Markel v Nicolosi

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Markel v Nicolosi 2020 NY Slip Op 35369(U) October 20, 2020 Supreme Court, Nassau County Docket Number: Index No. 601900/18 Judge: James P. McCormack 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. INDEX INDEX NO. NO. 601900/2018 601900/2018 FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 RECEIVED NYSCEF: NYSCEF: 10/22/2020 SUPREME COURT~ STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x TRIAL/IAS PART 18 NASSAU COUNTY ODED MARKEL, Plaintiff(s) ~against;. Index No.: 601900/18 Motion Seq. 003 Moti11n Submitted: ~/21/2020 MAURIZIO NICOLOSI, Defendant(s) --------------- X The following papers read on these motions: Notices of Motion/Supporting Exhibits-.............. ,...... ;... ;., .. ;.......•.....X Affirmation in Opposition/Supporting Exhibits ................. ;...•.......•.. X ·.Reply-Affirmation...... •:••·._•.. -............ _..........................-.....-; ...:.. ......... ;..-.. X Defendant, Maurizio Nicolosi (Nicolosi), moves this courtfor an order granting him surmnary judgment and dismissing the complaint against him based on Plaintiffs' injuries not meeting the ''serious injury'; threshold of insurance Law §5102. Plaintiff, Oded Ma:tket·(Mat}cel),.oppos.es the motion . [* 1] .... . ..... ............ ·-·--· ·.... -· .......... .. .._........·--i-· 1 .. ti·f·-·9 of 9. ·...........-.. ·.... ···----••,-. ,,,...... -., .. INDEX INDEX NO. NO. 601900/2018 601900/2018 FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 RECEIVED NYSCEF: NYSCEF: 10/22/2020 Markel commenced this action by sµmnions an,d ·complaint dated February 7, 2018. Issue was joined by service of an answer dated March 14; 2018. The case certified ready for trial on December 18, 2018, and a note of issue was filed on November 21, 2019 This matter involves a motor vehicle accident during which Markel alleges he suffered injuries when Nicolosi went througha red light. Nicolosi now moves for surrunafy judgment arguing Markel's injuries do rtot meet the serious injury threshold. In seeking summary judgment, Nicolosi relies upon, inter alia; the pleadings; the bill of particulars;Markel's deposition transcript; the emergency room records of Nassau University Medical Center; and the affirmed medical reports ofDr. John C. Killian, an orthopedic surgeon who ex:amined Markel as part of an Independe.nt Medical Examination (IIvlE) on January 16"' 2019. ·'Serious injury" is defined in Insurance Law § 5102(d) as: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of fetus; (6) permanent loss ofuse of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8)significant limitation of use of a body function or system; or (9) a medically determined injury or impai~ent of a non-permanerttnaturewhichprevents the injured person from performingsubstantially·all of the material acts which constitute such person's usual and customary.daily activities fot not less than 90 days during the .180 days immediately following the occuiience of the injury or inipairtneht. 2 [* 2] ·· ·· ··"· ·z·m···--9· 2 of 9 ·· · INDEX INDEX NO. NO. 601900/2018 601900/2018 FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 RECEIVED NYSCEF: NYSCEF: 10/22/2020 The issue of whether a claimed injury falls within the statutory definition of serious injury is, in the first instance, a question of law for the c;ourt which may be decided on a summary judgment motion (Licari v. Elliot, 57 N.Y.2d 230,237 [1982]; Carterv: Adams, 123 A.D.3d 967, 967 [2nd Dept. 2014]). A defendant seeking summary judgment based on a· tack of serious injury bears the initial burden of establishing that plaintiff did not sustain a serious injury as defined in InsuranceLaw § 1502 (d). (Gaddy v. Eyler, 79 N.Y.2d 955, 956~57 [1997]; Young Mi Hwangv. Vasconex-Vallejo, 124 A.D.3d 769,769 [2nd Dept. 2015]. As a proponent of the summary judgmentmotion, Nicolosi had the 'initial burden ofestablishingthatMarkel did not sustain causally related ·serious injuries under the pennanentloss of use ofa body organ, member, function or system, significant limitation ofuse ofa body function orsystem and 90/180-day categories (see Toure v Avis Rent a Car Sys., 98 N.Y.2d345, 352 [2(l02]). Evidence submitted in support ofa motion for . . summary judgment must be in admissible form. (Pagano v. Kinsbwy, 182 A.D.2d268, 270 [2nd Dept. 1992]. A defendantcan satisfy the initial burden by relying on either the sworn statements of defendant's examining physician, or plaintiff's sworn testimony or the unswom reports of plaintiff's own examiningphysicians (Id). A defendant can demonstrate that plaintiffs own medical eviclence does not indicate that plaintiff suffered a serious injury and that the alleged injuries were not~ in any event~ causally related to the accident (Franchini v Palmieri; 1 :N"".Y3d 536~ 537 [2003]). 3 [* 3] .. . . . ..... -· ········- . ..... .. ........ ··--······ ............ .... .. .. ,... ··"~-9"····· 3 of 9 ·········-·· .... ..... ···--·-·· ·····- ··-- i.. FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 INDEX INDEX NO. NO. 601900/2018 601900/2018 RECEIVED NYSCEF: NYSCEF: 10/22/2020 In support ofstnnrnary judgm~nt, a defendant's medical expert must specify the objective tests upon which the stated medical opinions are basecl an.d, when tendering an opinion with respect to plaintiffs range of motion, the expert must compare any findings to those ranges of motion considered normal for the particular body part (Browdame v. Candurq, 25 AD3d 74 7, 748 [2 nd Dept. 2006]). Further, "[t]he mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration" (Riverav Bushwick RidgewoodProps; Inc., 63 AD3d 712 [2nd Dept. 2009]; Smeja v Fuentes, 54 AD3d 326 [2nd Dept. 2008]. Once tbe defendant has made the required showing, the burden shifts to plaintiff to rebutthe preSwnption that there is no issue of fact as to the threshold serious injury question. (Franchiniv. Palmieri, supra}. At the time oftheIJ\'ffi, Markel complained of lower back pain. Dr. Killian performed range of motion testing using a goniometer and relying on the America Medical Association ~'Guidelines to the Evaluation of Pennane:nt Impairment" Fifth Edition, as his basis for "normal" findings~ He found normalranges ofmotion in the cervical -spine. Markeldid cornplain of pain at the extremes of rotation and lateral flexion. Other testing was normal. Neurological testing was also normal. After reviewing the emergency room records, Dr. Killian noted that CT scan taken showed. signs ofdegenerative disc disease; Based upo}1his examination,.Dt Kfllianopined:. 4 [* 4] ·············•-·· 4 4 of of 9 9 ......................... .,....... _.. ,,. __ ... ; INDEX INDEX NO. NO. 601900/2018 601900/201~ FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 RECEIVED NYSCEF: NYSCEF: 10/22/2020 The examination of his cervical and thoracic spine was entirely nottha.l without subjective or objective findings. This confirms his Jack of complaints aboutthose areas, The examination of his lumbar spine was remarkable for complain.ts of tenderness and pain at the extremes of motion which were unaccompanied by objective findings: including restricted motion or muscle spasm. The sciatic nerve tension signs were negative. The lower extremity neurological examination was remarkable for subjective sensory changes over the left leg which were unaccompaniedby objective findings inc:lt1ding reflex alterations, weakness or atrophy. Based on this examination I would concludethatMr. Markel has recovered fully from all alleged injuries from the ·8/28/17 accident. There were no positive objective findings to confirm his subjective complaints. He has no impairment or disability from injuries.from thisaccident. Heisabletoworkat normal capacity and perform all of his usual activities without restrictions from problems caused by injuries from this accident. Based upon the emergency room records and the report; of Dr. Kilian, the court finds that Nicolosi has established entitlement to summaryjudgrnentas a matter ofJaw. Dr. Killian found normal ranges ofmotion and no objective evidence to support the subjective complaints ofpain. The burden shifts to Markelto raise an issue of fact requiring a trial ofthe action. To do so, Markel mu.st demonstrate, by the submission of objective proof of the nature artd degree of.the injury, that she sustained a serious injury or there are questions of fact as to.whether the purported.injury, in fact, is serious (Perlv Mehet, l8N.Y.3d.208, 218-219 (2011]), 5 '••••-••••• __ ,.,, . ,"" •'"" '"' " •....... .,._, ,.. , "'"' • •••••• •-••"•••••• •"'"' '" •"'"' """ ,.... .,,-,.,_,~,•••••" "'~••••,,~.,--_ ..... ,_____ , 5 0 f [* 5] 9 _,,. , ... . . . '""'' , .~, . ,., . N,u,.mY.,,.,,,,,, .. ,,,;" 5 of 9 ~ • "• FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 INDEX INDEX NO. NO. 601900/2018 601900/2018 RECEIVED NYSCEF: NYSCEF: 10/22/2020 To satisfy the statutory standard for seriqus injury, a plaintiff must submit objective and admissible proof of the duration ofthe alleged injury, and the extent or degree of the limitations associated with the alleged injury. (Ravelo v. Volcy, 83 A.D.3d 1034, 1035 [2nd Dept 2011]). Neither subjective complaints ofpain nor a self-serving affidavit of the plaintiffare sufficient to meet this requirement. (Toure vAvis Rent A Car Sys., Inc:, supra; Scheer v Koubek, 70 N.Y.2d 678,679 [1987]). A plaintiff cannot defeat a motion for summary judgment, and srn;cessfully rebut a prima facie showing,that she did not sustain a serious injury, merely by relying on documented subjective complaints of pain (Udclin v Cooper, 32.A.D.3d 270,271 [1 st Dept 2006] Iv toappealdenied 8 N.Y.3d 808 [2001]). Plaintiff must come forthwith objective evidence of the extent ofalleged physical limitation resulting from injury and its cluration. That objective evidence mustbe based upon a recent examination of the plaintiff (Sham v B&P Chimney Cleaning & Reprair Co., Inc,, 71 A.D.3d 978 [2nd Dept. 2010]) and upon medical proof shortly after the subject accident (Perl v Me her, supra). "[E]ven when thereis medical proof, when additional contributory factors interrupt the chain of causation between the accident and the claimed injury - suchas a. gap in treatment; an intervening medical problem or a pre-existing condition - summary disJ11issal of the complaint maybe appropriate" (Potnmells v Perez; 4 N.Y.3d 566,572 [2005]). Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative deterniination ofthe degree or 6 _ ....... ,_,,_ ........ .- ..... .. ·-··....................................... .,..- .... - ........................ - ..................... [* 6] ___ Of 9 9'".........-. ........ _, ....... _•. _ _....-....-..... ................. .............. 61:1 of ..................... ······ ............. ._....... .-.. -, ....... _ INDEX INDEX NO. NO. 601900/2018 601900/2018 FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 RECEIVED NYSCEF: NYSCEF: 10/22/2020 qualitative nature of an injury based on the·nonnal function, purpose and use ofabody part (Du/el v Green, 84 N.Y.2d 795,798 [1995]). To prove. the extent or degree of physical limitation with respect to the limitation 1 of use categories, either objective evidence oftheextent, percentage or degree.of the limitation, .or loss of range of motion and its duration, based on a recent examination, must be provided or there inust be a sufficient description of the qualitative nature of plaintiff's limitations, with an objective basis, correlating plaintiff'slimitations to the normal function, purpose and use of the body part or system (Perl v Meher, supra;· ·.Estrellav GeicO/ns. Co., 102 A.D3d730,731 [2rid Dept. 2013). Amild,minoror slight limitation of use is considered insignificant within the meaning of Insurance Law §5102( d) (JI Chung Lim y Chrabaszcz, 95 A.D.3d 950, 951 [2nd Dept. 2012]). Further, in orderto defeat asmnmary judgment motion, a plaintiff's opposition, "to the extent that itrelies solely on the findings of the plaintiffs own medical witnesses; must be in the form of affidavits or affirmations, unless an acceptable excuse for-failure to comply with this reqµirementis furnished/' (PaganQ v. Kinsbury, 182 A.D.2d at 270; supra). Once a plaintiff establishes proof that an injury meets at least one category of the no-fault threshold, it is unnecessary to address whether the plaintiff's proofin regard to other alle:ged injuries is sufficient to defeat defendant's primafacie showing (Linton v Nawaz,l4N.Y.3g.821, 822 [2015]). 7 [* 7] . ············-······················--········-···-···-·······-· ............. --- ·--·················~"'9···-·· 7 of 9 ..... ·······-·---·--···········..·, .... -•.•····-··. ········.. ······· ................................... . FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 INDEX INDEX NO. NO. 601900/2018 601900/2018 RECEIVED NYSCEF: NYSCEF: 10/22/2020 In opposition to the motion, Markel submits, inter alia, the affirmation and reports of Joseph Gregorace D. 0., the .affirmation of reports ofDr;. Robert Diamond, radiologist, the Affirmation and reports of James M. Liguori, D;O., the unaffirmed report of Dr. Victor Katz, orthopedic surgeon. and Markel 's affidavit Dr. Gregorace first examined Markel on September 8, 2017, less than two weeks after the accident. During that examinati011, Dr. Gregorace found, using a goniometer, diminished range of motion inflexion (20%), extension (17%), right rotation {25%) and left rotation (20%). There Were more significant limitations in range of motion of the thoracolumbar spine, including a 34% loss in flexion, extension, and straightleg bending. Dr. Gregorace examined Markel again on October 6, 2017, October 27, 2017,. November IO, 2017, December 1, 2017, January 5, 2018, February 16, 2018, March 2, 2018, April 11, 2018, May 23, 2018, July 18; 2018, August 31, 2018, October 19, 2018, January 16, 2019, April 3, 2019, May 17, 2019, July 17, 2019, and February 26, 2020. Markel.also saw Dr. Visram from the same practice throughout this time. During each visit; Dr Gregorace noted significant limitations in range of motion for the lumbar spine, as well .as otherinfirmities. Further, Dr. Gregorace attributes the injuries to trauma ·suffered during the accident. The court finds that Dr. Gregorace's affinnation and reports raise an issue of fact. Dt. Gregorace found significant limitations of range· of motion. s;oon after the accident, and irt a recent evalqa;tion in F ebrµary 2020~ along with numerous other examinations. As an 1ssue .of fact exists for one category ofthe no-fault threshold, the court need not 8 [* 8] ................. , ... -- ... ~--- ......... ~--g----------·--···--·----·-8 of 9 FILED: NASSAU COUNTY CLERK 10/26/2020 10:41 AM NYSCEF DOC. DOC. NO. NO. 50 INDEX INDEX NO. NO. 601900/2018 601900/2018 RECEIVED NYSCEF: NYSCEF: 10/22/2020 determine whether the other alleged injuries meet the threshold.: (Chui Koo Jeong v. Denike, 13 7 AD3d 1189 [2d Dept 2016]). Accordingly, it is hereby ORDERED, thatNicolosi's motion for summaryjudgment is DENIED in its entirety. The court has considered the remaining contentions ofthe parties and finds them to be without merit. This constitutes the decision and order of this court. Dated: October 20, 2020 Mineola, N.Y. ENTERED Hon.I Oct 26 2020 NASSAU COUNTY COUNTY CLERK"S OFFICE 9 [* 9] 0 f 9 --·-.. ····· . --.. .--.-....... _,,.,_ ... _. .......... .. 99 of 9

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