Broadwood v Bedoya

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Broadwood v Bedoya 2017 NY Slip Op 33444(U) July 21, 2017 Supreme Court, Westchester County Docket Number: Index No. 71043/2015 Judge: Terry Jane Ruderman 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. INDEX NO. 71043/2015 FILED: WESTCHESTER COUNTY CLERK 07/21/2017 04:56 PM NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/21/2017 '.~ ~. To commence the statutory time for appeals as of right (CPLR 5513(a]), you are advised to serve a copy of this order, with notice of entry, upon all parties: SUPREME COURT OF THE STATE"OF NEW YORK COUNTY OF WESTCHESTER -----------------------------------~-------------~-~~--~-----~-------~~-~~-----}{ MICHAEL BROAD WOOD and JAMIE L.BUNY AN, DECISION AND ORDER . Sequence Nos. 1 and 2 . Inde}{No. 71043/2015 Plaintiff, -againstJUAN F. BEDOYA andMELIDA MIRANpA, Defendants. -------------------------~------~--------~~------~---~-------------(----------~}{ RUDERMAN, J. The following papers were considered in connection with defendants' motion for summary judgment and plaintiffs'cfoss-motion. for summaryjudgmeht:. Papers . Notice of Motion, Affirination in Support andE}{hibitsA-:- H' Notice of Cross-Motion, Affirmationin Opposition and E}{liibitsA - J The plaintiffs Michael .Broadwood1and Numbered 1 2 Jamie L. BWlyan corpmenced this action on December 28, 2015 to recover damages for personal injuries plaintiff allegedl~ sustained in a motor vehicle accident that occurred on August 26, 2014, at ~ppro}{imately 1:24 p.m., on 1-287 in Mahwah, New Jersey. Plaintiffs bill of particulars alleges that plaintiff sllffered the following three statuto;ry categories defining serious injuryuhdet New York Insurance Law S 5102(d):(I). "permanent consequential limitation of use of a body organ or m~mber," (2) "significant limitation of use of a body functio.n ~r system,"and non-pe~anent (3) "a medically determined injury or impairment ofa nature" which prevented plaintiff froin performing his usual' ~d customary daily activities for not less than 90 days of the first 180daysafteitheinjury. The plaintiffs bilLof particulars specifically alleges thatpla~ntiff su~~~ined, inter alia, necksprain/str~in, dervi~al . . muscle tension bilaterally, straightening of cervical lordosis, and. C5-C6 disc protrusion .. . (Defendants'E}{hibit C, ~ 4.) 1 Michael Broadwood is the 0llly plaintiff with an alleged serious physical injury, and thus, all references to "pl<lintiff' are to Broadwood.' . [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 07/21/2017 04:56 PM NYSCEF DOC. NO. 31 INDEX NO. 71043/2015 RECEIVED NYSCEF: 07/21/2017 The defendants now move for an order, pursuant to CPLR 3212, granting summary judgment based on the absence of a "serious injury" under' New York Insurance Law 5102( d). The plaintiff submits written opposition and cross-moves for summary judgment. In support of their motion, defendants submit plaintiff's deposition testimony (Defendants' Exhibit D) in which he testified that he first sought medical treatment for his injuries at White Plains Hospital Center Urgent Care on August 27, 2014, the day. after the accident. Plaintiff did not seek additional treatment until two months later when he saw Konstantino 80fos, M.D. for an initial examination and evaluation of his symptoms. Plaintiff also testified that he returned to work approximately one week after the accident and continued to miss time from work twice a week for a period of six months to attend treatment appointments with Sofos. Defendants also provide the results of plaintiff's two MRI scans. The first MRI, taken at White Plains Hospital the day after the accident, showed normalC l-C2 articulation and lordosis, unremarkable. prevertebral soft tissues, and preserved intervertebral impression of "no acute pathology."(Exhibit disc spaces, with a final E.) The second MRI, taken at White Plains Radiology Associates on November 4, 2014, showed a "straightening of the cervical curvature with small central disc protrusion at C5-6 slightly deforming the sac." (Exhibit F.) Defendants further submit the examination, evaluation and treatment notes from plaintiff's visits with Chiropractor Konstantino Sofos, D.C. (Exhibit G) from October 22, 2014,thtough April 10,2015. The notes detail plaintiff's subjective complaints of pain and state that he suffered from' range of motion restrictiqns. However, the notes fail to provide the methods' of examination used, the specific degrees of the motion restrictions, and a comparison of Sofos'findings to normal ranges of motion for the subject body parts. Lastly, defendants offer the report of their medical expert, Dr. Lisa Nason, M~D., who examined plaintif( on October 17, 2016. (Exhibit H). Dr. Nason's examination of plaintiff's cervical spine revealed no spasms or tenderness, and her report, noted that plaintiff's sensory responses were intact, there was no atrophy of the intrinsic muscles, compression tests were negative, plaintiff had no radiating pain, ,and there was only a 5-degree decrease in the right and left rotation of the cervical spine. Dr. Nason made similar findings with respect to' plaintiff's thoracic spine, and noted that related range of motion tests were all normal. Finaliy, Dr. Nason stated that plaintiff's cervical spine sprain, and thoracic, right and left shoulder pain were all found 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 07/21/2017 04:56 PM NYSCEF DOC. NO. 31 INDEX NO. 71043/2015 RECEIVED NYSCEF: 07/21/2017 to be resolved, and there was no,'orthopedic causally related disability based !on Dr. Nason's physical examination and revie'v. of plaintIff's medical docunlentation. In opposition, and support of thecross-motion,plaititiff argues that he is entitled' to summary judgment on the issue of negligence, because defendants have failed to proffer a nonnegligent reason for the rear-end collision with plaintiff's vehicle. Additionally, plaintiff submits the' sworn affidavit ofSofos (Plaintiffs', Exhibit I), who 'opined that, based on herchiroprac~ic car~' of plaintiff for a period of six months after the accident, and her review of pia intiffs November 2014 MRI scan results, plaintiff sustained serious injuries to his cervical and thoracic spine as a result of the subject motor vehicle accident.' Sofos diagnosed a significant range of motion limitation in plaintiffs cervical spine as well as his thoracic spine"as compared to normal, and noted that plaintiff was limited in the performance of his daily activities. , . . . •. I Plaintiff also submits his November 2014MRI C5-6slightly report, showing the existence ofa small . . central disc protriIsionat • deforming the sac (Plaintiffs Exhibit 1), and his own deposition testimony, in which he testified that he was unable to ru~,hike and play golfand squash; . , had difficulty sleeping and had tomoditled accident. (Plaintiff's.ExhibitE,pp. his work~related travel responsibilities after the 73~78.) Analysis .A party moving for summary jUdgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of Jaw, tendering sufficient e~idence to demonstrate that there is no genuine dispute as to any material. fa?t. (Alvarez v. Prospect Hospital, '. 68 N.Y.2d320, 324 [1986].) Once such a showing has been made, the burden shifts to the party opposing t~e motion to produce evidentiary proof in admissible form sufficient to e'stablish the , existence of material issues of fact whichtequire citing Zuckerman v. CityofNew a trial of the action. (Alvarez, 68 N.Y.2d at 324, York, supra, 49 N.Y.2d 557, 562[1980].) In assessing the record to determine whether there are material issues of fact fortrial, the court must view the facts in the light most favorable to the non-moving .party. (Jacobsen v. New York City Health & Hosps. Corp., 22 N;Y.3d824 [2014].) To prevail on ,a motionforsurnmaryjudgment on the basis thatplaintiffcannotrecover f~r non-economic loss in connection with a motor vehicle accident under New York:s No-Fault Law, a defendant must establish prima facie.that the plaintiff did not sustain a serious injury within the meaning of New York Insurance Law ~ 5102( d). In support of its motion, a defendant may rely on 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 07/21/2017 04:56 PM NYSCEF DOC. NO. 31 INDEX NO. 71043/2015 RECEIVED NYSCEF: 07/21/2017 the unsworn reports of plaintiffs physicians (McGovern v. Walls, 201 A.D.2d .628 [2d Dept. 1994]) or on the sworn affidavits o~ affirmations of the defendant's own retained physicians. (Marsh v. Wolfson, 186 AD.2d 115 [2d Dept. 1992].) If the defendant makes the requisite sho~ing, the. burden shifts to the plaintiff to present evidence of: (1) contemporaneous plaintiffs treatment - qualitative or quantitative - to establish that injuries were causally related to the accident, and (2)' recent examination to establish penrianency. There is no requirement tha( "contemporaneous" quantitative measures be made. (Perl v. Meher, 18N.Y.3d 208 [2011] [permissible to observe and recording a patient's symptoms in qualitative terms shortly after. the accident, and later perform more specific, quantitative measurements in preparation for litig~tion].) Moreover, while a herniated or bulging disc may . . constitute a. serious injury within the meaning of Insurance Law S 5102( d), "a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration." (Bacon v. Bostany, 104 AD.3d 625627 [2d Dept. 2013].) Here., th~ report of defendants'. expert, finding.full range o~motion.and the absence of an orthopedic causally related disability, established'a prima facie 'case of the absence of serious injury. (Kearse v. New York City Tr. Auth., 16 AD.3d 45,49 - 50 [2d Dept. 2005] ["A defend~mt who submits admi~sible proof that the plaintiff has a full range of motion, and that she orhe suffers from no disabilities causally related t6 the motor vehicle accident, has established.a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102 (d), despite the existence of an MRI which shows herniated or bulging discs."] [citations omittedJ.) Plaintiff has failed to raise a triable issue of fact in opposition or 'demonstrate any entitlement to relief on the cross-moti0!1. Although plaintiff submitted his MRl results showing the existence of a bulging disc, and Sofos' finding of range of motion limitations, plaintiff failed to offer objective evidence. of the extent or degree of those alleged limitations. Indeed, Sofos did not provide a comparison of the alleged physical limitations of movement with stated norms. (Starkey v. -Curry, 94 A.D.3d 866 [2d Dept. 2012]; Tinyanoflv. 2012] [affidavit of plaintiffs Kuna, 98 AD.3d 501 [2d Dept. treating chiropractor failed to quantify, on the basis of objective testing, the limitations which he found in plaintiffs cervical spine during a recent examination, and failed to compare those limitations to what wouldbe considered normal]; Ainbroselli v. Team Massapequa, Inc., 88 AD.3d 927 [2d Dept. 2011] [expert examined plaintiffs lumbar range of motion and set forth range of motion findings with respect to that region of plaintiffs body, but 4 [* 4] 4 of 5 INDEX NO. 71043/2015 FILED: WESTCHESTER COUNTY CLERK 07/21/2017 04:56 PM NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/21/2017 failed to compare those findings',towhatis 1002 [2d Dept. 2011] ["plaintiffs~treating normal]; Quintana v. Arena Transp.; Inc., 89 AD.3d orthopedist ... failed to set forth the actual ranges of motion achieved by plaintiff, and failed to compare these findings to the normal range of motion. , Thus, the orthopedist's report was insufficient to raise a triable issue of fact as to whether the injuries to plaintiffs. cervical spine and right wrist constitut6daserious injuryunder the permanent or significant limitation of use categories ... "].) As to the 90/180 category of serious injury, in ordertomake a prima facie case, defendant properly relies on plaintiffs own deposition testimony in whIch'he admits that he returned to work approximately one w~ek afterthe accid~nt. (Kabir v. Vanderhost;105AD.3d 811 [2d Dept. 2013] [defendant established that' the, plaintiff missed only six to eight days of work ~ollowing the accident and, therefore, did not sustain a serious injury under the 90/180-daycategory Law S 5102 (d)].) Plaintiffs of Insurance testimony that he was unable to play golf and squash, go running or hiking, and that he had difficulties sleeping, and ti-avelling extensively for work, does not establish . that plaintiff was unable to perform substantially all of the material acts that constitute his usual . , and customary daily' activities' for at least 90 of the first 180 days following the occurrence the alleged injury~ (Friel: v.Teague, 288 AD.2d 177,179 [2d Dept. 2001], citing Lic~ri v. Elliott, 57 N.Y.2d 230,236 [.1982] ["the words 'substantially all' should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment"] .) Based upon the foregoing, it is hereby, ORDERED that defendants' motion for summary judgment dismissing the complaint is .granted; and it is further ORDERED that plaintiffs' cross-motion for summary judgment is denied. , Dated: White Plains, New York ~t~~ HON.' '. July.zL,2017 5 [* 5] ' 5 of 5 ' . i:NERUDERMAN,J.S.C. , '

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