Lam v Palmr De Ocoa Inc.

[*1] Lam v Palmr De Ocoa Inc. 2017 NY Slip Op 51619(U) Decided on November 21, 2017 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2017
Supreme Court, Queens County

Jennifer Lam, Plaintiff,

against

Palmr De Ocoa Inc. and RAMON VELEZ GINES, Defendants.



6311/2011
Robert J. McDonald, J.

The following papers numbered 1 to 9 read on this motion by defendants for an order pursuant to CPLR 3212, granting defendants summary judgment and dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5104(a) and 5102(d):

Papers/Numbered

Notice of Motion-Affirmation-Exhibits 1 - 4

Affirmation in Opposition-Exhibits 5 - 7

Reply Affirmation 8 - 9

This is a personal injury action in which plaintiff seeks to recover damages for injuries allegedly sustained in a motor vehicle accident that occurred on November 4, 2010 on Broadway Avenue at its intersection with Union Avenue, in Kings County, New York. As a result of the accident, plaintiff alleges that she sustained serious injuries her left knee, cervical spine, lumbar spine, and thoracolumbar spine.

Plaintiff commenced this action by filing a summons and complaint on March 15, 2011. Defendants joined issue by service of a verified answer dated March 22, 2011. Defendants now [*2]move for an order pursuant to CPLR 3212, dismissing the complaint on the ground that the injuries claimed fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

Plaintiff appeared for an examination before trial on May 2, 2017. She testified that at the time of the accident she was a pedestrian. She was struck on the left side of her body by defendant's vehicle. She was able to get off the ground after the accident. She was treated by EMS personnel following the accident. She was transported to the Emergency Room at Wyckoff Hospital. No MRI studies or CT scans were performed in the Emergency Room. Her physical therapy treatment terminated within ten months following the subject accident. She is presently able to clean, cook, vacuum, do laundry, mop, wash dishes, make beds, and take out the garbage. She is currently employed as a resolution specialist for Health First. She obtained the job after the accident. She did not miss any time from this job in connection with this accident. At the time of the accident, she was working for Cabs Home Attendant Services as a coordinator. She missed one week from work immediately following the accident. She missed approximately three weeks in total from work. When she returned to work, she returned to working forty hours weekly, with the same duties. She was confined to her bed and home for one week immediately following the accident. She was confined to her bed and home for two weeks following her surgery.

Stacey M. Donegan, M.D. issued a peer review after reviewing plaintiff's bill of particulars, emergency room records, EMS report, and the police report. Dr. Donegan notes that plaintiff denied neck and back pain to EMS personnel at the scene of the accident and in the emergency room. Upon examination of plaintiff's neck in the emergency room, Dr. Donegan notes that there was no evidence of any deformity, tenderness soft tissue swelling, ecchymosis or decreased range of motion in the cervical spine. Upon examination of plaintiff's left knee in the emergency room, Dr. Donegan notes that there was no evidence of any tenderness, swelling or deformity or decreased range of motion. Upon examination of plaintiff's back in the emergency room, Dr. Donegan notes that there was no evidence of any tenderness, spasm, decreased range of motion, overlying erythema, ecchymosis or edema. Additionally, the x-ray of plaintiff's left knee performed in the emergency room was a negative study. Dr. Donegan acknowledges that plaintiff was ambulatory upon her discharge from the emergency room and was cleared to return to work within two days. Dr. Donegan concludes that plaintiff's claimed injuries have no causal relation to the subject accident and that the injuries claimed are inconsistent with the objective findings immediately following the accident.

Thomas P. Nipper, M.D. performed an independent medical examination on plaintiff on June 22, 2017. Plaintiff reported current complaints of low back pain. Dr. Nipper identifies the records reviewed prior to rendering his report. He performed range of motion testing with a goniometer and found normal ranges of motion in plaintiff's lumbar spine and bilateral knees. All other objective tests were normal. Dr. Nipper opines that the findings indicated on the MRI reports of plaintiff's lumbar spine and cervical spine are consistent with chronic degenerative changes. Regarding the MRI report of the left knee, Dr. Nipper opines that the findings are consistent with both chronic degenerative disease and a contusion injury likely resulting from the subject accident. Dr. Nipper opines that plaintiff's injuries have fully resolved. There are no indications for further orthopaedic treatment including physical therapy. Additionally, he opines [*3]that the speeds and forces experienced by plaintiff were sufficient to have resulted in sprain injuries to the affected areas. However, plaintiff did not sustain any significant or permanent injury as a result of the subject accident.

Edward M. Weiland, M.D. performed an independent neurologic examination on plaintiff on June 20, 2017. Plaintiff reported current complaints of intermittent left knee pain, which is provoked with weight bearing activities. Plaintiff also complained of episodic muscle spasm emanating from the lumbar region of her spine more prevalently into the right buttock area. The symptoms are provoked with flexion and extension movements of the lumbar region. Dr. Weiland identifies the records reviewed prior to rendering his report. He performed range of motion testing with a goniometer and found normal ranges of motion in plaintiff's cervical spine, lumbar spine, and thoracic spine. Dr. Weiland concludes that he can find no evidence of any lateralizing neurological deficits at the present time. He opines that he sees no reason why plaintiff should not be able to perform activities of daily of living and continue gainful employment activities, without restrictions. He finds no primary neurologic disability as it relates to the subject accident. There is no finding of any neurologic residual or permanency.

David A. Fisher, M.D. reviewed plaintiff's left knee MRI taken on December 8, 2010; cervical spine MRI taken on December 4, 2010; and lumbar spine MRIs taken on December 4, 2010 and July 16, 2011. Dr. Fisher opines that the MRI of plaintiff's left knee reveals no meniscal or ligament tear. Regarding the cervical spine MRI, Dr. Fisher opines that there are mild degenerative changes from the C2/3 through the C5/6 levels. There are no disc herniations or fractures. The lumbar spine MRIs reveal mild levoconvex curvature and mild degenerative changes at the L4/5 and L5/S1 levels. There are no disc herniations or fractures. The mild disc bulges are compatible with the amount of degenerative change present. Dr. Fisher opines that there is no radiographic evidence of a traumatic or causally related injury as to the left knee, cervical spine, and lumbar spine.

Defendants contend that the evidence submitted is sufficient to establish, prima facie, that plaintiff has not sustained an injury which resulted in a permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; or significant limitation of use of a body organ, member, function or system. Defendants also contend that as plaintiff testified that she was only confined to her bed/home for one week following the accident, plaintiff did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented her for not less than 90 days during the immediate 180 days following the occurrence, from performing substantially all of her usual daily activities.

In opposition, plaintiff submits an affidavit dated October 27, 2017. She affirms that she sustained injuries to her left knee, lower back, and neck as a result of the subject accident. During the first six months following the accident, she could not kneel, lift anything heavier than twenty pounds, bend her lower back, carry laundry, groceries or packages up or down the stairs to her apartment, sit on the floor with her daughter, and sit for any period of time longer than twenty minutes. She was also unable to participate in any recreational activities such as roller blading or walking. Prior to the subject accident, she would roller blade at least one time per week and would walk at least two to three hours per week for exercise. She also had a great deal of difficulty putting on her shoes, tying her shoe laces, and sleeping. As of the date of her affidavit, [*4]she still has significant difficulties and problems in performing many of the activities. When her no-fault coverage was denied, she was given a home exercise program by her chiropractor which she continues to follow.

Plaintiff also submits an affirmation from Mehran Manouel, M.D. Plaintiff first presented to Dr. Manouel on January 3, 2011 with complaints of left knee pain. Dr. Manouel performed range of motion testing and noted significant limitation and impairment in the various planes of movement of plaintiff's left knee. He observed a positive McMurray maneuver, which he states is highly predictive of a meniscal tear. He reviewed the MRI of plaintiff's left knee, which revealed chondromalacia of the patella along with internal derangement and synovial effusion in the knee joint. Dr. Manouel recommended continue conservative management or an arthroscopic examination and repair of the left knee. On January 20, 2011, he performed arthroscopic surgery. Most recently, he performed an examination on plaintiff on October 2, 2017. He noted decreased range of motion in plaintiff's left knee regarding flexion. Dr. Manouel opines that plaintiff sustained a torn medial meniscus to her left knee in the subject accident. He further opines the injuries are permanent in nature, and plaintiff has suffered a permanent consequential limitation of use and a significant impairment of function of her musculoskeletal system and in her left knee.

Plaintiff also submits an affirmation from Kieran Gorman, D.C. Plaintiff first presented to Dr. Gorman on November 18, 2010 with complaints of pain in her neck that radiated into both arms, shoulders, mid-pack, low back, right shoulder, right arm, left leg, and left knee. Dr. Gorman performed range of motion testing with a goniometer and noted restricted ranges of motion in plaintiff's cervical spine and lumbar spine. Most recently, Dr. Gorman examined plaintiff on August 16, 2017 and found continued limitations in plaintiff's range of motion in her lumbar spine. Dr. Gorman concludes that plaintiff has sustained traumatic injuries to her lumbar spine caused by the subject accident. Dr. Gorman opines that plaintiff should avoid excessive bending, lifting, sitting, or standing for prolonged periods of time. Additionally, plaintiff has reached maximum medical improvement with rehabilitation therapy and any further treatment would be palliative in nature only.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A] defendant can establish that a plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendant's motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]; Zuckerman v City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

Here, the competent proof submitted by defendants, including the affirmed medical reports of Drs. Donegan, Nipper and Weiland and plaintiff's own testimony that she was only confined to her home for one week following the subject accident, is sufficient to meet defendants' prima facie burden by demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]; Carballo v Pacheco, 85 AD3d 703 [2d Dept. 2011]; Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 [2d Dept. 2010]).

In opposition, this Court finds that plaintiff raised triable issues of fact as to whether she sustained a serious injury to her left knee and lumbar spine by submitting the affirmations from Drs. Manouel and Gorman attesting to the fact that plaintiff sustained injuries as a result of the subject accident, finding that plaintiff had significant limitations in ranges of motion both contemporaneous to the accident and in a recent examination, and concluding that the limitations are permanent and causally related to the accident (see Perl v Meher, 18 NY3d 208 [2011]; David v Caceres, 96 AD3d 990 [2d Dept. 2012]; Martin v Portexit Corp., 98 AD3d 63 [1st Dept. 2012]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 AD2d 367 [2d Dept. 2009]).

As such, plaintiff demonstrated issues of fact as to whether she sustained a serious injury to her left knee and lumbar spine under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident, and whether she sustained a serious injury under the 90/180-day category (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091 [2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the motion by defendants for an order granting summary judgment dismissing plaintiff's complaint is denied.

Dated: November 21, 2017

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.