant. RJCHARD T. LAU & ASSOCIATES Attorney for Defendant P.O. Box 9040 300 Jericho Quadrangle, Suite 260 Jericho, New York 11753-9040 ---------------------------------------------------------------)( Upon the following papers numbered 1 to _lL read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 26 ; Notice of Cross-Motion and supporting papers _ ; Answering Affidavits and supporting papers 27 - 35; Replying Affidavits and supporting papers 36 - 37 ; Other _ _;(and after heming eotmSel in 5ttpport mid oppo5ed to the 111otio11) it is, ORDERED that the motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff Kristina Kloete did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is granted. This is an action to recover damages, personally and derivatively, for injuries allegedly sustained by plaintiff Kristina Kloete when her vehicle was rear-ended by a vehicle owned and operated by defendant. The accident allegedly occurred on the eastbound Long Island Expressway near exit 49 north in the County of Suffolk, New York, on November l , 2013. By the bill of particulars, plaintiff Kristina Kloete alleges that, as a result of the subject accident, she sustained various serious injuries and conditions, including herniated discs at C4-C5 and C5-C6; bulging discs at C6-C7, T l-T2, and L4-L5; lumbar and cervical radiculopathy; right shoulder rotator cuff muscle/tendon strain; and thoracic and lumbosacral derangement. Defendant now moves for summary judgment dismissing the complaint on the ground that Kristina Kloete did not sustain a "serious injury" as defined in Insurance Law §5102 (d). [* 2] Kloetc v McArdle Index No. 13-34018 Page 2 Insurance Law § 5102 (d) defines "serious injury" as "a personal iajury 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 u5e 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 perfom1ing 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 foJJowing the occurrence of the injury or impairment.'' In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total Joss of use of a body organ, member, function or system ( Ober~y v Btmgs Ambulance . 96 NY2d 295, 727 NYS2d 378 l2001J). To prove the extent or degree of physical limitation with respect to the "pemianent consequential limitation of use of a body organ or member" or a ·'significant limitation of use of a body function or system" categories, either a specific percentage oft e loss of range motion must be ascribed, or there must be a sufficient description of the ''qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part (see Perl v Melter, 18 NY3d 208, 936 NYS2d 655 [20111). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute ( Licari v Elliott. 57 NY2d 230, 455 NYS2d 570 I I 982]). or On a motion for summary judgment, the defendant has the initial burc..en of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law§ 5102 (d) (see Gaddy v /<.,)/er, 79 NY2d 955. 582 NYS2d 990 [ 1992]; Akhtar v Santos , 57 AD3d 593, 869 NYS2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant ' s own examining physician (see M oore v Ediso11, 25 AD3d 672, 811NYS2d72412d Dept 2006j; Farozes vKamra11, 22 AD3d 458 , 802 NYS2d 70612d Dept 2005)). The failure to make such a prima facie showing reqllires the denial OJ, the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Uni v. Med. Ctr., 64 NY2d 851. 853. 487 NYS2d 316 l 1985 J; Boo11e v New York City Tr. Auth. , 263 AD2d 463, 692 NYS2d 73 1 [2d Dept 1999 J). Herc, defendant made a prima facie showing that Kristina Kloete did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) through the affirmed report of the moving defendant"s ~xamining physician (see Bailey v ls/am. 99 AD3d 633, 953 NYS2d 39 fJ st Dept 20 I 21; S ierra v Gonzalez First Limo, 71 AD3d 864, 895 NYS2d 863 l2d Dept 2010]; Staffv Yshua, 59 AD3d 614, 874 NYS2d 180 l2d Dept 2009]). On April 24, 2015, approximately one year an d six months after the subject accident, moving defendant's examining orthopedist, Dr. Gary Kelman, examined Kristina Kloete and performed certain orthopedic and neurological tests, including the foraminal compression test and the straight leg raising test. Dr. Kelman found that all the test results wcr~ negative or normal. and that there was no spasm or tenderness in Kloete' s cervical and lumbar region. Dr. Kelman also performed range of motion testing on Kloete' s cervical, thoracic and lumbar spine and shoulders, using a goniometer to measure her joint movement. Dr. Kelman found that Kloete exhibited normal joint function in her cervical. thoracic and lumbar region and shoulders. Dr. Kelman learned that Kloete [* 3] Kloetc v McArdle lndexNo.13-34018 Page 3 underwent right shoulder surgery in 2000. Dr. Kelman opined that Kloete had no orthopedic disability at the time of the examination (see Willis v New York City Tr. Auth. , 14 AD3d 696, 789 NYS2d 223 l2d Dept 2005)). further, at her deposition, Kristina Kloete testified that at the time of 1 accident, sbe worked as he a nanny for a family; she missed two weeks from work; and that she returned to work on light duty. Plaintiff testified that after the subject accident, she was taken by ambulance to an emergency room and was discharged with pain medication on the same day . Within a week of the accident, she saw a physician at Orlin and Cohen Orthopedic Group. Within a week thereafter. she saw another physician at Orthopedic Sports Association. She received physical therapy for several months from November 2013 until March 2014. Klocte 's deposition testimony established that her injuries did not prevent her from performing "substantially all " of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see Bums v McCabe , 17 AD3d 111 I, 794 NYS2cl 267 14th Dept 20051; Curry v Velez, 243 AD2d 442, 663 NYS2d 63 [2d Dept 19971). Thus, defendant met his initial burden of establishing that Kristina Kloetc did not sustain a permanent consequential limitation of use of a body organ or member or sig1r ficant limitation of use or a hody function or system, and that she was not prevented from performing substantially all of her usual and customary <lai ly activities for 90 of the first 180 days following the accident within the meanjng of Insurance Law§ 5102 (d) (see Gonzalez v Green, 24 AD3d 939, 805 NYS2d 450 [3d Dept 2005 j). The burden. therefore, shilled to plaintiffs to raise a triable issue of fact (see Ga<ldy v Eyler. supra). A plaintiff claiming injury within the "limitation of use" categories m ust substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration G\·ee Ferraro J' Ridge Car Serv. , 49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]: Mejia,, DeRose, 35 AD3d 407, 825 NYS2d 772 j2d Dept 2006]; Laruffa v Yui Ming Lau , 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006J; Cerisier v TMbiu, 29 J\D3d 507, 815 NYS2d 140 !2d Dept 2006 J). To prove significant physical limitation , a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination of the plaintiff or a sufficient description of the "qualitative nature" of plaintifrs limitations. with an objective basis, correlating plaintifrs limitations to the normal function , purpose and use of the body part (see Perl v Meller, supra; Toure v Avis Rent A Car Systems, Inc.. 98 NY2d 345, 746 NYS2d 865 [2002J; Rovelo v Volcy, 83 AD3d 1034. 921NYS2d322 l2d Dept 2011]). A minor. mild or slight limitation of use is considered insignificant within the meaning of lhe statute (see Licari v Elliott. supra: Cebron v T1mcoglu. 109 J\03d 631 , 970 NYS2d 826 [ 2d Dept 20131). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pomme/ls v Perez, 4 NY3d 566, 574, 797 NYS2d 380 12005 J: see! Vasquez v Jolm Doe#/. 73 AD3d 1033. 905 NYS2d 188 l2d Dept 201 OJ; Rfrera v Bush wick Ridgewood Props., Inc. , 63 A03d 712, 880 NYS2d 149 l2d Dept 2009]). Plaintiffs oppose the motion, arguing defendant' s expert report is insufficient to meet his burden on the motion. Plaintiffs also argue that the medical reports prepared by Krist ina Kloetc ' s treating physicians raise a triable issue as to whether she suffered injury within the "'significant limitation of use" [* 4] Kloetc v McArdlc Index No. 13-34018 Page 4 category oflnsurance Law§ 5102 (d). In opposition, plaintiffs submit the sworn medical reports of Dr. J larold Augenstein, Dr. James Liguori, Dr. Salvatore Corso, and Dr. John Stamatos. The MRI reports. dated December 8, 2013 and February 9. 2014, of Dr. /\ugen:--tein indicate that Kristina Kloetc has bulging discs and herniated discs at her cervical and lumbar region. The mere exis tence of a herniated or bulging disc, in the absence of objective evidence as to the extent or the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury (see Pierson v Edwards, 77 /\D3d 642, 909 NYS2d 726 !2d Dept 20101). Moreover, Dr. Augenstein failed to proffer an opinion as to the cause of the disc pathology noted in his reports (see Sclteker ''Brown. 91 AD3d 751. 936 NYS2d 283 [2d Dept 2012]~ Sorto v Morales, 55 /\D3d 718. 868 NYS2d 6712d Dept 2008); Collins v Stone, 8 AD3d 321, 778 NYS2d 79 j2d Dept 2004J). The medical reports, dated December 9, 2013 and March 27. 2014, of Dr. Liguori indicate that Kristina Kloete has radiculopathy, bulging discs, and herniated discs in her cervical and lumbar regions. The mere existence of a herniated or bulging disc. in the absence of objecti vc evidence as to the extent of the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury (see Pierson v Edw"rds, supra). Dr. Liguori provided neither evidence of range of motion limitations nor a qualitative assessment of Kristina Kloete's cervical or lumbar spine. The medical reports, dated November 13, 2013 and November 18. 20 13, of Dr. Co rso indicate that Kristina Kloete has "decreased" range of motion in her cervical region. However. Dr. Corso failed to quantify the results of his range-of-motion tests (see Sinumovskiy v Barbaro, 72 AD3d 930. 899 NYS2d 324 j2d Dept 20101; Barnett vSmitlt, 64 AD3d 669, 883 NYS2d 573 j2d Dept 2009J). According to the reports of Dr. Corso from December 2, 20 13 and February 18. 2016. Kristina Kloetc has "decreased'" range of motion in her cervical region, and he recorded ran.sc of motion measurements, cxprcsscd in numerical degrees. I Iowcver. Dr. Corso failed lo compare these findings to the normal range of motion (see Rivera v Gonzalez. I 07 AD3d 500. 967 NYS2d 60 [1 st Dept 20131; Ti11ya110.ff v K1111a. 98 AD3d 501, 949 NYS2d 203 f2d Dept 2012]). Moreover. Dr. Cor:;o failed to state how he measured the joint function in Kristina Kloete's cervical region. The Court can only assume that Dr. Corso's tests were visually observed with the input of Kristina Klocle. The failure to state and describe the tests used will render the opinion insufficient (see Hamey v Tombstolle Pizza Corp. , 279 /\D2d 609. 719 NYS2c.l 70412d Dept 200 1]; /lerma11 v Church , 276 AD2d 471. 714 NYS2d 87 l2d Dept 2000J). With regard to the lumbar spine injury, Dr. Corso did not examine Kristina Kloete's lumbar region until March 24. 20 14, almost five months after the accident, and s ubmitted no objective medical evidence contl.!mporancous w ith the accident (see He11cl1y v VAS Express Corp. , l 15 AD3d 4 78. 981 NYS2d 418 11 st Dept 2014J: Soito v Ko11ate. 85 /\D3d 522. 925 NYS2d 456 I 1st Dept 2011 J ~ Toulw 11 v You11g Ihm Pae, 13 ADJd 317. 788 NYS2<l 334 rJst Dept 2004J). The operative reports. dated March 16. 2015 and April 9, 2015, of Dr. Stamatos indicate that cervical epidural steroid injections were administered due to Kristina Kloete 's cervical radiculopathy. I lowever. Dr. Stamatos failed to proffer an opinion as to the cause of the dis..:. pathology noted in his reports (see Sclteker v Brown , supra; Sorto v Morales , supra; Co/li11s v S tolle, supra). Moreover. Dr. Stamatos provided neither evidence of range of motion limitations nor a qua itative assessment of Kristina Kloete's cervical spine. [* 5] Kloele v McArdle Index No. 13-34018 Page 5 Finally, plaintiffs failed to offer competent evidence that Kristina Kloete sustained nonperrnancnt injuries that left her unable lo perform her normal daily activities for at least 90 of the l 80 days immediately following the accident (see Jo/111 v Linden, 124 AD3d 598, 1 NYS3d 274 f2d Dept 2015 J; II C'1u11g Lim v Chrabaszcz, 95 AD3d 950, 944 NYS2d 236 (2d Dept 2012); Rivera v Bushwick Ridgewood Props., J11c., 63 AD3d 712, 880 NYS2d 149 [2d Dept 2009]). Accordingly, defendant's motion for summary judgment dismissing the complaint based on plaintiff Kristina Kloctc 's failure to meet the serious injury threshold is granted. Dated: ~"'V~--~~ SEP 0 8 2016 A.J.S.C. X FINAL DISPOSITION NON-FINAL DISPOSITION

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