Munoz v Robinson

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Munoz v Robinson 2017 NY Slip Op 32738(U) December 26, 2017 Supreme Court, New York County Docket Number: 152701/2015 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 1] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ,._. PRESENT: 22 HON. PAUL A. GOETZ PART _ __ J.S.9ustice (vl lv>AJ 0 -:c-, .S-v4 g tL-1 ;V',4 INDEX NO. / fZ3 0 i/20}/ I MOTION DATE _ _ __ •V• k_oc51vVSat'\..-{ /LLC~-c( e_ . (2 0 V MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits INo(s). Answering Affidavits - J) J .+3 I No(s). Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - , . - - - - Defe.ndants' SJ Motion . INo(s). '../ £+~ . Upo11 mewregumgpapers, it Is ordered that this motion 1s Defendants Rickey R. Robinson and Denise L. Robinson's motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff as a result of the November 21, 2013, accident fail to establish a serious injury threshold as defined by Insurance Law§ 5102 (d), Defendant William Paulino' s cross-motion seeking the same relief and adopting the arguments and evidence submitted by the ~obinson Defendants, and Plaintiffs cross-motion for summary judgment on liability and on threshold are decided as follows: Plaintiffs bill of particulars alleges injuries to her left knee, head (post-concussion syndrome with post-traumatic headaches and photophobia) and cervical and lumbar spine. Although Plaintiff does not explicitly state the Insurance Law § SI 02 (d) criteria her alleged injuries meet in her bill of particulars, Plaintiffs cross motion suggests she is proceeding under the following criteria: permanent loss of use; permanent consequential limitation; significant limitation of use; and 90/180-day. . Defendants' orthopedist, Dr. Arnold T. Berman, conducted an IME of Plaintiff on June 9, 2016, and reviewed her medical records pertaining to the treatment of her injuries. During his examination of Plaintiff, Dr. Berman found normal ranges of motion of and negative/normal objective tests for her ccervical and lumbar spine and left knee. Dr. Berman diagnosed Plaintiff as having resolved, with no residuals, cervical and lumbar spine strain/sprain and "left knee contusion/strain associated with moderate degenerative join disease." Dr. Berman opines that Plaintiffs "left knee arthroscopy surgery was for a pre-existing condition of moderate degenerative joint disease ... [because] [t]he radiological findings of the left knee·were of a chronic degenerative nature and not the result of a single traumatic event." 18 201~ ------- DatedP EC _ _ _ _ _ _ _ _ _ __,J.S.C. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION 0 0 SETTLE ORDER 0 00 NOT POST 0 D CASE DISPOSED IS: 3. CHECK JF APPROPRIATE: ................................................ -~--- ----~----------·---··---~- - ··--· - ... :~~ .. 0 GRANTED 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT ----=------ .. 0 GRANTED IN PART 0 =·~-~-~-~· =-~- 1 of 6 DENIED NON-FINAL DISPOSITION 0 REFERENCE =: --. [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 2] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 22 HON, PAUL A. GOETZ .J S.C. PART _ __ I Justice INDEX NO. /r2--:t-o ;jv;Jf MOTION DATE _ _ _ __ .y. MOTION SEQ. NO. 0 0 ).;...-- The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s) . _ _ _ _ __ I No(s). - - - - - 1No(s). _ _ _ _ __ Upon the foregoing papers, it is 9rdered that this motion is Defendants' neurologist, Dr. Robert S. April performed a neurological examination of Plaintiff on March 1, 2016. Dr. April's objective cranial nerves (including visual acuity and ocular movements) and motor tests/examinations were negative/normal. Dr. April performed a "mechanical exam" of Plaintiff and found normal ranges of motion for straight leg raising with a normal range provided and normal range of motion for upp~r limbs and lower back but did not provide the normal ranges of motion for each movement for those body parts. Dr. April concludes that Plaintiff had a normal neurological examination and that she is neurologically intact. w (..) j::: :::> "' "') g 0 w 0: a: w IL. .W. ~: .. >-' ~ ...J ...I z :::> 0 IL. <C ... "' (..) w w 0::: 5; (.') w z. ~~ w ...J ~~ ~ 0 ~~ Defendants' radiologist, Dr. Melissa Sapan Cohn, reviewed MRI's of Plaintiffs left knee (taken on March 26, 2014), and cervical and lumbar spine (both taken on January 14, 2014). Dr. Cohn's report on Plaintiffs left knee concludes that Plaintiff" ... has severe osteoarthritis predominantly of the medial compartment of the joint space with associated tearing of the underlying meniscus ... [and explains that] . [m]eniscal pathology is frequently seen in advanced osteoarthritis." Dr. Cohn found no evidence of an acute traumatic related injury to Plaintiffs left knee. Dr. Cohn's report on the MRI of Plaintiffs cervical spine found "straightening of the normal cervical lordosis. This may reflect muscular spasm ... [or] the result of the positioning of the [Plaintiffs] neck within the cervical coil necessary to perform the examination." Dr. Cohn observed disc bulging unrelated to trauma that "is within the spectrum of degenerative disc disease ... [and] ... no evidence [of] disc herniation or acute traumatic related injury . . ." Regarding the MRI of Plaintiffs lumbar spine, Dr. Cohn found "a normal examination ... [and] ... no evidence for pathology or acute traumatic related injury ..." ·1 Finally, Defendants offer an affirmed March 21, 2016, report from Dr. Howard Levin,. an orthopedic surgeon who reviewed 10 operative photos of Plaintiff's left knee arthroscopy surgery erformed on January 16, 2015, by Dr. Emmanuel Hostin. Dr. Levin concludes that the "[p]hotos show a ated: g ;J- If/ 6 CHECK ONE: ...................................................................... CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 0 CASE DISPOSED GRANTED 0 SETTLE ORDER 0DONOTPOST DENIED NON-FINAL DISPOSITION GRANTED IN PART 0 OTHER D SUBMIT ORDER 0 FIDUCIARY APPOINTMENT D REFERENCE =~~-~·~·'-""-""~· 2 of 6 0 J.S.C. ---=--- ---- .. [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 3] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART_22_ J.S.C., Justice INDEX NO. t.r"E-a j b6J/ I MOTION DATE _ _ __ ·Y• MOTION SEQ. NO. Gd L,....- The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits------------------ Replying Affidavits _ _ _- ' - - - - - - - - - - - - - - - - - - - I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion Is degenerative tibial plateau ... , [that] [t]he meniscus is degenerative [sic], [t]here are no post traumatic findings, [and] [t]he surgery was not causal [sic] to the motor vehicle accident of record." Concerning 90/180-day, Defendants refer to Plaintifrs deposition testimony wherein she testified that after the accident s,he was confined to her bed/home for two weeks and she missed a couple of weeks of school. . Plaintifrs Cross MotiOn for SJ In opposition, to Defendants' summary judgment motion and in support of her cross motion for summary judgment Plaintiff submitted various unaffirmed medical reports that are not competent evidence and therefore were not considered by the Court (CPLR 2106 [a]; Lowe v Bennett, 122 AD2d 728 [1"1 Dept 1986]; Freeman v Vo/are Cab Corp., 1024 NY Misc LEXIS 727, 2014 NY Slip Op 30418 [U] [SC NY Co 2014]). Likewise, the Court did not coqsider Plaintifrs medical records and bills since no foundation was laid for their admissibility (CPLR 4518 [a]) and in any event medical records containing medical opinions cannot be admitted as business records under CPLR 4518 (Rickert v Diaz, 112AD3d451 [lstDept2013]) .. The only admissible medical evidence submitted by Plaintiff is the affirmed report of her orthopaedic surgeon, Dr. Emmanual Hostin. Dr. Hostin first saw Plaintiff on December 11, 2014, and examined her again on August 10, 2016. Dr. Hostin notes that Plaintiff underwent "left knee arthroscopy on January 16, 2015 with a partial medical meniscectomy, a synovectomy and a revision arthroplasty of the medial femoral condyle." At his August 10, 2016, examination, Dr. Hostin found positive objective tests and decreased range of motion for Plaintifrs left knee. Dr. Hostin reviewed Plaintifrs medical Dated:------- _ _ _ _ _ _ _ _ _ __. J.S.C. 3ef'~ 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 0 CASE DISPOSED GRANTED 0 0 DENIED 0DONOTPOST 0 . OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT =~~-~'=-~-~-~-~· -~--~-- 3 of 6 0 GRANTED IN PART 0 SETTLE ORDER NON-FINAL DISPOSITION 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 4] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 'PRESENT: HON. PAUL A. GOETZ .I PART_2_2_ 5C · Justice INDEX No./...£2:90 ;f~/J MOTION DATE _______ •V• (JOL-- MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for----------------------------Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s)._ _ _ _ __ Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is records and acknowledges that "[t]here is radiographic evidence of pre-existing patellofemoral degenerative changes of the affected knee document in June of2012 ... however, there is no evidence of significant symptoms associated with these radiographic changes. The patient received only minimal conservative treatment at the time of that 2012 presentation as her symptoms were short-lived and minimal. This injury represents. an acute meniscus tear with severe exacerbation of pre-existing, asymptomatic degenerative changes in this [Plaintiffs] left knee. Her left knee became significantly painful only after the accident. The left knee injury and the subsequently required surgical intervention are both causally related to the motor vehicle accident ... " Dr. Hostin does not address Plaintiffs alleged injuries to her head and cervical and lumbar spine and Plaintiff submits no other admissible evidence to support these alleged injuries. w <.> ti: ~· ~· c w « a:: w u. w Discussion 0:: --! ~ 'ii) 3~ ~~ <.> w w a:: g; w C!> z ~i - 0 w ...I U) ...I z w <( 0 0 LL :c - ... !.·.a:' ... 0 Defendants met their prima facie burden that Plaintiff did not sustain a serious injury to her cervical and lumbar spine through the affirmation of Dr. Berman who upon examination found normal ranges of motion and negative/normal objective tests and resolved sprains/strains for those body parts (Fernandez v Hernandez, 151AD3d581 [151 Dept June 20, 2017] [holding "[d]efendants made a prima facie showing that plaintiff did' not suffer significant or permanent limitations to her lumbar spine or knees as a result of the accident" through orthopedic surgeon's report "who found normal ranges of motion, negative objective test results, and resolved sprains, strains and contusions ... "]). Plaintiff failed to raise and issue of fact as to her injury to her cervical and lumbar spine because the only admissible medical evidence, Dr. Hostin's report, does not address those body parts . '-0 ., u. :.:;;_: '"'\ Defendants also met their prima facie burden as to Plaintiffs alleged head injury through Dr. Dated:------- - - - - - - - - - - - - - ' J.S.C. 7"?-~ 1. CHECK ONE; ..................................................................... 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 CASE DISPOSED SETTLE ORDER 0DONOTPOST 0 DENIED OTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT ---="'------ .. 0 GRANTED IN PART 0 =~~-~,·~-~-~-~· 4 of 6 0 NON-FINAL DISPOSITION 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 5] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ .I SC. PART I 12 Justice INDEX ND/Q..::??J~Y MOTION DATE _ _ _ __ ·Y• MOTIONSEQ.NO. 001- The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits .Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is April's affirmation who found negative/normal objective cranial nerve tests /examinations and concluded that Plaintiff had a normal neurological examination and is neurologically intact. Plaintiff offered no admissible medical evidence to create an issue of fact and in any event, Plaintiff's subjective complaints of headaches is insufficient to raise an issue of fact (Solarzano v Power Test Petro, Inc., 181 AD2d 631 [Is' Dept 1992] [observing "[p]laintiff's medical expert's conclusory opinion that plaintiff was suffering from 'post concussion syndrome ... ' was based upon subjective complaints ... not upon objective medical findings ... "]; Downie v McDonough, 117 AD3d 1401 [4th Dept 2014] [observing "the record contains no objective ba-sis for plaintiff's headache complaints"]). w (..) j::: ::::> "' ~ g c w 0: 0:: w u.' w o::· .• >,ii) ..J•' ..J·' z ::::> 0 u. (/) (,) w w 0:: ll. e,, I- <( f3 z 0:: - II) 3:: (,) LL - 0 w ..J II) ..J <( 0 - :i: z w 0 j::: 1- c:: 0 0 :E LI. Regarding Plaintiff's left knee injury, Defendants met their prima facie burden through the affirmations of Dr. Berman, Dr. Cohn and Dr. Levin who all found that Plaintiff's injury and surgery were the result of degeneration and osteoarthritis thereby establishing an absence of causation (Rickert v Diaz, 112 AD3d 451 [I st Dept 2013] [noting defendant's radiologist established left knee preexisting degenerative changes thereby establishing prima facie absence of causation]). Plaintiff failed to raise an issue of fact. Dr. Hostin did not offer a factually based medical opinion ruling out degenerative conditions to Plaintiff's left knee (Ortiz v Ash Leasing, Inc., 63 AD3d 556 [I st Dept 2009] [determining plaintiffs' doctor did not offer a "factually based medical opinion[] ruling out ... degenerative conditions as the cause of plaintiffs limitations"] [internal quotation marks omitted]) "or provide any objective basis to support a finding of aggravation of such preexisting conditions" (Cattouse v Smith, 146 AD3d 670, 671 (I st Dept 2017]) and Plaintiff's subjective complaints of pain are insufficient to raise a triable issue of fact (Arenas v Guaman, 98 Ad3d 461 [I st Dept 2012] [holding in part that plaintiff's "physician's findings with respect to her restrictions do not raise a triable issue of fact, since they are based on plaintiff's subjective complaints of pain"]; Calabro v Petersen, 82 AD3d 1030, 1031 [2°d Dept 2011] [holding in part that "plaintiff's complaintifs of suibjective pain are insufficient to raise a triable issue of Dated:------- _ _ _ _ _ _ _ _ _ _ __,J.S.C. o~~ D IS: 0 GRANTED ''.3. CHECK IF APPROPRIATE: ................................................ 0 0 CASE DISPOSED SETTLE ORDER ' 1. CHECK ONE: ..................................................................... )_, ~:2. CHECK AS APPROPRIATE: ...........................MOTION .1'" 0DENIED 0DONOTPOST -- - - · - - - - - · - ~--- -- - - - __ ,.___ •·-·-~- - ··--· - ... ::-..:.. -...:..:..~..:.-· - =-=--·- 5 of 6 0 GRANTED IN PART 0 .0 - . -- - NON-FINAL DISPOSITION -~---- .. OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT . 0 0REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/02/2018 11:09 AM 6] INDEX NO. 152701/2015 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PAUL A. GOETZ PRESENT: PART J.S.C. 22 Justice , I 1 1 -: Index Number: 152701/2015 MUNOZ, SABRINA INDEX N O . - - - - - VS. MOTION DATE _ _ __ ROBINSON, RICKEY R. SEQUENCE NUMBER : 002 MOTION SEQ. NO. - - - SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits· Answering Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ INo(s). _ _ _ __ I No(s). - - - - - Upon the foregoing papers, it is ordered that this motion is fact regarding serious injury"]}. Defendants also met their prima facie burden regarding Plaintiffs 90/180-day claim by submitting Plaintiffs deposition testimony that she was confined to home for two weeks and missed a couple of weeks of school (Cf Fathi v Sodhi, 146 AD3d 445 [l51 Dept 2017]). Plaintiffs opposition, cross motion does not raise a triable issue of fact. In light of the foregoing, the Court need not determine that portion of Plaintiffs cross motion seeking summary judgment on liability. Accordingly, based on the foregoing it is hereby ORDERED that Defendants' summary judgment motion and cross motion are GRANTED in their entirety and Plaintiff's cross motion is DENIED in its entirety; and it is further ORDERED that Plaintiff's complaint is DISMISSED with prejudice. This constitutes the Decision and Order of the Court. ~~.c. 1. CHECK ONE: ....................•.....••..••..................................... J8' CASE DISPOSED 2. CHECKASAPPROPRIATE: ...........................MOTION IS: ~GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 0DENIED 6 of 6 GRANTED IN PART 0 SETTLE ORDER ODO NOT POST 0 0 NON-FINAL DISPOSITION 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE

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