Deleon v Velasquez
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Deleon v Velasquez 2017 NY Slip Op 31360(U) June 13, 2017 Supreme Court, Suffolk County Docket Number: 31856/2013 Judge: William B. Rebolini 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 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Karen M . Deleon and Carlos Deleon, Plaintiffs, -against- Motion Sequence No.: 00 1; MG; CD Motion Date: 10/27/16 Submitted: 3/22/17 Index No.: 31856/2013 Luis A. Velasquez and Transportes El Universal, l nc. Attorney for Plaintiff: Defendants. Michael G. LoRusso, P.C. 316 Jackson Avenue Syosset, NY 11791 Attorney for Defendants: Baker, McEvoy, Morrissey & Moskovits, P.C. 1 Metrotecb Center Brooklyn, NY 11201 Clerk of the Court Upon the following papers numbered 1 to 25 read upon this motion for summary judgment: Notice ofMotion and supporting papers, 1 - 9; Answering Affidavits and supporting papers, 10 - 23; Replying Affidavits and supporting papers, 24 - 25; it is ORDERED that this motion by defendants, Luis A. Velasquez and Transportes el Universal, Inc., for an order awarding summary judgment in their favor dismissing the complaint of plaintiff on the ground that the plaintiff, Karen M. Deleon, did not sustain a "serious injury" within the meaning ofN.Y. Insurance Law§ 5102(d) is granted, and the complaint is hereby dismissed. Plaintiffs Karen M. Deleon and Carlos Deleon commenced this action to recover damages for personal injuries allegedly sustained as the result of a motor vehicle accident that occurred on January 16, 2011. By stipulation dated July 26, 2016, the claims asserted by Carlos Deleon were [* 2] Deleon v. Velasquez, ct al. Index No.: 31856/2013 Page 2 discontinued. Defendants now move for summary judgment dismissing the complaint, alleging that Insurance Law §5104 precludes plaintiff Karen M. Deleon from pursuing a personal injury claim because she did not sufler a ··serious injury" within the meaning of lnsurance I,aw §5102(d). It is alleged in the bill of particulars that plaintiff sustained an ''activation'· of right-sided disc bulges at C5-6 and C6-7, and an "activation·• ofa right-sided disc bulge at L5-S I with thecal sac impingement, and other soft tissue injuries. In support of the motion, defendant submitted numerous documenlc;, including the deposition of plain1i ff Karen M. Deleon, in which she testified that she attended a ''sweet 16 event'' after the accident. Lt was also plai ntiff's testimony that she could not recall the lirst time th(:lt she sought medic(:ll treatment after the acciden t but that she believed it was with a chiropractor, Dr. Plutno. ''maybe a week within the accident.'' Plaintiff was not employed on the date of the deposition in February 2016, and she testilied that she could not recall if she was employed 011 the day the accident. She testified that after the acci<lent s he was confined lo bed and home for "I mlaybe a week or two." or The proponent of a summary judgment motion must tender evidenti(:lry proof in admissible form eliminating any material issues of fact from the case (see A lvarez v Prospect l/osp. , 68 NY2d 320, 508 NYS2d 923 I 1986 J). Once this showing has been made, the burden shills to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues or fact that require a trial for resolution (see A lvarez v Prospect Hosp., supra; Z uckerma11 v City of New York, 49 NY2d 557, 427 NYS2d 595 fl 980 !). Insurance I .aw §5 101(d) defines ··serious injury'' as ·'a personal injut)'Which result$ in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent IOSS of USC of a body organ, member, runction 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 usua l and customary daily activities for not less than ninety days during the one hundred eighty days immed iately following the occurrence or the injury or impairment." A defendant seek ing summary judgment on the ground that a plaintifrs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a ·'serious injury'' (see Toure vAvis Re11t A Car Sys. , 98 NY2<l 345. 746 NYS2d 865 [20021; G'adr~r v Eyler, 79 NY2d 955, 582 NYS2d 99011992); Beltra11 v Powmv L imo, Inc.. 98 i\.03d I 070, 951 N YS2d 231 12d Dept 2012 J). When such a dcfondant's motion relics upon the findings of the dcfondant's own witnesses. those findings must be in admissible form, such as arlid(:lvits and affirmations. and not unsworn reports, to demonstrate entitlement to judgment as a Willer, 82 i\.D3d 811, 918 NYS2d 34912d Ocpt 20111; Damas v Valdes. matter of law (see Brite v 1 84 AD3d 87. 921NYS2dI14 l2d Dept 201 I l, citing Pagano v Kiugsbwy, I 82 AD2d 268. 270, 587 NYS2d 692, 694 12d Dept 19921). A defendant also may establish entitlement to summary judgment using the plaintiffs <lcposition testimony (see Beltran v Powow Limo, Tu e. , supra~ Bamumlo v Fiero. 88 AD3d 831, 931 NYS2d 239 [2d Dept 2011 l; Mc/11tosfl v O'Brie11. 69 AD3d 585. 893 NYS2d 154 l2d Dept 20 I 0 J). Once a defendant meets this burden, the plaintiff must present proor, [* 3] Deleon ". V clasg uc7., et al. Index No.: 31856/2013 Pagc3 in admissible form. which creates a material issue of fact (see Gaddy v t y ler, supra; Zuckerman v City of New York. supra: Beltran v Powow Limo, Inc., supra). A plain ti ff claiming injury within the ''permanent consequential limitation·· or ·'significant limitation'" of use categories of the statute must substantiate hi s or her complaints of pain with objective medical evidence showing the extent or degree of the limitation o f movement caused by the injury and its duration (see Sc/tilling v Labrador, 136 AD3d 884, 25 NYS3d 33 1 f2d Oept 20 1Gl; Rovelo v Volcy, 83 A03d 1034, 921NYS2d322 l2d Dept 2011 l; McLoudv Reyes, 82 AD3d 848. 919 NYS2d 32 L2d Dept 20 11 I). To prove significant phys ical limitation, a plaintiff must present either objective quant itative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature., of plaintiffs 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 f2011 J: Toure v Avis Re11t A Car Systems, Inc., supra; McEacllin v City of New York , 137 /\.D3d 753, 756, 25 NYS3d 672. 675 l2d Dept 2016 I). A plai ntiff seek ing to recover damages under the ··90/ 180-days" category of ··serious injury" must prove the injury is ··medically determined," meaning that the condition must be substantiated by a physician, and the condition must be causally related to the accident (see P1yce v Nelson , 124 AD3d 859, 2 NYS3d 2 14 [2d Dept 20 15'1; Stre11k v Rodas. 11 I AD3d 920, 976 NYS2d 151 12d Dept 20 13 J; Be/trail v Powow Limo, Jue. , su1>ra). or In suppo1i the motion, defendants submitted the affirmed medical report of Edward M. Weiland, M .0., a neurologist, \·Vho examined Karen M. Deleon on March 24, 2016. At the time of the examination, plaintiff complained of .. neck pain radiating more prevalently into the area her right shoulder." Examination of the cervical spine revealed flexion, extension, right and lef1 lateral rotation and right and lefi. lateral Hexion: as measured with a g.onio rneter, were full. T he foraminal compression test. shoulder depressor test, Soto- I fall test and Valsalva's maneuver were negative. Flex ion, extension, right and left lateral tlexion o f the lumbar spine were rull, and Babinski 's, Waddell test and Faberc-Patrick s ign were negative. Straight leg rais ing was unlimited at 90 degrees. Sensation was intact and deep tendon reflexes were normal. Dr. Weiland concluded that any al leged injuries sustained by the plaintiff had resolved and there wa5 no evidence of any residual or permanent neurologica l injury. or Defendants also submitted the affirmed report of radiologist Audrey Eisenstadt, M.O., who reviewed the radiograph or plaintifrs cervical spine taken on February 28, 2011, which showed a straightening of the cervical lordosis but no fracture. Or. Eisenstadt also reviewed the MRI scan of the cervical spine taken on March 9, 20 l 1 which showed desiccation of C2-3 through C7-T l inve1 icbral disc levels and bulging at C5-6 and C6-7, but no focal disc herniations or annular tears. The doctor concluded that the disc desiccation is a degenerative process with no traumatic etiology. and there was no evidence of traumatic bony or intervertebral disc changes. Or. Eisenstadt also reviewed a radiograph or the hunbar spine taken on February 28. 2011 as well as an MRI scan taken on March 17, 20 I I. The radiograph showed narrowing of the disc space at LS-S l, which the doctor opined was degenerative and predated the underlying accident. The MR I showed bulging of the L45 intervertebral disc level as well as a right paracentral L5-S 1 disc herniation that impressed on the [* 4] Deleon v. Velasquez, ct al. ln<lcx No.: 31856/2013 Page4 right side of the theeal sac, which the doctor opined was degenerative in etiology. No osseous contusion or annular tear was seen. Defendants' submissions establish a primu.facie case that the alleged injuries to plaintiffs spinal regions do not constitute "serious injuries'' within the meaning oflnsurance Law §5102(d) (see Toure v A vis Rent A Car Sys.. supra; Gaddy v Eyler, supra; Beltran ,, Powo1 limo, Inc., v supra). In opposition to the motion, plaintiff submitted multiple documents, including her own affidavit as well as the afiirmation of Luis M. Fandos, M.D., who firs t examined plaintiff on April 20. 2016. At that time, the doctor reported found positive Spurling's on the right side with tenderness on palpation of the cervical paraspinal muscles on the right side. There is report of any range of motion testing having been undertaken at the visit. Plaintiff was seen multiple times thereafter and was given cervical epidural steroid injections as well as trigger point injections in the lumbar paraspinal muscles. On October 7, 2016, plaintiff underwent cervical intra-articular facet injections at right C5-6 and C6-7 levels under anesthesia. It was the doctor's conclusion that plaintiff "sustained causally related injuries with resultant sequelae from the motor vehicle accident of January 16. 2011 to her cervical and lumbar spines, and left shoulder . .. [that] have resulted in significant limitation and permanent partial disability." Plaintiff also submitted the affirmed reports of the cervical MR1 taken on March I 0, 2011 and the lumbar MRl taken on March 18, 2011, as well as affirmed reports of the cervical MRI taken on April 10. 2015 and MRI of the right shoulder taken on April 10, 2015. The affirmed report of an MRI of the cervical spine taken on November 3, 2015 was also submitted, as were the affirmed reports of an MRI of the cervical spine taken on August 18, 2016 and an MRI the lumbar spine taken on October 12, 2016. While the plaintiff also submitted copies of records for visits with the chiropractor from January 2011 through June 2011, and a report from her treating chiropractor, they were not notarized and not in admissible form (see Wiley v Hann on, 194 AD2d 722, 60 I NYS2d 805 12d Dept 1993]). or Plaintiff failed to submit competent medical evidence that as a result ofinjuries sustained in the accident, she was prevented from performing her usuaJ and customary activities for 90 out of the first 180 days following the accident (see Pompey v Carney, 59 J\D3d 416, 872 NYS2d 541 f2d Dept 20091). Furthermore, plaintiff failed to present competent medical evidence that revealed the existence of significant limitations contemporaneous with the underlying accident, and she did not raise a triable issue of fact as to whether she sustained a permanent consequential limitation of use or significant limitation of use (see Catalano v Kopmmm, 73 AD3d 963, 900 NYS2d 759 f2d [)cpl 20 l Ol). In addition, plaintiff's treating doctor failed to address the findings of defendants' experts that the plaintiff has degenerative disc disease in her spine that was not caused by the subject accident (see Jolt11 v Linden , 124 AD3d 598, 1 NYS3d 274 l2d Dept 20151). In addition, the af(irmed MRI reports submitted by plaintiff did not set forth the doctor's opinions on the cause of the findings stated in those reports (see Jolin v linden, id.). Having failed to address the evidence submitted by defondants that the MRf findings relative to plaintiffs spine arc degenerative in nature [* 5] Deleo n v. Velasquez, ct a l. Ind ex No.: 3185612013 Page 5 and unrelated to the subject accident, any conclusions by the plaintiffs doctors that the injuries and alleged limitations were the result of the subject accident are speculative and fail to raise a triable issueoffact(see Larsou v D elg ado, 71AD3d739.897NYS2d167(2dDept2010]). Accordingly, defendants· motion for summary judgment is granted. Datcd: r 13,ltJ1 7 I N. WILLIAM B. RE HOLINI, .J.S.C. _ _..:..::X__ FINAL DISPOSITI ON _ _ _ NON-FI NAL DISPOSI T ION
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