SUPREME COURT - STATE OF NEW YORK. Plaintiff(s), Defendant(s).

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice REYZAN All, TRIAUIAS PART 13 - against - Plaintiff(s), INDEX NO. 9647/2005 MOTION SEQUENCE NO. DAVID WONG, MOTION SUBMISSION DATE: September 29, 2006 Defendant(s). The following papers read on this motion: Notice of Motion Affirmation in Opposition Affirmation in Reply Upon the foregoing papers, the motion by the defendant for an Order dismissing the complaint of plaintiff and granting summary judgment to the defendant, is determined as hereinafter provided: This personal injury action arises out of a motor vehicle accident that occurred on April 29, 2004 at approximately 8:00 a. m. on Route 27A at its intersection with East Shore Road in Lindenhurst, NY. In pertinent part, the plaintiff in the plaintiffs Verified Bil of Particulars sets forth: 7. a. The nature, extent, location and duration of each and every injury alleged to have been sustained by the Plaintiff and which, if any are claimed to be permanent. A. 1. Post Traumatic thoracolumbar myofacial dereangement 2. L5-S 1 left side disc herniation 3. L4-5 Radiculopathy 4. Disc Bulges L3-, L4-5. Right sided Hip contusion with possible bursitis All disc related injuries are permanent in nature In support of the requested relief, the defendant, amongst other things, submits the plaintiff'

2 February deposition transcript; an affirmed letter report dated April 6, 2006 of Franklin Orthopedic Group by Vartkes Khachadurian, MD an orthopedist of an orthopedic examination of the plaintiff conducted on March 29, 2006; an affrmed letter report dated March 22, 2006 of Island Neurological Associates, PC by Ira M. Turner, MD, a neurologist of a neurological examination of the plaintiff conducted on March ; and an affirmed letter report dated February 2, 2006 of Comprehensive Radiology Review, PLLC by A. Robert Tantleff, MD, a radiologist of a review of an MRI of the plaintiffs Lumbar Spine done on May 28, The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (Second Dept., 1994): It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N. 2d , 487 N N. E.2d 642; Zuckerman v. City of New York 49 N. 2d 557, 562, 427 N. 2d 595, 404 N.E.2d 718). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe 97 A. 2d N. 2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 2d 320, 324, 508 N. 2d 923, 501 N. 2d 572; Zuckerman v. City of New York, supra 49 N. 2d at 562, 427 N. 2d 595, 404 N. E.2d 718). It is noted that the question of whether the plaintiff has made a prima facie showing of a serious injury should be decided by the Court in the first instance as a matter of law (see Licaro v. Ellot, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088; Palmerv. Amaker, 141 AD2d 622, 529 NYS2d 536, Second Dept. 1988; Tipping-Cestari v. Kilhenny, 174 AD2d 663, 571 NS2d 525, Second Dept., 1991). In making such a determination, summary judgment is an appropriate vehicle for determining whether a plaintiff can establish prima facie a serious injury within the meaning of Insurance Law Section 5102(d) (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 381, 489 NYS2d 468, First Dept., 1985; Wright v. Melendez, 140 AD2d 337, 528 NYS2d 84, Second Dept., 1988). Serious injury is defined, in Section 5102(d) of the Insurance Law, wherein it is stated as follows: (d) 'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, ember, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customary daily activities for not less than ninety days. during the one hundred eighty days immediately following the occurrence of the injury or impairment."

3 In pertinent part, Dr. Khachadurian sets forth in said physician s report of orthopedic examination: CLINICAL EXAMINATION On examination, the claimant is able to ambulate independently. Has a heel to toe gait. There is no evidence of antalgia or limp on ambulation. He is able to rise on his toes and heels without difficulty. He is able to ambulate without external support. In the standing position, he has a normal dorsal kyphosis, negative to percussion. He has a normal lumbar lordosis with no evidence of spasm or shift. He has no external evidence of scoliosis. He is able to flex forward at the lumbar spine to 80 degrees (normal 80 to 90 degrees). He is able to extend backwards 30 degrees (normal 30 degrees). He is able to tilt right and left 45 degrees (normal 45 degrees). He is able to rotate right and left 30 degrees (normal 30 degrees). There is no evidence of radicular or referred pain. He has no complaints related to bowel or bladder dysfunction. In the supine position, the leg lengths are equal, the girths are equal. The straight and well leg testing are negative for radicular or referred pain. He has no complaints related to bowel or bladder dysfunction. In the supine position, the leg lengths are equal, the girths are equal. The straight and well leg testing are negative for radicular or referred pain. The pulses are normal. The sensory examination of the lower extremities are normal. There are no pathological reflexes. Individual range of motion of the joints of the lower extremities are normal and stable. Right hip examination reveals extension of 10 degrees (normal 1 0 degrees), flexion of 130 degrees (normal 120 to 130 degrees), external rotation of 30 degrees (normal 30 degrees), internal rotation of 30 degrees (normal 30 degrees). has abduction of 40 degrees (normal 40 degrees). He has abduction of 30 degrees (normal 30 degrees). The range of motion of both hips unequal. There are no pathological reflexes of the lower extremities. In the sitting position, he has a normal dorsal kyphosis, negative to percussion. He has a normal cervical lordosis with no evidence of spasm or shift. He is able to flex forward to touch his chin to the chest (normal chin to chest). He is able extend backwards to 80 degrees (normal 70 to 80 degrees). He is able to rotate right and left 45 degrees (normal 45 degrees). He is able to tit right and left 30 degrees (normal 30 degrees). There is no evidence of radicular or referred pain. There is no evidence of atrophies of the upper and lower extremity. The range of motion of the joints of the upper extremities are normal and stable. The deep tendon reflexes of the elbows and wrists are normal. The Tinel signs at the elbows, wrists, and hands are negative. He has no evidence of atrophies of the hand. He has normal fist power. He is able to make a full fist and he is able to pinch with power to all the digits of both hands. DIAGNOSIS Status post cervical and lumbar sprain, posttraumatic, with no clinical evidence of radiculitis, or radiculopathy. No clinical evidence of herniated disc in either upper or lower extremities. Resolved right hip contusion with no evidence of internal derangement, resolved.

4 Dr. Turner states in regards to his neurological examination: MENTAL STATUS: Mental status examination revealed the following: The claimant was alert and oriented x 3. Recent memory was intact. Language function was intact without evidence of aphasia. Speech was of normal quality. CRANIAL NERVE EXAMINATION: Olfaction was intact bilaterally. Visual fields were full to confrontation. Funduscopic examination was unremarkable. Pupils were equal, round and reactive to light and accommodation. There was no ptosis and the extraocular muscles were intact. Corneals, facial sensation and the muscles were intact. There was no facial paresis. Hearing was grossly normal. There was no nystagmus. Gag reflexes and palatal movements were intact bilaterally. The sternomastoid muscles were intact bilaterally. Tongue movements were full, and there was no atrophy of the tongue. MOTOR EXAMINATION: Gait was normal. There was no Romberg sign. Examination of strength was normal. Muscle tone was normal. There was no muscle atrophy. There were no abnormal involuntary movements. Coordination examination revealed normal finger-to-nose, heel-to-shin, rapid alternating movements and tandem walking. Deep tendon reflexes were 1 + and symmetrical throughout. Plantar responses were flexor bilaterally. There were no Hoffman reflexes. SENSORY EXAMINATION: All sensory modalities were subjectively decreased over the entire right side of the body (sparing the face), with a sharp midline cutoff arid intact joint position sense. IMPRESSION: Non-organic right hermisensory syndrome (malingering). Upon review of the plaintiff's May 28, 2004 MRI of the Lumbar Spine, Dr. Tantleff sets forth an Impression of: IMPRESSION: MRI examination of the Lumbar Spine reveals chronic degenerative discogenic changes and lumbar spondylosis of L5/S1. There are significant Modic degenerative changes of the discovertebral endplates at L5 and S1. The neural foramina are open, patent and adequate. There is no evidence of muscle spasm of the deep muscles adjacent to the lumbar spine. There is no evidence of disc bulge, herniation or protrusion nor is there evidence of thecal sac, cord or exiting nerve root compression or deviation. The findings are consistent with the individual' s age. The findings are a

5 .... ': chronic longstanding pmcess requiring years to develop as presented and are not causally related with the individual' s traumatic event that occurred on 4/29/04, approximately one month prior to the MRI examination as the findings are consistent with wear-and- tear of the normal aging process. The Court finds that the defendants have submitted evidence in admissible form to make a " prima facie showing of entitlement to judgment as a matter of law " (Winegrad v. New York University Medical Center, 64 NY2d 851, 853; Pagano v. Kingsbury, supra at 694) and is sufficient to establish that the plaintiff did not sustain a serious injury. Accordingly, the burden has shifted to the plaintiff to establish such an injury and a triable issue of fact (see Gaddy v. Eyler, 79 NY2d NYS2d NE2d 1176; Jean-Meku v. Berbec, 215 AD2d 440, 626 NYS2d 274, Second Dept., 1995; Horan v. Mirando, 221 AD2d 506, 633 NYS2d 402, Second Dept., 1995). In opposition to the requested relief, the plaintiff, amongst other things, submits an affidavit from Michael Pappas, DO, a physiatrist at Perry Physical Medicine and Rehabilitation and an affidavit from the plaintiff himself. The Court initially observes that Dr. Pappas sets forth that he examined the Prior to that date, Dr. Pappas states that the plaintiff was a patient of his and another plaintiff physician on July 24, at Perry Physical Medicine and Rehabiltation, Dr. Josephine Brawner, by reference. The Court notes that the whose notes Dr. Pappas has incorporated last written evaluation submitted with the notes is dated November 2004 from Dr. Pappas and the last progress note is dated January 7 decipherable. Dr. Pappas, 2005 with a signature that is not in his affidavit, does not set forth an explanation for this gap in treatment (see Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 (Second Dept. Liu Ying, 2 AD3d 421, 2000); also see, Nemchyonok v Peng, 767 NYS2d 811 (Second Dept., plaintiff' 2003). The plaintiff states in his affdavit that the s insurance coverage terminated, but such an event is insufficient to explain a gap in treatment (see Vila Ita v Schechter, 273 AD2d NYS2d 87 (Second Dept. Pappas has further not described the objective testing that was performed, 2000). at The the Court time of observes his examination that Dr. of the plaintiff (see, Toure v Avis Rent A Car Systems, Inc. 1197)., 98 NY2d NYS2d NE2d The plaintiffs affidavit references certain claimed physical limitations but the plaintiff does not substantiate said limitations to a specific determination by a specific medical provider submitted in admissible form. The Court further notes that the plaintiff in the plaintiffs affidavit in opposition raises a contention as to the credibility of the defendant' s independent medical examination physicians but such a contention is not properly considered in a summary judgment application (see, Hantz v Fishman, 155 AD2d NYS2d 350 (Second Dept., 1989). Based upon all of the foregoing, the defendant' s application for an Order dismissirlg the complaint of plaintiff and granting summary judgment to the defendant, is aranted. SO ORDERED. DATED: t'$' tin( DEe l CCUNTY COUN._,