Castro v Valenti

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Castro v Valenti 2020 NY Slip Op 34896(U) September 28, 2020 Supreme Court, Westchester County Docket Number: 54516/2018 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: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 commence the the statutory time period To commence statutory time period for appeals appeals of right (CPLR (CPLR 5' 5:." 13[a]), 13[a)), you are are advised advised to serve copy as of serve a copy order, with with notice notice of entry, upon upon all parties. parties. of this order, of entry, SUPREME COURT COURT OF OF THE THE ST STATE OF NEW NEW YORK YORK SUPREME ATE OF COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x JEHINCY M. CASTRO, CASTRO, JEHINCY Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No. 54516/2018 54516/2018 Index Sequence No. No.11 Sequence MITCHELL P. VALENTIVALENT" and and GREGORY GREGORY VALENTI, VALENTI, MITCHELL Defendants. Defendants. ---------------------------------------------------------------------------x ---------------------------------------------------------------------------x MITCHELL P. VALENTI VALENTI and and GREGORY GREGORY VALENTI, VALENTI, MITCHELL Third-Party Plaintiffs, Third-Party Plaintiffs, -against-againstGEFFRARD ST. ST. LOUIS LOUIS and and DELLA DELLA FAMIGLIA, FAMIGLIA, INC., INC., GEFFRARD Third-Party Defendants, Defendants, Third-Party --------------------------------------, --------------------------------x ----------------------------------------------------------------------------x WOOD,J. WOOD,J. New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers 34-54, were were New York Numbers 34-54, connection with with the motion motion by plaintiff plaintiff for summary summary judgment issue of of Serious Serious read in connection judgment on the issue under Insurance Insurance Law Law §5104. ~5104. Injury under This is an action action for alleged alleged serious serious personal personal injuries injuries arising arising out out of of a rear rear end automobile automobile This accident on October October 10, 10,2015, Route 146, in the Village Village of of Harrison. Harrison. Plaintiff Plaintiff was was in a taxi taxi and 2015, on Route accident was hit from behind. behind. As a result result of of the accident, accident, plaintiff reported that that she sustained sustained a head head injury, injury, plaintiff reported injuries to her her cervical, cervical, thoracic thoracic and lumber lumber spine. and injuries spine. Now, upon the foregoing foregoing papers, motion is decided decided as follows: follows: Now, upon papers, the motion 1 [* 1] 1 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 of a summary summary judgment motion must must make make a "prima "prima facie showing of A proponent proponent of judgment motion showing of entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the entitlement judgment as a matter absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 [1986] [1986];; NY2d 320, absence Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 [2d Dept Dept 2007] 2007];; Orange Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Moreover, Moreover, failure failure to make make such such a prima Rea v Gallagher, prima facie showing requires requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the motion motion papers papers showing (Wine grad v New New York York University University Medical Medical Center, Center, 64 NY2d 851,, 853 [1986] [1986];; Jakabovics Jakabovics v NY2d 851 (Winegrad Rosenberg, 49 AD3d AD3d 695 [2d Dept Dept 2008]; 2008]; Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558, 558-559 558-559 [2d Dept Dept Rosenberg, Once the movant movant has met met this threshold threshold burden, burden, the opposing opposing party party must must present present the 1994]). Once existence of of triable triable issues issues of of fact in admissible admissible form "sufficient "sufficient to require require a trial of of material material existence questions of offact which he rests rests his claim claim or must must demonstrate demonstrate acceptable acceptable excuse excuse for his failure failure fact on which questions meet the requirement requirement of of tender tender in admissible admissible form; mere mere conclusions, conclusions, expressions expressions of of hope hope or to meet unsubstantiated allegations allegations or assertions assertions are insufficient" insufficient" (Zuckerman (Zuckerman v New New York, York, 49 NY2d 557, unsubstantiated NY2d 557, [1980];; Khan Khan v Nelson, AD3d 1062 [2d Dept Dept 2009]). 2009]). In deciding deciding a motion motion for summary summary 562 [1980] Nelson, 68 AD3d judgment, court is "required "required to view view the evidence evidence presented presented in the light light most most favorable favorable to the judgment, the court opposing the motion motion and to draw draw every reasonable reasonable inference inference from the pleadings pleadings and the proof proof party opposing submitted by the parties parties in favor favor of ofthe opponent to the motion" motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 762, submitted the opponent 767 [2d Dept Nicklas v Tedlen Dept 2009]; 2009]; Nicklas Tedlen Realty Realty Corp., Corp., 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). Summary judgment drastic remedy remedy and should should not be granted where there there is any doubt doubt as to granted where Summary judgment is a drastic existence of of a triable triable issue issue (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d NY2d 320, 320, 324 [1986]). [1986]). existence plaintiff claiming claiming personal injury as a result result of of a motor motor vehicle vehicle accident accident must must first A plaintiff personal injury demonstrate a prima case that he or she sustained sustained serious serious injury injury within within the meaning meaning of of demonstrate prima facie case 2 [* 2] 2 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 Insurance Law Law §5104 ~5104 (a) (Licari (Licari v Elliott, Elliott, 57 NY2d [1982]). Insurance Insurance Law Law §5104(a) ~5104(a) Insurance NY2d 230 [1982]). provides: "notwithstanding "notwithstanding any other other law, law, in any action action by or on behalf behalf of of a covered covered person person against against provides: another covered covered person personal injuries injuries arising of negligence negligence in the use or operation operation of of a another person for personal arising out of motor vehicle vehicle in this this state state there there shall shall be no right right of of recovery recovery for non-economic non-economic loss, loss, except except in the motor case of 102(d), serious personal of serious serious injury." injury." Pursuant Pursuant to Insurance Insurance Law §5 ~5102(d), serious injury injury means: means: a personal which results results in death; death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss of of a fetus fetus;; injury which permanent loss of of use of of a body body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential permanent limitation of of use of of a body body organ organ or member; member; significant significant limitation limitation of of use of of a body body function function or limitation system; or a medically medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent nature nature which which prevents prevents system; injured person person from performing substantially all of of the material material acts acts which which constitute constitute such such the injured performing substantially person's usual and customary customary daily daily activities activities for not less than than ninety ninety days during the one hundred hundred person's days during eighty days immediately immediately following following the occurrence occurrence of of the injury injury or impairment. impairment. eighty Whether a plaintiff plaintiff has sustained sustained a serious serious injury injury within within the meaning meaning of of the statute statute is a Whether threshold legal question question within within the sole province province of of the court court (Hamb (Hambsch New York York City Transit Transit sch v New threshold Authority, 101 101 AD2d AD2d 807 [2d Dept Dept 1987]). Insurance Insurance Law Law §5102 ~5102 is the legislative legislative attempt attempt to Authority. "weed out frivolous frivolous claims claims and limit limit recovery recovery to serious serious injuries" injuries" (Toure (Toure v Avis Avis Rent-A-Car Rent-A-Car "weed Systems, Inc., 98 NY2d 345, 350 [2002]). [2002]). Systems, NY2d 345, recover under under the permanent permanent loss of of use category, category, a plaintiff must demonstrate demonstrate a total total plaintiff must To recover of use of of a body organ, member, member, function function or system system (Oberly (Oberly v Bangs Bangs Ambulance Ambulance Inc., Inc., 96 body organ, loss of NY2d 295, [2001]). [2001]). For the permanent permanent consequential consequential limitation limitation category category of of use of ofaa body body organ organ NY2d 295, member ~r significant significant limitation limitation of of use of of a body function or system, system, either either a specific specific body function or member 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 sufficient description description percentage 3 [* 3] 3 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 of the qualitative qualitative nature nature of of plaintiffs limitations, with with an objective objective basis, basis, correlating correlating plaintiffs plaintiffs of plaintiffs limitations, body part NY2d 345). limitations normal function, purpose and use of limitations to the normal function, purpose of the body part (98 NY2d 345). The The consequential limitation limitation of of use category category also requires requires that that the limitation limitation be permanent permanent (Lopez (Lopez v consequential Senatore, 65 NY2d NY2d 1017 [[1995]). 1995]). Senatore, claiming a significant significant limitation limitation of of use of ofaa body function must must substantiate substantiate his A plaintiff plaintiff claiming body function complaints with with competent competent medical medical evidence evidence of of any range-of-motion range-of-motion limitations limitations that that were were or her complaints contemporaneous with with the subject accident (Ferraro (Ferraro v Ridge Ridge Car Car Serv., Serv., 49 AD3d AD3d 498 [2d Dept Dept contemporaneous subject accident 2008]). A minor, minor, mild mild or slight limitation of of use is considered considered insignificant insignificant within within the meaning meaning of of 2008]). slight limitation statute (Licari (Licari v Elliott, Elliott, 57 NY2d However, evidence evidence of of contemporaneous contemporaneous range range of of the statute NY2d 230). However, motion limitations limitations is not a prerequisite prerequisite to recovery recovery (Perl v Meher, Meher, 18 NY3d 208, 218 [2011 [2011]). motion NY3d 208, ]). The Court of of Appeals Appeals noted noted that that "in "in our our view, view, any assessment assessment of of the significance significance of of a bodily limitation bodily limitation Court necessarily requires requires consideration consideration not only of of the extent extent or degree degree of of the limitation, limitation, but but of of its necessarily duration as ,, ,"lell." Although Insurance Insurance Law Law §5102(d) S5102(d) does does not not expressly expressly set forth any temporal temporal duration ell." Although requirement for a "significant "significant limitation," limitation," there can be no doubt doubt that that if if a bodily bodily limitation limitation is requirement substantial in degree degree yet only only fleeting fleeting in duration, duration, it should should not qualify qualify as a "serious "serious injury" injury" under substantial under the state state (Thrall (Thrall v City City of of Syracuse, Syracuse, 60 NY2d NY2d 950, 950, revg revg 96 AD2d AD2d 715; 715; Partlow Partlow v Meehan, Meehan, 155 AD2d 647, 647, 648 [2d Dept Dept 1989]). AD2d prove the 90/180 90/180 day category, category, an injury injury must must be (1) (l) medically-determined medically-determined injury injury or To prove impairment of 01 a nonpermanent nonpermanent nature nature (2) which which prevents prevents the injured injured person person from performing performing impairment substantially all of of the material material acts which which constitute constitute such such person's person's usual usual and customary customary daily substantially activities for not less than than 90 days during during the 180 days immediately immediately following following the occurrence occurrence of of activities injury or impairment impairment and (3) there there must must be curtailment curtailment of of usual usual activities activities to a great great extent, extent, the injury 4 [* 4] 4 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 rather than than some some slight slight curtailment curtailment Q2amas (Damas v Valdes, Valdes, 84 AD3d AD3d 87, 91 [2d Dept Dept 2011]). 2011]). rather Resolution of of the issue issue of of whether whether "serious "serious injury" injury" has been sustained involves involves a comparative comparative Resolution been sustained determination of of the degree degree or qualitative qualitative nature nature of of an injury injury based normal function, function, based on the normal determination purpose and use of of the body part (98 NY2d order to establish establish serious serious injury injury here, here, the body part NY2d 345). In order purpose plaintiff must must establish establish that that he "has "has been been curtailed curtailed from performing performing his [or her] usual usual activities activities to plaintiff a great great extent" extent" (57 NY2d Lanzarone v Goldman, Goldman, 80 AD3d AD3d 667,669 667, 669 [2d Dept Dept 2011]). 2011]). NY2d at 236; Lanzarone meet its burden of proof, required to submit submit medical medical evidence evidence based based on an proof, a plaintiff plaintiff is required To meet burden of examination close close to the date of of the accident accident (Griffiths (Griffiths v Munoz, Munoz, 98 AD3d AD3d 997, [2d Dept Dept initial examination 2012]). Equally Equally important, important, plaintiff must also establish establish through through admissible admissible medical medical evidence evidence that 2012]). plaintiff must injuries sustained sustained are causally causally related related to the accident accident claimed claimed (Pommells (Pommells v Perez. Perez. 4 NY3d NY3d 566 the injuries [2005]). A p!aintiff' p~aintiffss submission submission must must contain contain a competent competent statement statement under under oath oath and must [2005]). must demonstrate that plaintiff sustained sustained at least least one of of the categories categories of of serious serious injury injury as enumerated enumerated demonstrate that plaintiff Insurance Law Law §5102(d). ~5102(d). Where Where there there has been been a gap or cessation cessation of of treatment, treatment, a plaintiff must plaintiff must in Insurance offer some some reasonable reasonable explanation explanation for the gap in treatment treatment or cessation cessation (Neugebauer ilieugebauer v Gill, 19 offer AD3d 567 [2d Dept. Dept. 2005]). 2005]). While While plaintiff plaintiff is not required required to submit submit contemporaneous contemporaneous range range of of AD3d motion testing, testing, he or she is required required to submit submit competent competent medical medical evidence evidence demonstrating demonstrating that he motion sustained rarige range of of motion motion limitations limitations contemporaneously contemporaneously with with the accident accident (Perl (Perl v Meher, Meher, 18 sustained NY3d [2011]). absence of of a contemporaneous contemporaneous medical medical report report invites invites speculation speculation as NY3d 208, 218 [2011 ]). The The absence causation (Griffiths (Griffiths v Munoz, Munoz, 98 AD3d AD3d at 999). Even Even if if plaintiffs plaintiffs doctor doctor does does not specifically specifically to causation address the findings findings in the reports reports submitted submitted by defendants defendants that that the abnormalities abnormalities in the tested tested address degenerative, rather rather than than traumatic, traumatic, the findings findings of ofthe doctor that that the injuries injuries areas were degenerative, the plaintiffs plaintiffs doctor indeed traumatic traumatic and were were causally causally related related to the collision, collision, is sufficient sufficient as it implicitly implicitly were indeed 5 [* 5] 5 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 addressed addressed the defendants' defendants' contention contention that the injuries injuries were were degenerative degenerative (Fraser-Baptiste (Fraser-Baptiste v New New York City Transit Authority, 81 81 AD3d AD3d 878 [2d Dept Dept 2011]). 2011]). Finally, Finally, subjective subjective complaints complaints of of York Transit Authority, pain, NY2d 678 pain, without without more, more, are not sufficient sufficient to establish establish a serious serious injury injury (Scheer (Scheer v Koubek, Koubek, 70 NY2d [1987]). [1987]). Here, plaintiff asserts as a matter matter of of law that that she qualifies qualifies under "serious injury" under the "serious Here, plaintiff asserts threshold of of Insurance Insurance Law Law §5102(d), S5102( d), from the categories categories of of permanent permanent consequential consequential limitation limitation threshold of use of ofaa body organ or member, member, significant significant limitation limitation of of use of ofaa body function, and the 90/180 90/180 of body organ body function, category. day category. Nearly years following following the accident, accident, plaintiff complains that that her injuries injuries from the Nearly four ((4) 4) years plaintiff complains subject motor motor vehicle vehicle accident accident continue continue to interfere interfere with with recreational recreational activities, activities, she has difficulty difficulty subject sleeping, sitting sitting for long long periods periods of of time and, driving driving for long long periods of time. time. periods of sleeping, After the accident, accident, plaintiff plaintiff was treated treated in the emergency emergency room room at White White Plains Plains Hospital, Hospital, After where CTs of of plaintiffs plaintiffs head head, , thoracic thoracic spine spine and cervical cervical spine spine were were found found to be normal normal and the where of the lumbar lumbar spine spine showed showed small small central central. . LS/511 L5/511 herniation herniation and and mild mild L4/5 disc bulge. bulge. CT of Plaintiffs treatment treatment health health providers, Rodriguez, Salzman, Salzman, Cooper, Cooper, Gaus Gaus and Guy, Guy, have Plaintiffs providers, Drs. Rodriguez, directly opined opined that that the motor motor vehicle vehicle accident accident of of October October 10, 2015, 2015, is the cause cause of of her spinal spinal directly injuries. injuries. Nine days after after the accident, accident, plaintiff plaintiff presented Enrique Rodgriquez, Rodgriquez, in Florida, Florida, and Nine presented to Dr. Enrique examination of of her cervical cervical spine spine revealed revealed that flexion flexion and extension extension was severely severely restricted restricted the examination with pain right and and left lateral lateral flexion flexion and right and left rotation rotation was was moderately moderately restricted restricted with pain and the right pain (NYSCEF (NYSCEF #40). with pain 6 [* 6] 6 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 These visits visits to Dr. Rodriguez continued to October where misalignment misalignment was These Rodriguez continued October 7,2019, 7, 2019, where detected with concomitant concomitant muscular muscular spasm pain to palpation palpation localized localized to the middle middle and lower lower detected spasm and pain cervical ranges ranges on both both sides. Cervical Cervical and sacral sacral range, range, cervical dorsolumbar cervical and and dorsolumbar cervical ranges-of-motion are restricted restricted with with mild mild pain, pain, corresponding corresponding with with clinical clinical presentation. presentation. ranges-of-motion (NYSCEF#40) (NYSCEF#40) Plaintiff also presented Cleveland Clinic Clinic in Florida, Florida, where where a CT CT scan brain was scan of of the the brain Plaintiff presented at the Cleveland performed on October October 24, 2015, 2015, with with findings findings of of no intracraniel intracraniel abnormalities, abnormalities, and and she was performed prescribed pain pain medication(NYSCEF#41). medication(NYSCEF#41). On or about about November plaintiff presented presented 2015, plaintiff prescribed November 17, 2015, Sunrise Medical Medical Group, Group, Inc. in Florida Florida where where the clinical indication was noted plaintiff to Sunrise clinical indication noted that that plaintiff suffered whiplash injuries, injuries, and initial initial encounters headaches .. suffered from whiplash encounters headaches Plaintiff also presented presented to Dr. Harry Harry Cooper, Cooper, an orthopaedist Hallandale Beach Beach Plaintiff orthopaedist with with Hallandale Orthopedics. On or about December 14, 14,2015, Orthopedic records records of of Dr. Cooper Cooper shows Orthopedics. about December 2015, Orthopedic shows a diagnosis diagnosis of plaintiff plaintiff as having having C3-C4 C3-C4 disc herniation, C4-CS C4-CS disc herniation, herniation, C5-C6 disc protrusion of disc herniation, C5-C6 disc protrusion with with annular tear, tear, C6-C7 C6-C7 disc disc herniation, herniation, left cervical cervical radiculopathy, radiculopathy, rule out lumbar disc disc herniation, herniation, an annular out lumbar radiculopathy, posttraumatic headaches. There There were were then then follow-up follow-up visits visits for neck neck pain, radiculopathy, posttraumatic headaches. pain, but no mention made made of of headache headache or backpain. backpain. mention Plaintiff was examined by Dr. Ali E. Guy, MD, of Gramercy Park Park Physical Physical Medicine Medicine and Guy, MD, of Gramercy and Plaintiff was examined Rehabilitation, P.C., who opines opines that that the MR1 MRI report report oflumbar spine taken taken on December December 30, 30,2015, oflumbar spine 2015, Rehabilitation, showed an L5-S1 L5-S 1 disc disc herniation herniation with with impingement impingement and an L4-L5 L4-L5 disc with anterior showed disc bulge bulge with anterior impression on the thecal thecal sac. sac. According According to the past past medical medical records, records, plaintiff plaintiff was was status post impression status post cholecystectomy and left knee knee arthroscopic arthroscopic surgery. performed range range cholecystectomy surgery. On July July 30, 30, 2018, 2018 , Dr. Guy performed 7 [* 7] 7 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 of motion tests which was done of motion tests of of the spine, spine, which done in the passive passive range range of of motion motion with of a with the use of goniometer. The The top indicates what was measured. goniometer. top number number indicates measured. The bottom number number indicates The bottom indicates the normal normal for that that range. range. Neck: tenderness, diffuse Neck: Shows Shows diffuse diffuse tenderness, diffuse moderate spasm, and multiple multiple trigger trigger points points moderate spasm, present. ROM: Lateral present. Lateral flexion flexion is 30 degrees/45 degrees/45 degrees, degrees, lateral lateral rotation rotation is 50 degrees/80 degrees/80 degrees, and flexion degrees, flexion and extension extension is 40 degrees/60 degrees/60 degrees. degrees. Back: Shows tenderness, diffuse Back: Shows diffuse diffuse tenderness, diffuse moderate spasm, and multiple trigger points points moderate spasm, multiple trigger present. ROM: Extension is 10 degrees/30 present. ROM: Extension degrees/30 degrees, flexion is 60 degrees/90 degrees/90 degrees, degrees, flexion degrees, bilateral bilateral lateral lateral flexion flexion and and lateral lateral rotation rotation is 15 15 degrees/30 degrees/30 degrees. degrees. SLR SLR is 60 degrees/90 degrees/90 degrees degrees with bilateral bilateral tower pain. Active tower back back pain. Active range range of of motion motion is normal normal for all four extremities. extremities. (NYSCEF#48 (NYSCEF#48)) At the request defendants, an IME was conducted request of of defendants, conducted on May May 16, 2016, Michael 2016, by Dr. Michael Feanny, This doctor Feanny, an orthopaedic orthopaedic physician. physician. This doctor believes believes that that the records records he reviewed reviewed suggests suggests that that plaintiff has degenerative plaintiff degenerative changes changes of of her cervical cervical and lumbar lumbar spine, spine, which which would would be commonly commonly associated associated with with building building and desiccation desiccation of of her disc spaces. spaces. He noted noted that that historically historically there there seems seems to be a causal causal relationship relationship of of her complaints complaints of of pain subj ect motor vehicle accident, accident, since since pain to the subject motor vehicle her complaints of neck neck pain pain began began on the date complaints of date of of the accident accident and and have continued as of of the date date have continued of doctor's report. mobility is limited of the doctor's report. Plaintiffs Plaintiffs degree degree of of mobility limited to do heavy heavy lifting repetitive bending bending lifting repetitive works on a regular and stooping. stooping. She still works regular basis. He found found no indication indication to suggest suggest that that further further treatment orthopaedic standpoint treatment was required required from from an orthopaedic plaintiff has no neurological neurological loss or standpoint as plaintiff evidence joint dysfunction, dysfunction, and that evidence of of significant significant joint maximum medical medical improvement improvement that she is at maximum (NYSCEF#51 ). (NYSCEF#51 On December 2016, Dr. Evan December 1, 1,2016, Evan A. Rosen, Rosen, P.A., P.A., Chiropractic Chiropractic physician physician examined examined plaintiff, plaintiff, of motion and found the range range of motion of of the cervical cervical spine thoracic spine were full in all directions. spine and thoracic spine were directions. 8 [* 8] 8 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 No restriction restriction was noted noted of of the lumbosactal lumbosactal spine. From From a chiropractic chiropractic standpoint, standpoint, plaintiff plaintiff had attained attained a point point of of Maximum Maximum Medical Medical improvement improvement (NYSCEF#46). (NYSCEF#46). On November November 11 11,2019, , 2019, WestMed WestMed Medical Medical Group, Group, Dr. Ronald Ronald M. Silverman, Silverman, examined examined plaintiff for purpose plaintiff purpose of of an independent independent neurological neurological examination, examination, and reports reports that that plaintiff plaintiff claims claims she is having having continued continued symptoms symptoms and in fact feels that she is getting getting worse. worse. She has ongoing ongoing symptoms symptoms of of anxiety anxiety and depression, depression, and has daily constant constant headaches. headaches. Range Range of of motion motion of of the during direct direct examination examination was limited limited to approximately approximately 10 degrees degrees of of flexion flexion and and extension, extension, neck during 10 degrees degrees left and right right rotation, rotation, however, however, when when plaintiff plaintiff was observed observed indirectly indirectly during during the interview range range of of motion motion of of the neck neck was normal; normal; straight straight leg raising raising was was negative. negative. Range Range of of interview motion motion of of the back back was limited limited to 25 degrees degrees on direct direct examination, examination, but but the claimant claimant was clearly clearly able to flex forward forward normally normally from the waist waist when when not directly directly examined. examined. Geniometer Geniometer was used used for these these measurements. measurements. Dr. Ronald Ronald M. Silverman, Silverman, MD found that that no objective objective evidence evidence of of any neurologic injury injury sustained sustained by plaintiff, plaintiff, and he finds no objective objective evidence evidence of of any cervical, cervical, neurologic thoracic, lumbar lumbar or head head injury injury (NYSCEF#52). (NYSCEF#52). thoracic, that same same date, date, Ronald Ronald L. Mann, Mann, orthopaedic orthopaedic surgeon examined plaintiff plaintiff and and revealed revealed surgeon examined On that cervical spine spine forward forward flexion flexion 20 degrees degrees and extension extension 15 degrees. degrees. Normal degrees. that the cervical Normal is 45 degrees. Rotation was right right 15 degrees degrees and left 30 degrees, degrees, Normal degrees. Neurologically, plaintiff Normal is 80 degrees. Neurologically, plaintiff Rotation intact to both upper extremities extremities with motor motor strength, strength, deep deep tendon tendon reflexes, reflexes, and sensation sensation was intact both upper intact. Examination Examination ofherthoracolumber of her thoracolumber spine spine revealed revealed forward forward flexion flexion 55 degrees, degrees, Normal Normal is 60 degrees. She laterally laterally flexed flexed 25 degrees degrees right right and 25 degrees degrees left. Normal degrees. degrees. Normal is 25 degrees. Neurologically, she is intact intact to both both lower lower extremities extremities with with motor motor strength, deep tendon tendon reflexes, reflexes, Neurologically, strength, deep sensation intact. intact. Ranges Ranges of of motion motion were were as demonstrated demonstrated by the examinee examinee under under her control, control, and sensation 9 [* 9] 9 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 Ranges The diagnosis cervical sprain/strain, and Ranges of of motion motion are pursuant pursuant to AMA AMA Guidelines. Guidelines. The diagnosis was. cervical sprain/strain, and thoracolumbar thoracolumbar sprain/strain. sprain/strain. of the foregoing, foregoing, plaintiffs plaintiffs summary summary judgment motion must must be denied denied regarding regarding In light of judgment motion Permanent Consequential Consequential Limitation Limitation of of Use/Significant Use/Significant Limitation Limitation of of Use Use Categories. Categories. The the Permanent conflicting affidavits affidavits and medical reports reports submitted present a credibility credibility battle battle between between the parties' parties' conflicting and medical submitted present and issues of credibility credibility are experts experts regarding regarding the extent extent of of plaintiffs plaintiffs injury injury relating relating to her her injuries, injuries, and issues of properly left t0 IO a ajury resolution (Ain (Ain v Allstate Allstate Ins. Co., Co., 181 AD3d AD3d 875, 878-79 878-79 [2d Dept Dept jury for its resolution properly 2020]). 2020]). Plaintiff also alleged alleged that that she sustained sustained a serious serious injury injury under under the 90/180-day 90/180-day category of Plaintiff category of Insurance Insurance Law §5102( ~5102( d). Defendants Defendants claim claim that that during during the 180-day 180-day period period immediately immediately following following the subject subject accident, accident, plaintiff plaintiff did not have have an injury injury or impairment impairment which, which, for more more than than 90 days, that that prevented prevented her her from performing performing substantially substantially all of of the acts acts that that constituted constituted his usual usual and and customary daily daily activities activities (Karpinos (Karpinos v Cora, Cora, 89 AD3d AD3d 994 [2d Dept Dept 2011]). Her work work involves involves customary 2011 ]). Her event organizing. organizing. Through Through her deposition deposition testimony, testimony, she claims that she was was out event claims that out of of work work for approximately approximately eight eight months. months. (NYSCEF#38, (NYSCEF#38, pg 17). The record shows that and future record shows that plaintiff plaintiff has failed failed to establish establish her past past and future lost lost earnings earnings with with any reasonable showing a loss income. reasonable certainty, certainty, with with relevant relevant documentation documentation showing loss of of earnings earnings and and income. Plaintiffs establish her entitlement Plaintiff s motion motion is devoid devoid of of any contemporaneous contemporaneous medical medical evidence evidence to establish her entitlement of fact, and her to the 90/180 plaintiff has failed 90/180 claim. claim. For For these these reasons, reasons, plaintiff failed to eliminate eliminate all issues issues of motion judgment is denied motion for summary summary judgment denied for this category. category. 10 [* 10] 10 of 11 FILED: WESTCHESTER COUNTY CLERK 09/28/2020 04:49 PM NYSCEF DOC. NO. 55 INDEX NO. 54516/2018 RECEIVED NYSCEF: 09/28/2020 Accordingly, it is Accordingly, ORDERED, summary judgment judgment is denied ORDERED, that plaintiffs plaintiffs motion motion for summary denied in its entirety. entirety. All matters constitutes the Decision matters not herein herein decided decided are denied. denied. This constitutes Decision and Order Order of of the court. Dated: Dated: September 28, 28, 2020 2020 September White Plains, Plains, New York White New York HON. CHARLES D OOD 00D Justice of the SUR me Court Parties by NYSCEF TO: All Parties NYSCEF 11 11 [* 11] 11 of 11

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