Solano v QLR Six, Inc NY Slip Op 33989(U) June 14, 2013 Supreme Court, Bronx County Docket Number: /10 Judge: Wilma Guzman Cases posted

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1 Solano v QLR Sx, nc NY Slp Op 33989(U) June 14, 2013 Supreme Court, Bronx County Docket Number: /10 Judge: Wlma Guzman 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 Systems E-Courts Servce, and the Bronx County Clerks offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 ~~~~~~~~~~~~~~~~~~~ [* 1]?"" -;:;; le; \,,.,.,,. t \ ", /ef..,/\l,,; ; Lff,.,. :~(! SUPREME COURT OF THE STATE of NEW YORK ~ /10 COUNTY OF BRONX [ /r\1oton \al. No.: 17 AS PART 7 [ / Moton Date: 4/15/13 DAMARS SOLANO, -aganst- Plantff, QLR SX, NC. and GERONMO E. MARTNEZ, Defendants,. DECSON/ORDER Present: Hon. Wlma Guzman Justce Supreme Court Rectaton, as requred by C.P.L.R. 2219(a)/, of the papers consdered n the revew of ths moton for summary judgment: Papers Notce of Moton, Affrmaton n Support Exhbts n Support... :... l.... Affrmaton n Opposton....! Reply Affrmaton... l.... Numbered Upon the foregong papers and after due delberaton, the Decson/Order on ths moton s as follows: Defendants move for Summary Judgment pursuantto C.P.L.R on the ssue oflablty upon the ground that the njures clamed foy Plantff do not satsfy the "serous njury" threshold requrement of secton 5102( d) of the New York nsurance Law. Plantff submtted wrtten opposton. 1 7, Plantff commenced ths acton se~kng damages for njures allegedly sustaned on January t has long been held that summaryjudgment s a drastc remedy, the procedural equvalent of a tral whch should only be granted when the evdence leaves no ssue of materal fact unresolved (Andre v. Pomeroy, 35 N.Y.2d 361 [1974]Chemcal Bankv. West 195h Street Development Corp., 161 A.D.2d 218 [1 Dept. 1990]) or wher~ an ssue s even debatable. Stone v. Goodson, 8 N.Y.2d 8 (1960). n decdng a summary judgjent moton, t s not the functon of a court to make credblty determnatons or fndngs of fact, but s rather to dentfy materal trable ssues of fact Page 1 of 4

3 [* 2] FLED Jun 1, Bronx County Clerk. or to pont to the lack thereof. Vega v. Restan Constr. Corp. 18 N. Y.3d 499 (2012) ctng Sllman v. Twenteth Century Fox Flm Corp., 3 N.Y.2d 395 (1957). The proponent of a moton for sumn1ary judgment has the ntal burden of the producton of suffcent evdence to demonstrate, as a matter of law, the absence of any materal ssue of fact. Alvarez v. Prospect Hosptal, 68 N.Y.2d 320! (1986). Once the ntal burden has been satsfed, the burden then shfts to the party opposng the mbton to produce suffcent evdence n admssble form to establsh the exstence of a trable ssue of fact. Zuckerman v. Cty of New York, 49 N. Y.2d 557 (1980). Defendants argue that Plantff fals o meet the statutory threshold for serous njury as set forth by New York nsurance Law 5102(d}. Defendants argue that Plantffs njures allegedly stemmng from the motor vehcle accdent n 1992 as such her njures heren are preexstng n nature. n support they offer, nter ala, the mbdcal reports of Dr. Robert srael, Dr. Stephen Lastg and Dr. Mchael Carcente. Defendants also submt medcal records and testmony evdencng Plantffs medcal hstory pror to the subjedt motor vehcle accdent. Dr. Robert srael conducted an orthopedc examnaton of plantff on May 23, 2012 and found normal ranges of moton n the plantffs cervcal, thoracc and lumbar spne as well as the rght knee and leg.. Although Dr. srael opned that plantffs sprans n the cervcal, thoracc and lumbar spne as well as the rght knee and leg had resolved and that plantff had no dsablty from the subject accdent, he dd fnd a cause 3jnd effect relatonshp between hs dagnoss and the reported accdent. Dr. srael dd revew th~ plantffs 2010 and 2011 MR s whch were also revewed by Dr. Stephen W. Lastg.. Although, Dr. Lastg opned that the plantffs lumbar spne and cervcal spne MRs njures were degen~ratve, ths Court notes that ths opnon s n conflct wth Dr. sraels fndng of causal relatonshp wth the subject accdent. Dr. Carcente revewed plantffs m~dcal records from the subject accdent and the 1994 accdent and conducted a neurologcal examnaton on May 23, Dr. Carcente opned that plantff presented a normal neurologcal!examnaton, there was no objectve evdence of radculopathy and no correlaton between the fndngs of the spnal MR and the examnaton. Plantff had no causally related neurologcal njury or dsablty. _Page 2 of 4

4 [* 3] Although Dr. Lastg opned that pla~ntffs njures were degeneratve and Dr. Carcente opned that there was no causally related nj!ury or dsablty, ths opnon s n conflct wth Dr. srael who found a causal connecton. Ths Court further notes that none of the defendants doctors attrbuted the plantffs njures as pre-exstlng from the pror accdent. n opposton, the plantff has subrrltted suffcent proof to rase a trable ssue of fact. Plantff submts the sworn reports of Dr. Gre?ry Lawler, who treated plantff for pan management begnnng n May 21, 2010 after physcal therlpy proved unsuccessful. Straght leg rasng ndcated pan at 80degrees. After treatng her for what he assessed as a lumbar dsc bulge at LS-S 1 and C4-C5 muscular spasms of the cervcal spne and a C4-C5 dsc hernaton, whch he found causally related to the subject accdent and ndcated that plahtffwas pan free snce the pror accdent and had not.. treated snce Dr. Lawler recommended plantff for caudal epdural sterod njecton snce t had been fve months snce the accdent and ppyscal therapy and conservatve medcaton treatment dd not elmnate the pan. Plantff underwent other njectons on two subsequent occasons and was recommended for provocatve lumbar dscog~aphy and noted that acco~dng to her MR flms taken on January 11, 2011,the plantff had a dsc blge at LS-S 1. Dr. Lawler treated the plantff through her treatment wth Dr. Quartararo s surgery ard through June 2012, at whch tme plantff contnued to present wth pan due to the LS-S 1 bulge and annual tear whch he causally related to the subject accdent. Although plantff slpped on a penql durng her course of treatment, she only exacerbated those njures present as a result of the accdemt. Dr. Lawler opned that not only were the plantffs. njures to her lumbar spne of such a nature that she would requre surgery for treatment. Also, ncluded n plantffs oppost~n was the sworn report of Dr. Lous Quartararo, the plantffs surgcal consultant who frst evaluated her on Aprl 11, He revewed her January 13, 2010 lumbar spne and cervcal spne MRs as well as th 2011 MRs of the lumbar spne. Dr. Quatataro also noted that the plantff had qot treated for the 1996 accdent snce 1999 and was asymptomatc. Dr. Quartararo dscussed surgcal optons wth the plantff and opnes that based upon hs revew of the flms and hs physcal examnaton, the plantff wll need to have surgcal nterventon. Defendants due to the conflctng opnons of ther experts, dd not submt suffcent proof to elmnate any trable ssue of fact n all aspdcts of the moton except as to whether the plantff met t Page 3 of 4 r

5 [* 4] the burden for summary judgment on the ~sue of whether she sustaned an njury that rendered her ncapable of performng all of her usual and customary actvtes for 90 out of 180 days followng the accdent. Assumng arguendo, that th~ defendants had met the burden for summary judgment, plantff submtted suffcent proof to rebut the defendants moton for summary judgment, wth the. excepton that plantff fals to submt suffcent medcal proof that she was unable to perform ther. usual and customary actvtes for 90 out of the frst 180 days followng the accdent. Uddn v. Cooper,,_32 A.D.3d 270 (1st Dept.2006). Accordngly, t s ORDERED, that defendants motbn for summary judgment dsmssng the plantff complant for falure to sustan a serous rljury s hereby granted to the extent that plantff has. faled to rase a trable ssue of fact as to wh.ether she was ncapable of performng all of her usual and customary actvtes for 90 out of 180 days followng the accdent. All other portons of defendants moton for summary judgmentare hereby dened moton for summary judgment1s., hereby dened. t s further 1. ORDERED, that Defendants serve a ~opy of ths Order wth Notce ofts En wthn thrty (30) days of entry of ths Order, Ths consttutes the decson of the Court. DATE JUN l Page 4 of 4