Hidalgo v Feliciano

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Hidalgo v Feliciano 2017 NY Slip Op 33474(U) June 2, 2017 Supreme Court, Westchester County Docket Number: Index No. 65715/2015 Judge: William J. Giacomo 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: WESTCHESTER COUNTY CLERK 06/02/2017 02:56 PM NYSCEF DOC. NO. 66 INDEX NO. 65715/2015 RECEIVED NYSCEF: 06/02/2017 To commence commence the the statutory statutory time time period for for appeals appeals as of of right right period (CPLR 5513 [aJ), [a)), you are advised advised (CPLR you are to serve serve a copy copy of of this with to this order, order, with notice of of entry, entry, upon upon all all parties. parties. notice SUPREME COURT COURT OF THE STATE OF NEW NEW YORK SUPREME THE STATE YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. WILLIAM GIACOMO, J.S.C. J.S.C. PRESENT: WILLIAM J. GIACOMO, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X AlEJANDRA HIDALGO, ALEJANDRA HIDALGO, Plaintiff, Plaintiff, Index No. 65715/2015 65715/2015 Index - againstagainstDECISION & ORDER ORDER DECISION ERMELINDA TOYOTA ERMELINDA FELICIANO, FELICIANO, LINDA LINDA RIOS and TOYOTA MOTOR CREDIT CREDIT CORP., CORP., MOTOR Defendants. Defendants. --------- - - - - - - --- - - ----- - - ---- ---- ------ - - - ---- - ------- - - - - ------ - - - ----x - - X In this this action for personal action to recover recover damages damages for personal injuries injuries arising arising out of of a motor motor vehicle vehicle accident, accident, the defendants defendants Ermelinda Ermelinda Feliciano Feliciano and Linda Rios move move for for summary summary judgment dismissing the complaint, complaint, pursuant pursuant to CPLR CPlR 3212, 3212, on the grounds that that plaintiff plaintiff judgment dismissing the grounds sustained a serious injury within meaning of Insurance Insurance Law law 5102(d): 51 02(d): has not sustained serious injury within the the meaning Papers Papers Considered Considered Notice of Motion/Affirmation Motion/Affirmation of of Ryan Mainhardt, Mainhardt, Esq./Exhibits Esq.lExhibits A-E; 1. Notice Mastropietro, Esq. in Opposition/Exhibits Opposition/Exhibits A-F; A-F; 2. Affirmation Affirmation of Dino Mastropietro, 3. Reply Affirmation of Reply Affirmation of John John Loccisano, loccisano, Esq. Factual Factual and and Procedural Procedural Background Background Plaintiff this action Plaintiff commenced commenced this action against against Ermelinda Ermelinda Feliciano Feliciano and Linda Linda Rios with 1 the filing of a summons summons and complaint complaint'. . This action arises arises out of a motor motor vehicle accident the filing This action vehicle accident that occurred on January January 9, 2013. 2013. that occurred Plaintiff testified, testified, at an examination examination before before trial, that that the airbags did not deploy deploy as Plaintiff the airbags result of the accident. Plaintiff Plaintiff was brought to the hospital and complained complained of pain to her a result the accident. was brought the hospital thigh. Plaintiff Plaintiff was discharged after after a couple couple hours. hours. After After two weeks, weeks, plaintiff plaintiff went went left thigh. was discharged back to work. Plaintiff next next sought sought treatment beginning of February February with Harvey Harvey back work. Plaintiff treatment in the the beginning Family Chiropractic Chiropractic Physical Physical Therapy Acupuncture. She She treated Harvey for for Family Therapy and Acupuncture. treated with Dr. Harvey approximately eleven eleven months months and last last went November 2013. 2013. Plaintiff Plaintiff approximately went for for treatment treatment in November [* 1] 11 The action was dismissed dismissed against against Toyota Toyota Motor Motor Credit Credit1Corp. pursuant to of this this Court Court dated dated February February action pursuant to an order order of of 5 17 701 i:; 701':; FILED: WESTCHESTER COUNTY CLERK 06/02/2017 02:56 PM NYSCEF DOC. NO. 66 INDEX NO. 65715/2015 RECEIVED NYSCEF: 06/02/2017 Hidalgo Hidalgo v. Feliciano, Feliciano, Index Index No. 65715/2015 65715/2015 testified prior car car accident accident in October October 201 O 0 wherein injured her her back, testified that that she was was in a prior wherein she she injured neck, and left shoulder, shoulder, and treated treated for for approximately approximately six months months as a result. result. Defendants move move for summary judgment dismissing the complaint, complaint, pursuant pursuant to Defendants for summary judgment dismissing grounds that that plaintiff sustained a serious serious injury within the CPLR CPLR 3212, 3212, on the grounds plaintiff has not sustained injury within meaning meaning of Insurance Insurance Law Law 5102(d). 5102(d). Defendants submit submit an affirmed affirmed report report dated March 7, 2013, 2013, of Jeffrey R. Beer, of Jeffrey Defendants dated March that plaintiff secondary to M.D. Dr. Beer Beer noted noted that plaintiff reported reported a prior prior cervical cervical and lumbar lumbar injury injury secondary 2011. vehicle accident that occurred occurred in 2011. a motor motor vehicle accident that Beer's physical physical examination examination revealed revealed severe palpation in the Dr. Beer's severe tenderness tenderness to palpation cervical region region with trigger points points noted. noted. Left shoulder was positive. positive. Cervical Cervical range range cervical with trigger shoulder pain was of motion was mildly motion was mildly limited limited secondary secondary to pain. Evaluation Evaluation of lumbar spine revealed of the lumbar spine revealed severe tenderness to palpation palpation in the lumbar lumbar region region with trigger points noted. Lumbar Lumbar severe tenderness trigger points range of motion motion was was limited limited secondary Beer noted noted that plaintiff was diagnosed diagnosed range secondary to pain. Dr. Beer that plaintiff cervical myofascial myofascial pain and possible possible cervical cervical and lumbar lumbar radicular radicular syndromes. syndromes. with cervical Conservative Conservative treatment treatment consisting consisting of anti-inflammatory anti-inflammatory medication, medication, muscle muscle relaxants relaxants and chiropractic or physical physical therapy reasonable. Dr. Beer Beer noted noted plaintiff's plaintiffs prior prior chiropractic therapy was was found found reasonable. motor vehicle vehicle accident accident in 2011. Based upon the medical medical records, records, he concluded concluded that that her motor 2011. Based injuries were were an exacerbation pre-existing condition. condition. injuries exacerbation of a pre-existing Defendants also also submit report of Howard Howard Levin, M.D., an orthopedic orthopedic Defendants submit an affirmed affirmed report surgeon, dated March March 21, 21,2013. noted plaintiff's plaintiffs complaint complaint of left shoulder, neck shoulder, neck surgeon, dated 2013. Dr. Levin noted and back pain, and tingling tingling in the second, fingers of the second, third and fourth fourth fingers the left hand. Based Based upon an examination examination ofthe of the cervical cervical spine, motion revealed revealed left lateral lateral rotation rotation to spine, range of motion 70 degrees degrees with 70 degrees degrees being being normal; normal; right lateral lateral rotation rotation of 70 degrees degrees with 70 degrees of 40 degrees degrees with 40 being flexion of 40 degrees being normal; normal; extension extension of being normal; normal; and flexion degrees examination of of the lumbar spine revealed degrees with 40 being being normal. normal. Dr. Levin's Levin's examination lumbar spine revealed straight raising to 90 degrees normal and flexion flexion of 90 degrees straight leg raising degrees with 80 to 90 being normal degrees being normal. normal. with 70 to 90 being Levin's examination examination of left shoulder no scarring evidence of Dr. Levin's of the left shoulder found found no· scarring or evidence muscle atrophy. atrophy. Palpation Palpation of rotator cuff cuff and biceps biceps were without muscle of the AC joint, joint, rotator were without tenderness. was active active forward being normal normal tenderness. There There was forward flexion flexion to 180 degrees degrees with 160 to 180 being passive forward being normal. normal. The The and passive forward flexion flexion to 180 degrees degrees with 160 to 180 being examination of the the right right shoulder was without scars or evidence evidence of muscle muscle atrophy. atrophy. examination shoulder was without scars Palpation of rotator cuff, and biceps biceps was tenderness. Forward Forward flexion Palpation of the AC joint, joint, rotator was without without tenderness. flex ion was found to 180 degrees being normal normal and passive passive forward was found degrees with 160 to 180 being forward flexion flexion to degrees with 160 to 180 being being normal. normal. Dr. Levin diagnosed plaintiff with cervical cervical 180 degrees diagnosed plaintiff sprain with referred referred pain to the posterior posterior aspect aspect of the left shoulder, thoracic sprain, sprain shoulder, thoracic sprain, and non-causally related related left left carpal carpal tunnel causal relationship relationship non-causally tunnel syndrome. syndrome. Dr. Levin found found a causal between the diagnosis and the accident. According to Dr. Levin there was no need for for between the diagnosis accident. According Levin there was need. further orthopedic treatment further orthopedic treatment or follow-up. follow-up. 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 06/02/2017 02:56 PM NYSCEF DOC. NO. 66 INDEX NO. 65715/2015 RECEIVED NYSCEF: 06/02/2017 Hidalgo v. Feliciano, Feliciano, Index Index No. 65715/2015 65715/2015 Hidalgo further support support of their their motion, motion, defendants defendants submit submit the affirmed affirmed report report of Michael Michael In further Weintraub, M.D. Dr. Weintraub Weintraub performed performed a neurological neurological independent independent medical medical I. Weintraub, examination of of plaintiff plaintiff on September September 20, 20,2016. At that that time, plaintiff plaintiff complained complained only only of examin~tion 2016. At neck pain related related to the subject subject accident accident and denied denied any any lower lower back back pain. Dr. Weintraub Weintraub neck noted noted that that an MRI of the cervical cervical spine spine taken taken on October October 2°0, 20, 2013, 2013, did not reveal reveal any any cervical disk disk herniation. herniation. An MRI of the left shoulder shoulder taken taken on December December 23, 201 2010, prior to cervical O, prior subject accident, accident, revealed revealed supraspinatus supraspinatus tendinopathy tendinopathy and a shoulder shoulder joint effusion. the subject joint effusion. According to Dr. Weintraub, Weintraub, plaintiff plaintiff had a normal normal neurological neurological exam exam for for neck neck and According There was was some some reduced reduced elevation elevation of the right shoulder shoulder by 20 to 30 degrees. degrees. Based Based back. There plaintiff's history, history, Dr. Weintraub Weintraub concluded concluded that that the January January 9, 2013 2013 accident accident upon plaintiff's produced a soft soft tissue tissue injury injury which which appeared appeared to have have resolved. resolved. Although Although plaintiff plaintiff had produced some subjective subjective complaints, complaints, she she was was able able to work work without without restriction restriction and did not require require some any further further diagnostic diagnostic testing testing or treatment. treatment. any opposition, plaintiff plaintiff argues argues that that defendant defendant failed failed to make make a prima prima facie facie showing showing In opposition, entitlement to summary summary judgment. Moreover, plaintiff plaintiff argues argues that that issues issues of fact fact exist exist as of entitlement judgment. Moreover, whether plaintiff plaintiff sustained sustained a serious serious injury. Plaintiff Plaintiff argues argues that that she she sustained sustained to whether permanent significant significant limitations limitations as she has been diagnosed diagnosed with with a herniated herniated and bulging bulging permanent disc and limitations limitations in range range of motion motion of the the cervical cervical and lumbar lumbar spine spine and left shoulder. shoulder. disc Plaintiff submitted submitted a radiology radiology report report of Harvey Harvey L. Lefkowitz, Lefkowitz, M.D. dated dated February February Plaintiff 26, 2013, 2013, reviewing reviewing an MRI of the cervical cervical spine. spine. Dr. Lefkowitz Lefkowitz found found a disc disc herniation herniation at C3-4. Plaintiff Plaintiff also also submitted submitted a radiology radiology report report of Dr. Lefkowitz, Lefkowitz, dated dated March March _20, 20, 2013, 2013, • C3--4. reviewing an MRI of of the lumbar lumbar spine. spine. Dr. Lefkowitz Lefkowitz found found the vertebral vertebral bodies bodies intact intact and reviewing fracture was was identified. identified. no fracture Plaintiff submitted submitted an affirmed affirmed report report from from Dr. David Dynof, Dynof, dated dated January January 18, Plaintiff 2017, who who examined examined plaintiff plaintiff on.that onthat date date and stated stated that that plaintiff plaintiff was was last last evaluated evaluated on 2017, December 4, 2013. 2013. Contrary Contrary to her complaints complaints to Dr. Weintraub, Weintraub, plaintiff plaintiff complained complained to December Dynof of neck neck pain as well as lower lower back back pain. Dr. Dynof Dr. Dynof Dynof examined examined plaintiff's plaintiff's cervical cervical range range of motion motion and found found flexion flexion at 40 degrees with with 50 being being normal, normal, extension extension of 45 degrees degrees with with 50 being being normal, normal, left rotation rotation degrees degrees with with 85 being being normal, normal, right rotation rotation of 75 degrees degrees with with 85 being being normal, normal, left ._ of 75 degrees flexion of of 40 degrees degrees with with 45 being being normal, normal, and right flexion flexion of of 35 degrees degrees with with 45 being being flexion normal. normal. Dynof found found moderate moderate tenderness tenderness on the thoracic thoracic spine spine and tenderness tendernesS on the Dr. Dynof shoulder. Dr. Dynof Dynof noted noted that that range range of motion motion tests tests on the left and right shoulder shoulder left shoulder. revealed forward forward flexion flexion of of 180 degrees degrees with 180 being being normal, normal, extension extension of of 45 degrees degrees revealed degrees on the right with 50 being being normal, normal, abduction abduction of 120 degrees degrees on the left and 50 degrees degrees on the right with with 130 being being normal, normal, internal internal rotation rotation of 85 on the left and 130 degrees degrees on the left and 90 degrees degrees on the right with 90 being being normal, normal, and external external rotation rotation degrees degrees on the left and 90 degrees degrees on the right right with with 90 being being normal. normal. of 90 degrees 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 06/02/2017 02:56 PM NYSCEF DOC. NO. 66 INDEX NO. 65715/2015 RECEIVED NYSCEF: 06/02/2017 Hidalgo v. Feliciano, Feliciano, Index Index No. 65715/2015 65715/2015 Hidalgo Dynof found plaintiff sustained disc herniation herniation at C3-4. C3-4. He concluded concluded Dr. Dynof found that that plaintiff sustained a disc that vehicle accident that the motor motor vehicle accident of January January 9, 2013, 2013, was the cause cause of plaintiff's plaintiff's pain to her her cervical and lumbar lumbar spine shoulder. He found that she she has a permanent permanent partial partial cervical spine and left shoulder. found that disability and is able able to perform perform moderate moderate daily daily activities activities but but will experience experience episodes episodes and disability exacerbation future physical physical therapy therapy exacerbation of her symptoms symptoms on a regular regular basis. She requires requires future chiropractic treatment treatment when when symptoms worsen. and chiropractic symptoms worsen. 2013, · which which Plaintiff Plaintiff also also submitted submitted a report report from from Dr. Dynof Dynof dated dated February February 20, 2013, was affirmed affirmed on December December 16, 2016. 2016. Dr. Dynofs Dynofs range range of motion motion findings cervical findings for for the the cervical was spine as well as the left and right shoulder were similar findings in his January spine shoulder were similar to the findings 2017 January 2017 ir:i 2017. report report with some some improvement improvement noted noted in Discussion Discussion motion for summary summary judgment personal injury injury action action arising arising from On a motion judgment in a personal from a motor motor vehicle accident, the defendants are required to establish that the plaintiff did not sustain vehicle accident, defendants required establish that plaintiff sustain injury within meaning of Insurance Insurance Law 5102(d) 5102(d) (see Toure v Avis a serious serious injury within the the meaning (see Toure Avis Rent Rent A Car [1992]; Licari Car Sys., 98 NY2d 345 [2002]; [2002]; Gaddy Gaddy v Eyler, 79 NY2d NY2d 955 [1992]; Licari v Elliott, 57 NY2d 230 [19821). [1982]). "Even "Even where where there there is objective objective medical medical proof, additional NY2d proof, when when additional contributory accident and claimed contributory factors factors interrupt interrupt the chain chain of causation causation between between the. accident claimed injury--such as a gap gap in treatment, treatment, an intervening intervening medical medical problem problem or a preexisting preexisting injury--such condition--summary dismissal dismissal of the complaint complaint may be appropriate" appropriate" (Pommells (Pommells v Perez, Perez, . condition--summary [2005]). 4 NY3d 566, 572 [20051). The defendants defendants made made out their their prima facie case showing showing that plaintiff did not The facie case that the the plaintiff sustain a serious serious injury injury within meaning of.Insurance of.lnsurance Law§ Law ~ 5102 result of the 5102 (d) as a result sustain within the meaning subject accident accident (see Toure v Avis Rent A Car Car Sys., 98 NY2d NY2d 345 [2002]; [2002]; Gaddy Gaddy v Eyler, subject Avis Rent 956-957 (19921). [1992]). In opposition, opposition, plaintiff plaintiff failed failed to raise a triable issue of fact. triable issue 79 NY2d 955, 956-957 The plaintiff's treating treating physician, physician, while limitations as to the plaintiff's plaintiffs ranges ranges The plaintiffs while setting setting forth limitations motion as to various parts of her body, were were insufficient insufficient in that of motion various parts that they they failed failed to account account for the three-year gap between treatment of plaintiff three-year gap between the last treatment plaintiff in December December 2013, 2013, and January 18, 2017, when she was January 2017, when was examined examined by Dr. Dynof Dynof in direct direct response response to the defendants' judgment. There There was was no evidence that the plaintiff defendants' motion motion for summary summary judgment. evidence that plaintiff underwent any any medical medical treatment this time period and no explanation explanation as to why undeiwent treatment in this time period why none none was appropriate appropriate (see (see Ning Ning Wang v Harget Harget Cab Corp., 47 AD3d 777 [2d Dept Dept 2008]; was AD3d 777 2008]; 2008]; Caracci AD3d 515 Ferraro AD3d 498 498 (2d Ferraro v Ridge Ridge Car Car Sent., Serv., 49 AD3d [2d Dept Dept 2008]; Caracci v Miller, 34 AD3d [2d Dept Dept 2006]). 2006]). 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 06/02/2017 02:56 PM NYSCEF DOC. NO. 66 INDEX NO. 65715/2015 RECEIVED NYSCEF: 06/02/2017 Hidalgo v. Feliciano, Feliciano, Index Index No. 65715/2015 65715/2015 Hidalgo ;; response to defendants' defendants' prima prima facie facie showing, the plaintiffs also In response showing, the plaintiff's submissions submissions also failed forth competent that the injuries allegedly sustained sustained as failed to set forth competent medical medical evidence evidence that injuries she she allegedly result of of the subject subject accident accident rendered rendered her her unable unable to perform perform substantially a result substantially all of her daily activities activities for for not less than 90 days of of the first days following accident (see daily first 180 days following the accident Husbands v Levine, Levine, 79 AD3d AD3d 1098 [2d Dept Dept 2010]; 2010]; Nieves Nieves v Michael, Husbands Michael, 73 AD3d AD3d 716 [2d Dept Dept 201 0]). Accordingly, summary judgment, judgment, pursuant CPLR 3212, 3212, Accordingly, defendants' defendants' motion motion for summary pursuant to CPLR GRANTED and the complaint complaint is dismissed. dismissed. is GRANTED Dated: White Plains, New New York York White Plains, 2, 2017 June June 2,2017 ALPHABETICAL MASTER MASTER LIST LIST - WESTCHESTER/Hidalgo WESTCHESTER/Hidalgo Feliciano H: ALPHABETICAL v. Feliciano 5 [* 5] 5 of 5

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