Reynoso v Tradore

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Reynoso v Tradore 2019 NY Slip Op 32131(U) May 13, 2019 Supreme Court, Bronx County Docket Number: 27279/2016E 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. [*FILED: 1] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 SUPREME COURT OF TH E STATE OF COUNTY OF BRONX : I. A.S. PA RT 14 EW YORK ----------------------------------------------------------------------X ARMfNDA REYNOSO. Pla intiff. - against - DECISION A D ORDER Index o. 27279/20 16E IDRI SSA TRADORE, De fendant. ----------------------------------------------------------------------)( John R. Higgitt, J. Upo n defendant' s Jul y 9. 20 18 notice of motion and the affirmation and exhibits submitted in support thereof; plainti ffs ovember 13. 20 18 affirmati on in opposition and exhibits submitted therewith: defendant' s November 16. 20 18 affirmati on in re pl y: and due de liberation: defendant' s motion for summary judgment o n the ground that pla intiff did not sustain a ··serio us injury:· as defi ned in In surance Law § 5 102(d). in the subj ect May 25, 20I 6 motor vehicle accident is granted. Plaintiff alleges that, as a result o f such accident, she sustained injuries to her le ft shoulder. and the cervical, thoracic and lumbar aspects of her spine. Plaintiff a lleges aggra ation of any preexisting degenerati ve changes to the claimed body parts. Plaintiff alleges --seri ous injury"· under the categories of sig nificant disfi gurement. permanent loss of use, significant limitati on. pem1anent consequential limitation and a 90/ 180-day injury Defendant submitted the affirmed expert reports of an orthopedic surgeo n, Shanker Krishnamurthy, M.D., a neuro logist, Michael J. Carciente, M .D.. and a radio logist. Scott A. Springer, 0 .0., and the transcript of plaintiff s December 5, 20 17 depositio n testimony. O n February 22. 20 I 8. Dr. Krishnamurthy exam ined plainti ff. finding that she had full ranges of mo ti on in her cervical and lumbar spine. w ith no paraspinal spasm or tenderness. A ll pro ocative testing of the cervical and lumbar spine. including straig ht-leg raising. was negati ve. Dr. Kri shnamurthy"s ne urol ogical examination yielded norma l results without de fi cits in muscle testing. sensatio n or refl exes in the upper and lower extremities. 2 of 7 Dr. Kri shnamurthy"s examinati on of [*FILED: 2] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 pl aintiff's thoracic spine revealed spasm or tenderness. but no deformity. His sho ulder examination revealed a negative drop arm test and no findings of impingement, but his range-of-motio n testi ng revealed deficits in abduction bilaterally. 1 Dr. Krishnamurthy diagnosed plaintiff with status post low back, left shoulder and cervical spine strains, and status post anterior cervical discectomy and fusio n C5 -C6. Dr. Krishnamurthy a lso reviewed pla intiff's medical records and diagnostic studies. He concluded that plaintiff s cerv ical spine findings are chro nic. preexisting and not causally related to the accident; that plaintiffs lumbar spine MRI showed chron ic degenerati ve changes; and that plaintiff had no left shoulder o r lumbar spine residual findings. Dr. Carciente reviewed plaintiff s medical records and diagnostic stud ies and perfo rmed a neurological examination o n Apri l I l , 20 I 8. Dr. Carciente's examination revealed no obj ecti ve evidence of an ongoing neurological injury, disability o r permanent inj ury. His exam ination of plaintiff's spine revealed no tenderness o r evidence of paraspinal spasm . Dr. Carciente found no correlation between the findings in the cervical spine and left shoulder MRI reports and his examinati on. Dr. Springer reviewed plaintiff s June I, 20 16 cervical spine and left shoulder M R! s. In the cervical spine, Dr. Springer noted the presence of mild generali zed disc space na1Towing, and disc bu lges and canal stenosis at the C4-C5 and C5-C6 levels. He opined that such fi ndings were chronic in nature. related to degenerati on and not the result of trauma. In the left shoulder, he noted fi ndings of moderate hype1trophic change and narrowing of the acromioclav icular j oi nt whi ch he deemed degenerative findings typical of a1thriti s and not the result of trauma. This evidence is suffi cient to demonstrate prima facie that plaintiff did not sustain a '·serious injury"· to her left shoulder, neck and back as a result of the accident (see Hayes v Gaceur, 162 A D3d 1 Dr. Krishnamurthy' s range-o f- motion measurements de monstrated the fo ll owing results bilatera lly: e levation 0-160 degrees (normal extension [s ic] is 50 degrees), abduction 0- 150 (norma l is 170 deg rees), external rotation 0-70 (norm al is 60 degrees). a nd internal rotat ion L 1-L2 (norma l is 80 degrees). 2 3 of 7 [*FILED: 3] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 437, 438 [I st Dept 20 18]; Andrade v Lugo, 160 AD3d 535, 535-536 [1 st Dept 2018] : Latus v Ishtarq. 159 A D3d 433 [1 st Dept 20 18] ; Dziuma v Jet Taxi. Inc., 148 AD3d 573, 573 -574 [1 st Dept 2017]: Hernandez v Cespedes. 141 AD3d483. 484 [! st De pt 20 16] ; Michels v Marton , 130 AD3d 476, 476477 [1 st Dept 20 15]). Defendant a lso conte nds that plaintiff s lum bar spine injuries are related to a prio r motor vehicle accident. In thi s regard , pla intiff testified that she was in an accident in May 20 15, as a result o f which she injured her back, had MRJs performed, received physical therapy fo r three months and brought a lawsuit.2 In opposition, plaintiff submitted records fro m C itiMedical I. PLLC and Regina Moshe. M.D. : MRI reports from CitiMed Diagnostic; records from Todd Ko ppel, M.D., dated June 15, 20 16 and July 13, 20 16: an operative report. dated October 6, 20 16. related to an anteri o r cerv ical di scecto my and fus ion performed by Drs. Donald Ca lly and Branko Skovrlj: and the affi rmed repo rt of Dr. Douglas Schwartz, a physician board-certifi ed in physical medicine and re habilitation and medical acupuncture, w ho examined plaintiff o n July 3 1. 20 18.3 These submi ssions fa il to raise a triable issue of fact as to w hether, as a result of the accident, p lainti ff sustained a permane nt consequenti al or sig nifi cant limitation of use of her left shoulder and the cervical, tho racic and lumbar aspects of her spine. With regard to pl ainti ff s lumbar and thoracic spme, p laintiff submitted no evidence of contemporaneous limitations, a recent ph ysical examinatio n demonstrating current limitations or evidence of causation (see Perl v Me her, 18 NY3d 208, 2 17-2 18 [20 11 ]; Lee v Rodriguez. 150 A 0 3d 481 , 482 [I st Dept 20 17]; Rosa v Mejia, 95 A03d 402. 404 [I st De pt 201 2]; Thompson v Abbasi, 15 2 Whi le defendant asserts that there is an unexplai ned cessation in plaintiff s treatment based upon her testimony that she ceased medical treat ment related to injuries sustained in the subject accident in October 20 16, plaintiff also testified that she did not continue treatment because ·' insurance stopped the payments.'· Th is provided a reasonable ex planation for any gap in treatment (see Ra111k11111ar v Grand Style Trcmsp. Enters. Inc., 22 Y3d 905, 906-907 [20 13]). 3 With the exception of the affirmed reports of Ors. Schwartz and Cally. plaintiff s submissions are not in admissible form ; however, defendant raised no objection to plai ntiffs submissions on such basis. 3 4 of 7 [*FILED: 4] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 A D3d 95 , 97 [2005]). It is undisputed that plainti ff sustained a prior lumbar spine injury. Following the subject accident plaintiff made no complaints of lower back injury and received no treatment fo r a lower back injury. Because pla intiff did not offer a fact-based medical opinio n ruling out the prio r acc ident as a cause of the alleged lumbar spine injuries, she fai led to raise a triable issue as to causatio n (see Pines v Lopez, 88 AD 3d 545, 546 [1 st Dept 2011] ; Rose v City wide Auto Leasing. Inc. , 60 AD3d 520, 520 [I st Dept 2009]). Plaintiff failed to raise a tri a ble issue o f fact as to her all eged left shoulder injury because her experts fa il to dispute or address the findings of preexisting degeneration noted in plainti ff s own records (see Rivera v Fernandez & Ulloa A uto Group , I 23 AD3d 509 [1 st De pt 20 14], qfjd 25 Y3 d 1222 [201 5]). In this regard, plainti ffs June 1, 201 6 MRI showed evidence o f mil d hy pertro phy, w ith no evide nce of internal derangement. On June 15, 20 16 pl aintiff s physician diagnosed plainti ff w ith left sho ulder arthropathy. As noted, de fendant" s experts deemed these fi ndings preex isting and arthriti c in nature. Dr. Schwartz offers no opinio n as to the cause of plainti ff s alleged le ft sho ulder injury. Moreover, pl ainti ff presents no recent evidence of limitatio ns of her left sho ulder, and therefore cannot demonstrate that she sustained a permanent consequentia l limitatio n of use of her sho ulder (see Alston v Ellioll, 159 A D3d 575, 576 (1 st Dept 20 18]). As to the cervical spine. on June I , 201 6 plaintiff s treating physician, Dr. Ca lly, measured full cervical spine ranges of motion, w ith so me discomfo rt, and no muscle spasm . Dr. Ca ll y d iagnosed pl aintiff w ith cervical radi culo pathy and C5-C6 di sc osteophyte complex w ith significant left-sided foraminal stenosis. Dr. Schwartz 's recent findings of cervical spine range-of-motio n restrictions is rendered speculative by his fa ilure to reconcile his fi ndings with earli er conflicting find ings of normal range of motio n (see Khan.four v Nayem, 148 AD3d 426 , 427 [1 st De pt 20 17]). Moreover. w ith the exceptio n of her initial treatment o n M ay 16, 20 16. plaintiff s record is devo id of any quantified o r qualified evidence of limitations in the use of the cervical spine (see Hernandez v Cespedes. 14 1 4 5 of 7 [*FILED: 5] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 AD3d 483, 484 [1st Dept 20 16]). Evidence that plaintiff underwent cervical spine surgery. without any evidence oflimitations before or after surgery. is not sufficient to rai se a tri abl e issue of fact (see Hernandez v Cespedes, 14 1 AD3d 483, 484 [1 st Dept 20 16] ; Mulligan v City ofNY. 120 AD3d I I 55. 11 56 [1 st Dept 20 14]; Soho v Konale, 85 AD3d 522, 522 [! st Dept 20 11) [obj ective evidence of contemporaneous limitations. as a result of the accident. is a prerequisite to establishing '·serious injury'· even where the plaintiff has undergone surgery]). "Subjective expressions of pain alone will not suffice to establish serious injury" (Noble v Ackerman, 252 AD2d 392, 395 [I st Dept 1998]). It is obvious that plainti ff did not sustain a permanent loss of use. Such loss must be total (see Oberly v Bangs Ambulance Inc. , 96 NY2d 295 [200 l ]), and evidence of mere limitations of use are insuffi cient (see Byong Yo/ Yi v Canela, 70 AD3d 584, 585 [l st Dept 201OJ). Further. the record shows no evidence that would support plaintiffs claim that she sustained '·significant di sfigurement:· within the meaning of Insurance Law § 5102(d). as a result of the subj ect accident (see Fernandez v Hernandez, 151 AD3d 58 l , 582 [l st Dept 2017]). With respect to her claim of··se rious injury" under the 90/ 180-day category, plainti ff alleges that, fo llowing the accident. she was confined to her bed and home for approximately 30 days and incapacitated from employment and household duties for approx imately 180 days. Plaintiff testified that she returned to work two days fo llowing the accident, but then stopped working in Jul y 20 15 due to pain related to the subj ect accident. Plaintiff testified that her deci sion to limit her acti vities and to stop working was not at the directi on of a doctor. This evidence establishes, as a matter of law, that plainti ff did not sustain a 90/180-day inj ury (see Abreu v NYLL Mgr. Ltd.. I 07 AD3d 512, 513 [ l st Dept 20 13); Valdez v Benjamin, 101 AD3d 622, 623 [1st Dept 2012); Barhak v L. AlmanzarCespedes , 101 AD3d 564, 565 [1 st Dept 20 12]). In opposition, plaintiff fa iled to substantiate her claimed loss of work with proof that her inability to work was medically determi ned (see De La Rosa v Okwan, 146 AD3d 644, 645 [1 st Dept 20 17]). In any event, an absence from work for a period of 5 6 of 7 [*FILED: 6] BRONX COUNTY CLERK 05/16/2019 03:58 PM NYSCEF DOC. NO. 48 ' INDEX NO. 27279/2016E RECEIVED NYSCEF: 05/16/2019 . 90 days is not detem1inative of a plaintiffs 90/180-day claim (see Reyes v Se Park, 127 A03d 459, 461 [lst Dept 2015]; Uddin v Cooper, 32 AD3d 270, 271 [1st Dept 2006], Iv denied 8 NY3d 808 [2007]). Here, plaintiffs averments that she was unable to dance, play basketball, cook, or perform household chores fail to establish that she was prevented from performing substantially all of her customary daily activities within the relevant period (see Frias v Gonzalez-Vargas, 147 AD3d 500, 502 [I st Dept 2017]; Car/ha v Quin, 50 AD3d 530, 530 [l st Dept 2008], Iv denied 11 NY3d 704 [2008]; see also Perl v Meher, 18 NY3d 208, 220 [2011]; Licari v Elliott, 57 NY2d 230. 236 [1982]). Accordingly, it is ORDERED, that the defendant's motion seeking summary judgment is granted; and it is further ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendant dismissing plaintiffs complaint. This constitutes the decision and order of the court. Dated s\-:i\\°\ John R. 6 7 of 7

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