Thillet v Lindy's Limo, Inc NY Slip Op 30442(U) February 1, 2011 Sup Ct, Suffolk County Docket Number: 40684/2008 Judge: William B.

Transcription

1 Thillet v Lindy's Limo, Inc NY Slip Op 30442(U) February 1, 2011 Sup Ct, Suffolk County Docket Number: 40684/2008 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK LA.S. PART 7 SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Danielle Thillet, Plaintiff, -against- Lindy's Limo, Inc. and Carmine Napoli, Defendants. Motion Sequence No.: 001; MG CDISPO Motion Date: 11/9/10 Submitted: Index No.: 40684/2008 Attorney for Plaintiff: Suris & Associates, P.c. 999 Walt Whitman Road, Suite 201 Melville, New York Clerk of the Court Attorney for Defendants: Baker, McEvoy, Morrissey & Moskovitz, P.c. 330 West 34th Street, 7th Floor New York, New York 1000 I Upon th following papers numbered 1 to 10 read on this unopposed motion by defendants for summary judgment: Notice of Motionl Order to Show Cause and supporting papers, ] The instant action arises from a rear-end motor vehicle accident which occulted on.july 28, 2006 on Expressway Drive North, at or near its intersection with Ocean Avenue, in the Town of Islip, New York. The accident allegedly occurred when a vehicle owned by defendant Lindy's Limo, Inc. and operated by defendant Carmine Napoli collided with a vehicle owned and operated by the plaintiff. The plaintiff alleges that she sustained serious and permanent injuries as a result of the defendants' negligence in causing the accident. Specifically, in her bill of particulars, plaintiff asserts that she sustained, illter alia, focal disc bulges at C3/4 and C4/5; straightening of the cervical lordosis; varying degrees of cervical vertebral body malpositions; painful and restricted ranges of motion of the cervical spine; post-traumatic cervical radiculitis; cervicalgia; cervical myofascitis;

3 [* 2] Thillet v Lindy's and Napoli Index No.: Page 2 cervical spine sprain/strain; cervical myalgia; thoracic spine dextroscoliosis; varying degrees of thoracic vertebral body malpositions; painful and restlicted ranges of motion of the thoracic spine; post-traumatic thoracic radiculitis; thoracic spine sprain/strain; thoracic myalgia; broad based disc bulges at L4/5 and L5/S1; varying degrees of lumbar vertebral body malpositions; right lumbar scoliotic curvature; painful and restricted ranges of motion of the lumbar spine; post-traumatic lumbar radiculitis; lumbar myofascitis; lumbar spine sprain/strain; lumbar myalgia; lumbago; left shoulder pain; bilateral wrist pain; left knee pain; left ankle pain; abdominal pain; post-traumatic headaches; and TMJ dysfunction. She alleges that she was confined to her bed and home for several days immediately following the accident and for intermittent days thereafter. She alleges that she was totally incapacitated from her usual household duties for several days immediately following the accident and for intermittent days thereafter. She alleges that she missed one day of work following the accident. The defendants now move for summary judgment dismissing the complaint on the grounds that the plaintiff did not sustain a "serious injury" as defined by Insurance Law Section 5102 (d). The plaintiff has not opposed the motion. A "serious injury" is defined as a personal injury which "results in death; dismemberment; significant disfigurement; a hacture; loss of a fetus; permanent loss of use of a body organ, member, 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 constitutes 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" (Insurance Law 5102[d]). The Court of Appeals has held that the issue of whether a claimed injury falls within the statutory definition of a "serious injury" is a question of law for the courts in the first instance, which may properly be decided on a motion for summmy judgment (see, Licari v. Elliott, 57 NY2d 230 [1982]; Charlev v. Goss, 54 AD3d 569 [1st Dept 2008] arid 12 NY3d 750 [2009]). A defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury has the initial burden of making aprillwfacie showing that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102 (d) (see, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Dniv. Med. Ctr., 64 NY2d851 [1985]; Zuckerman v. Otv of New York, 49 NY2d557 [1980]; Pagano v. Kingsbury, 182 AD2d268 [2 Jld Dept.: 19921). Fai lure to make such pril1wj(lcie showing requires a denial of the motion, regardless. of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hosp., 68 NY2d 320 ["1986J; Winegrad v. New York ljniv. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been made the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to

4 [* 3] Thillet v Lindv's and Napoli Index No.: Page 3 overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of thc Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [19921; Grossman v. Wright, 268 AD2d 79 [2 'll1 Dept., 2000]; Pagano v. Kingsbury, 182 AD2d 268 [2" J Dept., 1992]; see also, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In support of their motion for summary judgment, the defendants submit, inter alia, the affirmed neurological examination report of Lourdes P. Esteban, M.D., the affirmed dental examination report of John G. Esposito, Jr., D.D.S., F.A.C.D., the affirmed MRI reports of Audrey Eisenstadt, M.D., and the plaintiff's deposition testimony. As is relevant to this motion, Dr. Esteban performed a neurological examination on the plaintiff on May 10,2010. She performed range of motion testing on the plaintiff's cervical spine, thoracic spine and lumbar spine, compared her findings to normal values and found the plaintiff's range of motion to be normal in all respects. She performed objecti ve medical testing on the plaintiff and obtained negative results. Tnthis regard, she determined Lasegue' s sign was negati ve, Babinski sign was negati ve, cervical compression test was negative, Clonus was absent, Hoffman's sign was absent, Spurling test was negative, Lewin's test was negative, Minor's test was negative and Neri's bowing sign was negative. She concluded that the plaintiff had a normal neurological examination and that there was no neurological disability. She noted that the plaintiff was cuitently working and found that she was capable of engaging in normal activities of daily life. Dr. Esposito performed a dental examination of the plaintiff on March 5,20 lo. He concluded that the TMJ soft tissue examination was negative for any abnomlalities and that the plaintiff did not sustain a significant maxillofacial injury. He opined that the plaintiff sustained no disability. Dr. Eisenstadt reviewed MRTs taken of the plaintiff's cervical spine on September 16,2006 and lumbar spine on September 18, She concluded that the cervical spine MRT depicted cervical straightening, which was a nonspecific finding which was frequently related to the patient's position and comfort during the examination. She concluded that the cervical spine MRI showed no recent or post-traumatic changes to the osseous, ligamentous or intervertebral disc structures. Upon examination of the lumbar spine MRI, Dr. Eisenstadt found it to be entirely normal. She concluded that the lumbar spine MRI showed no changes to the osseous, ligamentous or intervertebral disc structures and no post-traumatic abnormalities. During her deposition, the plaintiff testified that she first felt pain in her neck, shoulders and upper back the morning following the accident. She went to the emergency room at St. Charles Hospital and complained about the pain in her neck and shoulders. The emergency room doctors concluded that she had sustained a sprained neck and she was discharged. The following week she went to a chiropractor. She treated with the chiropractor for approxi mately nine months. During that lime the chiropractor treated her shoulders, neck, upper back and lower back. For the first month

5 [* 4] Thillet y LindY's and Napoli Index No.: 40684/2008 Page 4 she recci ved treatment five days a week; thereafter, and up until the termination of her treatment, she received treatment three times a week. She received acupuncture twice a week for the entire nine months. After nine months, she was released from treatment and was told that there was not much else they could do for her despite the fact that she was still having some pain. She had MRIs taken of her spine and the chiropractor informed her that they depicted a reverse curvature of her spine and neck and inflamed discs in her upper and lower back. She testified that she was also told by a chiropractor that she had some nerve damage on her left side in her arm and her leg. However, she received no specific treatment for this condition. She admitted that no health care provider ever indicated that she may need surgery to conect any of her conditions. The plaintiff has not seen any other health care providers that she recalls to treat the injulies she sustained in the subject accident; nor has she received any additional pain management from another facility. She took Ibuprofen regularly but was never given any prescriptions. She testified that she has no plans to see any other medical providers in the future but that this is because she does not have medical insurance. The plaintiff testi fied that she was not confined to her bed or her home for any period of time as a result of the injuries she sustained in the accident. She missed one day from her employment as a teacher's aide. According to the plaintiff, six months after the accident she continued to have pain in her upper back and shoulders. She had pain in her shoulders and neck when she attempted to sit and draw and she had pain in her lower back when she attempted to stand for a long period of time to paint on an easel. She did not have any problem with her jaw popping or difficulty opening and closing her jaw. The plaintiff testifies that she continues to have difficulty sitting or standing for long periods of time and that she has pain when sitting or walking a couple of times a day and that this pain is severe a few times a month. The evidence submitted by the defendants established their prima facie entitlement to summ~u'yjudgment dismissing the complaint by demonstrating that the plaintiff did not sustain a serious injury within the meaning ofinsurance Law 5102 (d) as a result of the subject accident (see, Toure v. Avis Rent A Cm Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]; Saetia v. VIP Renovations Corp., 68 AD3d 1092 [2 nd Dept., 2009]; Dietrich v. PutICab Corp., 63 AD3d 778 [2 nd Dept., 2009]; DiFilippo v. Jones, 22 AD3d 788 [2 nd Dept., 2005]; Casella v. N.Y. City Transit!\uth., 14 AD3d585 [2 nd Dept., 2005]). In opposition to the defendants' primaf({cie showing, it was incumbent upon the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that she did sustain a "serious" injury as a result of the instant accident, or that there are questions of fact as to whether she sustained such an injury as a result of the subject accident (see, Toure v. Avis Rent A Cm Svs., 98 NY2d 345 [20021 at 350). The plaintiff has not submitted any opposition to this motion and, thus, has failed to meet this burden. Based on the foregoing, it is

6 [* 5] Thillet v Lindv's and Napoli Index No.: 40684/2008 Page 5 ORDERED that this motion by the defendants for summary judgment dismissing the complaint is granted; submit judgment (see, 22 NYCRR ). Dateel: February!./ " ' 2011 / /,'r I.(V.j.i?-"...r.(~~>~-../... I '--""L k v... BON. WILLIAM B. REBOLINI, ].S.C. ;. I " /.!,' (.',',' :_/,, "=.~-'.(_ X FINAL DISPOSITION NON-FINAL DISPOSITION