Butta v Rosaro
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Butta v Rosaro 2018 NY Slip Op 34358(U) May 16, 2018 Supreme Court, Nassau County Docket Number: Index No. 606777-16 Judge: Jerome C. Murphy 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. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM o 0 NYSCEF DOC. NO. 30 ,, RECEIVED NYSCEF: 05/25/2018 , ~J SUPREME COURT: COURT: STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF NASSAU COUNTY PRESENT: PRESENT: HON. JEROME MURPHY, HON. JEROME C. MURPHY, Justice. Justice. TRIAL/IAS PART TRIAL/IAS PART 14 Index No.: No.: 606777-16 Index 606777-16 Motion Date: Date: 3/8/18 3/8/18 Motion I Sequence No Sequence No~l JEANETTE BUTTA, BUTTA, JEANETTE M Plaintiff, Plaintiff, DECISION AN~RDER DECISION AN~RDER -against-againstFELIPE ROSARO FANTASTIC TRANS TRANS CORP., CORP., FELIPE ROSARO and FANTASTIC Defendants. Def end ants. following papers were read The following papers were read on this this motion: motion: Notice of Motion, Affirmation and Exhibits Notice of Motion, Affirmation Exhibits ....................................................................... 1 Memorandum Law in Support Memorandum of of Law Support .................... ,.................................................................... 2 Affirmation Opposition and Exhibit. Affirmation in Opposition Exhibit.. .............................................................................. 3 Reply Reply .............................................................. ,......................................................................44 PRELIMINARY STATEMENT PRELIMINARY STATEMENT Defendants this application application for an order order pursuant pursuant to the CPLR CPLR § S 3212, Defendants bring bring this 3212, granting granting defendants summary summary judgment and dismising dismising the complaint complaint of of the plaintiff defendants judgment and plaintiff on the grounds grounds that that there there triable issue of fact, in that plaintiff cannot cannot meet serious injury that the plaintiff meet the serious injury threshold threshold requirement requirement are no triable issue of Sections 5104(c) and 5102( d) and and granting other further further relief as mandated mandated by Insurance Insurance Law Law Sections granting such such other relief Court deems deems just proper. Plaintiffhas submitted opposition opposition to this application application and a reply as the Court just and proper. Plaintiff has submitted reply was submitted submitted by defendants. defendants. BACKGROUND BACKGROUND This is a personal injury action action in which plaintiff claims claims to have have sustained sustained personal personal iajuries. irtiuries. This personal injury which plaintiff accident occurred occurred on September September 18, 2013, at the intersection intersection of of East Sunrise Highway Highway and 2013, at East Sunrise The accident Liberty York. Plaintiffs was struck struck on the passenger Liberty Avenue, Avenue, Freeport, Freeport, New New York. Plaintiffs vehicle vehicle was passenger side by the vehicle owned owned by Fantastic Fantastic Trans. Trans. Corp., Corp., and operated operated by Felipe Felipe Rosario. Rosario. Plaintiff was returning vehicle Plaintiff was returning -1- [* 1] 1 of 10 INDEX NO. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 • RECEIVED NYSCEF: 05/25/2018 '" from physical physical therapy therapy which which she was receiving receiving for pre-existing pre-existing neck neck and back back pain. pain. In support support of of the motion failure of sustain a "serious "serious injury" injury" within motion to dismiss dismiss for failure of plaintiff plaintiff to sustain within ofInsurance Law defendant submits submits reports offour the meaning meaning oflnsurance Law§S 5102, 5102, defendant reports of four medical medical providers: providers: Ronald Ronald Salvatore Corso, A. Paynter, Paynter, M.D.; M.D.; Salvatore Corso, M.D:; M.D.; Vladimir Vladimir Zlatnik, Zlatnik, M.D., M.D., and David David A. Fisher, Fisher, M.D. Dr. Paynter, Paynter, a Board Board Certified Certified Emergency Emergency Medicine Medicine physician, physician, performed perfonned a review review of of the South Nassau Communities Hospital Emergency Emergency Records. Records. According According to his review review of of the records, records, South Nassau Communities Hospital he finds them them inconsistent inconsistent with injuries alleged alleged in the Bill with the injuries Bill of of Particulars. Particulars. He determines determines from review of of the records evidence of of significant significant injury injury to MS",Butta a review records that that there there is no evidence Ms,.J3.utta as a result result of of the / motor vehicle accident. motor vehicle accident. ./ Salvatore Corso, Corso, a Board Certified Orthopedist, Orthopedist, examined examined plaintiff September 5, Dr. Salvatore Board Certified plaintiff on September 2017. With the use of of a goniometer, goniometer, he found except 2017. With found ranges ranges of of motion motion to be within within normal normal limits, limits, except slight decrease decrease in the cervical spine, which clinically insignificant for a slight cervical spine, which he regards regards as clinically insignificant as they are unsupported of the examination, examination, and guarding/restriction or unsupported by the remainder remainder of and were were either either due due to guarding/restriction simply normal simply normal for plaintiff. plaintiff. He conducted conducted a variety variety of of specialized specialized tests, tests, which which he found to be normal. normal. September 5, Dr. Vladimir Vladimir Ziatnik, Zlatnik, a Board Board Certified Certified Neurologist Neurologist examined examined the plaintiff plaintiff on September 2016, and concluded concluded that cervical spine, spine, and lumbar 2016, that the the alleged alleged injuries injuries to the cervical spine, thoracic thoracic spine, lumbar spine have resolved, disability evident. goniometer, Dr. Zlatnik of have resolved, with with no disability evident. Using Using a goniometer, Zlatnik found found certain certain ranges ranges of motion but notes notes that that these these decreases decreases were were at least paiiially self-restricted. self-restricted. A series motion to be decreased, decreased, but least partially of tests tests of of plaintiffs plaintiff's cervical cervical spine of spine were were found found to be normal. normal. Dr. David David A. Fisher, studies of Fisher, a Board Board Certified Certified Radiologist, Radiologist, reviewed reviewed plaintiff's plaintiff's MRl MRI studies of the lumbar and cervical cervical spine, spine, and found them changes, inluding lumbar and found them to reveal reveal only preexisting preexisting degenerative degenerative changes, inluding spinal with no traumatic traumatic findings. findings. He opined opined hat there there was was no causal relationship between between spinal stenosis, stenosis, with causal relationship the claimed claimed injuries injuries and the accident. the accident. Plaintiff submits submits a chronological Benjamin R. Cohen, Cohen, Plaintiff chronological report report from her treating treating physician, physician, Benjamin M.D. He evaluated evaluated Ms. Butta Butta on March March 14, 2014 2014 .. She reported reported a history history of of chronic chronic back back and leg pain. She complained complained of of pain pain in her her lower lower back, back, radiating down the the posterior posterior aspect aspect of of both radiating down both legs to the bottom bottom of of her her feet, and and numbness numbness and and tingling tingling from from the knees knees into both both anterior anterior and posterior posterior aspect of of both both legs. She She had had undertaken undertaken physical physical therapy therapy with limited success. success. She had decreased aspect with limited had decreased range of motion of the lumbar lumbar spine spine and pain with extension. extension. The The MRI MRl of of March March 12, 2014 2014 at range of motion of pain with -2- [* 2] 2 of 10 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 INDEX NO. 606777/2016 RECEIVED NYSCEF: 05/25/2018 ,." Zwanger Persiri which moved moved during Zwanger Persiri showed showed a grade grade 1-2 spondylolisthesis spondylolisthesis ofL4 ofL4 on 5, which during flexion flexion and grade 1I subluation subluation of of C4 on CS, C5, causing causing moderate stenosis without compression. moderate stenosis without cord cord compression. grade He reports having seen pre-accident, on August August 9, 2013, 2013, at which which time time she had had reports having seen her her pre-accident, complaints pain with with radiation radiation into both with a 10-12 year history. history. Most Most of complaints of of back back pain both legs, with 10-12 year of the pain was in her had numbness her legs, and had numbness and tingling tingling in both both legs. On April performed an L3 to L5 April 11, 2014, 2014, he performed LS laminectomy laminectomy with with bilateral bilateral far lateral lateral disdiscectomy on the left at 13-4, L3-4, L4-5, L4-5, transforatuinal transforatuinal interbody fusion with of cage interbody fusion with placement placement of disdiscectomy spacer and 13-15 L3-L5 posterior stabilization and posterolateral posterior stabilization posterolateral fusion fusion using using local autograft, auto graft, allograft allograft and spacer iliac crest crest bone harvest. bone graft graft harvest. He saw saw Ms. Butta approximately monthly Butta approximately monthly thereafter, thereafter, until until May May 8, 2015, 2015, after after which which she and her husband husband moved moved to Indiana, Indiana, and was lost lost to follow-up. follow-up. Reported Reported Cervical Cervical and and Lumbar Lumbar Range of Motion Studies with goniometer were found to be limited. limited. Dr. Cohen Cohen reports of Motion Studies with a goniometer reports that that as a result result of motor vehicle vehicle accident, traumatic cervical cervical and lumbar lumbar injuries injuries with with of the motor accident, Ms. Butta Butta sustained sustained traumatic radiculopathy. She was was status L3-5 larninetomy, with posterior posterior stabilization stabilization and fusion fusion with with radiculopathy. status post post U-5 laminetomy, with residual post-operative cramping cramping to her her legs and intermittent back evidence on EMGs and intennittent back pain. pain. There There is evidence EM Gs residual post-operative of ongoing ongoing radiculopathy, and traumatic cervical and lumbar of radiculopathy, and traumatic cervical lumbar motion motion restrictions, restrictions, and MRI MRI and x-ray x-ray findings as described. described. findings r prognosis, he notes notes that acknowledges pre-existing complaints of As to his prognosis, that she acknowledges pre-existing complaints of back back and leg pain with of moderate moderate to severe severe lumbar stenosis. But accident, she was lumbar stenosis. But at the time time ofthe of the accident, pain with a history history of participating and making making progress. years post-surgery, continued to participating in physical physical therapy, therapy, and progress. Three Three years post-surgery, she continued have back spasm, which which limit ability to sit or stand stand for significant significant lengths have back and leg pain pain and spasm, limit her her ability lengths of of time. She has limited range of of motion lumbar and cervical cervical spine, spine, and opines that time. limited range motion to the lwnbar and Dr. Cohen Cohen opines that ongoing significant significant functional functional impairment impairment are causally the injuries injuries and ongoing causally related related to the automobile automobile accident of September September 18, 18,2013. 2013. accident of DISCUSSION DISCUSSION standards for seeking seeking recovery recovery for non-economic non-economic injuries The standards injuries sustained sustained as a result result of of a motor vehicle vehicle accident accident are are governed motor governed by the provisions of of Insurance Law §§ SS 5102(d) 5102(d) and provisions Insurance Law 5104(a). The The former former defines defines "serious "serious injury" injury" as follows: follows: 5104(a). "Serious injury" injury" means injury which results in (d) "Serious means a personal personal mJury which results death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss death; -3- [* 3] 3 of 10 ,c...-. INDEX NO. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/25/2018 _, , member, of a body organ, member, of a fetus; permanent of use' use of permanent loss of of of use of function consequential limitation limitation of of a permanent consequential function or system; permanent of a body of use of limitation of body organ or member; member; significant significant limitation function determined injury or medically determined function or system; or a medically prevents the injured impairment of a non-permanent non-permanent nature which prevents impairment of which material acts which the of person from performing substantially all of material substantially performing person activities for customary daily activities constitute such person's person's usual and customary constitute hundred eighty days not less than ninety days during the one hundred impairment. or impairment the of immediately following occurrence of injury occurrence the following immediately of an injured as a result of The latter limits the entitlement entitlement of of a person claiming to be injured person claiming except in the case of non-economic loss, except automobile accident accident to seek recovery of a serious recovery for non-economic automobile injury, injury. It states as follows: of behalf of (a) Notwithstanding Notwithstanding any other law, in any action by or on behalf personal person for personal covered person a covered another covered person against another covered person motor of a motor operation of injuries arising out of negligence in the use or operation of negligence injuries for recovery of vehicle in this state, there shall be no right of recovery nonvehicle economic loss, except except in the case of a serious injury, or for basic economic motorcycle of a motorcycle occupant of economic loss, operator or occupant loss. The owner, operator economic six or article by required which which has in effect the financial security required referred to in vehicle and traffic law, or which is referred of the vehicle eight of of twenty-one subdivision two of three hundred twenty-one of such law, hundred section of subdivision covered of a covered behalf of shall not be subject to an action by or on behalf person of a non-economic loss, except in the case of recovery for non-economic person for recovery loss. serious injury, or for basic economic loss, serious plaintiff's injuries of the plaintiffs A defendant seriousness of injuries by sworn defendant may raise an issue as to the seriousness Plaintiff's treating of the Plaintiffs unsworn reports of statements of their own examining examining physician, or the unsworn of their statements physician (Pagano v. v, Kingsbury, Dept 1992]). 1992]), If sufficient sufficient to raise the A.D .2d 268 [2d Dept. Kingsbury, 182 AD,2d physician (Pagano prima facie evidence in submit prima serious injury issue, the burden Plaintiff to submit burden shifts to the Plaintiff N.Y.2d 230 [1982]). admissible form to support support the claim (Licari (Licari v, [1982]), To suffice, the v. Elliot, 57 N,Y2d admissible examinations, tests, and affirmation physician's own examinations, must be based upon the physician's affidavit must affirmation or affidavit v. complaints (Toure observations subjective complaints (Toure v, plaintiff's subjective record review, and not simply on the plaintiffs observations and record N.Y.2d 345 [2002]). Avis Car Sys" [2002]), Sys., 98 NY2d Rent A Car Avis Rent Death, dismemberment, dismemberment, and loss of of a fetus are self-explanatory, self-explanatory, but some of the other not. injury" are not definitions of of "serious "serious injury" definitions -4-4- [* 4] 4 of 10 '- INDEX NO. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/25/2018 function or system Significant limitation limitation of of use of of a body body function system Significant physical limitation, "In order order to prove prove the extent extent or degree degree of of physical limitation, and expert's expert's designation designation of of "In used to substantiate percentage of of a plaintiffs plaintiffs loss of of range of motion motion can can be used substantiate a claim claim range of numeric percentage a numeric Lopez v. N.Y.2d 795 (1995), of serious serious injury." injury." Id. at 348, 348, citing citing Dufel Dufel v. v. Green, 84 N.Y.2d (1995), and Lopez v. of plaintiffs condition Senatore, 65 N.Y.2d "An expert's expert's qualitative qualitative assessment assessment of ofaa plaintiffs condition 1985). "An N. Y.2d 1017 ((1985). Senatore, plaintiffs basis and also may suffice, provided that the evaluation has an objective objective basis and compares compares the plaintiffs the evaluation provided that may suffice, also limitations to the normal normal function, function, purpose purpose and use of of the affected affected body body organ, organ, member, member, function function limitations system." Id. or system." Under certain certain circumstances, circumstances, even even where established by competent competent plaintiff has established where the plaintiff Under evidence that that they they sustained sustained serious serious injuries, injuries, Courts Courts may consider consider additional additional factors, factors, such such as an evidence preexisting condition unexplained gap in treatment, treatment, intervening intervening medical medical problem, condition such as problem, or a preexisting unexplained the claimed may interrupt interrupt the the chain chain of of causation causation between accident and the claimed injury injury (Pommels (Pommels v. v, between the accident may Perez, 4 N.Y.3d N.Y.3d 566 [2005]). [2005]). But the mere mere existence existence of of a preexisting preexisting condition condition does not But automatically preclude preclude a determination determination of of serious serious injury. Where Where such such conditions conditions are quiescent, quiescent, automatically patient is asymptomatic, asymptomatic, the aggravation aggravation of of those conditions by the trauma trauma of of an those conditions and the patient automobile collision, collision, if if supported supported by the requisite requisite objective objective findings, findings, may constitute constitute serious serious automobile th Dept. 2007]; Zurenda, 48 A.D.3d injury (Mack (Mack v. v. Pullum, A.D.3d 1063 [4 [4'h 2007]; Talcott Talcott v. v. Zurenda, AD.3d 989 [3d Pullum, 37 A.D.3d injury Dept. 2001]). 2001]). Dept. 2008]; 2008]; (Bolowske (Bolowske v. v. Eastman Eastman Kodak AD.2d 851 [4ththDept. Kodak Co., 288 A.D.2d Dept. Significant Significant Disfigurement Disfigurement Not all scarring scarring constitutes constitutes a "serious "serious injury." injury." "(A)n "(A)n injury injury is disfiguring disfiguring if if it alters alters for Not reasonable person worst plaintiffs appearance. A disfigurement disfigurement is significant significant if if a reasonable person natural appearance. plaintiffs natural the worst viewing the plaintiffs plaintiffs body body in ·its its altered altered state would would regard regard the condition condition as unattractive, unattractive, viewing objectionable or as the object object of of pity scorn." It is not not based based upon upon the the plaintiffs plaintiffs subjective subjective pity or scorn." objectionable assessment of of the the level level of of disfigurement disfigurement (Pecora (Pecora v. v. Lawrence, AD.3d 1212, 1213 - 1214 Lawrence, 41 A.D.3d assessment [2007]). [2007]). Fracture Fracture A fracture, fracture, to constitute constitute a serious serious injury, injury, must must be of of a bone, bone, not, for example example of of cartilage cartilage (Catalon v. v. Empire Storage Warehouse, Warehouse, Inc., 213 A.D.2d AD.2d 366 [2d Dept. Dept. 1995]). 1995]). But even even a Empire Storage (Cata/on hairline fracture fracture of of a bone bone is sufficient sufficient to constitute constitute a serious serious injury injury (Poma (Poma v. v. Ortiz, 2 A.D.3d A.D.3d hairline 2003]). 616 [2d Dept. 2003]). -5- [* 5] 5 of 10 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 INDEX NO. 606777/2016 RECEIVED NYSCEF: 05/25/2018 , system function, or system member, function, Permanent of use of of a body body organ, member, loss of Permanent loss of permanent loss of establish a permanent must establish A person serious injury injury must of serious element of this element under this claiming under person claiming 295[2001]). See N.Y.2d 295[2001]). use, and and the Ambulance, Inc., 96 N.Y.2d Bangs Ambulance, v. Bangs (Oberly v. total (Oberly be total must be the loss must A.D.3d 1195 Marion, 34 AD.3d v. Marion, Ellithorpe v. also, (Beutel (Beutel v. v. Guild, 28 AD.3d 2006]; Ellithorpe Dept. 2006]; A.D.3d 1192 [[441hth Dept. [41hth Dept. 2006]). 2006]). of Use Limitation of Permanent Consequential Limitation of Use/Significant Use/Significant Limitation Limitation of Permanent Consequential over physical examinations upon six physical based upon The examinations over physician, based plaintiffs physician, of the plaintiffs affirmation of The affirmation of limited findings of included findings which included the course after the accident, limited accident, which shortly after beginning shortly months beginning of 17 months course of specific which assigned elbow, which right elbow, ranges of motion cervical and assigned specific and right spine, and lumbar spine, and lumbar motion in the cervical ranges of standard minimal standard meet the minimal was adequate percentages adequate to meet range was normal range them to the normal compared them and compared percentages and 2006]). A.D.3d 392 [1s to substantiate substantiate a claim injury."(Silva v. Vizcarrondo, 31 AD.3d [1"t Dept. Dept. 2006]). v. Vizcarrondo, "serious injury."(Silva of "serious claim of credible based on credible proof based medical proof The limitation limitation must supported by medical and be supported slight and than slight more than must be more (Gaddy injury or condition medical injury medical evidence of of an objectively condition (Gaddy quantified medical and quantified measured and objectively measured medical evidence 57N.Y.2d230 v. 79 N.Y.2d 678 [1987]; Licari v. Elliot, 57 N.Y.2d 230 [1982]). [1982]). [1987];Licariv. v. Eyler, 79N.Y.2d678 physician examining physician defendant's examining the defendant's In Picott finding by the A.D.3d 319, the finding Lewis, 26 AD.3d v. Lewis, Picott v. beyond 70 degrees pain beyond of pain complaints of that "range of spine showed degrees showed complaints lumbosacral spine the lumbosacral of the motion of of motion that the "range rotation" was and rotation" bending and lateral bending left lateral of flexion, extension, 40 degrees right and left of right degrees of of extension, degrees of ion, 20 degrees of flex sustained a plaintiff sustained whether the plaintiff determined adequate adequate to raise of fact as to whether issue of triable issue raise a triable determined system." function or system." "significant limitation body function of a body of use of limitation of "significant Days 90/180 Days 90/180 must plaintiff must subsection, the plaintiff To prevail claim of of serious serious injury this subsection, under this mJury under the claim prevail on the establish: establish: v. Oliver, 36 injury which (Atkinson v. measurable (Atkinson determinable and measurable objectively determinable which is objectively An injury 1. An 2007]); AD.3d [1"1 Dept. Dept. 2007]); A.D.3d 552 [1' daily usual daily of his usual all" of 2. The The plaintiff "substantially all" perform "substantially unable to perform been unable have been must have plaintiff must missing merely missing that merely held that activites. In Uddin v. Cooper, 32 AD.3d Dept. 2006) 2006) the Court Court held (151 Dept. A.D.3d 270 (l" v. Cooper, activites. perfonn inability to perform allegations of three since there of inability were no allegations there were insufficient, since was insufficient, work was of work months of three months after the month after that approximately other daily daily activities. activities. Where acknowledged that approximately one month plaintiff acknowledged the plaintiff Where the other Associate's receive an Associate's and receive accident school, take exams, and take her final exams, return to school, able to return was able accident she was v. Degree, she failed issue of 901180 day day category category (Shamsoodeen (Shamsoodeen v. under the 90/180 of fact under triable issue raise a triable failed to raise Degree, she -6- [* 6] 6 of 10 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 INDEX NO. 606777/2016 RECEIVED NYSCEF: 05/25/2018 ,., must be activities must daily activities usual daily the usual of the limitations of Kibong, The limitations 2007]). The Dept. 2007]). A.D.3d 577 [2d Dept. Kibong, 41 A.D.3d v. Elliot, 57 N. Y.2d 230, 236 "to a great great extent extent rather slight curtailment." (Licari v. curtailment." (Licari some slight than some rather than [1982]). [1982]). of source of remain a source claims remain injury" claims that "serious The "serious injury" acknowledged that Appeals has acknowledged of Appeals Court of The Court tissue injuries soft tissue that soft significant abuse, courts, including including theirs, approach claims claims that injuries theirs, approach many courts, that many abuse, and that significant ]). 214 [2011 208, 214 Y.3d 208, Meher, 18 N. v. Meher, (Perl v. are "serious" 'well-deserved skepticism.' N.Y.3d [2011]). skepticism.' ""(Perl a " 'well-deserved with a" "serious" with Adler, and David Adler, Perl, David Joseph Perl, plaintiffs Joseph The involving plaintiffs matters involving three matters confronted three there confronted Court there The Court resulting from their injuries, that their Sheila sought to establish injuries, resulting from an automobile automobile establish that whom sought of whom Travis, all of Sheila Travis, Law. Insurance Law. of the Insurance meaning of the meaning collision, within the serious within were serious collision, were reversal Department's reversal Second Department's The Division Second Appellate Division of the Appellate review of was the review first'matter was The first'matter motion to dismiss denied defendant's of of Supreme Supreme Court, Court, Kings County, which defendant's motion dismiss the which denied Kings County, order of of an order of meaning of the meaning within the injury within complaint sustain a serious serious injury not sustain plaintiff did not that plaintiff ground that the ground complaint on the Appeals, the Court of the permission of Insurance 5102( d). The appeal by permission Court of of Appeals, second was an appeal The second Law §~ 5102( Insurance Law of the Supreme judgment of the judgment reversed the which reversed also from an order order of Second Department, Supreme Department, which of the Second denial effect the denial plaintiff and, in effect of plaintiff favor of Court, verdict in favor jury verdict upon a jury entered upon County entered Rockland County Court, Rockland appeal, also by third appeal, The third of defendant's of law. The matter of judgment as a matter motion for judgment CPLR §~ 4401 motion defendant's CPLR of of of an order Department affirmation First Department permission of the Court Court of affirmation of order of Appeals, was from a First of Appeals, permission of judgment. summary judgment. motion for summary Supreme Court defendant's motion granted defendant's which granted County, which Bronx County, Court Bronx Supreme standard listed in the standard injury" listed of "serious The "serious injury" categories of relevant categories three relevant considered three reviews considered The reviews "significant member"; "significant body organ of a body of use of definition: "permanent "permanent consequential consequential limitation limitation of organ or member"; definition: determined injury or medically determined "a medically limitation system"; and "a function or system"; body function of a body use of of use limitation of preforming person from preforming the injured prevents the impairment injured person which prevents nature which non-permanent nature of a non-permanent impairment of daily and customary usual and person's usual substantially all of of the material constitute such such person's customary daily which constitute material acts which substantially following immediately following days immediately eighty days activities hundred eighty one hundred during the one days during ninety days than ninety not less than activities for not At 215. Id At 5102 [d]). Id. law§~ 5102 the occurrence (Insurance law impairment" (Insurance injury or impairment" of the injury occurrence of claiming categories, claiming two categories, first two the first of the both of actions relied relied on one or both those actions plaintiffs in those The plaintiffs relied Travis also relied system. Travis permanent organ or system. bodily organ of a bodily their use of of their limitations of significant limitations and significant permanent and customary her "usual all" of on the disability from "substantially "substantially all" of her "usual and customary claiming disability category, claiming third category, the third accident. her accident. following her daily the 180 days following of the out of least 90 out activities" for at least daily activities" been significantly ability to function Perl function had been significantly their ability that their testimony that offered testimony Adler offered and Adler Perl and -7-7- [* 7] 7 of 10 INDEX NO. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/25/2018 , limited since since the accidents. accidents. Perl, Perl, age 82, stated stated that that he could could no longer longer garden, garden, carry carry packages packages limited while shopping, shopping, or have have marital marital relations. relations. Adler, Adler, a school school teacher teacher testified testified that that she could could not while not pick move around around easily, easily, could could not not read read for a long long time time and could could not pick up his children. children. The Court Court move noted that that it had had previously previously determined determined that that such such subjective subjective complaints complaints were were insufficient insufficient to noted support a claim claim of of serious serious injury, injury, and and there there must must be objective objective proof. proof. support Both Perl and and Adler were examined examined by Dr. Bleicher, Bleicher, who testified testified in each each case that he Adler were Both Perl examined the injured injured plaintiff plaintiff shortly shortly after after the accidents; accidents; that that he performed performed a number number of of had examined clinical tests, tests, named named but not described, described, which which were were positive, positive, indicating indicating some some deviation deviation from the but not clinical range of moving and diminished norm; that he observed observed difficulty difficulty in moving diminished strength; strength; and and that that the range of norm; that motion was impaired. impaired. He did did not not quantify quantify the range range of of motion motion on on the the initial initial examination, examination, except except motion to say that that Perl's Perl's was was "less "less than than 60% 60% of of normal normal in the cervical cervical and and lumbar lumbar spine." spine." In each each case, however, examined the plaintiffs several several years years later, later, using instruments to make make specific, specific, using instruments the plaintiffs however, he examined numerical range range of of motion motion measurements. measurements. numerical v. Avis Rent A Car Sys., 98 N.Y.2d N.Y.2d 345, 350 350 (2002), (2002), the the Court Court noted noted that in Avis Rent In Toure v. order to prove prove the extent extent or degree degree of of physical physical limitation, limitation, an expert's expert's designation designation of of a numeric numeric order percentage of of a plaintiffs plaintiff s loss of of range range of of motion motion can can be used used to substantiate substantiate a claim claim of of serious serious percentage plaintiff'ss condition but an expert's expert's qualitative qualitative assessment assessment of of a plaintiff condition may may also suffice, suffice, provided provided injury; but plaintiff's limitations that evaluation has an objective objective basis compares the plaintiffs limitations to the normal normal basis and compares that the evaluation function, purpose purpose and and use of of the affected affected body body organ, organ, member, member, function function or system. system. function, While finding finding the original original observations observations of of Dr. Bleicher Bleicher detailed, detailed, it was debatable debatable While recording of whether they they had objective basis simply a recording of the patients' patients' subjective subjective basis or were simply had an objective whether complaints. complaints. But under under the the quantitative quantitative prong prong of of Toure, But Bleicher's later, numerical numerical Bleicher's measurements were were sufficient sufficient to create create an issue issue of of fact as to the seriousness seriousness of of Perl's Perl's and and Adler's Adler's measurements injuries. injuries. The Court Court rejected rejected the arguments arguments of of defendants defendants that the quantitative quantitative measurements measurements were were The required to be contemporaneous contemporaneous to the the accident accident and based based on recent recent findings. findings. This This was the required rationale of of the Appellate Appellate Division Division determinations determinations in Perl Perl and Adler. The Court Court concurred concurred with with Adler. The rationale dissenters in the Appellate Appellate Division Division to the effect effect that that the requirement requirement of of creating creating a the dissenters perverse effect contemporaneous numerical numerical measurement measurement would would have have the perverse effect of of eliminating eliminating contemporaneous legitimate claims claims because sought out physicians physicians who were were primarily primarily interested interested in plaintiff sought because plaintiff legitimate -8- [* 8] 8 of 10 INDEX NO. 606777/2016 FILED: NASSAU COUNTY CLERK 05/25/2018 02:23 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/25/2018 .'.• litigation. record for litigation. creating a record treating opposed to creating conditions, as opposed their conditions, treating their radiologist plaintiffs radiologist pointing to plaintiffs Defendant of causation, causation, pointing issue of raised the issue also raised Perl also Defendant in Perl nature, longstanding in nature, and longstanding etiology and who "degenerative in etiology were "degenerative injuries were Perl's injuries that Perl's noted that who noted another of another submission of plaintiffss submission preexisting accident." This This was overcome plaintiff insufficient to overcome was insufficient the accident." preexisting the disease, a degenerative disease, with degenerative consistent with injuries "are radiologist's affidavit that "are consistent of the injuries some of while some that while radiologist's affidavit of result of findings are ... tissue findings single MRI soft tissue ... a result patient's soft that the patient's possibility that the possibility out the rule out cannot rule MRI cannot single a specific specific trauma." trauma." constituted physicians constituted The conflicting statements statements of of treating and examining examining physicians treating and The conflicting Court resolution by the Court. of resolution capable of a question not capable which is not credibility, which of credibility, question of that she had claim that upon the claim relied upon The of Travis, Travis relied survive. Travis however, did not survive. Travis, however, claim of The claim prevented her which prevented nature which a "medically "medically determined determined injury impairment of of a non-permanent non-permanent nature injury or impairment usual and customary her usual from performing substantially all of of the constitute her customary which constitute material acts which the material performing substantially immediately eighty days immediately hundred eighty one hundred daily during the one ninety days during than ninety less than not less activities for not daily activities following the. occurrence." the. occurrence." following of her description of that Travis' court determined Travis' subjective subjective description determined that The court there were 90 that there not show injuries, insufficient defeat summary does not show that judgment, does summary judgment, under Toure to defeat insufficient under injuries, her usual of her all" of "substantially all" of ·from "substantially disabled .from was disabled ·she was which .she injmy in which the injury after the days after of the 180 days could not activities she could what activities activities. The silent on what could and could were silent doctor were her doctor of her reports of The reports activities. essential functions the essential perform the able "to perform III days days after after the found able "to perform functions accident, she was found the accident, until, 111 perform until, determined reveal any "medically of "medically determined failed to reveal record failed The record "restrictions." The with "restrictions." though with job," though her job," of her the statute. of the provision of injury" Travis within "90/180" provision statute. the "90/180" within the bring Travis would bring that would injury" that not she has sustained In this this case, case, plaintiff issue as to whether whether or not sustained an factual issue raised a factual plaintiff has raised serious injury. exacerbation existing condition constitutes a serious which constitutes condition which prior existing of a prior exacerbation of addition, In addition, presents a laminectomy presents the laminectomy result of plaintiff's claim that surgical scar of the back, as a result scar on his back, that the 8" surgical plaintiff 's claim judgment of summary award of factual question summary judgment precludes an award jury, and precludes determination by a jury, question for determination factual A.D.3d 1282 (41hth Strek, 35 A.D.3d v. Strek, Kilmer v. (Chmiel v. 2008]. In Kilmer Dept. 2008]. A.D.3d 1092 [41hth Dept. Figueroa, 53 A.D.3d v. Figueroa, (Chmiel herniation was disc herniation repair cervical Dept. 2006), 2006), however, surgical scar from surgery cervical disc surgery to repair however, a surgical prethe surgery requiring the condition requiring determined not "serious injury" surgery was prewhere the condition injury" where not to be a "serious determined need for surgery whether the need issue whether the issue existing, and defendant failed failed to meet surgery was burden on the their burden meet their and defendant existing, acident. the acident. causally related to the causally related suffered a have suffered plaintiff to have of plaintiff Defendant's failure of complaint for failure dismiss the complaint motion to dismiss Defendant's motion denied. serious injury is denied. serious injury -9- [* 9] 9 of 10 INDEX NO. 606777/2016 r· _ _ __ _ _05/25/2018 ___ ____, FILED: NASSAU COUNTY CLERK 02:23 PM I NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/25/2018 •I extent that that requested requested relief relief has not not been been granted, granted, it is specifically specifically denied. denied. To the extent This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. This Dated: Dated: Mineola, Mineola, New New York York May 2018 May 16, 16,2018 ENTER: ENTER: C~ ~J~~;i~7? EROME C. MURPH J.S.c. ENTERED ENTERED 255 2018 MAY 2 NASSAU COUNTY COUNTY NASSAU COUNTY CLERK'S CLERK'S OFFICE OFFICE COUNTY. -10- [* 10] 10 of 10
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