Beckford-Campbell v Saljanin

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Beckford-Campbell v Saljanin 2019 NY Slip Op 34509(U) December 24, 2019 Supreme Court, Westchester County Docket Number: 64078/2018 Judge: Terry Jane Ruderman 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: WESTCHESTER COUNTY CLERK 12/26/2019 03:49 PM NYSCEF DOC. NO. 63 INDEX NO. 64078/2018 RECEIVED NYSCEF: 12/24/2019 commence the statutory statutory time for appeals of right To commence appeals as of 5513(a]), you are advised advised to serve a copy (CPLR 5513[a]), of this order, with notice notice of of entry, upon all parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER ------------------~--------------------------------~-------~-------~---------){ ---------------------------------------------------------------------------x ELEANOR BECKFORD-CAMPBELL, ELEANOR BECKFORD-CAMPBELL, DECISION and and ORDER ORDER DECISION Sequence No. Sequence No. 1 , Inde){ Index No. 64078/2018 64078/2018 Plaintiff, Plaintiff, I -against-againstDELOS SALJANIN, SALJANIN, DELOS Defendant. Defendant. -------------------------------------------------------------------------u X -----~----------~~-~------------------~~----------------------------------~--){ RUDERMAN, J. RUDERMAN, The following following papers were considered considered in connection connection with wi~h defend~n!, The papers were defend~nf s unopposed unopposed motion motion order pursuant pursuant t9 CPLR 3212 granting summary summary judgment dismissing the complaint complaint on the for an order tp CPLR 3212 granting judgment dismissing the grounds that that plaintiff serious injury injury as that term is defined defined by Insurance Insurance Law grounds plaintiff did not not incur incur a serious that term Law§S 5102(d): 5102(d): Papers Papers Notice of Motion, Motion, Affirmation, Affirmation, E){hibits Exhibits A - N Notice of Numbered Numbered 11 This action action arises arises out out of of a motor motor vehicle vehicle accident.which accident,which occurred morning of of This occurred on the morning . . October 7, 7,2015. Plaintiff testified testified at her deposition deposition that stopped at a red October 2015. Plaintiff that she was was stopped red light light on , , Hussey Road, Road, on her her way her job driver, when when her was hit hit from Hussey way to her job as a part-time part-time school school bus bus driver, her car was behind.' Before Before the the accident accident happened, happ'ened, she had seen defendant's defendant's car stopped stopped approximately appro){imately five had seen behind.· behind her. She acknowledged acknowledged that that the the only only damage damage to her her car was was some some small small dents dents in the the fe'et behind rear bumper, bumper, which which she never never had had repaired. Following the the accident accident plaintiff reported rear repaired. Following plaintiff reported , e){periencing pain pain in her her neck neck and and upper back, and and was was initially'treated initially'treated with with physical physical therapy therapy and and experiencing upper back, 1 [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 12/26/2019 03:49 PM NYSCEF DOC. NO. 63 INDEX NO. 64078/2018 RECEIVED NYSCEF: 12/24/2019 chiropractic chiropractic treatment. treatment. At some some point point no fault payments payments stopped, stopped, although although her her insurance insurance paid paid for additional additional chiropractic chiropractic treatment. treatment. Plaintiff Plaintiff testified testified that that these these treatments treatments helped helped for some some time, time, . . pain would began engaging but the pain would return return when when she began engaging in activities. activities. In moving judgment, defendant moving for summary summary judgment, defendant contends contends that that the subject subject accident accident caused caused plaintiff only been resolved. plaintiff only sprains sprains that that have have been resolved. He submits submits the reports reports of of orthopedic orthopedic surgeon surgeon Dr. Greory plaintiff on April Greory Galano, Galano, who who conducted conducted an independent independent medical medical examination examination of of plaintiff April 11, plaintiffs cervical 2019, and reviewed reviewed past medical records, records, which which included included an MRI MRI report report of of plaintiffs cervical 2019, past medical 2015, indicating presence of paracentral disc spine, dated dated November 10,2015, indicating the presence of a small small right right paracentral disc spine, November 10, herniation at C6-7. C6- 7. Dr. Galano Galano reported reported that that despite despite plaintiff report of of pain her neck neck and herniation plaintiffss report pain in her , upper back, back, her cervical upper cervical spine spine sprain sprain was objectively objectively resolved. resolved. He found found no loss loss in range range of of motion. motion. Defendant surgeon Dr. John John Defendant also submits submits a physical physical examination examination report report from from orthopedi9 orthopediy surgeon R. Denton plaintiffs no-fault Denton dated dated January January 18, 2016, 2016, that that was included included in plaintiffs no-fault file. Dr. Denton Denton t \ • I • found that that plaintiff resolved cervical cervical spine spine sprain sprain and a resolved thoraCic spine spine sprain, sprain, with with found plaintiff had a resolved resolved thoracic disability. Additionally, Additionally, defendant defendant provides report of of a chiropractic chiropractic examination examination by Dr. no disability. provides a report • Judd plain~iffs cervical Judd Davis Davis dated dated May May 9,,2016, 9,,2016, who who also found found that that plain~iffs cervical and and thoracic thoracic spine spine strains strains had resolved, resolved, with had with no disability. disability. Finally, defendant submits Jonathan both the MRI Finally,defendant submits reports reports by Dr. Jonathan Lerner Lerner who who reviewed reviewed both MRI . .} ~ . . .: report November 10, 2015, as well prior MRI report report from November 10,2015, well as a priorMRI report from from June June 20, 2014, 2014, which which followed plaintiff was followed an earlier earlier accident accident in which which plaintiff was involved involved in 2014. 2014. Dr. Lerner Lerner opined opined that that the the condition the condition of of the cervical cervical spine spine reflected reflected in the 2014 2014 MRI MRI was was no different different from from that that in the November 10, 2015 MRI, that no new new injuries resulted from November 10,2015 MRI, establishing establishing that injuries resulted from the the accident accident at issue issue 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 12/26/2019 03:49 PM NYSCEF DOC. NO. 63 INDEX NO. 64078/2018 RECEIVED NYSCEF: 12/24/2019 here. Analysis Analysis When defendants move for summary summary judgment judgment dismissing dismissing a ~omplaint complaint on the grounds grounds of of When defendants move a lack of serious injury, they bear bear the initial initial burden burden of of establishing, establishing, prima prima facie, that that the plaintiff plaintiff of serious injury, they did not sustain injury caused caused by the accident accident (Smith Matinale, 58 AD3d AD3d 829 [2d Dept Dept sustain a serious serious injury (Smith v Matinale, 2009]). 2009]). When the relied-on relied-on category category of of serious serious injury injury is a 'significant' 'significant' or 'consequential' 'consequential' When the limitation use or function, limitation of of use or function function is 'significant' 'significant' or limitation of of use function, "whether "whether a limitation 'consequential' ... ... relates 'consequential' relates to medical medical significance significance and involves involves a compara'tive comparative determination determination of of the degree degree or qualitative nature of injury based based on the normal normal function, function, purpose purpose and and use of of the qualitative nature of an injury body part" part" (Toure Avis Rent Rent a Car Sys., 98 NY2d NY2d 345,353 345, 353 [2002]). The necessary necessary objective objective body (Toure v Avis [2002]). The evidence must show both (1) contemporaneous treatment - qualitative qualitative or quantitative quantitative - to evidence must show both contemporaneous treatment plaintiffss injuries injuries were were causally causally related related to the ,accident accident and and (2) recent recent establish establish that that the plaintiff Perl v Meher, J\1eher, 18 NY3d NY3d 208, 208, 217 [2011 D. ]). examination required permanency permanency (see Perl examination to establish establish the required To satisfy serious injury injury threshold, threshold, subjective subjective complaints complaints of of pain pain are satisfy the statutory statutory serious ~ insufficient; some objective objective proof proof of of a plaintiff plaintiffss injury" injury" (see McEachin j\1cEachin v City of insufficient; "there "there must must be some City of New York, 137 AD3d Dept 2016], 2016], citing citing Toure v Avis Avis Rent Rent A Car Car Sys., Sys., 98 NY2d NY2d New AD3d 753, 756 [2d Dept 345,352 [2002) [2002] and Perl 216 [2011]). [2011]). In addition, 345,352 Perl v Meher, Meher, 18 NY3d NY3d 208, 208,216 addition, the mere mere fact that that an MRI reveals the presence presence of of soft tissue MRI reveals tissue injury injury such such as bulging bulging or herniated herniated discs discs is insufficient insufficient in itself to.establish to. establish serious serious injury injury (see Kearse York City City Tr. Tr. Auth., AD3d 45, 46 [2d Dept Dept itself Kearse v New New York Auth., 16 AD3d 2005]). For For a triable triable issue issue of of fact to be presented presented where where the the plaintiff plaintiff sustained sustained such such a soft soft tissue tissue 2005]). injury, there there must must be objective objective medical medical evidence evidence that that the the injury injury was was causally causally related related to the the injury, 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 12/26/2019 03:49 PM NYSCEF DOC. NO. 63 INDEX NO. 64078/2018 RECEIVED NYSCEF: 12/24/2019 subject accident accident and that range of subject that objective objective findings, findings, such as asaa decreased decreased range of motion, motion, support support a claim claim that permanent or significant that the injury injury caused caused a permanent significant impairment impairment or limitation limitation of of use or function function of of that body part part (see Clervoix Edwards, 10 AD3d AD3d 626, 627 [2d Dept that body Clervoix v Edwards, Dept 2004]). 2004]). Here, that plaintiffs plaintiffs injuries Here, defendants' defendants' orthopedic orthopedic expert, expert, Dr. Galano, Galano, asserted asserted that injuries consisted of sprains and strains, were all objectively time of consisted solely solely of sprains and strains, which which were objectively resolved resolved by the time of his plaintiff. While While he he acknowledged report indicating examination examination of of plaintiff. acknowledged the MRI MRl report indicating the existence existence of of a herniation, related to the herniation, he found found no objective objective medical medical evidence evidence that that the injury injury was was causally causally related subject that the condition permanent or significant subject accident accident or to support support a claim claim that condition caused caused a permanent significant impairment or limitation limitation of of use or function of plaintiffs neck or cervical cervical spine. spine. Moreover, Moreover; Dr. impairment function of plaintiffs neck Lerner explained that that the November report which which reflected reflected a cervical cervical herniation Lerner explained November 10, 2015 MRl MRI report herniation I\ could relied on to establish could not be relied establish that that the herniation herniation was was caused caused by the subject subject accident, accident, in view view of the 2014 2014 MRI MRl which of the same same condition. condition. of which reflected reflected the presence presence of Defendant established, prima right to dismissal dismissal of of the serious injury injury claim. claim. the serious Defendant has established, prima facie, his right bulging discs, Despite Despite the existence existence of of an MRI MRl which which shows shows herniated herniated or bulging discs, there there is evidence evidence that that condition existed existed prior accident, and moreover, moreover, plaintiff has a full range range of of motion, motion, and the condition prior to the accident, plaintiff has appears to suffers disabilities causally causally related related to the motor motor vehicle vehicle accident accident (see Kearse appears suffers from no disabilities Kearse v New City Tr. Tr. Aufh., AD3d at 49-50). 49-50). In the absence absence of of any showing showing by plaintiff A uth., 16 AD3d plaintiff in New York City II opposition, defendant defendant has established established his right right to summary summary judgment' dismissing the com.plaint. complaint. opposition, judgment dismissing Accordingly, it is hereby hereby Accordingly, ORDERED that that defendants' defendants' motion motion is granted, granted, the complaint complaint is dismissed, dismissed, and and the Clerk Clerk ORDERED 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 12/26/2019 03:49 PM NYSCEF DOC. NO. 63 INDEX NO. 64078/2018 RECEIVED NYSCEF: 12/24/2019 judgment accordingly. is directed directed to enter enter judgment accordingly. This Decision and Order This constitutes constitutes the Decision Order of of the Court. Court. 'j,w f,W Dated: White Dated: White Plains, Plains, Y.York ork December 2 ,,2019 2019 December . HaN. T ~~ 5 [* 5] 5 of 5 lANE RUDERMAN, l.S.C.

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