Falcon v Aversano
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Falcon v Aversano 2017 NY Slip Op 31955(U) August 28, 2017 Supreme Court, Suffolk County Docket Number: 22774/2014 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: WlLLlAM B. REBOLlNI Justice Motion Sequence No.: 002; MD Motion Date: 3/2/ 17 Submitted: 617/17 Herminio Falcon and Lucia Noemi Arriaza-Molina, Plaintiffs, Index No.: 22774/2014 -againstAttorney for Plaintiffs: Nicholas J. Aversano and Nicholas Aversano, Defendants. Harmon, Linder & Rogowsky, Esqs. 3 Park Avenue, 23rd Floor, Suite 2300 New York, NY 10016 Attorney for Defendants: Martyn, Toher, Martyn & Rossi 330 Old Country Road, Suite 211 Mineola, NY 11501 Clerk of the Court Upon the following papers numbered l to 22 read upon this motion for summary judgment: Notice of Motion and supporting papers, 1 - 1O; Answering Affidavits and supporting papers, 11 20; Replying Affidavits and supporting papers, 21 - 22; it is ORDERED that this motion by defendants, Nicholas J. Aversano and Nicholas Aversano, for an order granting summary judgment dismissing the complaint on the ground that the plaintiffs, Herminio Falcon and Lucia Noemi Arriaza-Molina, did not sustain a '·serious injury" within the meaning ofN.Y. Insurance Law§ 5102(d) is denied. Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained on March 5, 2013 as the result ofa motor vehicle accident. PlaintiffFalcon testified at his deposition through a translator that Spanish is his first language and that he speaks English " (o]nly a little bit" but does not read or write English. He testified that on the day of the accident he was the operator of a sedan in which plaintiff Arriaza-Molina was one of two passengers. Contact was made to the passenger side of his vehicle, but the air bags did not deploy. Plaintiff drove his vehicle from the [* 2] Falco n and Arriaza-Molina v. Aversano Index No. : 22774/201-l Page 2 scene of the accident to the emergency room, but he did not receive any treatment. He returned to the emergency room the following day, however, where he was treated and released. The next day, he sought treatment at a medical center in Brentwood with complaints of pain in his lelt shoulder, lower back and neck. I le was not confined to bed or home after the accident. and he and was unemployed as of the date of deposition, having last worked in 2012. fa Icon also testified that he had previously injured his neck and back in 200 I as the result of a motor vehicle accident. In the bill of particulars, plaintiff claims to have sustained a tear of the intra-articular biceps tendon and the glenoid labmm o r the left shoulder as well as multiple disc herniations and other soft tissue i1~juries. Plainti IT /\niaza-Mol ina testi tied at her deposition with the assistance of a translator that she occupied the rear seat of Falcon's vehicle and was treated in the emergency room and released after the accident. She sought further treatment at the medical center in Brentwood. She also testified that she was not confined to bed or home after the accident. Plaintiff claims in the bill of particulars that she sustained a "disc injury" at T6-7. disc bulges at C3 -4, C4-5 and C5-6 and other injuries. She had been working full-time as an assembly worker for Power Connector in Bohemia since 2007, and she missed three or fo ur months from work. It was also her testimony, however, that she never returned to Power Connector but, instead, she began working for We Cellular in West Babylon on September 5, 2013. She is not making a claim for lost earnings. In order to effectuate the purpose of no-fault legislation to reduce litigation. a court is required to decide. in the first instant, whether a plaintiff has made out aprimafacie case of"serious injury'' sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [ 19821; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 l2d Dept 1994)). If it is found that the injury sustained does not fit within the definiti on of "serious injury" under Insurance Law§ 5102(d), then the plaintiff has no judicia l remedy and the action must be dismissed (Licari v Elliott, s11pru. at 57 N Y2d 238; Velez v Co/tan, 203 AD2d 156, 610 NYS2d 257l1 st Dept 19941). A '·serious i1tj ury'' is defined as a personal iitjury which "results in death; dismemberment; signi Ii cant disfigurement; a fracture: loss of a fetus; permanent loss of use of a body organ, member. function or system: permanent consequential limitation of use or a body organ or member; signi1icalll lim itation of use of a body function or system; or a med ically detcrmfoed injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person·s 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"' (lnsunmce Law§ 5 I 02 [d]). In s upport of their motion. defendants submitted the affirmed medical report of Richard A. Wei ss, M.D. , an orthoped ic surgeon who examined plaintiff Falcon on February 23, 2016. Range or motion as tested with a goniometer showed ful I range of motion of the cervical and thoracic areas of the spine. There was also full range of motion of the lumbar area of the spine and straight leg raising \\'as nonnal. There was no tenderness on palpation of the left shoulder. and range of motion was 170/ 180 degrees in forward ncxion. 170/ 180 degrees in abduction, 80/90 degrees in external rotation, and 70/80 degrees in internal rotation. impingement sign was negative. The doctor concluded that there was no evidence of orthopedic disability. The doctor also opined that while there was decreased range of motion of the left shoulder exhibited, .. this is a subjective [* 3] Falcon and Arriaza-Molina v. Aversano Index No. : 22774/2014 Page 3 response that was not substantiated by objective findings and ranges of motion displayed arc compatible with normal function and consistent with age." Defendants also submitted the aflinncd report of Dr. Weiss in relation to his examination on February 23, 2016 of plaintiff Arriaza-Molina. Examination of the cervical area of the spine reportedly revealed minimal tenderness on palpation w ithout spasm, and range of motion was lull, as measured with a goniometer. Range of motion o f the thoracic area of the spine was full. There were no motor or sensory deficits in the upper extremities. Range of motion of the right elbow was 1401150 degrees in 11cxion and 0/0 degrees in extension. Range of motion of the left wrist and hand was full. and Tinel's sign was negative. The doctor concluded that there was no evidence of orthopedic disability. The proponent of a s ummary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering suffic ient evidence to demonstrate the absence of any material issues of fact (see A lvarez v Prospect llosp. , 68 NY2d 320. 508 NYS2d 923 f 1986): Wi11egrad v New York Univ. Med. Ctr., 64 N Y 2d 851 , 487 NYS2d 316 [ 1985); Zuckerman v City of New York, 49 NY2d 557. 427 NYS2<l 925 ll 980]). In a motor vehicle case. a defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury has the initial burden of presenting competent evidence establishing that the injuries s ustained do not meet the threshold (see Pagano v Ki11gsb11ry, 182 /\D2d 268, 587 NYS2d 692 f2<l Dept 1992]). A defendant may satisfy this burden by submitting the affidavits or affirmations of medical experts who examined the plainti ff and conclude that no objective medical findings s upport the plaintiffs claim that a serious injury was sustained as a result of the s ubject accident (Grossman v Wright, 268 AD2d 79. 707 NYS2d 233 [2d Dept 2000]). O nce this showing has been made. the burden shifts to the plaintiff to produce evidcntiary proof in admissible form sufficient to overcome the defendant's submissions by demonstrating a triable issue or fact that a serious injury was sustained within the mean ing of the Insurance r,aw (see Gaddy v Eyler. 79 N Y2d 955. 582 NYS2d 990l1992]; Grossman v Wrig!tt, supra: Pagano v Kingsbury , supra: see also A lvarez v Pro.\ pect Ilo~p.. supra; Z uckerman v City of New York. supra) or The defendants met their initial burden of establishing, as a matter Jaw, that neither pla intiff sustained a serious injury within the meaning of fnsurancc Law~ 5102{d) (see McCauley ,. Ross, 298 l\D2d 506. 748 NYS2d 409 f2d Dept 20021; see also McKinney v Laue, 288 AD2d 274. 733 YS2d 456 f2d Dept 20011. citing Gaddy v Eyler, 79 NY2d 955, 59 1 NE2d 1176, 582 NYS2d 990; Licari v Elliott, 57 NY2J 230, 44 1 NE2d 1088. 455 NYS2d 570). The defendants submitted competent medical evidence establishing that the alleged injuries to each pJajntiff. as determined by specific tests performed during each examination, had resolved without disability (see Fuentes '' Sanchez, 91 AD3d 418. 936 NYS2d 151 I 151 Dept 2102)). In addition. defendants established through submission or each plaintiffs deposition transcript and the bi ll of particulars that the plaintiffs did not sustain a serious injury under the 90/ 180 day category oflnsurancc Law§ 5102 (d) (see Jo'111 v Li11de11, 124 A D3d 598, I NYS3d 274 [2d Dept 20 15]). Plaintiff Palcon testified that he was not confined to bed or home after the accident, and plaintiff Arria:.ca-Molina testified that she was not confined to bed but was confined to home for '·[l Jike three weeks." [* 4] Falcon and Arriaza-Molina v. Aversano Index No.: 22774/2014 Page~ In opposition to the motion, plaintiffs Falcon and Arriaza-Molina submitted aflidavits in English. Given the fact that each plaintiff speaks Spanish and required the services of a translator at their depositions. however. their affidavits are inadmissible. The absence of a translator's affidavit_ required or foreign-language witnesses. renders the witness' English-language affidavit facially detective and inadmissible, s ince CPLR 2 10 l (b) requires that affidavits of non-Eng lishspeaking witnesses be accompanied by a translator·s affidavit setting forth the translator"s qualifications and the accuracy of the English version (see Reyes v A rco Weutwortlt Mgt. Corp., 83 AD3d 47. 919 NYS2d 44 (2d Dept 201 lJ). In addition. plaintiff Falcon subm itted the affirmed reports of Daniel Beyda, M.D .. relating to MRJs taken of the cervical spine and lumbar spine on April 24, 2013. The MRI of the cervical area of the spine reportedly showed straightening ofthe cervical lordosis, anterior spondylosis at C34 with a broad-based disc herniation indenting the ventral thccal sac and touching the left ventral aspect of the spi nal cord extending to the left neurnl foramen, a central disc bulge at C4-5, anterior spon<lylosis at C5-6 with a right posterolateral disc herniation extending to the right neural foramcn, and anterior spondylosis at C6-7 with ''a broad-based spondylitic ridge herniated disc complex:· The lumbar MRI reportedly showed anterior spondylosis at Ll -2, L2-3, L3-4, L4-5, and a central disc herniation at L5-S I. AJthough plaintiff also submitted the thoracic spine and left shoulder MRI reports of Michele Rubin, M.D., those reports are inadmissible because they were not affirmed and, thus. not in proper form (see Kreimermtm v Yukobov, 74 AD3d 753, 902 NYS2d 180 [2d Dept 201 O]). In addition to the foregoing, plaintiff s ubmitted the affirmed medical report or Alvin Stein, M.D. dated 3/29/13, 4/ 15/l 3, 6/27 /13 , 817/13, 9/9/13, I 0/23/ 13, 1 l /20113, l / l 5/14, 2/12/14 and other records maintained by OrthoMed Care in Brentwood. along with an affidavit from Arthur Thompson. M.D .. as medical records custodian, showing diminished range of motion to support the claim that plaintiff sustained cervical sprain, lumbar displacement. left shoulder derangement and sprain/strain of the lcll wrist with "'symptoms ... causally related to the accident of March 5, 2013:· Plaintiff Falcon also submitted the affirmed medical report of Paul Lerner, M.D .. a neurologist. who examined Falcon on March 29, 20 17. Range of motion testing with inclinometer and arthroidal protractor showed cervical Hexion at 35/50 degrees, extension at 30/60 degrees, left and right tilt at 35/45 degrees, and left and ri ght rotation at 50/80 degrees. Thoracic range of motion was Jell and right tilt at 35/45 degrees, lell rotation at 20/30 degrees and right rotation at 25/30 degrees. Lumbar range of motion was reportedly 40/60 degrees flcxion and 15/25 degrees extension. Motor strength was 5/5 for all extremities exceptthe left shoulder, which was .. limited by complaint of discomfort with best cffiJrt 4/5."' The doctor concluded that the plaintiff had s ustained left shoulder pain with labral and tendon tear, cervical strain and radiculopathy with disc herniations, and thoraeolumbar strain with disc herniations and bulges. which ..arc considered permanenC and causally related to the motor vehicle accident. While plaintitrs submissions may fai l to completely address the degenerative nature of some of the findings on the MRI reports. the evidence is sufficient to rebut defendants' prima fc1cie showing. Thus. plaintiff Falcon submitted competent medical evidence raising a triable issue offact as to whether he sustained serious inj urics (see Karademir v Mirt111do-Jeli11ek, _ /\ D3d _ , 20 I 7 [* 5] Falcon and Arriaza-Molina v. Aversano Index No.: 22774/2014 Page 5 NY Slip Op 05942 l2d Dept 20171 : see also Patisso v Brady, 152 AD3d 782. 56 NYS3d 465 r1d Dept 2017J). Plaintiff Arriaza-Molina submitted the affirmed report of Mark Decker, M.D .. relating to an MRl taken of the cervical spine on April 9, 2013. The MRI of the cervical area of the spine reportedly showed straightening of the cervical lordosis with "mild multilevel bulging, C3 -C4 through C5-C6." In addition, she submitted the affirmed report of Alvin Stein, M.D. dated 3/8/ 13, when she complained of headaches, cervical and thoracic pain, and left shoulder, elbow and wrist pain. Certified records of a computerized range of motion exam by Dr. Stein dated 3/ 18/ 13 reportedly showed impairment in ranges of motion of the cervical spine of 24%, the thoracic spine of 6%. the left upper extremity of 44% and the right upper extremity of 39%. Additional reports of examinations conducted by Dr. Stein on 3/22/13, 4/ 19/ 13, 5/ 17/ 13 , 6/20/ 13, 7/25/13, 8/22/13, 9/ 30/ 13 and 1/16/ 14 were also submitted. In addition, affirmed reports David W. Rabinovici, M.D., dated4/24/13 , 5/8113 and other medical records were submitted. Plaintiff Arriaza-Molina submitted the a11irmed report of Paul Lerner, M.D., too, who examined her on March 29, 2017, at which time throidal protractor showed flexion cervical range or motion measured with an inclinometer and a1 40150 degrees, extension 30/60 degrees, left and right tilt 30/45 degrees, left rotation 40/80 degrees and right rotation 45/80 degrees. Thoracic range of motion was 20/30 degrees left and right rotation iedly 40/60 degrees Dcxion and 35/45 degrees left and right tilt . Lumbar range of motion was repo1 and 10/25 degrees extension. The doctor concluded that the p laintiff had sustained cervical strain with disc bulges, cranial pain ·'that is likely of cervical origin'\ thoracolumbar strain, and left thumb/hand pain and numbness. Although a bulging or herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations res ulting from the disc injury and 'its duration (Monette v [(el/er, 28 I' AD2d 523, 523-524, 721 NYS2d 839 r2d Dept 2001 ]). Here, plaintiff Arriaza-Molina s ubmitted objective evidence sufficient to raise a triable issue of fact regarding the extent of her alleged physical limitations as well as their alleged duration. Dated: ~ :Lij .1Pi 7 ~d~ UON. WILLIAM B. REBOLINI, .J.S.C. _ __ FINAL DISPOSITION X NON-FINAL DISPOSITION f
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