McCalla v Westchester County Dept. of Transp.

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McCalla v Westchester County Dept. of Transp. 2020 NY Slip Op 34684(U) September 28, 2020 Supreme Court, Westchester County Docket Number: Index No. 54392/2019 Judge: Charles D. Wood 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] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 commence the statutory statutory time time period period for appeals appeals To commence as of of right right (CPLR (CPLR 5513[a]), 55 13[a]), you you are are advised advised to serve serve a copy copy of upon all parties. parties. of this order, order, with with notice nutice of of entry, entry, upon SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x JAMAR MCCALLA, MCCALLA, JAMAR Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No. 54392/2019 54392/2019 Index Sequence No. No.11 Sequence WESTCHESTER COUNTY COUNTY DEPARTMENT DEPARTMENT OF WESTCHESTER TRANSPORTATION, BEE-LINE COMPANY, TRANSPORTATION, BEE-LINE BUS COMPANY, LIBERTY LINES LINES TRANSIT, TRANSIT, INC., INC., AND AND ORIOL ORIOL BRICE, BRICE, LIBERTY Defendants. Defendants. ---------------------------------------------------------------------------x ---------------------------------------------------------------------------x WOOD,J. WOOD,J. New york State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers 60-80,92New y ork State Numbers 60-80,92100-104, were were read in connection connection with with the motion motion by defendants defendants for summary summary judgment 96, 100-104, judgment on of Serious Serious Injury Injury under under Insurance Insurance Law 5104. the issue of action for alleged alleged serious serious personal personal injuries injuries arising arising out out of of an automobile automobile This is an action accident on June June 26, 2016, 2016, at the intersection intersection of of Boston Boston Road Road and Corsa Corsa Avenue Avenue in the Bronx Bronx accident approximately 8:30 A.M. As amplified amplified by plaintiffs of Particulars, Particulars, plaintiff plaintiff alleges alleges the at approximately plaintiffs Bill of following ir..~ in~'jries result of of his accident: accident: left shoulder shoulder labral labral tear tear and shoulder shoulder surgery; surgery; following Jries as a result right shoulder shoulder labral labral tear; and lumbar lumbar disc bulges' bulges' cervical cervical spine spine herniations herniations at C4-C5, C4-C5, C5-C6 C5-C6 right and C6-C7. C6-C7. Plaintiff commenced commenced this action action originally originally m In Bronx Bronx County, County, and the case was Plaintiff subsequently transferred transferred to W Westcpester County. subsequently estcµester County. 1 1 of 10 [*FILED: 2] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 ·'" Now, upon the foregoing foregoing papers, papers, the motion motion is decided decided as follows: follows: Now, upon of a summary summary judgment motion must must make make a "prima "prima facie showing showing of of A proponent proponent of judgment motion entitlement to judgment matter of of law, law, tendering tendering sufficient evidence to demonstrate demonstrate the entitlement judgment as a matter sufficient evidence absence of of any material material issues issues of of fact" fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 NY2d 320, absence [1986];; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 [2d [1986] 2007]; Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Moreover, Moreover, failure failure to make make such such a Dept 2007]; prima showing requires requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the motion motion prima facie showing papers (Winegrad (Winegrad v New York University University Medical Medical Center, Center, 64 NY2d NY2d 851 851,, 853 [1986] [1986];; papers New York Jakabovics Rosenberg, 49 AD3d AD3d 695 [2d Dept Dept 2008]; 2008]; Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558, 558558Jakabovics v Rosenberg. Dept 1994]). 1994]). Once Once the movant movant has met this threshold threshold burden, burden, the opposing opposing party party must must 559 [2d Dept present the existence existence of of triable triable issues issues of of fact in admissible admissible form "sufficient "sufficient to require require a trial of of present material questions questions of of fact on which which he rests his claim claim or must must demonstrate demonstrate acceptable acceptable excuse excuse material failure to meet meet the requirement requirement of of tender tender in admissible admissible form; mere mere conclusions, conclusions, for his failure expressions of of hope hope or unsubstantiated unsubstantiated allegations allegations or assertions assertions are insufficient" insufficient" (Zuckerman (Zuckerman v expressions New York, 49 NY2d 557, 562 [1980]; [1980]; Khan Khan v Nelson, AD3d 1062 [2d Dept Dept 2009]). 2009]). In New York, NY2d 557, Nelson, 68 AD3d deciding a motion motion for summary summary judgment, ~he court court is "required "required to view view the evidence evidence presented presented deciding judgment, ~he light .."'Jost favorable to the party party opposing opposing the motion motion and to draw draw every every reasonable reasonable in the light "'J.ost favorable inference from the pleadings proof submitted submitted by the parties parties in favor favor of of the opponent opponent to inference pleadings and the proof the motion" motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009]; 2009]; Nicklas Nicklas v Tedlen Tedlen Realty Realty Corp., 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). Summary Summary judgment drastic remedy remedy and judgment is a drastic Corp., should not be granted granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez (Alvarez v should Prospect Hospital, Hospital, 68 NY2d 320, 324 [1986]). [1986]). NY2d 320, Prospect claiming personal personal injury injury as a result result of of a motor motor vehicle vehicle accident accident must must A plaintiff plaintiff claiming 2 2 of 10 [*FILED: 3] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 demonstrate a prima prima facie case case that that he or she sustained serious injury injury within within the meaning meaning of of demonstrate sustained serious Insurance Law §5104(a) s5104(a) (Licari (Licari v Elliott, Elliott, 57 NY2d [1982]). Insurance Insurance Law Law §5104(a) s5104(a) Insurance NY2d 230 [1982]). provides: "notwithstanding any other other law, in any action action by or on behalf of a covered covered person person behalf of provides: "notwithstanding against another another covered covered person person for personal injuries arising arising out out of of negligence negligence in the use or against personal injuries operation of of a motor motor vehicle vehicle in this state state there there shall be no right right of of recovery recovery for. non-economic non-economic operation loss, except except in the case of of serious serious injury." injury." Pursuant Pursuant to Insurance Insurance Law Law §5102(d), S5102(d), serious serious injury injury loss, personal injury injury which which results results in death; death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a means: a personal fracture;; loss of of a fetus; fetus; permanent permanent loss of of use of of a body organ, member, member, function function or system; system; body organ, fracture permanent consequential limitation limitation of of use of of a body body organ organ or member; member; significant significant limitation limitation of of permanent consequential of a body function or system; system; or a medically medically determined determined injury injury or impairment impairment of of a nonuse of body function permanent nature nature which which prevents prevents the injured injured person person from performing performing substantially of the permanent substantially all of material acts acts which which constitute constitute such such person's person's usual usual and customary customary daily daily activities activities for not less material than ninety days during during the one hundred hundred eighty eighty days immediately immediately following following the occurrence occurrence of of than injury or impairment. impairment. the injury Whetl--er a plaintiff sustained a serious serious injury injury within within the meaning meaning of of the statute statute is a WhetJ-ler plaintiff has sustained threshold legal question question within within the sole province of the court court (Hambsch (Hambsch v New York City threshold province of New York Transit Authority. Authority, 101 AD2d AD2d 807 [2d Dept Dept 1987]). Insurance Insurance Law Law §5102 S5102 is the legislative legislative Transit attempt to "weed "weed out out frivolous frivolous claims claims and limit limit recovery recovery to serious serious injuries" injuries" (Toure (Toure v A Avis attempt vis Rent-A-Car Systems, Systems, Inc., Inc., 98 NY2d 345, 350 [2002]). [2002]). Rent-A-Car NY2d 345, recover under under the permanent permanent loss of of use category, category, a plaintiff plaintiff must must demonstrate demonstrate a To recover of 'use of of a body body organ, organ, member, member, function function or system system (Oberly (Oberly v Bangs Bangs Ambulance Ambulance Inc., total loss of'use [2001]). For For the permanent consequential limitation limitation category category of of use of of a body body 96 NY2d NY2d 295 [2001]). permanent consequential member or significant significant limitation limitation of of use of of a body function or system, system, either either a specific specific organ or member body function 3 3 of 10 [*FILED: 4] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 percentage of of the loss of of range range of of motion motion must must be ascribed ascribed or there there must must be a sufficient percentage sufficient plaintiffs limitations, description description of of the qualitative qualitative nature nature of of plaintiffs limitations, with with an objective objective basis, basis, part (98 correlating plaintiffs limitations and use of correlating plaintiffs limitations to the normal normal function, function, purpose purpose and of the body body part NY2d consequential limitation limitation of of use category category also requires requires that that the limitation limitation be NY2d 345). The The consequential permanent (Lopez (Lopez v Senatore, Senatore, 65 NY2d [1995]). permanent NY2d 1017 [1995]). plaintiff claiming claiming a significant significant limitation limitation of of use of of a body body function function must must substantiate substantiate A plaintiff complaiI.~s with with competent competent medical medical evidence evidence of of any range-of-motion range-of-motion limitations limitations that that were were his complair.~s contemporaneous with with the subject subject accident accident (Ferraro (Ferraro v Ridge Ridge Car Car Serv Serv.,.• 49 AD3d AD3d 498 [2d contemporaneous 2008]). A minor, minor, mild mild or slight slight limitation limitation of of use is considered considered insignificant insignificant within within the Dept 2008]). meaning of of the statute (Licari v Elliott, Elliott, 57 NY2d However, evidence evidence of of contemporaneous contemporaneous statute (Licari NY2d 230). 230). However, meaning range of of motion motion limitations limitations is not a prerequisite prerequisite to recovery recovery (Perl (Perl v Meher, Meher, 18 NY3d 208, 218 NY3d 208, range [2011]). Court of of Appeals Appeals noted noted that "in "in our view, view, any assessment of the the significance significance of of a [2011 ]). The Court assessment of bodily limitation limitation necessarily necessarily requires requires consideration consideration not only of of the the extent extent or degree degree of of the bodily limitation, but of of its duration duration as well." well." Although Although Insurance Insurance Law §5102( ~5102(d) does not expressly expressly limitation, d) does temporal requirement requirement for a "significant "significant limitation," limitation," there there can be no doubt doubt that if if a set forth any temporal bodily limitation limitation is substantial degree yet only fleeting fleeting in duration, duration, it should should not qualify qualify as a bodily substantial in degree "serious injury" injury" under under the state (Thrall v City of Syracuse, Syracuse, 60 NY2d 950, revg revg 96 AD2d AD2d 715; "serious state (Thrall City of NY2d 950, Partlow v Meehan, Meehan, 155 AD2d AD2d 647,648 647, 648 [2d Dept Dept 1989]). Partlow prove the 90/180 90/180 day category, category, an injury must must be (1) medically-determined medically-determined injury injury or To prove impairment of of a nonpermanent nonpermanent nature nature (2) which which prevents injured person person from performing impairment prevents the injured performing substantially all of of the material material acts which which constitute constitute such such person's person's usual usual and customary customary daily daily substantially activities for not less than than 90 days during during the 180 days immediately immediately following following the occurrence occurrence activities of the injury or impairment impairment and (3) there must must be curtailment curtailment of of usual usual activities great of activities to a great 4 4 of 10 [*FILED: 5] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 extent, rather rather than than some some slight slight curtailment curtailment (Damas (Damas v Valdes, Valdes, 84 AD3d AD3d 87, 87,91 Dept 2011]). 2011]). extent, 91 [2d Dept Resolution of of the issue of of whether whether "serious "serious injury" injury" has been involves a comparative comparative been sustained sustained involves Resolution determination of of the degree degree or qualitative qualitative nature nature of of an injury injury based based on the normal normal function, function, determination purpose and use of of the body order to establish establish serious serious injury injury here, the purpose body part part (98 NY2d NY2d 345). In order plaintiff must establish establish that that he "has "has been curtailed from performing performing his [[or usual activities activities plaintiff must been curtailed or her] usual extent" (57 NY2d Lanzarone v Goldman, Goldman, 80 AD3d AD3d 667, 667, 669 [2d Dept Dept 2011]). 2011]). to a great extent" NY2d at 236; Lanzarone moving party, party, it is the defendant's defendant's initial initial burden burden to establish establish that that the plaintiff plaintiff has As the moving not sustained sustained a "serious "serious injury" injury" (Gaddy (Gaddy v Eyler, 79 NY2d 955, 956 [1992]). [1992]). This This is NY2d 955, accomplished by submitting submitting objective objective proof, generally in the form of of "affidavits "affidavits or affirmations affirmations accomplished proof, generally of medical medical experts experts who examined examined the plaintiff plaintiff and conclude conclude that that no objective objective medical medical findings findings of support the plaintiff's plaintiffs claim" claim" (Grossman (Grossman v Wright, Wright, 268 AD2d AD2d 79, 84 [2d Dept Dept 2000]). 2000]). Such Such support proof can even even include include "unswom "unsworn medical medical reports reports and uncertified uncertified records records of of an injured injured proof plaintiffs treating treating medical medical care providers" (Elshaarway v U-Haul V-Haul Company Company of of Mississippi, Mississippi, 72 plaintiff's providers" (Elshaarway AD3d 878 [2d Dept Dept 2010]; 2010]; see Itkin v Devlin, Devlin, 286 AD2d AD2d 477[2d 477[2d Dept Dept 2001]). 2001]). A defendant defendant AD3d either on the sworn sworn statements statements of of the defendant's defendant's examining examining physician may rely either physician or the unsworn unswom reports of of plaintiffs plaintiffs examining examining physician physician (Pagano (Pagano v Kingsbury, Kingsbury, 182 AD2d AD2d 268 [2d Dept Dept reports 1992]). If defendants defendants establish establish their their prima prima facie entitlement entitlement to judgment matter of of law, the If judgment as a matter burden shifts to the plaintiff plaintiff to produce produce evidence evidence sufficient sufficient to demonstrate demonstrate a triable triable issue issue of of fact burden shifts existence of of a "serious "serious injury" injury" as defined defined by the statute statute (see Sanevich Sanevich v Lyubomir, Lyubomir, 66 on the existence AD3d 665 [2d Dept Dept 2009]; 2009]; Azor Azor v Torado, Torado, 59 AD3d AD3d 367, 368 [2d Dept Dept 2009]). 2009]). AD3d well-settled that that "in "in order order to successfully successfully oppose oppose a motion motion for summary summary judgment It is well-settled judgment issue of of whether whether an injury injury is serious serious within within the meaning meaning of ofInsurance Law §5102( S5102( d), the Insurance Law on the issue 55 5 of 10 [*FILED: 6] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 plaintiffs expert expert must must submit quantitative objective objective findings findings in addition addition to an opinion plaintiffs submit quantitative opinion as to the significance of of the injury" injury" (Grossman (Grossman v Wright, Wright, 268 AD2d AD2d at 84). An An affidavit affirmation affidavit or affirmation significance simply setting forth the the observations observations of of the affiant unless supported affiant is not sufficient sufficient unless supported by simply setting objective proof proof such such as X-rays, X-rays, MRIs, Laseque tests, tests, and any similarlyobjective MRls , straight-leg straight-leg or Laseque any other other similarlyrecognized tests or quantitative quantitative results results based based on a neurological neurological examination recognized examination (Grossman (Grossman v Wright, 268 AD2d AD2d at 84). To meet meet its burden burden of of proof, proof, a plaintiff plaintiff is required required to submit medical Wright, submit medical evidence based based on an initial initial examination examination close date of of the accident (Griffiths v Munoz, Munoz, accident (Griffiths evidence close to the date 98 AD3d AD3d 997, 997, [2d Dept Dept 2012]). 2012]). Equally Equally important, important, plaintiff plaintiff must must also also establish establish through through admissible medical medical evidence evidence that the injuries injuries sustained sustained are causally related to the accident admissible causally related accident claimed (Pommells NY3d 566 [2005]). [2005]). A plaintiffs plaintiffs submission must contain claimed (Pommells v Perez, 4 NY3d submission must contain a competent statement statement under under oath oath and must must demonstrate demonstrate that that plaintiff plaintiff sustained sustained at least least one competent one of of the categories of of serious serious injury injury as enumerated enumerated in Insurance Insurance Law Law §5102( ~5102( d). Where Where there there has been been a categories cessation of of treatment, treatment, a plaintiff plaintiff must must offer offer some some reasonable reasonable explanation explanation for the gap in gap or cessation treatment or cessation cessation (Neugebauer ilieugebauer v Gill, Gill, 19 AD3d Dept. 2005]). 2005]). While While plaintiff plaintiff is treatment AD3d 567 [2d Dept. required to submit submit contemporaneous contemporaneous range of motion testing, testing, he is required not required of motion required to submit submit competent medical medical evidence evidence demonstrating that he sustained of motion motion limitations competent demonstrating that sustained range range of limitations contemporaneously with with the accident accident (Perl v Meher, Meher, 18 NY3d 208, 218 [2011 [2011]). contemporaneously NY3d 208, ]). The The absence absence of a contemporaneous contemporaneous medical medical report report invites invites speculation causation (Griffiths (Griffiths v Munoz, of speculation as to causation Munoz, 98 AD3d Even if if plaintiffs plaintiffs doctor doctor does not specifically address the findings in the reports AD3d at 999). Even specifically address the findings reports submitted by defendants defendants that that the abnormalities abnormalities in the tested areas were rather submitted tested areas were degenerative, degenerative, rather traumatic, the findings findings of of the plaintiffs plaintiffs doctor doctor that that the injuries injuries were indeed traumatic traumatic and than traumatic, were indeed causally related related to the collision, collision, is sufficient sufficient as it implicitly addressed the defendants' were causally implicitly addressed defendants' contention that that the injuries injuries were were degenerative (Fraser-Baptiste v New contention degenerative (Fraser-Baptiste New York York City City Transit Transit 6 6 of 10 [*FILED: 7] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 Authority, 81 81 AD3d AD3d 878 [2d Dept Dept 2011]). 2011]). Subjective Subjective complaints complaints of of pain, without more, more, are not Authority, pain, without sufficient to establish establish a serious serious injury injury (Scheer (Scheer v Koubek, Koubek, 70 NY2d NY2d 678 [1987]). [1987]). sufficient preliminary matter, matter, plaintiff plaintiff abandons abandons the category category of of the 90/180 90/180 category, category, and As a preliminary category is dismissed. dismissed. this category Turning to the merits merits of of defendants' defendants' motion, motion, they they offer offer the Affirmation Affirmation of of board Turning board certified Orthopedic Orthopedic Surgeon, Surgeon, Dr. Richard Richard N. Weinstein, Weinstein, M.D., M.D., who who conducted conducted an IME on certified September 11 11,2019 (NYSCEF#s 75&77) 75&77) Dr. Weinstein's Weinstein's examination examination revealed revealed a healed healed left September , 2019 (NYSCEF#s shoulder arthroscopic arthroscopic procedure. plaintiffs left shoulder shoulder and cervical cervical spine, spine, examination examination shoulder procedure. As to plaintiffs revealed limitation limitation on range range of of motion. motion. As for plaintiffs plaintiffs lumbar lumbar spine spine and plaintiffs plaintiffs left knee, knee, revealed Weinsteinis examination examination found that range of of motion motion was normal. normal. Dr. Dr. Weinstein's Weinstein's report report Dr. Weinstein;s following: : found the following CERVICAL SPINE: SPINE: Examination Examination of of the cervica} spine spine demonstrates demonstrates flexion flexion 30, 30, (normal (normal 45), 45), CERVICAL extension 30 (normal (normal 45), 45), right right and left rotation rotation 60 (normal (normal 80), 80), right right and left lateral lateral bending bending extension of 30. (normal (normal 45). Negative Negative paraspinal paraspinal tenderness. tenderness. Negative Negative paraspinal paraspinal spasm. spasm. Negative of Negative midline bony tenderness. Positive Positive trapezial trapezial tenderness tenderness on the left, left, negative negative on the right. midline bony tenderness. Negative Spurling's test. Negative Negative cervical cervical compression compression test. Negative Spurling's THORACOLUMBAR SPINE: SPINE: Examination Examination of of the thoracolumbar thoracolumbar spine spine demonstrates demonstrates THORACOLUMBAR completely normal range of motion of 90 degrees of flexion (normal 90); degrees of of completely normal range of motion of degrees of flexion (normal 90); 30 degrees extension (normal (normal 30) and 30 degrees degrees ofright of right and left rotation rotation (normal (normal 30), degrees of of right extension 30), 30 degrees lateral bending (normal 30). Reflexes Reflexes 2+/4 on the left and I1+/4 With and left lateral bending (normal +/4 on the right. With regard to the cervical cervical and and lumbar lumbar spine, spine, today's today's examination examination of of the cervical cervical spine spine regard revealed a decrease decrease in range range of of motion motion which which can be considered considered a subjective subjective finding finding as testing testing revealed actively performed performed by the claimant claimant at their their own volition. volition. The range range of of motion motion testing testing was is actively normal for the lumbar lumbar spine. spine. There There was no objective objective evidence evidence of of cervical cervical or lumbar lumbar normal radiculopathy. In review review of of the MRI image of of the cervical cervical spine spine it revealed revealed evidence evidence of of radiculopathy. preexisting degenerative degenerative changes. changes. In review review of of the MRI image image of of the lumbar lumbar spine spine it revealed revealed preexisting no acute findings. findings. LEFT SHOULDER: SHOULDER: Examination Examination of of the left shoulder shoulder demonstrates demonstrates well-healed well-healed arthroscopic arthroscopic LEFT portals. Positive subacromial subacromial crepitus crepitus with motion motion of ofthe shoulder. Forward Forward elevation elevation 170 portals. Positive the shoulder. degrees (normal (normal 180). Internal Internal rotation rotation to T8 (normal (normal T6). T6). External External rotation rotation of of 6 degrees degrees degrees (normal 60). Abduction 170 degrees (normal 180). Rotator cuff strength is 5-/5. According to (normal Abduction degrees (normal Rotator cuff strength 5-/5. According expert, with with regard regard to the left shoulder, shoulder, the MRI of of the left shoulder shoulder revealed revealed no tear but did the expert, tendinosis and minimal minimal fraying of of the anterior anterior midportion midportion of of the labrum labrum which which 1s is reveal tendinosis degenerative in etiology. etiology. I degenerative RIGHT SHOULDER: SHOULDER: Examination Examination of of the right shoulder demonstrates range range of of motion motion of of RIGHT shoulder demonstrates ,.;... 7 7 of 10 [*FILED: 8] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 180 degrees degrees of of forward forward elevation elevation (normal (normal 180); and 180 degrees abduction (normal (normal 180); degrees of of abduction internal rotation rotation to T6(normal T6(normal T6) and external external rotation rotation of of 60 degrees degrees (normal (normal 60). Rotator Rotator internal cuff strength strength is 5/5. With With regard regard to the right right shoulder, of the right right shoulder shoulder was was cuff shoulder, the examination examination of normal with with full range range of of motion motion and no objective objective evidence evidence of of impingement internal normal impingement or internal derangement. The MRI of of the right right shoulder revealed no tear tear but but mild mild tendinosis tendinosis which which is shoulder revealed derangement. The MRI degenerative inetiology. inetiology. The The claimant claimant had no complaints pain at the degenerative complaints of of right right shoulder shoulder pain examination. examination. Defendants also submit submit a report report from Dr. Jonathan Jonathan Lerner, Lerner, M.D. M.D. P.C, Defendants P.C, who who is currently currently Director of of Musculoskeletal Musculoskeletal Imaging Imaging Catholic Health Services Services of Long Island. Island. Dr. Lerner Lerner Catholic Health of Long the Director examined the MRI MRI results results of of plaintiffs plaintiffs injuries injuries and submits reports dated dated January January 13, 2020. 2020. submits reports examined From MRI studies studies that that occurred occurred in June 2015, Lerner Lerner concludes etiology of of From June and July 2015, concludes that that the etiology herniated discs discs are degenerative degenerative conditions, thus, there relationship to the the herniated conditions, and thus, there is no causal causal relationship accident. "The "The above above findings findings are seen in the setting of desiccation desiccation of of the C3-C4 C3-C4 through through accident. setting of C6-C7 intervertebral intervertebral disc levels, which which is consistent consistent with with degenerative degenerative disc disc disease disease and and C6-C7 disc space space levels, suggestive of a chronic chronic degenerative degenerative process process as opposed opposed to an acute acute traumatic traumatic event" event" suggestive of (NYSCEF #78). (NYSCEF Defendants point point out that that even even where where a plaintiff plaintiff has undergone undergone arthroscopic arthroscopic surgery, Defendants surgery, it nevertheless be determined determined that that the plaintiff plaintiff did not sustain sustain a serious serious injury injury under under the may nevertheless Insurance Law (Byrd (Byrd v Limo, Limo, 61 AD3d AD3d 801 [2d Dept Dept 2009]). Weinstein, although although 2009]). Dr. Weinstein, Insurance observing restricted restricted range range of of motions motions for the left shoulder shoulder and cervical cervical spine, spine, attributed attributed the observing something other other than than the accident, accident, but rather rather a self imposed restriction. restriction. same to something self imposed Taking into consideration consideration defendants defendants submissions, including the the reports reports of Drs. Taking submissions, including of Ors. Weinstein and Lerner, Lerner, defendants defendants established, established, prima prima facie, that that plaintiff plaintiff did Weinstein did not not sustain sustain a serious injury injury within within the meaning meaning ofInsurance Law §5102( g5102( d), as a result result of subject accident accident serious of Insurance Law of the subject (Powell v Prego, Prego, 59 AD3d AD3d 417, 417, 418-19 418-19 [2d Dept Dept 2009]). 2009]). (Powell However, plaintiff's plaintiff's expert expert reports reports raised raised triable triable issues issues of of fact, including However, including Dr. Gautam Gautam 8 8 of 10 [*FILED: 9] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 Khakhar, who examined Khakhar, examined plaintiff plaintiff shortly shortly after after the accident accident on July July 3, 2015, opines that: 2015, and opines "It is my considered considered medical medical opinion, opinion, within within a reasonable medical certainty that the reasonable degree degree of of medical certainty that accident herein was the competent accident referenced referenced herein competent producing producing cause cause of of the injuries delineated in injuries delineated these reports. was asymptomatic prior to the said these reports. The The patient patient was asymptomatic prior motor vehicle vehicle accident. Also, the said motor accident. Also, patient was 21 years years old old at the time of the accident accident and, as such, patient time of degeneration is not something such, degeneration not something normally found This accident normally found at this age. This accident was the cause cause of of the injuries listed in the MRls" MRIs" injuries listed (NYSCEF (NYSCEF # 101 101). ). "It is my opinion opinion that current complaints that the patient's patient's current complaints and limitations limitation of of motion motion limitations and limitation with his injuries are entirely entirely consistent consistent with injuries as described described above above that traumatic in nature and that were were traumatic nature exacerbated by the above-said above-said accident accident which exacerbated took place place on June not related which took June 26, 26, 2015, 2015, and and not related to any pre-existing pre-existing conditions conditions or intervening intervening medical medical problems. problems. The range of of motion motion as The restricted restricted range reported permanent in nature. nature. He will not reported above above is permanent achieve his pre-accident not be able able to achieve pre-accident medical medical status. His complaints will be subject subject to periods complaints will which will require physical physical periods of of exacerbation exacerbation which will require therapy, orthopedic visits. therapy, pain pain management management and orthopedic visits. At this point, point, any further further organized organized treatment treatment palliative in nature. nature. His therapy will be palliative therapy was discontinued discontinued for this this very reason along with the very reason along with fact that insurance that insurance was discontinued" 101). discontinued" (NYSCEF (NYSCEF # 101 ). Dr. Emmanuel Emmanuel Hostin, Hostin, M.D. states states that that plaintiff first examined examined by him him on August plaintiff was was first August 13, 2015, 2015, with with treatment treatment limited limited to his shoulders. shoulders. His examination of plaintiff plaintiff revealed examination of revealed left shoulder positive right shoulder shoulder equivocal shoulder positive impingement; impingement; right equivocal impingement. impingement. Dr. Hostin Hostin reviewed reviewed his right shoulder shoulder MRJ MRI dated dated July July 10, 2105, 2105, which exhibited a tear of the anterior/inferior labrum which exhibited tear of anterior/inferior labrum with extension equator. Dr. Hostin with extension to the equator. Hostin also reviewed shoulder MRI reviewed his July July 9, 2015, 2015, left shoulder MRJ exhibited anterior/inferior exhibited anterior/inferior labral labral tear. Hostin attests attests that: that: Dr. Hostin "23. It is my opinion opinion that that JAMAR JAMAR MCCALLA's shoulder limitations limitations of motion are MCCALLA's shoulder of motion entirely with his injuries entirely consistent consistent with injuries as described described above above that were were traumatic traumatic in nature, nature, caused caused by the above-said above-said accident accident which which took took place place on June 26, 2015, and not related to any pre-existing June 26, 2015, not related pre-existing conditions or intervening conditions intervening medical medical problems. problems. 24. The restricted range of motion as reported restricted range of motion above is permanent permanent in nature. nature. He will will reported above not be able able to achieve achieve his pre-accident medical status. pre-accident medical status. 26. It is my opinion opinion that 26. that as a result result of patient of the above-mentioned above-mentioned accident, accident, the the patient sustained a personal personal injury sustained injury resulting loss of use of a body organ, member, resulting in a permanent permanent of of body organ, member, function permanent consequential function or system; system; permanent limitation of of use body organ member; and consequential limitation use of of a body organ or member; of use of a significant significant limitation limitation of member, function function or system" system" (NYSCEF # 102). of a body body organ, organ, member, (NYSCEF # The third expert is David The third expert David R. Payne, Payne, M.D., M.D., a Board Board Certified Certified Radiologist. Radiologist. His diagnosis diagnosis 9 9 of 10 [*FILED: 10] WESTCHESTER COUNTY CLERK 09/28/2020 12:20 PM NYSCEF DOC. NO. 108 INDEX NO. 54392/2019 RECEIVED NYSCEF: 09/28/2020 impression upon upon review review of of the MRI study of the left shoulder shoulder is a Anteroinferior Anteroinferior labral labral and impression study of right shoulder shoulder is a Tear of the anteroinferior anteroinferior labrum labrum with with extension extension to equator. equator. No tear. The right Tear of pathology for both. both. His diagnosis diagnosis and impression impression upon upon review review of of the MRI study study of of acute bony pathology cervical spine spine is a right right paracentral paracentral herniation herniation at C4/5 with with thecal thecal sac indentation, indentation, right right the cervical paracentral herniation herniation at C5/6 C5/6 with with thecal thecal sac indentation, indentation, central central herniation herniation at C6/7 with thecal thecal paracentral C6/7 with indentation. His diagnosis diagnosis and impression impression upon upon review review of of the MRI MRI study lumbar study of of the lumbar sac indentation. lumbar bulge bulge at L4/5 and L5-Sl. spine is a lumbar Clearly, the conflicting conflicting affidavits affidavits submitted submitted present credibility battle Clearly, present a credibility battle between between the parties' experts experts regarding regarding the extent extent of of plaintiff's plaintiffs injury, injury, and issues issues of of credibility credibility are properly properly parties' a jury for its resolution resolution (Ain (Ain v Allstate Allstate Ins. Co., 181 AD3d AD3d 875, 875,878-79 Dept 2020]). 878-79 [2d Dept 2020]). left to ajury Accordingly, it is Accordingly, ORDERED, that that defendants' defendants' motion motion for summary summary judgment under the 90/180-day 90/180-day ORDERED, judgment under category is granted, granted, as it was not addressed addressed by plaintiff, plaintiff, and denied denied otherwise; otherwise; and it is further further category ORDERED, that that the parties parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part in ORDERED, Courtroom 1600 of of the Westchester Westchester County County Courthouse, Courthouse, 111 Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., Courtroom White Plains, Plains, New York 10601, 10601, at a date, time, time, and place, place, as so designated designated by that that Part. White New York matters not herein herein decided decided are denied. denied. All matters This constitutes constitutes the Decision Decision and Order Order of of the court. court. This Dated: September 28, 2020 2020 September White Plains, Plains, New New York York White Parties by NYSCEF TO: All Parties NYSCEF 10 10 10 of 10

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