Stewart v Hakam

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Stewart v Hakam 2018 NY Slip Op 31678(U) July 19, 2018 Supreme Court, Suffolk County Docket Number: 16-593 Judge: David T. Reilly 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. [* 1] SHORT FORM ORDER rNDEX No. 16-593 CAL. No. 17-01328MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 30 - SUFFOLK COUNTY PRESENT: Hon. DAVID T. REfLL Y Justice Supreme Court MOTION DATE 10-30-17 ADJ. DATE 1-24-18 Mot. Seq. # 002 - MG; CASEDISP ---------------------------------------------------------------)( KAREN STEWART AND STEPHEN STEWART, INDIVIDUALLY AND AS HUSBAND AND WIFE, CELLfNO & BARNES, P.C. Attorney for Plaintiffs 532 Broad Hollow Road, Suite 107 Melville, New York 11747 Plaintiffs, MARTIN, FALLON & MULLE Attorney for Defendant 100 East Carver Street Huntington, New York l 1743 - against SEAN K. HAKAM, Defendant. ---------------------------------------------------------------)( Upon the follow ing papers numbered I to _1Q__ read on this motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers l - 20 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 2 l - 24 ; Replying Affidavits and supporting papers 25 - 26 ; Other_; (1md after hea1 iug eottnsel in suppo1 t and oppo~cd to the nrotio11) it is, ORDERED that the motion by defendant Sean Hakam for summary judgment dismissing the complaint is granted. This is an action to recover damages for injuries allegedly sustained by plaintiff Karen Stewart and Stephen Stewart, her husband, derivatively, as a result of a motor vehicle accident, which occurred on September 2, 20 14, in the Town oflslip, New York. Plaintiff Karen Stewart alleges that, as a result of the accident. she suffered various injuries including straightening of the cervical lordosis and sprains to her cervical spine, thoracic spine, and right hip. Defendant seeks an order granting summary judgment dismissing plaintiffs' complaint on the ground that Insurance Law §5 104 precludes plainti ffs from pursuing a personal injury claim, because Karen did not suffer a "serious injury" with in the meaning of Insurance Law§ 5102(d). Defendant submits, in support of the motion, copies of the pleadings. the bill of particulars, the transcript of Karen Stewart's deposition testimony, and the affirmations of orthopedic surgeon Edward Toriello, M.D. and radiologist Melissa Sapan [* 2] Stewart v Hakam Index No. 16-593 Page 2 Cohn, M.D. In opposition, plaintiffs argue that issues of fact remain as to whether Karen Stewart sustained serious iajuries. Plaintiffs submit, in opposition, the affidavit of chiropractor Keith Williams, D.C. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 [1986]; Wiltegrad vNew York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Win egrad v New York Univ. Med. Ctr. , supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 (b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980]). Insurance Law§ 5 l02(d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute 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." A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing, prirna facie, that the plaintiff did not sustain a "serious injury" (see Toure v Avis R ent A Car Sys., 98 NY2d 345, 746 NYS2d 865 [2002]; Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992); Beltran v Powow Limo, /11c., 98 AD3d 1070, 951NYS2d231 [2d Dept 2012]). When such a defendant's motion relies upon the findings of the defendant's own witnesses, those findings must be in admissible form, such as affidavits and affirmations, and not unsworn reports, to demonstrate entitlement to judgment as a matter of law (see Brite v Miller, 82 A03d 811, 918 NYS2d 349 [2d Dept 201 1]; Damas v Valdes, 84 AD3d 87, 921 NYS2d 114 [2d Dept 20 11], citing Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). A defendant also may establish entitlement to summary judgment using the plaintiff's depositi on testimony and unsworn medical reports and records prepared by the plaintiffs treating medical providers (see Uribe v Jimenez, 133 AD3d 844, 20 NYS3d 555 (2d Dept 2015); Elshaarawy v U-Haul Co. of Miss. , 72 AD3d 878, 900 NYS2d 321 [2d Dept 2010]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, supra). Once a defendant meets this burden, the plaintiff must present proof, in admissible form, which raises a material issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra). A plaintiff claiming injury within the ·'permanent consequential limitation" or ·'significant I imitalion" of usc categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Scltilli11g v Labrador, 136 AD3d 884, 25 NYS3d 33 l [2d Dept 2016]; Rovelo v Volcy, 83 AD3d I 034, 921 NYS2d 322 (2d Dept 2011]; McLoud v Reyes, 82 AD3d 848, 919 NYS2d 32 [* 3] Stewart v Hakam Index No. 16-593 Page 3 [2d Dept 2011 ]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintifrs limitations to the normal funct ion, purpose, and use of the body part (see Perl v Meller, 18 NY3d 208, 936 NYS2d 655 [2011]; Toure v A vis Rent A Car Systems, Inc. , supra; McEachin v City of New York , 137 AD3d 753 , 25 NYS3d 672 [2d Dept 2016)). Proof of a herniated or bulging disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not sufficient to establish a "serious injury" within the meaning of the statute (see Pomme/ls v Perez, 4 NY3d 566, 797 NYS2d 380 [2005); Hayes v Vasilios, 96 AD3d 1010, 947 NYS2d 550 [2d Dept 2012); Scheker v Brown, 91 AD3d 751, 936 NYS2d 283 [2d Dept 2012); Stevens v Sampson, 72 AD3d 793, 898 NYS2d 657 [2d Dept 2010); Catalano v Kopma1m, 73 AD3d 963, 900 NYS2d 759 (2d Dept 2010]; Casimir v Bailey, 70 AD3d 994, 896 NYS2d 122 [2d Dept 2010); Keith v Duval, 71 AD3d 1093, 898 NYS2d 184 [2d Dept 20 l O]). Sprains and strains are not serious injuries within the meaning of Insurance Law § 5102 (d) (see Rabolt v Park, 50 AD3d 995, 858 NYS2d 197 [2d Dept 2008]; Washington v Cross, 48 AD3d 457, 849 NYS2d 784 [2d Dept 2008]; Mtienza v Letkajomsook, 172 AD2d 500, 567 NYS2d 850 (2d Dept 1991 ]). Further, a plaintiff seeking to recover damages under the ·'90/I 80-days" category must prove the injury is "medically determined," meaning that the condition must be substantiated by a physician, and the condition must be causally related to the accident (see Pryce v Nelson, 124 AD3d 859, 2 NYS3d 214 [2d Dept 2015]; Strenk v Rodas, 111 AD3d 920, 976 NYS2d 151 [2d Dept 2013]; Beltran v Powow Limo, Inc. , supra). A plaintiff must demonstrate that his or her usual activities were curtailed to a "great extent rather than some slight curtailment'. (see Licari v Elliott, 57 NY2d 230, 236, 455 NYS2d 570 [1982)). Moreover, a plaintiff who terminates therapeutic measures following an accident, while claiming "serious injury," must offer some reasonable explanation for having done so to prevail on his or her claim (see Ramkumar v Grand Style Transp. Ellters. Inc. , 22 NY3d 905, 976 N YS2d 1 [2013]; Pomme/ls v Perez, supra; David v Caceres, 96 AD3d 990, 947 NYS2d 159 [2d Dept 2012]). Defendant's submissions establish a prima facie case that the alleged injuries to plaintiffs spine and right hip do not constitute "serious injuries" within the meaning of Insurance Law§ 5102 (d) (see Toure v Avis R ent A Car Sys. , supra; Gaddy v Eyler, supra; Beltran v Powow Limo, Inc. , supra). Plaintifrs alleged 90/ 180-day injury was sufficiently refuted, prima facie, by her testimony that she was missed only six or seven days of work (see Ferazzo/i v Hamilton , 14 I AD3d 686, 35 NYS3d 654 [2d Dept 20 16]; Pryce v Nelson. supra; Strenk v Rodas, supra; Beltran v Powow Limo, Inc. , supra). Additionally, defendant presented competent evidence that none of plaintiffs alleged injuries fall under the ..permanent consequential limitation," .. permanent loss;' or "significant limitation" of use categories of the statute (see Perl v Melter, supra; Scl1illiug v Labrador, supra; Rovelo v Volcy, supra). The affirmed medical report of Dr. Toriello stated, in relevant part, that during an orthopedic examination he conducted approximately two years and three months after the accident, plaintiff exhibited significant limitation in her cervical spine. Dr. Toriello stated that during another examination he conducted approxi mately two years and eight months after the accident, plaintiff exhibited normal joint function in her cervical and thoracic spine, and that no muscle spasm or atrophy was detected in her cervical spine. He further stated that plaintiff exhibited normal joint function in her right hip, and that he deteclcd no muscle weakness, instability, swelling, or tenderness. Dr. Toriello diagnosed plaintiff has [* 4] Stewart v I Iakam Index No. 16-593 Page 4 having suffered strains to her cervical and thoracic spine and a sprain to her right hip, and concludes that such strains and sprain have resolved (see Brite v Miller, supra; Damas v Valdes, supra; Pagano v Kingsbury, supra). In her affirmed medical report, Dr. Sapan Cohn opined that the x-ray of plaintiffs cervical spine taken on the day of the accident showed prominent prevertebral soft tissues of"uncertain significance," disc spare narrowing at C6-7 consistent with degenerative disc disease, and multilevel degenerative changes with osteophyte formation consistent with chronic ai1d long-standing disease. Dr. Sapan Cohn concluded that while there was "nonspecific soft tissue changes[,) [t)here [was] no evidence of an acute fracture or traumatic subluxation," and that there was no acute traumatic injury related to the accident (see Perl v Melzer, supra; Schilling v Labrador, supra; Gouvea v Lesende, 127 ADJd 811, 6 NYSJd 607 (2d Dept 2015]). Dr. Sapan Cohn further opined that the computed tomography ("CT") scan of plaintiff's cervical spine taken on the day of the accident showed an enlarged thyroid gland consistent with thyroid goiter, multilevel degenerative changes with osteophyte formation, and disc space narrowing at C6-7 "indicative of underlying degenerative disc disease." She opined that the thyroid goiter was incidental and not related to trauma. Dr. Sapan Cohn concluded that while plaintiff's CT scan showed mild degenerative changes, there was no evidence of a fracture or an acute traumatic injury related to the accident (see Perl v Melter, supra; Scltilli11g v Labrador, supra; Gouvea v Lesende, supra). Dr. Sapan Cohn further opined that the magnetic resonance imaging ("MRI") examination of plaintiff's cervical spine conducted two weeks after the accident showed mild straightening of the cervical lordosis, disc desiccation, disc space narrowing at C6-7, osteophyte formations with posterior spondylolytic riding at C5-6 and C6-7, and a thyroid goiter. Dr. Sapan Cohn stated that the straightening of the cervical lordosis may reflect muscle spasm or plaintiffs positioning within the coil necessary to perform the examination, and that disc desiccation indicated the beginning of degenerative disc disease. Simi larly, Dr. Sapan Cohn explained that the osteophyte fonnations and disc space narrowing were degenerative. She concluded that the MRI examination showed degenerative changes throughout plaintiffs cervical spine and that there was no evidence for disc herniation or acute traumatic injury (see Perl v Meller, supra; Sc/tilling v Labrador, supra; Gouvea v Lesende, supra). Defendant having met his initial burden on the motion, the burden shifted to plaintiffs to raise a triable issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc. , supra; Pagano v Kingsbury, supra). Plaintiffs failed to raise an issue of fact as to whether Karen Stewa1i's injuries constitute "serious injuries.'' Keith Williams' chiropractic report is inadmissable, because he may not avail himself of the statute to affirm the contents of his report (see CPLR 2106; Paul-Austin v McPherson, 91 A03d 924, 937 NYS2d 627 [2d Dept 2012] ; Vejselovski v McErlean , 87 AD3d 1062, 929 NYS2d 760 (2d Dept 2011]; Casco v Coccltiola, 62 AD3d 640, 878 NYS2d 409 [2d Dept 2009); Casas v Montero, 48 AD3d 728, 853 NYS2d 358 [2d Dept 2008]). Assuming, arguendo, that Or. Williams' chiropractic report was in admissible form, his findings are not based on contemporaneous and recent examinations, and, thus, fail to rebut defendant's prima facic showing that plaintiff Karen Stewart did not suffer a "serious injury" within the meaning of the [* 5] Stewart v Hakam Index No. 16-593 Page 5 statute (see Insurance Law § 5102 [d]; Perl v Meller, supra; Pomme/ls v Perez, supra; Zuckerman v City of New York, szpra). Moreover, Dr. Williams failed to address the findings of Dr. Sapan Cohn, who concluded that the conditions in Karen's cervical spine were degenerative in nature and unrelated to the subject accident. Dr. Williams also fai led to discuss whether the pre-existing degenerative disc changes found by Dr. Sapan Cohn affected Karen's range of motion in her cervical spine (see Perl v Meller, supra; Pomme/ls v Perez, supra; Schilling v Labrador, supra; Gouvea v Lesende, supra). Therefore, his conclusion that plaintiff's injuries and limitations were the result of the subject accident were speculative (see Casimir v Bailey, supra). Accordingly, the motion by defendant Sean Hakam for summary judgment dismissing complaint is granted. J. c HON. DAVID T ...._ .. L ..... X FINAL OlSPOSITION NON-FINAL DISPOSITION

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