Abreu v Miller

[*1] Abreu v Miller 2018 NY Slip Op 51151(U) Decided on July 5, 2018 Supreme Court, Bronx County Brigantti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2018
Supreme Court, Bronx County

Ashleigh Abreu, an infant by her mother and natural guardian BELKYS SOSA, et als., Plaintiffs,

against

Su-Wang Miller et als., Defendants.



22344/2012E



Counsel for plaintiffs: Donald M. Zolin, Esq.

Counsel for defendants : Carlos R. Rivas and D. Rivas Corp.: Maroney & O'Connor, LLP (Todd J. Powell, Esq.)

Counsel for defendants: Su Wang-Miller (discontinued)Law Office of Williams S. Boorstein (William S. Boorstein, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to 14 read on the below motions noticed on August 23, 2016 and September 9, 2016 and duly submitted on the Part IA15 Motion calendar of March 28, 2018:

Papers Submitted Numbered

Defs.' Notice of Motion, Exhibits 1,2

Co-Def's Cross-Motion, Exhibits 3,4

Pl. Aff. In Opp., Exhibits 5,6

Defs.' Reply Aff.7

Co-Def's Reply Aff. 8

Pls.' Notice of Motion, Exhibits 9,10

Co-Def.'s Opp., Exhibits 11,12

Defs.' Aff. In Opp. 13

Pls.' Reply Aff.14

Upon the foregoing papers, defendants Carlos Rivas and D. Rivas Corp. ("Rivas") move for summary judgment, dismissing the complaint of the plaintiffs Ashleigh Abreu ("Ashleigh"), an infant by her mother and natural guardian Belkys Sosa, Belle Marie Abreu (Belle), an infant by her mother and natural guardian Belkys Sosa, John Abreu ("John"), and Belkys Sosa (Belkys"), individually (collectively, "Plaintiffs") for their failure to satisfy the "serious injury" [*2]threshold as defined by New York Insurance Law §5102(d)[FN1] . Plaintiffs oppose the motion. Separately, Plaintiffs move for summary judgment against the defendants on the issue of liability. Rivas opposes this motion. In the interest of judicial economy, these two motions are consolidated and disposed of in the following decision and order.

I.Applicable Law and Analysis

This matter arises out of an alleged motor vehicle accident that occurred on October 20, 2011. The Court first addresses Rivas' motion for summary judgment. When a defendant seeks summary judgment alleging that a plaintiff does not meet the "serious injury" threshold required to maintain a lawsuit, the burden is on the defendant to establish through competent evidence that the plaintiff has no cause of action (Franchini v. Plameri, 1 NY3d 536 [2003]). "Such evidence includes 'affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim'" (Spencer v. Golden Eagle, Inc., 82 AD3d 589, 590 [1st Dept. 2011][internal quotations omitted]). A defendant may also meet his or her summary judgment burden with sufficient medical evidence demonstrating that the plaintiff's injuries are not causally related to the accident (see Farrington v. Go On Time Car Service, 76 AD3d 818 [1st Dept. 2010], citing Pommels v. Perez, 4 NY3d 566, 572 [2005]). Once this initial threshold is met, the burden shifts to the plaintiff to raise a material issue of fact using objective, admissible medical proof (see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

John Abreu

Through their submissions, Defendants established prima facie that plaintiff John did not sustain a "serious injury" within the meaning of Insurance Law as a result of this accident. Defendants' orthopedist Dr. Joseph Margulies found that John had full range of motion in his cervical and lumbar spine upon a physical examination, and all other objective tests were either normal or negative. Dr. Margulies opined that John sustained "resolved" cervical and lumbar spine sprains as a result of this accident, he found no need for further treatment, and opined that Plaintiff had no functional disability or permanent injury. Defendants' neurologist Ebenezer K. Essuman, M.D., also examined John and found no range-of-motion limitations in his spine. Dr. Essuman concluded that John had a "normal neurological examination" with no associated disability. The foregoing evidence established that Plaintiff sustained no "permanent consequential" or "significant limitation" category of injury as a result of this accident (see Thompson v. Abbasi, 15 AD3d 95 [1st Dept. 2005]; NY Ins. Law 5102[d]).

In opposition to the motion, John submits no objective medical evidence refuting Defendants' expert opinions that his alleged spinal injuries sustained in this accident have [*3]resolved (see, e.g., Feliz v. Fragosa, 85 AD3d 417 [1st Dept. 2011]). The existence of positive cervical spine MRI findings are not evidence of "serious injury" if they are not "accompanied by objective findings of either a specific percentage of the loss of range of motion or a sufficient description of 'the "qualitative nature" of plaintiff's limitations "based on the normal function, purpose and use of the body part" '" (see Bent v. Jackon, 15 AD3d 46, 49 [1st Dept. 2005], quoting Toure, 98 NY2d at 353). John's medical records from Heights Medical Care, P.C., assuming that they are in admissible form, demonstrate that John had pain and some limitations in his cervical and lumbar spine through January 27, 2012 — approximately three months after the accident. However, there are no records of any further treatment or examination until December 6, 2016. On that date, John was again evaluated by physician Dr. Larry Neuman, M.D. Dr. Neuman, however, only states that Plaintiff continues to "manifest functional impairment" and his symptoms have persisted spanning a five-year period. Dr. Neuman did not perform a range-of-motion or any other objective medical testing at this recent examination. The 2016 report, therefore, fails to establish the extent of John's allegedly permanent physical limitations (Bent v. Jackson, supra., at 49; Vasquez v. Reluzco, 28 AD3d 365 [1st Dept. 2006]; see also Mirdita v. Ash Leasing, Inc., 101 AD3d 480 [1st Dept. 2012]). The deficient 2016 report and accompanying medical records also fail to demonstrate the existence of a "significant limitation" category of injury. Although the lack of a recent examination is not necessarily dispositive of a plaintiff's "significant limitation" claim, there must be some admissible evidence of the duration, extent, and degree of an alleged limitation in order to assess it's significance (see Vasquez v. Almanzar, 107 AD3d 538, 540 [1st Dept. 2013]; see also Campbell v. Wendt, 152 AD3d 413 [1st Dept. 2017]). Here, it is evident that John's quantifiable spinal limitations only persisted for approximately three months. Moreover, while John testified that he stopped playing basketball as a result of the accident, he testified that he only missed a "few days" of school, (John EBT at 28-29) thus indicating that John's injuries were not significant (see, e.g., Frias v. Son Tien Liu, 107 AD3d 589, 590 [1st Dept. 2013]).

Defendants also established their entitlement to summary judgment with respect to John's "90/180 day" injury claim by relying on John's testimony that he only missed "a few days" of school and was unable to participate in gym class "for a few months" as a result of this incident (Pl. EBT at 28-29). This testimony is sufficient to refute John's alleged "90/180 day" injury claim (see Hernandez v. Adelango Trucking, 89 AD3d 407, 408 [1st Dept. 2011]). The Court further notes that Plaintiffs' verified bill of particulars alleges that they "were not confined to their bed/home for any period of time" (Pls.' Bill of Particulars at No.9), thus further demonstrating that John has no viable "90/180 day" injury claim (see Nakamura v. Montalvo, 137 AD3d 695, 696-97 [1st Dept. 2016]). John's opposition fails to raise an issue of fact.

Belkys Sosa

Defendants established prima facie that plaintiff Belkys did not sustain a "permanent consequential" or "significant limitation" category of injury as a result of this accident (see Thompson v. Abbasi, 15 AD3d 95). The sworn reports from Defendants' expert orthopedist and neurologist established that Belkys had full range of motion in her cervical and lumbar spine and no evidence of a permanent orthopaedic or neurologic disability. Defendants also submit Belkys' [*4]own records from Heights Medical Care, P.C.. Those records reveal that upon a physical examination occurring on September 11, 2012, Belkys exhibited only minor range-of-motion limitations in her cervical spine and had full range of motion in her lumbar spine. Belkys was advised at that visit to discontinue physical therapy, continue home exercises, and to return for reevaluation if the pain returned.

In opposition to the motion, Belkys submits inter alia, a sworn report from Dr. Larry Neumann who found range-of-motion limitations in the cervical spine and lumbar spine upon a December 2016 examination. However, this report is without probative value because the doctor failed to reconcile these increased range-of-motion deficits with the September 2012 examination where Plaintiff's limitations were largely non-existent (see Jno-Baptiste v. Buckley, 82 AD3d 578, 578-79 [1st Dept. 2011]; see also Colon v. Torres, 106 AD3d 458 [1st Dept. 2013]; Khanfour v. Nayem, 148 AD3d 426, 427 [1st Dept. 2017]). Absent competent proof of recent restrictions, Defendants established that Plaintiff did not sustain a "permanent consequential limitation" as a result of this accident (see Vasquez v. Almanzar, 107 AD3d 538 [1st Dept. 2013]). Although Dr. Neuman's 2016 report also contains a "clinical impression" of a "dental fracture," Plaintiff did not claim a "fracture" in her verified bill of particulars, or otherwise allege that her tooth injury met the "serious injury" threshold (see Torres v. Dwyer, 84 AD3d 626 [1st Dept. 2011]).

Belkys' submissions in opposition also fail to raise an issue of fact as to whether she sustained a "significant limitation" as a result of this accident. According to Belkys' medical records - assuming that they are in admissible form — the most recent finding of any meaningful limitations in the cervical or lumbar spine was on February 6, 2012, approximately three months and one week after this accident. There are no records of further treatment or therapy until September 11, 2012, where Plaintiff presented with insignificant limitations in the cervical spine and full range-of-motion in the lumbar spine. At that examination, the doctor discontinued her physical therapy treatment, recommended home exercises, and noted that she "will return for reevaluation if pain returns." On this record, it is apparent that any meaningful limitations in Belkys' cervical and lumbar spine had only persisted for a little over three months and did not exist as of nine months of the accident, which establishes the absence of a "significant limitation of use" category of injury (see Colon v. Torres, 106 AD3d 458; Dilone v. Tak Leu Cheng, 56 AD3d 397 [1st Dept. 2008]). There is no claim that Belkys had surgical intervention or epidural injections. As noted supra, Dr. Neumann's findings of recent restrictions are speculative as he fails to explain those increased limitations when Belkys had exhibited near full range of motion over four years earlier (see Jno-Baptiste v. Buckley, 82 AD3d 578, 578-79; see also Cattouse v. Smith, 146 AD3d 670, 672 [1st Dept. 2017]). The most current, admissible evidence of limitations in the cervical or lumbar spine was from February 2012, seven months before her own physicians found that the injuries were largely resolved, and over four years before Defendants' expert findings of full range of motion (see Vega v. MTA Bus Co., 96 AD3d 506, 507 [1st Dept. 2012]). Belkys, therefore has failed to demonstrate that she sustained a "significant limitation of use" of her cervical or lumbar spine as a result of this accident (see, e.g, Cartha v. Quin, 50 AD3d 530 [1st Dept. 2008]). In light of the foregoing, the Court does not reach the issue of whether Belkys has an unexplained gap or cessation of treatment.

Defendants' also demonstrated that Belkys did not sustain a "90/180 day" injury as a [*5]result of this accident. The fact that Belkys missed more than 90 days of work is not determinative of the issue (see Uddin v. Cooper, 32 AD3d 270, 271 [1st Dept. 2006], lv. den., 8 NY3d 808 [2007]). Belkys admitted at her deposition that she was never confined to her bed and was only confined to her home for a "few weeks" after the accident (see Merrick v. Lopez-Garcia, 100 AD3d 456, 457 [1st Dept. 2012]; see McCree v. Sam Trans Corp., 82 AD3d 601 [1st Dept. 2011]). This testimony defeats the "90/180" claim because it demonstrated that Plaintiff was not restricted from performing "substantially all" of her "usual and customary daily activities" during the requisite period (id., see also Bailey v. Islam, 99 AD3d 633, 634 [1st Dept. 2012]; Acosta v. Zulu Services, Inc., 129 AD3d 640 [1st Dept. 2015]).

Ashleigh Abreu and Belle Marie Abreu

Defendants' medical experts further demonstrated that plaintiffs Ashleigh and Belle did not sustain a "permanent consequential" or "significant" limitation as a result of this accident. Furthermore, neither plaintiff has a viable "90/180 day" injury claim. Belle admitted that she was unable to participate in gym class for "three to four weeks" (Belle EBT at 29), and Ashleigh testified that she was unable to participate in gym class "in the beginning sometimes" (Ashleigh EBT at 37). In opposition, Plaintiffs concede that neither of these plaintiffs sustained a "serious injury" as a result of this accident.

In light of the foregoing, Defendants are entitled to summary judgment on the basis that none of the plaintiffs can satisfy the "serious injury" threshold as a matter of law, and Plaintiffs' complaint is dismissed. Consequently, Plaintiff's cross-motion for summary judgment on the issue of liability is denied as moot.

II.Conclusion

Accordingly, it is hereby

ORDERED, that Rivas' motion for summary judgment is granted, and Plaintiffs' complaint with respect to the Rivas defendants is dismissed with prejudice, and it is further,

ORDERED, that Plaintiffs' cross-motion for summary judgment on the issue of defendants' liability is denied, and it is further,

ORDERED, that Wang-Miller's cross-motion for summary judgment is denied as moot.

This constitutes the Decision and Order of this Court.

Dated: July 5, 2018

_________________________________

Hon. Mary Ann Brigantti, J.S.C. Footnotes

Footnote 1:Co-defendant Su Wang-Miller ("Wang-Miller") cross-moved for summary judgment seeking dismissal of Plaintiffs' complaint on "threshold" grounds, and opposed Plaintiffs' motion for summary judgment. However Plaintiffs have since discontinued their action against Wang-Miller.