Palombo v Uguna

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Palombo v Uguna 2021 NY Slip Op 33190(U) November 23, 2021 Supreme Court, Dutchess County Docket Number: Index No. 2018-51319 Judge: Christi J. Acker 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] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 / . INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 STATE OF NEW YORK YORK SUPREME COURT OF THE STATE DUTCHESS COUNTY OF DUTCHESS _ ------------------------------------------------------------------------------X ------------------------------------------------------------------------------l( CARMINE CARMINl: PALOMBO, ORDER DECISION AND AND ORDER Plaintiff, Plaintiff, INDEl( NO~ NO. 2018-51319 INDEX 2018-51319 -against-against- HERNAN UGUNA and ELECTRIC,INC., INC., UGUNA ELECTRIC, Defendants. Defendants. -------------·-----------.---------------------------------------------------X ------------------------------------------------------------------------------l( ACKER, J. J. ACKER, Defendants, Hernan Hernan Uguna and Uguna Electric, Electric, Inc., move move for for an order, pursuant to CPLR order, pursuant to CPLR Defendants, 3212, granting granting them them summary summary judgment dismissing the complaint on the that 3212, judgment and dismissing the complaint the ground ground that Plaintiff fails. to meet the injury. threshold threshold of of Insurance Insurance Law 95102. Plaintiff opposes opposes the the Plaintiff to meet the serious serious injury_ §5102. Plaintiff motion. motion. The following were considered: considered: following documents documents were .NYSCEFdocuments numbered 35-68, 35-68, 71-80 71-80 -NYSCEF documents numbered Plaintiff commenced commenced this personal injury injury action against Defendants Defendants alleging alleging that Plaintiff this personal action against that he was was injured injured as the result of of a car accident accident that that occurred Plaintiff's vehicle vehicle was the result occurred on January January 8, 2016. 2016. Plaintiff's was stopped light when rear-ended by a vehicle Defendant Hernan Hernan stopped at a red light when he was was rear-ended vehicle operated operated by Defendant Uguna. According Particulars and the supplements, Plaintiff Plaintiff claims claims injuries injuries to Uguna. According to to the the Bill of of Particulars the supplements, to his lumbar spine, cervical spine left shoulder. lumbar spine, cervical spine and left shoulder. 11 These 11 ar~ the injuries injuries addressed by Plaintiff's Plaintiff's doctors their narrative narrative reports. reports. are also the doctors in their 1 of 6 [*FILED: 2] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 In support support of the summary judgment application, application, Defendants the of the summary judgment Defendants provide provide copies of of the pleadings, including the Bill of Particulars and seven supplemental Bills of Particulars, Plaintiff's including the seven supplemental Plaintiff's numerous providers, photographs and a No-Fault application medical records from from numerous providers, photographs application signed by Plaintiff regarding regarding an an April 14; 2012 accident. Defendants-further Defendantdurther proffer proffer the affirmed report of the affirmed report of · Plaintiff Wiener, M.D., dated December 17, 2019, an an addendum report dated dated December December Bradley Wiener, addendum to to his report 21, 2020 and his affidavit April 15, 2021. affidavit dated dated April Plaintiff opposes the motion with narrative reports reports of of Sathish Modugu. Modugu. M.D. the motion with the the affirmed affirmed ·narrative Plaintiff his deposition and Richard Dentico, M.D., as as well as as certain certain medical records and and.his deposition transcript. transcript. CPLR~3212(b'), summary judgment §3212(b), a motion motion for for summary judgment "shall be granted granted if, upon all Pursuant to CPLR the papers and proof proof submitted, submitted, the cause cause of of action or defense shall be established established sufficiently the sufficiently court as as a matter matter of directing judgment party." The movant movant to warrant warrant the the court of law in directing judgment in favor favor of of any party." "must make a prima facie showing showing of of entitlement entitlement to judgment as a matter matter of "must prima facie judgment as of law, tendering tendering sufficient evidence to eliminate eliminate .any material issues issues of Winegrad v. v. New New York sufficient any material of fact from from the the case." Winegrad 851,852 Zuckerman v. New York, 49 NY2d Univ. Medical Medical Ctr., 64 NY2d NY2d 851, 852 (1985]; [1985];Zuckerman v. City of of New NY2d 557 (1~80]. [1980]. In opposition, "the nonmoving the prima prima Jacie showing made by the opposition, "the nonmoving party party need only rebut rebut the facie showing moving party party so so as as to to demonstrate issue of demonstrate the the existence of of a triable triable issue of fact." fact." Poon v. v. Nisanov, Nisanov, 162 moving AD3d 804, 806 [2d Dept. 2018], citing citing Alvarez v. Prospect Praspect Hosp., 68 NY2d NY2d 320 [1986]. [1986]. Alvarez v. Whether within the the statutory of "serious Whether a claimed injury injury falls within statutory definition definition of "serious injury" injury" is a the court for summary summary judgment. judgment. See Licari Licari question question of of law that that may be decided by the court on a motion motion for Elliott, 57 NY2d NY2d.230, 237 [1982]. A defendant defendant seeking summary initial v. Elliott, .230, 237 summary judgment judgment bears the the initial burden burden of establishing' a prima facie case case that plaintiff did not sustain a "serious "serious injury." injury." Toure prima facie that the the plaintiff v. Avis Rent A Car Sys, Sys, Inc., 98 NY2d NY2d 345 [2002]; Gaddy Gaddy v. v. Eyler, 79 NY2d NY2d 955 (1992]. [1992]. In order v. Avis Rent order to to [2] [2] 2 of 6 I I [*FILED: 3] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 meet the burden, the sworn sworn or statements of their own meet the burden, a defendant defendant may may rely rely upon upon the or affirmed affirmed statements of their own examining physician, physician, the plaintiff's sworn testimony and/or and/or the physician's. examining the plaintiff's sworn testimony the plaintiff's plaintiff's unsworn unsworn physician's reports. McGovern McGovern v. v. Walls, 201 AD2d 628 628 [2d Dept. Dept. 1994); 1994]; Grossman Grassman v. v. Wright, Wright, 268 268 AD2d AD2d 79 reports. Dept. 2000]; Pagano v. v. Kingsbury, Kingsbury, 182 AD2d 268 [2d Dept. Dept. 1992]. 1992]. [2d Dept. 2000]; Pagano prima facie showing, the the burden shifts to to the the plaintiff plaintiff to to Once a defendant defendant has made made a prima facie showing, burden shifts submit" form, sufficient to create of fact fact necessitating submit evidence, evidence, in admissible admissible form, sufficient to create a material material issue of necessitating a trial. Franchini Franchini v. v. Palmireri, Palmireri, 1 NY3d 536 [2003]; [2003]; Grossman Grassman v. Wright, Wright, supra. supra. There There must must be some some trial. objective proof proof of of a plaintiff's plaintiff's injuries; injuries; subjective complaints are insuffiCient. objective sub)ective complaints insufficient. Toure, 98 NY2d at plaintiff can establish establish the extent or degree of of physical physical limitation expert opinion 352. A plaintiff the extent or degree limitation through through expert opinion which provides provides a numeric numeric percentage percentage of of the the loss of of range of of motion, motion, i.e. quantitatively, or an which quantitatively, or I I expert can submit "qualitative" assessment assessment as as long long as the "evaluation has an objective objective basis expert submit a "qualitative" the "evaluation compares the the plaintiff's plaintiff's limitations limitations to to the normal function, purpose or the normal function, purpose or use of of the the affected affected and compares body organ, organ, member, member, function body function or system." system." Id. prima facie The Defendants Defendants have met met their their prima facie burden. burden. See Pomme/ls Pommells v. Perez, 4 NY3d 566 566 [2005]; Pryce v. v. Nelson, 124 AD3d 859 [2d Dept. Dept. 2015]; Inzlaco v. v. Cansalvo, Consalvo, 115 AD3d 807 807 [2d 2015]; lnzlaco [2005]; Dept. 2014]. reviewed numerous numerous records records from Plaintiff's extensive extensive medical medical history. history. 20i4]. Dr. Wiener Wiener reviewed from Plaintiff's Dept. of these these records records date date from 1993. Mr. Mr. Palombo Palombo had been involved involved in several accidents, Some of from 1993. several accidents I including a pedestrian pedestrian knockdown knockdown in the motor vehicle vehicle accidents accidents in 2007 including the 1980s, motor 2007 and in 2012 2012 as well November, 2007. 2007. In the motor vehicle accident, Plainti~ Plaintiff claimed claimed injuries injuries to well as a fall fall in November, the 2007 2007 motor vehicle accident, to cervical spine, lumbar spine spine and shoulders. shoulders. In the 2012 accident, accident, he reported reported neck neck pain, pain, lower lower his cervical spine, l~mbar the 2012 pain, left left arm arm pain pain and right.hip right hip pain. pain. Plaintiff Plaintiff has a twenty-plus twenty-plus year history of of chiropractic chiropractic back pain, ye~r history underwent a lumbar lumbar discectomy discectomy in 2010. care and underwent [3] 3 of 6 [*FILED: 4] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 Dr. Wiener Wiener also reviewed reviewed imaging reports, reports, including including those those ·of of X-rays and M Rls Rls taken taken after after the accident at issue here, as as well well as as those those taken before accident. Some of of the the pre-2016 the accident before the the accident. pre-2016 accident studies studies include of Plaintiff's of the the accident include an MRI of Plaintiff's left left shoulder shoulder dated dated March March 28, 2008, an MRI of lumbar spine dated lumbar spine performed performed on April lumbar dated June 20, 2014, and an MRI ofthe of the lumbar April 29, 2016 which compared to to a study dated January 11, 2010, an x-ray of of the lumbar spine which which was compared study dated the lumbar which was compared to EMG nerve conduction conduction study ofthe left upper upper extremities extremities and compared to a 2014 study, a 2008 EMG study of the left EMG nerve conduction a January 21, 2010 EMG conduction study. After review of of these records records and a physical examination of the Plaintiff, Dr. Weiner Weiner After review examination of the Plaintiff, concludes that Mr. Palombo did not not sustain a serious injury injury as result of permanent concludes that Mr. as a result of a fracture, fracture, permanent loss consequential limitation loss of of use of of a body body organ, member, member, function function or system, a permanent permanent consequential limitation of use of of a body body organ or member, member, a significant significant li.mitation limitation of bodily function of of use of of a bodily function or or system, medically determined injury or impairment impairment of of a non-permanent non-permanent nature nature which which prevented prevented the or medically determined injury Plaintiff from from performing performing substantially material acts which constitutes his usual and customary customary Plaintiff substan_tially all material which constitutes daily not less less than than 90 days during immediately following following the for not during the 180 days immediately the accident. accident. daily activities activities for According noted limitations limitations are due to Plaintiff's pre-existing pre-existing degenerative According to to Dr. Wiener, Wiener, any noted to Plaintiff's degenerative studies of after the accident · conditions. conditions. Dr. Wiener Wiener compared compared studies of the the lumbar lumbar spine completed completed after the 2016 accident' with "clearly document document identical identical with the 2010 and 2014 studies. He determined determined these studies studies "clearly pathology." Plaintiff Plaintiff has degenerative degenerative disc disease and a documented documented history history of of trauma to the the pathology." trauma to lumbar spine. Plaintiff Plaintiff also has a history history of of "traumatic "traumatic injury injury to the cervical lumbar to the spine and degenerative disc disease." Dr. Wiener that Plaintiff Plaintiff had degenerative degenerative issues issues with with degenerative Wiener further further opines that left shoulder rather than than a traumatic traumatic injury. injury. Dr. Dr. Wiener Wiener supports this conclusion review his left shoulder rather supports this conclusion with with review of report among among other other reasons. of the the 2008 MRI report [4) [4J 4 of 6 [*FILED: 5] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 Plaintiff fails to causation. Both of of Plaintiff's Plaintiff's experts experts assert Plaintiff to raise a triable triable issue offact of fact asto as to causation. that injuries were accident at issue. However, However, neither doctor addresses the that his injuries were caused by the the accident neither doctor the of pre-existing pre-existing degeneration degeneration nor do they degeneration was not not the defense claims of they explain why why degeneration the of the the injury. injury. In fact, despite despite his lengthy lengthy medical history, Plaintiff's medical medical experts cause of history, none of of Plaintiff's experts pre-date the the instant they largely largely reviewed reviewed any of of his medical records which pre-date instant accident. accident. Instead, Instead, they Plaintiff's self-reported self-reported history. history. It does not not appear, however, however, that Plaintiff reported reported the relied on Plaintiff's that Plaintiff the entirety of of his history. history. For example, Polombo indicated indicated to Modugu that not have entirety example, Mr. Palombo to Dr. Modugu that he did not prior history history or treatment left shoulder. Modugu prior treatment for for his cervical spine and his left shoulder. He also told told Dr. Modugu about surgery and "occasional" that the the doctor. about his lumbar lumbar spine surgery "occasional" chiropractic chiropractic care such that doctor. understands Mr. Mr. Palombo had been doing doing "reasonably "reasonably well". understands well". Plaintiff's own own medical records records submitted submitted in support support of of the motion controvert But, Plaintiff's the motion controvert these these Defendants submit submit records from providers including Plaintiff's from many prior prior treatment treatment providers including Plaintiff's claims. Defendants chiropractor, New York Spine, Surgery and Rehabilitation Rehabilitation Medicine Medicine and Orthopedic Orthopedic Associates of of chiropractor, Dutchess County. These records show a history complaints to to all these these areas where where Plaintiff history of of complaints Plaintiff now claims injuries. injuries. Plaintiff Plaintiff received chiropractic chiropractic treatment now treatment for for his lumbar lumbar spine throughout throughout 2014 and as as recently before the the accident. accident. He had an recently as as one month month before an MRI on his left left shoulder shoulder in mention that Dr. Modugu's Modugu's report report conflicts of Plaintiff's Plaintiff's other other that Dr. conflicts with with the the report report of 2008. It also bears mention expert, Dr. Dentico. Dentico. Dr. Modugu Modugu says says there history of issues while Dentico states expert, there is no history of cervical issues while Dr. Dentico the Plaintiff Plaintiff has "underlying "underlying spinal pathology pathology in the spine." See See report report of of Richard Dentico, Dentico, the the cervical spine." dated January 15, 2021 at pg. pg. 4. M.D., dated Notably, Or. Dr. Modugu's Modugu's affirmed affirmed report report specificaliy specificaliy states that that his analysis was "based Notably, subjective complaints, complaints, the the history history given by the examinee, the the medical medical records records and tests tests the subjective the examinee, upon the [5] [S] 5 of 6 [*FILED: 6] DUTCHESS COUNTY CLERK 11/24/2021 02:10 PM NYSCEF DOC. NO. 81 INDEX NO. 2018-51319 RECEIVED NYSCEF: 11/24/2021 provided, the physical exam findings findings and current that the the provided, the physical exam current medical medical literature. literature. It is assumed assumed that material provided provided is correct correct and that.the that the h_istory history provided provided was correct." As set forth forth above m.aterial was correct." above,, the the , , expert did not not h~ve have all of of the the relevant relevant information information from from the Plaintiff. Thus, his opinion opinion is flawed. flawed. expert the Plaintiff. part, br. Dr. Dentico Dentico references references degenerative both the cervical and degenerative disc disease disease in both the cervical For his part, lumbar spine. report details post-accident treatment provided to Plaintiff, but but his lumbar spine. His report details the the post-accident treatment he provided to the the Plaintiff brief opinion opinion as "exacerbation" "exacerbation" is conclusory. conclusory. See See Brand Brand v. v. Evangelista, Evangelista, 103 AD3d 539 [2d Dept. Dept. brief AD3d 539 2013] (while plaintiff's plaintiff's physician physician concluded concluded his pre-existing pre-existing condition condition was aggravated by subject subject 2013] (while was aggravated motor vehicle vehicle accident, accident, the. expert'failed to to provide provide any basis for for determining the extent motor the_expert.failed determining the extent of of any any exacerbation). exacerbation). As both both of Plaintiff's experts' to address address the conclusions of expert as to of Plaintiff's experts' fail fail to the conclusions of the the defense defense expert to the causation of of Plaintiff's Plaintiff's injuries, injuries, their insufficient to raise a triable the causatioiJ their· opinions opinions are speculative speculative and insufficient to rai_se triable Zavala v. v. Zizzo, 172 AD3d 793, 794 794 [2d Dept. Dept. 2019]; 2019]; Mnatcakanova Mnatcakanava v. v. Elliot, Elliot, 174 issue of of fact. fact. Zavala 2019]. Defendants' showing the the Plaintiff suffer any any injuries AD3d 798 [2d Dept. Dept. 2019]. Defendants' showing Plaintiff did did not not suffer injuries causally causally related to to the action also requires requires dismissal dismissal of 90/180 claim. claim. related the subject subject action of the the 90/180 Now, therefore, it Now, therefore, it is hereby hereby ORDERED that that summary to the Defendants and the the com_plaint complaint is ORDERED summa_ry judgment judgment is granted granted to the Defendants dismissed. dismissed. Dated: November November 23, 2021 Dated: 2021 Poughkeepsie, New New York Poughkeepsie, York C1M.l.<1-t~. o..c <CHRISTI A (R CHRISTI J. Ae Justice of of the Supreme Court Court Justice the Supreme To: All parties parties via NYSCEF NYSCEF [6] [6] 6 of 6

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