TRIALIIS, PART 9 NASSAU COUNTY

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIS, PART 9 NASSAU COUNTY JOSE MANUEL HERCULES ESPINO, FREDIS JOVEL, -against- Plaintiff, MOTION DATE: 4/9/07 Defendant. S' MOTION SEQ. NO. : 001 INDEX NO.: 17351/05 The following papers read on this motion (numbered 1-3): Notice of M otio n Affrmation in Opposition Reply Affrmatio n. Defendant Fredis Jovel's motion for summar judgment pursuant to CPLR 3212 is determined as follows. Plaintiff Jose Manuel Hercules Espino, age 23, alleges that on October at approximately 7:00 p. m., a motor vehicle owned and operated by him came into contact with a vehicle operated by defendant Fredis Jovel. The accident occurred at or near the intersection of Long Beach Avenue and Sunrise Highway, Freeport, New York. Defendant Fredis Jovel now moves for an order dismissing plaintiff Jose Manuel Hercules Espino s complaint pursuant to 3212, on grounds that plaintiff failed to sustain a CPLR Insurance Law Insurance Law serious injury" within the meaning of 5102(d). 5102(d) provides that a " serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a, member, function fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ

2 or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a non-permanent natue 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" (numbered by the Court). The Court' s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body fuction or system (8). The Cour finds that plaintiff has demonstrated a prima facie failure to prove a medically determined injury which prevented plaintiff from performing all of the material acts constituting his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident (9). In support of his motion for summar judgment, defendant submits an affirmed report of examination, dated November 13, 2006, of orthopedist Frank M. Hudak, MD covering an examination of October 26, 2006, affirmed report of examination of neurologist John Kelemen, MD, dated September 28, 2006, covering an examination of that date and affirmed report, of radiologist Stephen W. Lastig, MD, dated December , reviewing MR films ofplaintiffs cervical spine, dated December and of plaintiffs lumbar spine, dated December Dr. Hudak found the range of motion ofthe cervical spine as follows: "forward flexion was 60 degrees (normal is 45 degrees), extension was 60 degrees (normal is 45 degrees), right and left rotation was 60 degrees (normal is 60 degrees) and right and left tilt was 45 degrees (normal is 45 degrees). " Dr. Hudak reported that plaintiff had no pain on range of motion testing and no tenderness, or spasm upon palpation. With respect to the shoulders, Dr. Hudak' s examination revealed "range of motion of both shoulders was equal with abduction to 170 degrees and forward flexion to 180 degrees (normal abduction

3 and flexion is 160 degrees or greater)" and " extension of both shoulders was 60 degrees (normal is 45 degrees)." With respect to the lower back, Dr. Hudak found that plaintiff could "forward fle(x) 100 degrees at the waist with no pain noted (normal flexion is 90 degrees or greater), and (that) right and left lateral tilt at the waist was 60 degrees with no pain noted (normal is 45 degrees). " Dr. Hudak did note " tenderness in the midline from L3-L5." In addition, Dr. Hudak found normal range of motion of the elbows, wrists and hands, good motor power to both lower and upper extremities with no pain, normal sensory tests, a negative bilateral straight leg raising test in the upright position and no spasms in the cervical and lumbosacral spines. Dr. Hudak diagnosed " status post sprain of the cervical and lumbosacral spines. " Dr. Hudak stated that plaintiff is " capable of returning to his normal occupational duties with no restriction " and that his prognosis is excellent., negative straight leg Dr. Kelemen found no paracervical or lumbar muscle spasm raise test bilaterally and a normal cranial nerve examination. Dr. Kelemen did note that plaintiff complained of "tenderness over the mid-lumbar spinous processes." Dr. Kelemen s motor examination revealed intact strength, intact finger to nose and heel- toknee-to-shin testing, normal gait including heel, toe and tandem walking, no Romberg sign and intact sensory examination. Dr. Kelemen diagnosed " status post lumbar strain, found that plaintiff had no "evidence of a neurological abnormality or disabilty from a neurological perspective" and concluded that plaintiff could engage in the " usual activities of his daily life, including those of his stated occupation. Dr. Lastig reviewed an MR study of the cervical spine, dated December 9, 2004 and found "no focal disc herniations or annular bulges " and "no evidence of cord compression or foraminal stenosis. " Dr. Lasting noted that the multilevel mild disc " With desiccation is "consistent with a degree of degenerative disc disease. respect to his review of an MR of the lumbar spine, dated December , Dr. Lastig found no focal disc herniations or annular bulges and stated that said MR study was normal. Dr.

4 Lastig concluded that both studies' findings were within normal limits, and as such, there were no findings which are causally related to the October 22, 2004 accident. In addition, defendant submits deposition testimony of plaintiff conducted on July 26, Plaintiff testified that as a result of the accident, he sustained bruises to his knee and back and that immediately after the accident he did not feel pain but sought medical treatment within one week with chiropractor Dr. Sosnik. Plaintiff testified that his treatment continued for six or seven months and included "fixing (his) back, the shoulder the neck", massages and needles in the back. Plaintiff reported that he was a landscaper and worked for a ' man, although plaintiff could not recall the name of his employer company. Plaintiff stated that he returned to work one week after the accident. Plaintiff also testified that he was acquainted with defendant and that defendant's wife is plaintiffs cousin. The Court finds that the reports of defendant' s examining physicians are detailed in the recitation of the various clinical tests performed and measurements taken during the examinations so as to satisfy the Court that an " objective basis" exists for their opinions. Accordingly, the Court finds that defendant has made a prima facie showing that plaintiff Jose Manuel Hercules Espino did not sustain a serious injury within the meaning of ~~5102(d)((7)) or ((8)), the only applicable sections. Consequently, the burden shifts to plaintiff to come forward with some evidence of a " serious injury" sufficient to raise a triable issue of fact. Gaddy v. Eyler 79 NY2d 955, 957. Plaintiff submits an affidavit of chiropractor Shawn A. Sosnik, sworn to on March 2007, affirmations of radiologist Mark Shapiro, MD of United Diagnostic Imaging C. covering MRs of the cervical spine conducted on December 9, 2004 and of the lumbar spine conducted on December 22, 2004, and affidavit of plaintiff sworn to on March The Court notes that plaintiff has not submitted affirmations from several other physicians and medical professionals mentioned in the record, such as Dr. Ahed Elfiky, Dr. Perrie, Dr. Ender, Dr. Burke and acupuncturist Michelle Maggio.

5 Chiropractor Shawn A. Sosnik' s affidavit sworn to on March 25, 2007, appears to cover examinations of November , December and March 5, Dr. Sosnik found that examination of the cervical spine revealed a positive Foraminal Compression test, Soto Hall test and spinous compression test all of which, Dr. Sosnik states, indicates nerve root compression and cervical spine traumatic injury. Dr. Sosnik also reported spasms upon palpation of the neck. With respect to the lumbar spine, Dr. Sosnik found spasms, positive Kemp s test, Linder s test, and a straight leg raising of " degrees on the left and 25 degrees on the right" which is allegedly "indicative of lumbar nerve root compression and/or sciatica." Dr. Sosnik noted loss of range of motion of the cervical and lumbar spines merely by stating the percentage losses for each movement. Dr. Sosnik further claims that plaintiff was put on a treatment program consisting of spinal adjustments, manual traction and acupuncture and that plaintiff was given a TENS unit and cervical spine pilow to use at home. Dr. Sosnik allegedly referred plaintiff to neurologist Dr. Ahmed Elfiky, and for MRs of the cervical and lumbar spines. After Dr. Sosnik' s claimed six months of treatment, there is no evidence in the record that plaintiff sought medical treatment until Dr. Sosnik's examination of plaintiff on March 5, 2007 when he reported losses of range of motion by specifying degrees of loss and comparing his findings to normal. Dr. Sosnik concluded that the accident was the "primar competent producing cause of the injuries sustained by (plaintiff)" and that plaintiff has suffered "acceleration/deceleration injury causing irreparable damage to the spinal myoligamentous supporting strctures" resulting in a permanent condition. Dr. Sosnik also claims that plaintiff suffers from permanent consequential range of motion of the cervical and lumbar spines and significant limitation of a body function or system. Dr. Sosnik concluded that "all spinal tissues, including tendons and ligaments were stretched or even torn" and "wil only heal with scaring. Plaintiff also submits affirmed reports of Mark Shapiro, MD covering MRs of the cervical spine performed on December 9, 2004 and ofthe lumbar spine performed on

6 ,, December With respect to the cervical spine, Dr. Shapiro found "focal central herniation at (C)3-4 and posterior hypertophic changes at C6-7, creating a ventral extradural defect." The report covering the MR of the cervical spine erroneously provides in the section entitled ' Impression' that plaintiff had a " focal central herniation at L3-4" although the body of the report itself that there is a disc herniation at C3-4. With respect to the lumbar spine, Dr. Shapiro found central herniation at L4-, creating impingement and a broad based disc bulge at L5-S 1. In his affidavit sworn to on March , plaintiff claims that, as a result of the accident, he sustained injuries to his head, neck, back and shoulders. He contends he received treatment in the form of spinal adjustments and acupuncture from Dr. Sosnik for approximately six months, two to three times per week. Plaintiff stated that Dr Sosnik referred him to a neurologist and for MRs. Plaintiff reports that he was employed as a landscaper prior to the accident and he only missed one week of work as a result not being able to afford to take more time off. Plaintiff claims that he is stil experiencing pain in his neck, back and shoulders for which he takes over the counter medicine. Plaintiff also states that the pain "prevents me from doing activities that I would normally participate in prior to this accident" including playing soccer with friends every weekend, bending down, lifting heavy objects or using all the equipment at work. It is the determination of this Court that the "gap in treatment" is fatal to plaintiffs claim that the evidence submitted is sufficient to raise a triable issue as to whether or not plaintiff sustained a "serious injury" within the meaning of Insurance Law 5102(d). Even where there is objective medical proof, when additional contributory factors interrpt the chain of causation between the accident and claimed injury-such as a gap in treatment, an intervening medical problem or a pre-existing condition-summar dismissal of the complaint may be appropriate. " Pommells v. Perez, 4 NY3d 566, 572. The Cour finds that the "gap in treatment" between plaintiff s claimed cessation of treatment approximately six months after the October accident and plaintiffs

7 visit to Dr. Sosnik on March 5, 2007 contradicts plaintiffs claim that he suffered from a serious injury" within the meaning of Insurance Law ~5102(d). "In the present case, the so called gap in treatment was, in reality, a cessation of all treatment." Pommells v. Perez supra at 574. In his affidavit, sworn to on March 25, 2007, Dr. Sosnik states that plaintiff received treatment for approximately six months. Dr. Sosnik claims that "at the end of the six month period, (he) discharged (plaintiff) from therapy as there was no further benefit to be derived from continuous treatment at that point." Dr. Sosnik states further that he "instrcted (plaintiff) to come into (his) office for treatments periodically as needed. " There is no evidence that plaintiff sought any medical treatment after March 2005 until Dr. Sosnik' s examination on March 5, "While a cessation of treatment is not dispositive-the law surely does not require a record of needless treatment in order to surive summar judgment-a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so." Pommells v. Perez supra at 574. Plaintiff has failed to satisfactorily explain this gap in treatment. See Waring v. Guirguis, 39 AD3d 741; Philips v. Zilnsky, 39 AD3d 728; Osgood v. Martes, 39 AD3d 516; Albano v. Onolfo, 36 AD3d 728; Chan v. Casiano, 36 AD3d 580; Neugebauer v. Gil, 19 AD3d 567; Mohamed v. Siffrain, 19 AD3d 561. Plaintiff merely claims that he returned to Dr. Sosnik in 2007 due to pain (he) was experiencing in his neck and back. The Court notes that plaintiff has failed to provide any affirmed medical records contemporaneous with the alleged cessation of treatment to substantiate Dr. Sosnik' s claim made in 2007, that further treatment would be of no benefit. Plaintiffs treatment only resumed purportedly in response to defendant' summar judgment motion. See Chan v. Casiano supra Bycinthe v. Kombos, 29 AD3d 845; Berete v. Ford Motor Credit Co., 29 AD3d 452. In fact, the only other medical report submitted, aside from MR reports, is an unaffirmed letter submitted by defendant dated March , from Dr. Sosnik to plaintiffs attorneys, which contradicts Dr. Sosnik' s subsequent claim that plaintiff would not have derived any benefit from treatment

8 , ' beyond the six months of treatment plaintiff allegedly received. Said letter provides that plaintiff "wil probably have a long-term need for pain medication, and chiropractic care due to the high probabilty of joint pain, radicular pain and stiffuess. Moreover, Dr. Sosnik' s report of the November testing ofplaintiffs range of motion of the cervical and lumbar spines is conclusory as Dr. Sosnik fails to specify degrees of range of motion and only provides the percentage of loss of range of motion without and comparing them to normal. See Thomason v. Thomason, 2007 WL ; Osgood v. Martes supra; Caracci v. Miler, 34 AD3d 515. The Court notes even if plaintiff suffered from disc herniations as indicated in the reports of plaintiff s radiologist the existence of a radiologically confirmed disc injury alone wil not suffice to defeat summar judgment. See Pommels v. Perez supra; Whitfeld-Forbes v. Pazmino, 36 AD3d 901; Mejia v. DeRose, 35 AD3d 407; Bravo v. Rehman, 28 AD3d 694; Howell v. Reupke, 16 AD3d 377; Kearse v. New York City Transit Authority, 16 AD3d 45. Dr. Sosnik also fails to address the assertion of defendant's radiologist that a mild level disc desiccation in the cervical spine is consistent with "a degree of degenerative disc disease. See Gomez v. Epstein, 29 AD3d 950; Bycinthe v. Kombos supra. In addition, Dr. Sosnik makes only a conclusory statement to establish a causal connection between plaintiffs alleged injuries and the accident. Plaintiffs radiologist also fails to express an opinion on causation. See Albano v. Onolfo supra; Chan v. Casiano, supra. Moreover, Dr. Sosnik relied upon the diagnosis of neurologist Ahmed Elfiky, MD whose report of examination is not in the record. As a result, Dr. Sosnik' report is based in par on unsworn reports of other physicians. See Philips v. Zilnsky, supra; Sammut v. Davis, 16 AD3d 658; Garces v. Yip, 16 AD3d 375; Friedman v. U- Haul Truck Rental, 216 AD2d 266. Plaintiffs complaints of subjective pain do not by themselves satisfy the "serious injury" requirement of the no-fault law. Scheer v. Koubek, 70 NY2d 678; Ranzie v. Abdul-Massih, 28 AD3d 447; Picott v. Lewis, 26 AD3d 319; Rudas v. Petschauer, 10

9 ii AD3d 357. In addition, plaintiffs affidavit does not raise an issue of fact as it consists of self serving and COnclUSOry statements that his pain "prevents (me) from doing activities that I would normally participate in prior to this accident" such as playing soccer and lifting heavy objects. See Mercado v. Garbacz, 16 AD3d 631. The Court has examined the paries' remaining contentions and find them to be without merit. On the basis of the foregoing, it is ORDERED, defendant FREDIS JOVEL' S motion for summar judgment dismissing the complaint of plaintiff JOSE MANUEL HERCULES ESPINO, on the grounds that plaintiff JOSE MANUL HERCULES ESPINO failed to sustain a "serious injury" within the meaning of Insurance Law ~5102(d) is granted. Defendant shall serve plaintiff with a copy of this Order within 15 days aft entry of this Order in the records of the Nassau County Clerk. This constitutes the order of the Court. Dated: ENTER: EN1'REO f\ug '\ 0 '2001 U COUNTY NASSA EBK' S OFFICE COUNTY CL