SUPREME COURT - ST ATE OF NEW YORK. Plaintiff, lndex NO: 5306/08. Defendants. Plaintiffs, Defendant.

Transcription

1 J- - JC (j S.e..; d, Present: SUPREME COURT - ST ATE OF NEW YORK HON. ARTHU M. DIAMOND Justice Supreme Court x ROSELAND PIERR, TRL PART: 16 NASSAU COUNTY Plaintiff, lndex NO: 5306/08 GEORGE A. KAERIS, MARY KANERIS and ANGELO FIGUEROA, Defendants. GEORGE A. KANERIS, MARY KANERIS Plaintiffs, INDEX NO. 1116/08 -against- -against- ANGELO FIGUEROA MOTION SEQ. NO: 5, 6 Defendant. SUBMIT DATE: 1/11/10 The following papers having been read on this motion: Notice fo Motion... 1, Opposition... 3 Reply Defendant, Angelo Figueroa, moves pursuant to CPLR 3212, seeking an order dismissing the within complaint on the basis that the plaintiffhas not sustained a serious injur within the ambit of Insurance Law 5102(d). (Sequence #005). Defendants, George and Mar Kaneris, move pursuant to CPLRg3212, for an order dismissing the plaintiffs complaint on the basis that she has not sustained a serious injur. (Sequence # 006). The underlying action results from a motor vehicle accident which occured on October (see Mitola Affirmation in Support at 'i'i3 7; see also Exhs. A, D, E). On said date, the vehicle

2 owed by defendant, George Kaneris, and operated by defendant, Mar Kaneris, was involved in an accident with the vehicle owned and operated by defendant, Angelo Figueroa (id. at Exh. A). Plaintiff, Roseland Pierre, was a passenger in the vehicle owned and operated by defendant Figueroa (id. The plaintiff claims that as a consequence thereof, she has sustained serious injuries as defined in Aricle 51 of the New York State Insurance Law (id. at Exh. B). As alleged in the Verified Bil of Pariculars, the plaintiff alleges to have suffered the following injures: lumbar sprain/strain; lumbar radiculitis; restriction of motion of the lumbar spine; cervical sprain/strain; cervical radiculitis; restriction of motion of cervical spine; coccyx sprain; right shoulder sprain; restrction of motion of right shoulder (id. at Exh. D). The defendants have each interposed their respective motions for sumar judgment dismissing the plaintiff s complaint and are determined as set forth hereinafter. As evidentiar support for the within application, defendant Figueroa provides the affrmed independent medical report of Dr. Alan Zimmerman (id. at Exh. F). Dr. Zimmerman conducted an orthopedic examination of the plaintiff on December (id. at Exh. F). Said examination included an evaluation of the plaintiff s cervical, lumbar and Thoraco- Lumbar spines, the shoulders and hips (id. ). Range of motion testing was conducted by way of a hand held goniometer Range of motion testing as to the cervical spine revealed normal findings and Dr. Zimmerman noted the absence of tenderness or spasm As to the Thoraco-Lumbar spine, Dr. Zimmerman noted that the Lasegue test and straight leg raising were all negative and that there was an absence of spasm or tenderness Range of Motion testing as to the lumbar spine revealed normal findings as to extension, right and left lateral flexion and right and left rotation, with a mild limitation in flexion, where the plaintiff exhibited a reading of 85 degrees and the normal range being 90 degrees As to the right and left shoulder, range of motion testing indicated normal findings and Dr. Zimmerman noted that there was no evidence of spasm and that Impingement Sign and Supraspinatus testing revealed negative findings Finally, with respect to the hips, range of motion testing again yielded normal findings Dr. Zimmerman ultimately concluded that the plaintiff has sustained a cervical and lumbar sprain/strain, as well as a right thigh contusion, all of which had resolved and that based upon his evaluation the plaintiff "has no disabilty or work

3 restriction. It is well settled that a the proponent of a motion for sumar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Silman Twentieth Century Fox 3 NY2d 395 (1957); Alvarez Prospect Hospital, 68 NY2d 320 (1986); Zuckerman City of New York 49 NY2d 557 (1980); Bhatti Roche 140 AD2d 660 (2d Dept 1998)). To obtain sumar judgment, the moving par must establish it's claim or defense by tendering sufficient evidentiar proof, in admissible form, suffcient to warant the Cour, as a matter of law, to direct judgment in the movant's favor (Friends of Animals, Inc. Associated Fur Mfrs., Inc. 46 NY2d 1065 (1979)). Such evidence may include deposition transcripts, as well as other proof anexed to an attorney afrmation (CPLR 3212 (b); Olan Farrell Lines 64 NY2d 1092 (1985)). If a suffcient prima facie showing is demonstrated, the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of sumar judgment and necessitates a trial (Zuckerman City of New York 49 NY2d 557 (1980), supra). When considering a motion for sumar judgment, the fuction of the cour is not to resolve issues but rather to determine if any such material issues of fact exist (Silman Twentieth Century Fox 3 NY2d 395 (1957), supra). Within the paricular context of a threshold motion which seeks dismissal of a personal injur complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injur" as enumerated in Aricle 51 of the Insurance Law ~5102(d) (Gaddy Eyler, 79 NY2d 955 (1992)). Upon such a showing, it becomes incumbent upon the nonmoving par to come forth with sufficient evidence, in admissible form to raise an issue of fact as to the existence of a serious injur (Licari Ellott 57 NY2d 230 (1982)). Within the scope ofthe defendant' s burden a defendant' s medical expert must specify the objective tests upon which the stated medical opinions are based and when rendering an opinion with respect to the plaintiffs range of motion, must compare any findings to those ranges of motion considered normal for the paricular body par (Qu Doshna 12 AD3d 578 (2d Dept 2004); Browdame Candura 25 AD3d 747 (2d Dept 2006); Mondi Keahan 32 AD3d 506 (2d Dept 2006)). Applying the aforesaid criteria to the report of Dr. Zimmerman, this Court finds that defendant Figueroa has established a prima facie case that the plaintiff failed to sustain a serious injur as contemplated by g5102(d) of the Insurance Law (Gaddy Euler 79 NY2d 955 (1992),

4 supra). In his medical report, Dr. Zimmerman clearly opined that the plaintiff exhibited full range of motion with respect to the cervical spine, shoulders and hips, and concluded that the plaintiff was not disabled (Kearse New York City Transit Authority, 16 AD3d 45 (2d Dept 2005)). As to the lumbar spine, the mild limitation noted solely as to flexion, is considered insignificant withn the meanng of the no- fault statute (Licari Ellott 57 NY2d 230 (1982)), supra; see also Waldman Chang, 175 AD2d 204 (2d Dept 1991); Bandoian Bernstein 254 AD2d 205 (1 st Dept 1998); Paolini Sienkiewicz 262 AD2d 1020 (4 Dept 1999)). Moreover, Dr. Zimmerman stated the specific tests upon which his medical conclusions were based and compared the plaintiffs ranges of motion to those ranges considered normal (Qu Doshna 12 AD3d 578 (2d Dept 2004), supra; Browdame Candura 25 AD3d 747 (2d Dept 2006), supra). In addition to the foregoing medical evidence, a reading of the plaintiff s deposition transcript reveals that Ms. Pierre testified she lost less than a week from work as a result ofthe subject accident (Sanchez Willamsburg Volunteer of Hatzolah, Inc. 48 AD3d 664 (2d Dept 2008); Geliga Karibian 56 AD3d 518 (2d Dept 2008)). Thus, the burden now shifts to the plaintiff to demonstrate a triable issue of fact with respect to the existence of a "serious injur (Licari Ellott 57 NY2d 230 (1982), supra). In opposition to the instant application, the plaintiff provides the affirmation of Dr. Gregorace, by whom the plaintiff was evaluated on October 18, 2007, November 26, 2007 December , December 31, 2007 and October (see Bevolas Affirmation in Support at Exhs. D, E). Upon initial presentment on October 18, 2007, Dr. Gregorace conducted a physical examination, as well as range of motion testing with respect to the cervical and lumbar spines, as well as the right shoulder As to the neck and back, Dr. Gregorace states that the plaintiff exhbited painful and restricted active range of motion" but does not indicate or quantify the ranges of motion which were observed With paricular respect to the right shoulder, Dr. Gregorace noted restrictions as to forward flexion, abduction, and internal and external rotation (id. Dr. Gregorace rendered an initial impression in which he opined that the plaintiff had sustaned a cervical and lumbar sprain/strain, right radiculitis and right shoulder strain On November , the plaintiff was re-evaluated by Dr. Gregorace, at which time range of motion testing was conducted as to the plaintiff s cervical and lumbar spines, as well as the right shoulder As to the cervical spine, such testing revealed normal findings With respect to

5 ). the lumbar spine, range of motion testing revealed restrictions as to flexion (id. Finally, as to the right shoulder Dr. Oregorace stated that the plaintiff exhibited "full active range of motion" and noted that the Hawkin, Supraspinatus and apprehension test were negative Dr. Oregorace rendered and impressions that the plaintiffhad sustained a "Lumbar spine strain with sacrucoccyx sprain Subsequently, on December , range of motion testing was again repeated as to the plaintiffs lumbar spine, which revealed restrictions in flexion Dr. Gregorace rendered a diagnosis of "Lumbar strain/sprain with right S 1 sprain (id). Thereafter, on December 31, 2007 range of motion testing was again conducted as to the lumbar spine, which again revealed restrction as to flexion, with the plaintiff exhibiting 80 degrees against a normal range of90 degrees Dr. Gregorace diagnosed the plaintiff has having a "lumbar strain/sprain On October 5, 2009, the plaintiff again presented to Dr. Gregorace for a reevaluation, at which time range of motion testing was conducted as to the plaintiff s right shoulder Such testing revealed restrictions in forward flexion and abduction, and Dr. Gregorace noted that the Hawkin s test was positive Dr. Oregorace noted that the plaintiff was pregnant at the time of the examination, and accordingly range of motion testing as to the lumbar spine was deferred The plaintiff was ultimately diagnosed as having "Lumbar spine spasms and right shoulder strain which Dr. Gregorace opined were causally related to the subj ect automo bile accident of October (id. When examining medical evidence offered by a plaintiff on a threshold motion, the cour must insure that the evidence is objective in nature and that a plaintiffs subjective claims as to pain or limitation of motion are sustained by verified objective medical findings (Grossman Wright 268 AD2d 79 (2d Dept2000)). Furher, a plaintiff must provide medical evidence contemporaneous with the subject accident which demonstrates any initial range of motion restrictions (Ifach Neiman, 306 AD2d 380 (2d Dept 2003); Felix New York City Tr. Auth. 32 AD3d 527 (2d Dept 2006);Garcia Sobles 41 AD3d 426 (2d Dept 2007; Bestman Seymour 41 AD3d 629 (2d Dept 2007); Marrache Akron Taxi Corp. 50 AD3d 973 (2d Dept 2008)), as well as competent medical evidence containing verified objective findings, which are predicated upon a recent examination (Kauderer Penta 261 AD2d 365(2d Dept 1999); Constantinou Surinder 8 AD3d 323 (2d Dept 2004); Brown Tairi Hacking Corp. 23 AD3d 325 (2d Dept 2005)). In the instant matter, having carefully reviewed the medical evidence proffered by the

6 plaintiff, the Cour finds that the plaintiff has failed to raise a trable issue of fact (Licari Ellott 57 NY2d 230 (1982), supra). Initially, as noted above, Dr. Gregorace ultimately diagnosed the plaintiff as having sustained "Lumbar spine spasms and right shoulder strain" and that such injuries were proximately caused by the accident of October 14, However, with respect to this lumbar spine injur, the plaintiff has failed to provide competent medical evidence based upon a recent examination which substantiates the existence thereof (Kauderer Penta 261 AD2d 365 (2d Dept 1999), supra; Constantinou Surinder 8 AD3d 323 (2d Dept 2004), supra; Brown Tairi Hacking Corp. 23 AD3d 325 (2d Dept 2005), supra). In the most recent medical report of October 5, 2009 Dr. Gregorace clearly stated that due to the plaintiffs pregnancy, range of motion testing of the lumbar spine was deferred and thus no recent medical evidence as to this claimed lumbar spine injur has been submitted herein Additionally, the record indicates that within approximately six weeks post-accident, on November , Dr. Gregorace reported that the plaintiff had "full active range of motion" in the right shoulder. However, on October 5, 2009, nearly two years post-accident, he stated that the plaintiff exhibited restrictions in the right shoulder as to forward flexion and abduction. Yet notwithstanding these disparate findings with regard to the right shoulder, Dr. Gregorace does not in any respect reconcile same and accordingly said reports are insufficient to raise a triable issue of fact (Magarin Kropf, 24 AD3d 733 (2d Dept 2005); Carrilo DiPaola 56 AD3d 712 (2008)). Based upon the foregoing, the motion for sumar judgment interposed by defendant Angelo Figueroa, is hereby GRANTED and the plaintiff s complaint is dismissed, together with any and all cross-claims asserted against him (Sequence # 005). The Cour now addresses the application interposed by defendants George and Mar Kaneris which similarly seeks an order granting sumar judgment dismissing the complaint. In support thereof, the Kaneris defendants provide the affirmation of Dr. Michael Katz, a board certified orthopedist, who conducted an examination of the plaintiff on November (see Fioretti Affrmation in Support at Exh. H). Said examination included an evaluation of the plaintiff s cervical and lumbosacral spines, as well as the right shoulder With regard to the cervical spine, range of motion testing was conducted by way of a goniometer which revealed normal findings Dr. Katz noted an absence oftendemess or spasm and stated that the Adson s test was negative As to the lumbosacral spine, range of motion testing was conducted via a goniometer and again revealed normal findings Dr. Katz noted an absence of muscle spasm and that both

7 ... Babinski sign and Patrick sign were negative (ici. With respect to the right shoulder, Dr. Katz, found normal range of motion and noted that absence of joint tenderness Dr. Katz ultimately concluded that the plaintiff was not disabled and " shows no signs or symptoms of permanent loss of use relative to the musculoskeletal system..." and was "... capable of her pre-loss activities of daily living without restrictions (id. In the matter sub judice having reviewed the defendants' expert medical report, ths Cour finds that the Kaneris defendants have demonstrated their prima facie entitlement to judgment as a matter oflaw (Kearse New York City Transit Authority, 16 AD3d 45 (2d Dept 2005), supra). his report, Dr. Katz opined that the plaintiff exhibited full range of motion with respect to the cervical and lumbosacral spines, as well as the right shoulder and that the plaintiff was not disabled Moreover, Dr, Katz stated the specific tests upon which his medical conclusions were predicated and compared the plaintiffs ranges of motion to those ranges deemed normal (Browdame Candura 25 AD3d 747 (2d Dept 2006), supra; Hernandez Stanley, 34 AD3d 428 (2d Dept 2006); Sullvan Dawes 28 AD3d 472 (2d Dept 2006)). Additionally, as noted above, the plaintiff herself testified that she lost less than a week from work as a result of the subject accident (Sanchez Willamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 (2d Dept 2008), supra; Geliga Karibian 56 AD3d 518 (2d Dept 2008), supra). Accordingly, it is now incumbent upon the plaintiff to demonstrate a triable issue of fact with respect to the existence of a "serious injur (Licari Ellott 57 NY2d 230 (1982), supra). However, for the reasons outlined hereinabove, the medical evidence proffered by the plaintiff in opposition to both ofthe within applications is insuffcient to raise a triable issue of fact (Grossman Wright 268 AD2d 79 (2d Dept2000), supra; Carrilo DiPaola 56 AD3d 712 (2008), supra). Based upon the foregoing, the motion for sumar judgment interposed by defendants George and Mar Kaneris is hereby GRANTED and the complaint is accordingly dismissed, together with any cross claims asserted against them. (Sequence #006). This constitutes the decision and order of this Cour. DATED: February EREDJ FES NASSAU COUNTY COUNTY CLERK' S OFFICE

8 To: Attorney for Plaintiff LAW OFFICE OF KENNETH M. MOLLINS, P. 425 Broad Hollow Road, Suite 215 Melvile, New York Attorney for Defendant/igueroa RUSSO, APOZNANSKI T AMBASCO 875 Merrck Avenue Westbur, New York Attorney for Defendantsl Kaneris RICHARD T. LAU & ASSOCIATES O. Box 9040 Jericho, N. Y