Betancur v Vesely

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Betancur v Vesely 2019 NY Slip Op 34262(U) April 30, 2019 Supreme Court, Orange County Docket Number: Index No.: EF0l0005-2017 Judge: Craig Stephen Brown 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] ORANGE COUNTY CLERK 04/30/2019 12:11 PM INDEX NO. NO. EF010005-2017 . NYSCEF DOC. NO. 26 DOC. NO. RECEIVED NYSCEF: NYSCEF: 04/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE ----x INGRID H. BETANCUR, Plaintiff, DECISION & ORDER -against- Index No.: EF0l 0005-2017 GENEVIEVE F. VESELY, Defendant. ------------------------------------------------------------------x Defendant Genevieve F. Vesely moves for an order, pursuant to CPLR 3212, dismissing the plaintiffs complaint against her. The following papers were read: Notice of Motion - Affirmation of Elliot Gaztambide, Jr., Esq. Annexed Exhibits 1- 3 Stephen J. Cole-Hatchard, Esq. 's Affirmation in Opposition .Affirmation of Steven K. Jacobs, M.D., Ph.D 4-5 Reply Affirmation of Elliot Gaztambide, Jr., Esq. · Affidavit of Service _6 - 7 Upon the foregoing papers it is hereby ORDERED that the moving defendant's motion for summary judgment is granted to the extent that plaintiffs 90/180 day claim and permanent other requested relief is loss. of use of a body organ, function, or system claim are dismissed. All . denied. The instant personal injury action arises out of a motor vehicle accident which occurred on November 9, 2016 on Little Britain Road in the Town of New Windsor. Orange County. New York. It is undisputed that the vehicle ope~ted by the plaintiff Ingrid H. Betancur was rearended by defendant Genevieve F. Vesely's vehicle. Plaintiff Ingrid H. B~tencur, claiming serious 1 of 5 [*FILED: 2] ORANGE COUNTY CLERK 04/30/2019 12:11 PM ·• NYSCEF DOC. NO. 26 DOC . ·NO. INDEX NO. NO. EF0l000SEF010005-2017 2 017 RECEIVED NYSCEF: NYSCEF: 04/30/2019 04 / 30 / 2019 injury as defined by New York State Insurance Law, commenced this action on December 7, 2017. Defendant has submitted. in support of her motion for summary judgment an affirmation from her expert orthopedist, Robert Hendler, M.D. Dr. Hendler examined the plaintiff on . . November 13, 2018 and reported that, "From my physical examination and revi~w of the submitted medical records, and if the history stated by Ms. Betancur is correct, at the time of the accident of record she may have sustained a cervical and lumb'osacral sprain, with possible temporary exacerbation of pre-existing degenerative joint disease and degenerative disc disease in the cervical spine area, and a possible mild contusion of the left shoulder, which have all resolved. Physical examination of her neck and back at this time is completely normal. There are no positive objective tests, such as a neurologic deficit, asymmetric reflex or decreased sensation in a dennatomal type pattern, that would clinically correlate with a herniated disc in the neck or low back, or a cervical ·or lumbar radiculopathy. Based on a normal physical examination, it is my opinion that there is no present disability, and she will have no permanent findings in her neck or low back that would be causally related to the accident of record" (Affirmation of Robert C. Hendler, MD., page 4). Dr. Hendler further opines that, "With regard to her [plaintiff's] left shoulder, physical examination at this time is completely normal. Based on a normal examination it is my opinion that there is no present disability, and she :will have no permanent findings in her left shoulder that would be causally related to the accident ofrecord. No further causally related orthopedic treatment is indicated for the involved areas. The overall prognosis is considered good. She is able to work and perform all activities of daily living" (Affirmation of Robert C. Hendler, MD., page 4). 2 of 5 [*FILED: 3] ORANGE COUNTY CLERK 04/30/2019 12:11 PM NYSCEF DOC. NO. 26 DOC. NO. INDEX NO. NO. EF010005-2017 I RECEIVED NYSCEF: NYSCEF: 04/30/2019 However, the plaintiff. in opposition to the motion for summary Judgment, has submitted proof in admissible form that she sustained a serious injury. The plaintiff has submitted, inter alia, an affirmation from neurologist Steven K. Jacobs, M.D., PhD. Dr. Jacobs examined the plaintiff on January 18, 2017, March 12, 2018, and May 7, 2018. Dr. Jacobs states that, "I last saw Ms. Betancur [on] May 7, 2018. The patient was complaining of severe neck pain. She had not improved with physical therapy, analgesics or anti•inflammatory agents and had noted progressive weakness in her arms. On examination the patient had persistent weakness and sensory loss in the upper extremities consistent with C6 and C7 cervical radiculopathy. I reviewed an MRI of the cervical spine performed on April 13, 2018. This demonstrat.ed a herniated disc spur complex at C5-6 with severe left-sided neuroforaminal stenosis. There was also compression of the spinal cord at this level. At the C6-7 level the patient had a herniated disc spur complex with severe bilateral stenosis as well as spinal cord compression. As the patient had not improved [with] conservative care I recommended anterior cervical discectomy and fusion at C5-6, C'5-7" (Affirmation ofSteven K. Jacobs, MD., PhD., pages 1-2). In addition, Dr. Jacobs affirmed that, "I believe that the herniated disc at the C5·6 and • C6-7 level is causally related to the motor vehicle accident that occurred on 11/9/16. I am not aware of any diagnostic study i.e., a CT scan of the cervical spine or an MRI of the cervical spine indicating that the patient had herniated discs at CS-6 and/or C6-7 prior to this accident. O_n a pennanent basis the patient should not be required to lift anything over 25 pounds or bend or stoop excessively in order to minimize the possibility of further herniating the disks at C5-6 • I • • and/or C6-7. The patient has a 25% los~ of range of motion of the cervical spine on forward flexion by goniometer measurerilent. I believe that this loss of range of motion is now permanent in nature. It is important to note that the patient _has two c·omp~ments or pathology in her cervical \ 3 of 5 [*FILED: 4] ORANGE COUNTY CLERK 04/30/2019 12:11 PM NYSCEF NO. 26 pYSCEF DOC. DOC. NO. INDEX NO. NO. EF010005-2017 RECEIVED NYSCEF: NYSCEF: 04/30/2019 spine. The first is pre-existing degenerative disc disease at C5-6 and C6-7 which was not causing the patient any type of symptoms as she was never seen by a doctor complaining of neck pain prior to this motor vehicle accident. However, following the motor vehicle accident on 11/9/16 the patient developed a second component of pathology in her cervical spine. Specifically, she incurred herniated discs at CS--6 and C6-7. It is these herniated discs that led to the patient becoming symptomatic with severe neck pain and significant weakness and sensory loss in the upper extremities. The patient will require ACDF at C5-6 and C6-7 with decompression of her spinal_ cord and fusion with interbody cages at C5-6 and C6-T 1 (Affirmation ofSteven K. Jacobs, MD., PhD., page 2). The plaintiff has proffered evidence which "raises issues of material fact as to whether she sustained a 'permanent consequential limitation of use of a body organ or member' or a significant limitation of use of a body function or system" (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 352 [2002]; see also Trigg v. Gradischer, 6 AD3d 525 [2 nd Dept., 2004]; Fabiano _v. Kirkovian, 306 AD~d 373 [2 nd Dept., 2003]; Pulo v. Schait, 302 AD2d 441 [2nd Dept., 2003]; Negrete v. Hernandez, 2 AD3d 511 [2 nd Dept., 2003]; Paul v. Allstate Rentals, Inc., 22 AD3d 476 [2 nd Dept., 2005]; Collado v. Pineda, 31 AD3d 684 [2 nd Dept., 2006]: Yu v. C & A Seneca Construction, 40 AD3d 630 [2 nd Dept., 2007]). Accordingly, the defendant's motion for summary judgment dismissing plaintiff's claim of a significa~t or pen_nanent consequential limitation of use must be denied (see also, Perez v. Vasquez, 71 AD3d 531 [I51 Dept., 2010]). Finally, the "plaintiffs claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident was unsupported by" the record (Irizarry v. Chen, 40 AD3d 925 [2 nd Dept., 2007] citing D 'Alba v. Yong -Ae Choi, 33 AD3d 650, 651, 823 NYS2d 423; Mur,:ay v. Hartford, 23 AD3d 629, 629- 44 of 5 [*FILED: 5] ORANGE COUNTY CLERK 04/30/2019 12:11 PM NYSCEF DOC. NO. 26 ~YSCEF DOC. NO. INDEX NO. NO. EF0l000SEF010005-2017 2 017 RECEIVED NYSCEF: NYSCEF: 04/30/2019 630, 804 NYS2d 416; see, also, Collazo v. Anderson, 103 AD3d 527 [l st Dept., 2013]). In addition, the record is devoid of evidence of any permanent loss of use of a body organ, function, . or system. Thus, the portion of defendant's motion seeking the dismissal of these claims must be granted. This matter is scheduled for a jury trial on June 11, 2019 at 9:30 A.M. The foregoing constitutes the Decision and Order of this Court. Dated: April ] ) , 2019 Goshen, New York ~ Acting Supreme Court Justice TO: SOBO & SOBO, LLP Attorneys for Plaintiff One Dolson A venue Middletown, New York 10940 LAW OFFICES OF JOHN TROP Attorneys for ·oefendant 90 Crystal Run Road, Suite 108 Middletown, York 10941 5 of 5

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