Grace v American United Transp.
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Grace v American United Transp. 2019 NY Slip Op 30795(U) February 25, 2019 Supreme Court, Bronx County Docket Number: 301394/16 Judge: John R. Higgitt 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: 1.A.S. PART 14 ---------------------------------------------------------- -----------X CHRISTINE GRACE, Plaintiff, - against - DECISION AND ORDER Index No. 301394/16 AMERICAN UNITED TRANSPORTATION, I C., et. al., efendants. ---------------------------------------------------------- -----------X John R. Higgitt, J. Upon the November 6, 2018 of motion of defendant American United Transportation, Inc. ("defendant") and the affir ation and exhibits submitted in support thereof; plaintiffs January 23, 2019 affirmation in oppo ition; and due deliberation; defendant's motion to dismiss the complaint on the ground that plaint ff did not sustain a "serious injury" in the subject motor vehicle accident is granted in part. This action relates to a December 7, 2015 motor vehicle accident involving the taxi owned by defendant, in which plaintiff was a rear-se ed passenger. Plaintiff alleges that as a result of the accident she suffered injuries to her right oulder, left knee, and cervical and lumbar spine. Plaintiff asserts that her injuries satisfy one o more of the following Insurance Law § 5102( d) "serious injury" categories: permanent loss, permanent consequential limitation, significant limitation, and 90/ 180-day injury. The defendant submits the affirmed report of Dr. John H. Buckner (orthopedic surgeon), Dr. Michael J. Carciente (neurologist) and Dr. ric L. Cantos (radiologist), and the transcript of plaintiffs February 21, 2018 deposition testi Dr. Buckner examined plaintiff on April 0, 2018, performed objective testing, and measured range of motion with the use of a goniometer r inclinometer. Although he does not compare the results of plaintiffs range of motion testing to "normal" guidelines he notes that plaintiffs cervical [* 2] spine, lumbar spine, right shoulder and left knee examinations were all normal and demonstrated no objective evidence of injury (see Rodriquez Konate, 161 AD3d 565, 566 [1st Dept 2018]). Dr. Buckner performed manual motor testing the lower extremities, finding symmetric and normal results in all major muscle groups. Dr. Buckner reviewed plaintiffs medical re rds and her cervical, lumbar, left knee and right shoulder MRI reports, interpreted by plaintiffs adiologist, Dr. Thomas M. Kolb. 1 Dr. Buckner contends that plaintiffs records show evide e of degenerative conditions and no trauma. Specifically, Dr. Buckner contends that plaint ffs December 7, 2015 cervical spine CT Scan showed mild degenerative changes and tha plaintiffs cervical spine MRI showed mild degenerative changes consisting of a disc hemi tion, with impingement. As to the lumbar spine, Dr. Buckner avers that plaintiffs lumbar spin x-ray showed mild degenerative disease, but no signs of injury2 and that plaintiffs lumbar spin MRI showed degenerative changes consisting of a disc bulge with impingement and narrowi g in the inferior aspect of the left-sided neural foramen. As to the right shoulder, Dr. Buckner no es MRI findings of hypertrophic changes at the acromioclavicular joint, a normal marrow sig al, partial rotator cuff tears, and joint and bursal effusion. He opines that these are degenerati changes. Dr. Buckner also opines that the need for extensive intra-articular and subacromial d bridement, noted in plaintiffs March 1, 2016 right shoulder surgery operative report, was related o degenerative disease. Finally, as to the left knee, Dr. Buckner co tends that MRI finding of a meniscus tear, a partial tear of the medial collateral ligament and joint ffusion demonstrate evidence of mild degenerative 1 Plaintiff's cervical and lumbar MRls were performed n February 13, 2016, the right shoulder MRI was performed on December 22, 2015 and the left knee MRI was perD rmed on February 20, 2016. Dr. Kolb's MRI reports are not submitted by any party. 2 Dr. Buckner notes only the following lumbar spine x- ay findings: vertebral body heights and alignment are maintained, intervertebral disc spaces are maintained, nd that the sacroiliac joints are patent. 2 [* 3] osteoarthritis and do not suggest trauma. Dr. Carciente performed a neurological exam nation of plaintiff on April 18, 2018, also finding normal results, no objective evidence of radicu opathy, and no correlation between the findings allegedly found in the cervical and lumbar spi e MRI reports and plaintiffs examination. Dr. Carciente found no evidence of an ongoing neur logical injury, disability or permanency. Dr. Cantos reviewed plaintiffs lumbar spine degenerative changes and no disc herniations. herniation or fracture that could be attribute RI films, finding evidence of mild lower lumbar r. Cantos opines that there is no evidence of a disc to the accident and there are underlying mild generalized degenerative changes attributable t aging. Dr. Cantos also reviewed plaintiffs right shoulder MRI films, finding evidence of a su acromial spur, impingement in the region of the rotator cuff, tendinopathy/tendinosis, mild fibri lation and small partial tears within both tendons, and subcortical edema in the humeral head near the rotator cuff attachment. Dr. Cantos concludes that the hypertrophic bony changes and resulta t rotator cuff impingement could not have ensued in the short time frame between the accident a d the study, therefore he opines that plaintiff had ongoing and preexisting impingement syndro e and degenerative changes prior to the accident. It is unclear whether Dr. Cantos' opinion of de eneration also relates to the tears noted. The moving defendant sustains its pri a facie burden through the affirmed report of its experts who examined plaintiff finding normal orthopedic and neurological examinations, and no objective evidence of permanent injury (see C stro v DADS Natl. Enters, Inc., 2018 NY Slip Op 07262 [1st Dept 2018]; Alverio v Martinez, 1 0 AD3d 454 [1st Dept 2018]; Sane v Qamar, 68 AD3d 566, 566 [1st Dept 2009]). Defendants experts further opined that any positive imaging results were caused by degenerative conditio s unrelated to trauma caused by the accident (see Rodriguez v Konate, 161 AD3d 565, 566 [1st ept 2018]; Hessing v Carroll, 161AD3d462 [1st Dept 2018]). 3 [* 4] In opposition, plaintiff submits an affidavit s om to on January 22, 2019, and the affirmations of her radiologist, Dr. Kolb, and orthopedic sur eon, Dr. Randall V. Ehrlich. Dr. Kolb examined plaintiffs right shoulde left knee, cervical spine, and lumbar spine MRI films and concluded that plaintiff sustained the following injuries: right shoulder partial rotator cuff tears; a left knee tear of the posterior horn fthe medial meniscus, a partial tear of the medial collateral ligament, and joint effusion; a disc he iation at C5-C6 impinging on the thecal sac; and a bulging disc at L5-S 1 impinging on the anteri r epidural fat and narrowing the inferior aspect of the left-sided neural foramen. Dr. Ehrlich reviewed plaintiffs medical r cords, MRI films, his operative reports, and reexamined plaintiff on December 5, 2018. Dr. hrlich initially examined plaintiffs right shoulder on February 3, 2016, after plaintiff had competed a full course of formal supervised physical therapy, finding active and passive range f motion reduced in all planes, positive Neer impingement sign, positive Hawkins impingem nt test and a positive crossarm adduction test. Dr. Ehrlich's review of plaintiffs MRI confirmed ight shoulder partial tears with acromioclavicular joint arthropathy. Dr. Ehrlich concluded that rthroscopic surgery was medically necessary and performed surgery on March 1, 2015 during hi ch he found an anterior labral tear and severe glenohumeral capsular post-traumatic contra ure. His recent examination of plaintiffs right shoulder revealed continuing restriction in acti e and passive range of motion. Dr. Ehrlich examined plaintiffs left knee initially on September 7, 2016 after plaintiff had commenced a course of formal supervised p ysical therapy with minimal improvement. His review of plaintiffs February 2016 left knee MRI found tears, with effusion. His examination revealed active and passive range of motion duced, and positive tenderness to palpation at the medial joint line and peripatellar area. He also noted a positive McMurray, Steinmann bounce and patellofemoral grind test. Dr. Ehrlich perfo ed left knee arthroscopy on November 22, 2016 4 [* 5] finding a Grade 4, out of 4, chondral injury as we 1as tears of both menisci. His recent examination of plaintiffs left knee revealed reduced acti e and passive range of motion, tenderness to palpation, crepitus, weakness, an effusion, and ositive provocation tests. Dr. Ehrlich opines that plaintiffs MRI a d physical examinations were consistent with traumatic internal derangement of the right sho Ider and a traumatic intra-articular meniscal and chondral damage to the left knee necessitatin surgery. Dr. Ehrlich concludes based upon the plaintiffs history and his objective findings t at plaintiff sustained significant and permanent injuries to her left knee and right shoulder as result of the accident. Dr. Ehrlich recommends further treatment of her traumatically induced eft knee chondral injury, and opines that she will require a left total knee replacement in her lifet me. Plaintiffs submissions are sufficient to rais a triable issue of fact as to whether she sustained a permanent consequential or significant limit ion of use of her right shoulder and left knee as a result of the subject accident (see Liz v Mu oz, 149 AD3d 646, 646-64 7 [1st Dept 2017]). Plaintiffs orthopedic surgeon observed tears n plaintiff right shoulder and left knee upon his review of plaintiffs MRis and from his findin s during arthroscopic surgeries. Furthermore, he measured limitations in range of motion both efore surgery and over two years later and found decreased range of motion, tenderness and we kness in both the shoulder and knee. Finally, Dr. Ehrlich's opinion that such injuries were trau atic in nature and casually related to the accident is based on the plaintiffs history, his own treatm nt of plaintiff, his review of the MRI films, and his observations during surgery, and is therefore s fficient to raise an issue of fact as to causation (see Hayes v Gaceur, 162 AD3d 437, 438 [1st Dep 2018]; Holloman v American United Tramp. Inc., 162 AD3d 423, 424 [1st Dept 2018]; Barreras v Vargas, 151AD3d620, 621 [1st Dept 2017]; Liz v Munoz, 149 AD3d at 646-64 7). Plaintiff w s not required to demonstrate anything further with regard to causation as the defendant failed toe tablish that plaintiffs own medical records showed 5 [* 6] evidence of degeneration (see Aquino v Alvare , 162 AD3d 451 [1st Dept 2018]; cf Sanchez v Oxcin, 157 AD3d 561, 562 [1st Dept 2018] [plai tiff not required to address causation with respect to cervical injury based upon the defendant's orthopedist's opinion, because the orthopedist's relied upon and annexed MRI reports that fail d to include any degenerative findings]). In this regard, Dr. Buckner selectively quotes portio of plaintiffs MRI reports and medical records without annexing copies of such evidence d conclusory attributes all of the findings to degeneration disease including findings of "tra matic injuries," normal marrow signal, and intact ligaments. Moreover, the moving defendant's experts acknowledge the presence of tears in the knee and shoulder and there is no evidence of s ch preexisting conditions. However, plaintiff fails to raise a triable ssue of fact as to whether she sustained serious injuries as a result of her alleged cervical and lu bar spine injuries and whether such injuries were causally related to the accident. Plaintiff sub its neither quantified results of range of motion testing or a qualitative assessment of any limita ions in use of her cervical or lumbar spine resulting from injuries causally related to the accident nor evidence of recent limitations in use of her cervical or lumbar spine to raise an issue of fac as to permanency (see Callahan v Shekhman, 149 AD3d 454, 455 [1st Dept 2017]). Indeed, as the neck and back, "'the record is devoid of any competent evidence of plaintiffs treatment [ r the] need for treatment' that would warrant the denial of defendant's motion" (Rosa v Mejia 95 AD3d 402, 404 [1st Dept 2012] [changes in original], quoting Thompson v Abbasi, 15 AD d 95, 97 [2005]). As to her 90/180-day claim, plaintiff all ges that she was confined to her bed and home intermittently following the accident and for approximately two weeks following her March 1, 2016 surgery, and that she missed approxima ely two weeks of work. Plaintiff testified that she can no longer play softball, braid hair, and th t following the accident she missed only three days of work. Plaintiff continued to work until her arch 2016 shoulder surgery after which she missed 6 [* 7] 1 •• l three and a half weeks of work. Defendant met ts prima facie burden as to the 90/180-day claim by submitting plaintiffs bill of particulars and deposition testimony, where she admits that she had not been confined to her bed and home for he requisite period of time after the accident (see Moreira v Mahabir, 158 AD3d 518, 519 [1st ept 2018]). Plaintiff submits no opposition to dismissal of her 90/180-day claim. Plaintiff did not sustain a permanent loss of se as such loss must be total (see Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001 ]), and ev· dence of mere limitations of use are insufficient (see Byong Yo! Yi v Canela, 70 AD3d 584). Accordingly, it is ORDERED, that the aspects of the motion o defendant seeking summary judgment dismissing plaintiffs claims (1) under the permanent loss fuse and 90/180-day categories oflnsurance Law § 5102[ d] and (2) under the permanent cons quential and significant limitation categories of Insurance Law § 5102( d) with respect to her c rvical spine and lumbar spine are granted; and it is further ORDERED, that the motion of defendant i otherwise denied. This constitutes the decision and order oft e court. Dated: February 25, 2019 7
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