Cosano-Cruz v Cruz 2013 NY Slip Op 32867(U) October 28, 2013 Sup Ct, Suffolk County Docket Number: Judge: Denise F. Molia Cases posted with

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1 2013 NY Slp Op 32867(U) October 28, 2013 Sup Ct, Suffolk County Docket Number: Judge: Dense F. Mola Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] SHORT FORM ORDER NDEX No :.1..: ::.1~15::...::9_,4 CAL. No MV SUPREME COURT - STA TE OF NEW YOR~.A.S. PART 39 SUFFOLK COUNTY 1! PRESENT: Hon. DENSE F. MOLA Actng Justce of the Supreme Court X CARMEN COSANO-CRUZ and DAVD TRADOS, JOSE CRUZ, - aganst - Plantffs, Defendant X MOTON DA* ADJ. DATE Mot. Seq.# MotD CANNON & A OSTA, LLP Attorney for Pl ntffs 1923 New Y or A venue Huntngton Sta on, New York RCHARDT. AU & ASSOCATES Attorney for De endant P.O. Box 9040 Jercho, New Y rk Upon the followng papers numbered 1 to _JQ_ read on ths moton for summa d ment ; Notce of Moton/ Order to Show Cause and supportng papers 1-22 ; Notce of Cross Moton and supportng pa ers _ ; Answerng Affdavts and supportng papers ; Replyng Affdavts and supportng papers_; Other_; ( opposed to th:e moton) t s, ORDERED that the moton by defendant Jose Cruz seekng summajy judgment dsmssng the complant s granted n part, and s otherwse dened. Plantffs Carmen Cosano-Cruz and Davd Trados commenced ths cton to recover damages for njures they allegedly sustaned as a result of a motor vehcle accdent t at occurred at the ntersecton of Suffolk A venue and Qunn Place n the Town oflslp on No ember 10, t s alleged that the accdent occurred when the vehcle owned and operated by efendant Jose Cruz struck the rear of the vehcle operated by plantff Cosano-Cruz, whch was steppe at a red traffc lght. Plantff Trades was a front seat passenger n the vehcle operated by hs w e, plantff Cosano-Cruz, at the tme of the accdent. By her bll of partculars, plantff Cosano-Cruz alleges, among othe thngs, that she sustaned varous personal njures as a result of the subject accdent, ncludng left an rght shoulder derangement, glenohumeral jont fuson and effuson of the rght and left sh ulder, and supraspnatus mpngement of the acromoclavcular ("AC") arch of the rght shoulder. Pl n tff Cosano-Cruz further \J-5 {

3 [* 2] ndex No Page No. 2 alleges that she was confned to Southsde Hosptal for approxmately two ays, and to her home and bed for approxmately two weeks as a result of the njures she sustaned n he subject collson. By hs bll of partculars, plantff Trados alleges that he also sustaned varous pe sonal njures as a result of the subject collson, ncludng dsc hernatons at levels Tl l-t12 and L4-L, supraspnatus mpngement syndrome of the AC arch of the left shoulder, and cervcal rad culopathy. Plantff Trados further alleges that he was confned to hs home and bed for approxmately wo weeks mmedately followng the subject accdent due to the njures he sustaned. Defendant now moves for summary judgment on the bass that plan ffs dd not sustan an njury wthn the meanng of the "serous njury" threshol!d requrement of 5102( ) of the nsurance Law as a result of the subject accdent. n support of the moton, defendant submts c pes of the pleadngs, the plantffs' deposton transcrpts, plantff Cosano-Cruz' medcal records reg dng the njures at ssue, and the sworn medcal reports of Dr. Mchael Katz and Dr. Steven Peyser. t defendant's request, Dr. Katz conducted ndependent orthopedc examnatons of plantff Cosano-C z and plantff Trados on November 27, Also at defendant's request, Dr. Peyser performed an dependent revew of the magnetc resonance mages ("MR") flm of plantff Cosano-Cruz' lumbar pne performed on December 20, 2010 Plantffs oppose the moton on the grounds that defendant faled to eet hs prma face burden that they dd not sustan a serous njury as requred by 5102(d) of the ns ance Law as a result of the subject accdent, and that ther evdence n opposton demonstrates that the sustaned njures wthn the "lmtatons of use" categores and the "90/180" category of the nsuranc Law. n opposton to the moton, plantffs submt the sworn medcal reports of Dr. Mchele Rubn, D. Joseph Perez and Dr. Alvn Sten, and the affdavt of Dr. Ncholas Mart.n. t has long been establshed that the "legslatve ntent underlyng th No-Fault Law was to weed out frvolous clams and lmt recovery to sgnfcant njures" (Du/el v Gree, 84 NY2d 795, 798, 622 NYS2d 900 [1995]; see Toure vavs Rent A Car Sys., 98 NY2d 345, 746 S2d 865 [2002]). Therefore, the determnaton of whether or not a plantff has sustaned a "se ous njury" s to be made by the court n the frst nstance (see Lcar v Ellott, 57 NY2d 230, 455 NY 2d 570 [1982]; Porcano v Lehman, 255 AD2d 430, 680 NYS2d 590 [2d Dept 1988]; Nolan v Ford, 1 0 AD2d 579, 473 NYS2d 516 [2d Dept 1984], aff'd64 NY2d 681, 485 NYS2d 526 [1984]). nsurance Law 5102 ( d) defnes a "serous njury" as "a personal n ury whch results n death; dsmemberment; sgnfcant dsfgurement; a fracture; loss of a fetus; perma ent loss of use of a body organ, member, functon or system; permanent consequental lmtaton ofu e of a body organ or member; sgnfcant lmtaton of use of a body functon or system; or a med"cally determned njury or mparment of a non-pem1anent nature whch prevents the njured person fro performng substantally all of the materal acts whch consttute such person's usual and customary d ly actvtes for not less than nnety days durng the one hundred eghty days mmedately followng e occurrence of the njury or mparment." A defendant seekng summary judgment on the ground that a plantf~ s neglgence clam s barred under the No-Fault nsurance Law bears the [ntal burden of establshrg a prma face case that

4 [* 3] ndex No Page No. 3 the plantff dd not sustan a "serous njury" (see Toure v Avs Rent A Car Sys., supra; Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]). When a defendant seekng surnm judgment based on the lack of serous njury reles on the fndngs of the defendant's own wtnesse, "those fndngs must be n admssble form, [such as], affdavts and affrmatons, and not unsworn rep rts" to demonstrate enttlement to judgment as a matter of law (Pagano v Kngsbury, 182 AD2 268, 270, 587 NYS2d 692 [2d Dept 1992]). A defendant may also establsh enttlement to summary j dgment usng the plantffs deposton testmony and medcal reports and records prepared by the plant ff s own physcans (see Fragale v Geger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Gross an v Wrght, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Vgnola v Varrcho, 243 AD2d 464, 662 YS2d 831 [2d Dept 1997]; Torres v Mchelett, 208 AD2d 519,616 NYS2d 1006 [2d Dept 1994]). On ea defendant has met ths burden, the plantff must then submt objectve and admssble proof of the ature and degree of the alleged njury n order to meet the threshold of the statutory standard for "se ous njury" under New York's No-Fault nsurance Law (see Du/el v Green, supra; Tornabene v R wlewsk, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 2003]; Pagano v Kngsbury, supra). Here, defendant has establshed hs prma enttlement to judgment a a matter of law that plantff Cosano-Cruz dd not sustan a serous njury wthn the meanng of 5102 ( ) of the nsurance Law as a result of the subject accdent (Toure v Avs Rent A Car Sys., supra; Gaddy Eyler, supra; Torres v Ozel, 92 AD3d 770, 938 NYS2d 469 [2d Dept 2012]; Wunderlch v Bhuya, 99 AD3d 795, 951 NYS2d 885 [2d Dept 2007]). Defendant's examnng orthopedst, Dr. Katz, used a gonometer to test plantff Cosano-Cruz' ranges of moton n her spne and shoulders, set fort hs specfc fndngs, and compared those fndngs to the normal ranges (see Martn v Portext Corp., 8 AD3d 63, 948 NYS2d 21 [1st Dept 2012]; Staffv Yshua, 59 AD3d 614, 874 NYS2d 180 [2d Dept 20 9]; DeSulme v Stanya, 12 AD3d 557, 785 NYS2d 477 [2d Dept 2004]). Dr. Katz states n hs medcal report that an examnaton of plantff Cosano-Cruz revealed she had full range of moton n her spne d shoulders, that there was no evdence of tenderness or muscle spasms upon palpaton of the paraspna muscles, that her gat was normal, and that there was no evdence of swellng, erythema or nduraton her shoulders. Dr. Katz states that the straght leg rasng test was normal, that there was no deform about the clavcle or AC jont, and that there was no mpngement, creptaton or jont lne tenderness n plantff Cosano-Cruz' AC jont. Dr. Katz opnes that the strans and blak~ral shoulder contuson t t plantff Cosano-Cruz sustaned as a result of the subject accdent have re:mlved. Dr. Katz conclud s that the examnaton of plantff Cosano-Cruz dd not reveal any objectve fndngs of an orthopedc sablty, that her prognoss s good, that she s not dsabled, and that s capable of full tme employment s an offce worker and her actvtes of daly lvng. Moreover, defendant's examnng radologst, Dr. Peyser, states n hf report that the fndng of mld facet hypertrophy at level L3-L4 vsualzed on the MR study ofplant f Cosano-Cruz' lumbar spne s consstent wth developmental-type change, and that there are no po t traumatc-type changes observed on the MR study that are causally related to the subject accdent.. n addton, defendant demonstrated, prma face, that plantff Trad njury wthn the meanng of the nsurance Law as a result of the subject acc Forster, 103 AD3d 865, 962 NYS2d 271 [2d Dept 2013]; Frsch v Harrs, 235 [2d Dept 2012]; Hayes v Vasllos, 96 AD3d 1010, 947 NYS2d 550 [2d dd not sustan a serous ent (see Palumbo v 01 AD3d 941, 957 NYS2d ept 2012]). Dr. Katz

5 [* 4] ndex No Page No. 4 states that an examnaton of plantff Trados revealed that he had full range of moton n hs spne and shoulders, that there was no evdence of tenderness or muscle spasm upon palpaton of hs spnal muscles, and that the sensory examnaton revealed full sensaton to lght touch. Dr. Katz states that plantff Trados's gat was normal wthout antalgc or Trendelburg component, that the straght leg rasng test was negatve, and there was no swellng, erythema, nduraton or mpngement n plantff Trados's shoulders. Dr.. Katz states that there was no evdence of deformty, creptaton or jont lne tenderness n the clavcle or AC jont of plantfftrados's shoulder. Dr. Katz concludes that the cervcal and lumbosacral stran wth radculopathy and left shoulder contuson that plantff Trados sustaned as a result of the subject collson have resolved, and that the examnaton dd not show any sgns of permanence relatve to plantff Trados's musculoskeletal system. Dr. Katz further states that plantff Trados s not dsabled and s capable of hs full tme full duty work n hs capacty as a machne operator, and that he s capable of hs daly lvng actvtes. Furthermore, plantff Cosano-Cruz's and plantff Trados's deposton testmones demonstrate that "substantally all" of ther daly actvtes were not curtaled (see e.g. Karpnos v Cora, 89 AD3d 994, 933 NYS2d 383 [2d Dept 2011]; Kolodzej v Savarese. 88 AD3d 851, 931NYS2d509 [2d Dept 2011]; Bamundo v Fero, 88 AD3d 831, 931NYS2d239 [2d Dept 2011]). n fact, each plantff testfed that they receved physcal therapy for approxmately four months, two to three tmes per week, and that they dd not mss any tme from ther employment. n addton, plantff Cosano-Cruz testfed that she only mssed "a couple of classes" from her nght tme classes to obtan her general equvalency dploma. Therefore, plantffs' clams only ndcate a slght curtalment of ther daly actvtes, whch s not suffcent to establsh a serous njury wthn the 90/180 category (see Lcar v Ellott, supra; Sew Hwee Lm v Dan Dan T.r., nc., 84 AD3d 1213, 923 NYS2d 677 [2d Dept 2011]). Defendant, havng made a prma face showng that plantffs dd not sustan a serous njury wthn the meanng of the statute, shfted the burden to plantffs to come forward wth evdence to overcome defendant's submssons by demonstratng the exstence of a trable ssue of fact that a serous njury was sustaned (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005]). A plantff clamng a sgnfcant lmtaton of use of a body functon or system must substantate hs or her complants wth objectve medcal evdence showng the extent or degree of the lmtaton caused by the njury and ts duraton (see Ferraro v Rdge Car Serv., 49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]; Meja v DeRose, 35 AD3d 407, 825 NYS2d 772 [2d Dept 2006]; Laruffa v Yu Mng Lau, 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006]; Kearse v New York Cty Tr. Auth., 16 AD3d 45, 789 NYS2d 281 [2d Dept 2005]). "Whether a lmtaton of use or functon s 'sgnfcant' or 'consequental' (.e. mportant... ), relates to medcal sgnfcance and nvolves a comparatve determnaton of the degree or qualtatve nature of an njury based on the normal functon, purpose and use of the body part" (Du/el v Green, supra at 798). A mnor, mld or slght lmtaton of use s consdered nsgnfcant wthn the meanng of the statute (see Lcar v Ellott, supra). To prove tht:: extent or degree of physcal lmtaton wth respect to the "lmtatons of use" categores, ether objectve evdence of the extent, percentage or degree of the lmtaton or loss of range of moton and ts duraton based on a recent examnaton of the plantff must be provded or there must be a suffcent descrpton of the "qualtatve nature" of plantff's lmtatons, wth an objectve bass, correlatng plantff's lmtatons to the normal functon, purpose and use of the body part (see Perl v Meher, 18 NY3d 208, 936 NYS2d 655 [2011 ]; Toure v Avs Rent A Car Systems, nc., supra at 350; see also Valera v Sngh, 89 AD3d 929, 923 NYS2d 530 [2d Dept 201 l];rovelo v Volcy, 83

6 [* 5] ndexno Page No. 5 AD3d 1034, 921 NYS2d 322 [2d Dept 2011]). However, evdence of contemporaneous range of moton lmtatons s not a prerequste to recovery (see Perl v Meher, supra; Paulno v Rodrguez, 91 AD3d 559, 937 NYS2d 198 [lst Dept 2012]). n opposton, plantff Cosano-Cruz has faled to rase a trable ssue of fact to refute defendant's prma face showng that she dd not sustan a serous njury as a result of the accdent (see Gaddy v Eyler, supra; Lcar v Ellott, supra; Luckey v Bauch, l 7 AD3d 411, 792 NYS2d 624 [2d Dept 2005D. Plantff Cosano-Cruz has proffered nsuffcent medcal evdence to demonstrate that she sustaned an njury wthn the lmtatons of use categores (see Lcar v Ellott, supra; Al v Khan, 50 AD3d 454, 857 NYS2d 71 [1st Dept 2008]), or wthn the 90/180 category of the nsurance Law (see Jack vacapulco Car Serv., nc., 72 AD3d 646, 897 NYS2d 648 [2d Dept 2010]; Bleszcz v Hscock, 69 AD3d 639, 894 NYS2d 481 [2d Dept 2010]; Nguyen vabdel-hamed, 61AD3d429, 877 NYS2d 26 [1st Dept 2009]). The term "sgnfcant" lmtaton must be construed as more than a mnor lmtaton of use (see Lcar v Ellott, supra; Leschen v Kollarts, 144 AD2d 122, 534 NYS2d 233 [3d Dept 1988]; Gootz v Kelly, 140 AD2d 874, 528 NYS2d 446 [3d Dept 1988]). The medcal report of Dr. Joseph Perez, who examned plantff Cosano-Cruz on December 15, 2010, and the medcal report of Dr. Alvn Sten, who conducted a physcal examnaton of plantff Cosano-Cruz on Aprl 13, 2013, are nsuffcent to defeat summary judgment. As each doctor examned plantff Cosano-Cruz on only one occason, and Dr. Sten havng done so years after the subject accdent, ther fndngs as to the cause and duraton of plantff Cosano Cruz' s alleged lmtatons n her shoulders are reje::ted as speculatve, conclusory and talored to meet the statutory requrements (see Smth v Reeves, 96 AD3d 1550, 946 NYS2d 750 [4th Dept 2012]; Vaughan v Baez, 305 AD2d 101, 758 NYS2d 648 [1st Dept 2003]; see also Thompson vabbas, 15 AD3d 95, 788 NYS2d 48 [1st Dept 2005]). Furthe:rmore, Dr. Perez's report states that p1antff Cosano Cruz already had returned to work performng her normal dutes approxmately one month after the subject accdent's occurrence. Moreover, the medcal report of Dr. Mchele Rubn merely establshes that plantff Cosano-Cruz sustaned small glenohumeral jont effusons n her shoulders and a possble supraspnatus mpngement syndrome related to the AC arch of her rght shoulder. However, Dr. Rubn's report fals to address the ssue of causaton, snce she does not attrbute the observed jont effuson or mpngement syndrome n plantff's shoulders to the subject accdent (see Shaj v Cty of New Rochelle, 66 AD3d 760, 886 NYS2d 764 [2d Dept 2009]; Scotto v Suh; 50 AD3d 1012, 857 NYS2d 185 [2d Dept 2008]). Lastly, plantff Cosano-Cruz's submssons faled to address her lengthy gap n treatment (see Pommells v Perez, supra). However, plantff Trados has rased a trable ssue of fact as to whether he sustaned an njury wthn the meanng of the serous njury threshold requrement of 5102( d) of the nsurance Law (see Stanley v Cadde Serv. Co., nc.,_ AD3d _, 2013 NY Slp Op [2d Dept 2013]; Davd v Caceres, 96 AD3d 990, 947 NYS2d 159 [2d Dept 2012]; Park v Shakh, 82 AD3d 1066, 918 NYS2d 887 [2d Dept 2011 ]), and as to whether such njures were causally related to the subject accdent (see Wndsch v Fasano, 105 AD3d 1039, 963 NYS2d 401 [2d Dept 2013]; Jlan v Palmer, 83 AD3d 786 [2d Dept 2011]). PlantffTrados prmarly reles upon the affdavt of hs treatng chropractor, Dr. Ncholas Martn, who began treatng hm on December 3, 2010, and re-examned hm on Aprl 24, n hs affdavt, Dr. Martn opnes, based upon hs contemporaneous and recent examnatons, that

7 [* 6] ndex No Page No. 6 plantff Trados sustaned a cervcal stran and lumbar derangement, whch resulted n sgnfcant range of moton lmtatons n hs spne, and that such restrctons are drectly related to the subject motor vehcle accdent (see Wl'lams v Fava Cab Corp., 90 AD3d 912, 935 NYS2d 90 [2d Dept 2011]; Ta Ho Kang v Young Sun Cho, 74 AD3d 1328, 904 NYS2d 743 [2d Dept 201 O]; Barry v Valero, 72 AD3d 996, 902 NYS2d 97 [2d Dept 201 O]). Add:onally, Dr. Martn states that when plantff Trados was dsmssed from hs treatment on March 22, 2011, he had receved maxmum beneft from the provded treatment and that any addtonal treatment would have been pallatve n nature, despte the fact plantfftrados stll was symptomatc (see e.g. Echevarra v G&G Classc, nc., 91 AD3d 902, 937 NYS2d 608 [2d Dept 2012]; Jean-Baptste v Tobas, 88 AD3d 962, 931 NYS2d 645 [2d Dept 2011]; Abdelazz v Fazel, 78 AD3d 1086, 912 NYS2d 103 [2d Dept 2010]; Black v Robnson, 305 AD2d 438, 759 NYS2d 741 [2d Dept 2003]). Accordngly, the branch of the moton seekng summary judgment dsmssng the cause of acton asserted by plantff Carmen Cosano-Cruz s granted, and the branch of the moton seekng summary judgment dsmssng the cause of acton asserted by plantff Davd Trados s dened. Dated: /O-J8-J :flo&. n.t. F. Mola A.J.S.C. FNAL DSPOSTON._X_ NON-FNAL DSPOSTON