SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice -against- ELIAS KOUDSI and BERYL B. KOUDSI, Plaintiff(s), -against- TOWN OF OYSTER BAY and JAMES T. M CKINLEY, Ill, Defendant(s). TRIAL/IAS PART 21 INDEX NO. 31736/97 MOTION SEQ. NO. I & 2 MO. SUB. DATE: June I,2001 Action No. 1 MEHMET CAMBUDAK and AYSE CAMBUDAK, Plaintiff(s), INDEX NO. 31729/97 Upon the foregoing papers, the motion, by the defendants Town of Oyster Bay and James - McKinley, III, for an Order, pursuant to CPLR 3212, granting summary judgment in favor of the aforesaid defendants and dismissing the plaintiffs complaint upon the ground that the personal injuries allegedly sustained by plaintiff Mehmet Cambudak do not constitute a serious injury within the meaning of New York Insurance Law 3 5102(d), together with such other and further relief as this Court deems just and proper; and -l- Action No. 2 TOWN OF OYSTER BAY and JAMES M CKINLEY, Ill, ELIAS KOUDSI, and BERYL B. KOUDSI, Defendant(s). The following papers read on this motion: Notice of Motion Notice of Cross-Motion Affirmation in Opposition Reply Affirmation X X xx xx
a Notice of Cross-Motion, by defendants Elias Koudsi and Beryl B. Koudsi, for an Order dismissing the complaint of plaintiffs in Action No. 2 and all cross-claims and granting summary judgment to the defendants Koudsi in Action No. 2, together with such other and further relief as this Court deems just and proper, are both determined as hereinafter set forth. This personal injury action arises out of a motor vehicle accident that occurred on August 27, 1996 at approximately 12:00 p.m. at the intersection of Prospect Avenue and Brush Hollow Road, New Cassell, NY. of particulars: The plaintiff Mehmet Cambudak, amongst other things, sets forth in the plaintiffs verified bill II... 7. As a result of the negligence of the defendants, the plaintiff, MEHMET CAMBUDAK, was caused to sustain the following serious injuries, all of which are believed to be permanent in nature: Central and right sided disc protrusion at impingement on the thecal sac; L4-L5 with Lumbar intervertebral disc syndrome; Decrease of lumbar lordosis; Decreased interosseous spacing at L4-L5 and L5-Sl levels; Jamming of the posterior levels; articular facets at L4-L5 and L5-Sl Intervertebral toramenal encroachment at levels; L4-L5 and L5-Sl Compression of the Tl 1 and T12 vertebral bodies; Thoracic neuritis; Diminished kyphosis of thoracic spine; Cervicocranial syndrome; Cervicobrachial syndrome; Cervical intervertebral disc syndrome; Loss of cervical lordosis; Craniofacial myofascitis with referred pain; Collateral ligament laxity, Cephalgia; -2-
Internal derangement of TM Joint; Myofascitis/Myalgia; Synovitis; Severe headaches: Pain, limitation of motion, partial loss of function of back; Pain and numbness radiating from back into buttocks down both legs; Pain, limitation of motion, partial loss of function of neck; Pain and numbness radiating from neck into shoulders down both arms into fingers of both hands; Severe headaches; Difficulty in opening and closing his mouth; Bilateral pain and tenderness on the temporomandibular joints; Clenching/bruxing of his teeth since the accident; Facial pain; Retro orbital pain associated with headaches; Pain and pressure on his teeth; Exquisite pain and tenderness on palpation of the tenporalis, masseters, internal pterygoid, external pterygoid, sternocleidomastoid, trapezius, posterior cervical, levator scapular, cervical paraspinals, spenius capitus. Palpation of these muscles revealed moderate levels of point tenderness, taut bands and trigger points; Lateral and protrusive excursions of the mandible were painful and restricted; Bilateral increased lacrimation; Increased fatigue since the accident; Wore lumbar support for 4 months following the accident, and intermittently to date; -3-
Used dental appliance intermittently to date; Wore cervical collar over two months and intermittently to dater [sic]; Used cervical pillow intermittently to date. 8. The plaintiff, MEHMET CAMBUDAK, was confined to: a. hospital - not applicable. b. & c. bed and house: approximately 5 months and totally and partially intermittently to date;... I The defendants Town of Oyster Bay and James T. McKinley III, in support of the instant application, amongst other things, submits the affirmed letter report dated May 9, 2000 of Leon Sultan, MD, an orthopedist of an Independent Medical Examination conducted of the plaintiff Mehmet Cambudak on May 9,200O; an affirmed letter report of Barry C. Cooper, DDS dated October 5,200O of an Independent Dental Examination of the plaintiff Mehmet Cambudak conducted on September 21,200O; an affirmed letter report of Joseph J. Macy, MD, a radiologist dated April 7, 2000 of a review of certain x-rays and MRI images of the plaintiff Mehmet Cambudak and the transcript of the plaintiff Mehmet Cambudak s deposition conducted on March 28, 2000. The defendants Elias Koudsi and Beryl Koudsi in support of their cross-motion adopt the arguments set forth by the defendants Town of Oyster Bay and James McKinley Ill. 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 forsummary 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.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.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 ofalbany v. McAuliffe, 97 A.D.2d 607, 467 N.Y.S.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 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, supra, 49 N.Y.2d at 562, 427 N.Y.S.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. Elliot, 57 NY2d 230, 455 NYS2d 570,441 NE2d 1088; Palmer v. Amaker, 141 AD2d 622, 529 NYS2d 536, Second Dept., 1988; Tipping-Cestari v. Kilhenny, 174 AD2d 663,571 NS2d 525, Second Dept., 1991). -4-
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). follows: Serious injury is defined, in Section 5102(d) of the Insurance Law, wherein it is stated as (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. In pertinent part, the report of Dr. Sultan sets forth: CERVICAL SPINE EXAMINATION: Inspection of the cervical spine reveals that the head is well-centered on the shoulders, the shoulders are level. The cervical curvature is maintained. There is no palpable paracervical muscle spasm and no trigger point tenderness on palpation over the trapezius muscles. Head and neck movements are physiologically intact with extension, forward flexion, lateral rotation and lateral flexion to the right and left. Range of motion testing of both shoulders is intact with abduction, forward flexion, internal and external rotation. The impingement test is negative bilaterally. Bilateral elbow extension and flexion is complete. Pronation and supination is unimpaired. Bilateral wrist movements are well-preserved with dorsiflexion, palmar flexion, pronation and supination. The grip strength is strong bilaterally. Pinch mechanism is unimpaired. Sensory testing of both upper extremities is normal. Biceps and triceps reflexes are symmetrically dull. There are no complaints of neck pain or radiating pain with range of motion testing. THORACOLUMBAR EXAMINATION: The claimant is examined appropriately disrobed. Inspection of the thoracolumbar spine reveals preservation of the lordotic curvature. The spinal column is aligned, the pelvis is level, the normal lordotic curvature is well preserved. There is no palpable paravertebral muscle spasm. Sacroiliac joints are non-tender. Heel and toe standing is unimpaired. The Trendelenburg test is negative bilaterally. Observed ambulating without any external support, gait pattern is normal without any evidence of limping, or antalgic favoring of either lower extremity. Forward flexion at the waist is carried out without apparent restriction allowing the fingertips to well below knee level. Trunk rotation to the right and left, as well as lateral flexion to the right and left is unimpaired. In the supine position, -5
the straight leg raising test is negative bilaterally. The sciatic nerve stretch test is also noted to be negative bilaterally. Knee jerk and ankle jerk reflexes are symmetrically dull. Plantar reflexes are downgoing. Sensory testing of both lower extremities is intact. The extensor hallucis longus is strong bilaterally and the Patrick test if negative bilaterally. There are no complaints of back pain or radiating pain with range of motion testing. DISCUSSION:... He is orthopedically stable and neurologically intact and does not demonstrate any objective signs of ongoing disability or functional impairment in regard to the occurrence of 8/27/96.... I The impression of Dr. Cambudak states: Macy after review of the x-rays and MRls of the plaintiff Mehmet IMPRESSION: ROUTINE X-RAYS OF THE LUMBOSACRAL SPINE SHOW A SLIGHT CONGENITAL SCOLIOSIS CONCAVITY ON THE LEFT WITH NO EVIDENCE OF FRACTURE NOR OTHER ABNORMALITY. ROUTINEX-RAYS OF THE CERVICAL SPINE SHOW SLIGHT STRAIGHTENING OF THE CURVATURE POSSIBLY RELATEDTO MUSCLE SPASM WITH NO OTHER BONE ABNORMALITY. MRI OF THE CERVICAL SPINE IS WITHIN NORMAL LIMITS WITH NO BULGING NOR HERNIATED CERVICAL DISCS. MRI OFTHE LUMBOSACRAL SPINE SHOWS EARLY DEGENERATIVE CHANGES INVOLVING THE L4-L5 DISC WITH VERY SLIGHT POSTERIO R HERNIATION OF THE DISC INTO TH E SUBARACHNOID SPACE. The dental examination of the plaintiff by Dr. Cooper, amongst other things, sets forth: PHYSICAL EXAMINATION: The claimant is a healthy 47-year-old male in no reported discomfortrelated to dental/oral mandibular and facial structures. Extraoral muscle examination elicited no response of discomfort on palpation of the head and neck muscles including the following: anterior, middle, posterior temporalis, posterior cervical, trapezius, sternocleidomastoid, digastric, suprahyoid, infrahyoid and angles of the mandible. Examination of the temporomandibular joints caused no response of discomfort on palpation during opening and closing. Stethoscopic auscultation detected no joint sounds on opening and closing. Examination of the ears revealed no ear pain on palpation during opening and closing. Head movements were observed to be normal. Intraoral muscle examination elicited no response of discomfort to palpation of any muscles -6-
including the following: external, internal pterygoids, mylohyoid, masseter and temporalis tendon attachments. The claimant had a maximum mandibular opening of 46 mm, which is normal. Opening and closing were accompanied by no lateral deviations. Movements were fluid. Evaluation of excursive mandibular movements revealed normal anterior, normal left lateral (1 Omm) and normal right lateral (11 mm) movements. Intraoral examination of the teeth revealed upper and lower removable partial dentures with semi precision locks. Teeth #I 7-20,29-32, l-4,13-1 6 were missing. There are visible caries (decay) on the gingival portion of teeth #7, 8, 9, 10. These teeth have Class I (mild) mobility. There is no residual evidence of reported oral surgery in the area of the maxillary incisors. DIAGNOSES: Based on my examination, the diagnosis of a temporomandibular disorder (TMD) is not supported. There is no evidence of any dental injury having been sustained. Based on the hospital records of l/3/95, the decay in teeth #7-l 0 and their mobility are either pre-existing conditions unrelated to and unchanged by the MVA on 8127196. DIABILITY/LOSS OF FUNCTION: Related to mandibular and dental function, it is my opinion that the claimant is able to assume all of his daily activities and there is no permanent disability or impairment caused by the MVA on 8/27/00. CONCLUSION: Based on his history, a review of the records and my clinical examination, it is my opinion that the claimant does not have any objective signs or symptoms of temporomandibular discomfort which reportedly began subsequent to an accident on 8/27/00 and has admittedly fully resolved with no residuals. The slight mobility of teeth #7-l 0 is due to periodontal bone loss, which according to hospital record dated l/3/95 pre-exists this MVA. All front teeth were planned to be extracted and complete upper and lower dentures made after the six molars were extracted. This treatment plan was obviously modified as front teeth remain.... I The Court finds that the defendants have submitted evidencein 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; Pagan0 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 955,582 NYS2d 990,591 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). Amongst other things, the plaintiffs in opposition offer an April 27, 1997 letter from the Family Chiropractic Health Center by Peter Curcio, DC; an October 1, 1996 letter from Nassau Radiologic Group, PC by William J. Wortman, MD; a September 6, 1996 letter from N.Y. Craniofacial Pain Management by Dr. Martin Bassuer which the Court observes is marked dictated but not read ; a November 19, 1996 letter from Mitchell Goldstein, MD. In light of the fact that the foregoing reports are not in admissible form, same will not -7-
be considered herein (see Grass0 v. Angerami, 79 NY2d 813,580 NYS2d 178,588 NE2d 76). The plaintiffs submit an affidavit from Peter M. Swerz, a chiropractor. In substance, this affidavit incorporates an August 5, 1998 letter of Dr. Swerz and an October 19, 2000 letter from Peter M. Swerz which is improperly affirmed (see CPLR 2106). Initially, the Court observes that Dr. Swerz sets forth a review of certain unsworn medical reports/tests as to his initial examination of theplaintiff on December 30,1996 that are not annexed in admissible form to Dr. Swerz s affidavit (see Harney v. Tombstone Pizza Corp., _AD2d_, 719 NYSZd, Second Dept., 2001). In the initial examination, as set forth in Dr. Swerz s affirmation, Dr. Swerz fails to set forth the significance of the tests and relate these tests to the plaintiffs injuries (see Carroll v. Jennings, 264 AD2d 494,694 NYS2d 458, Second Dept., 1999). The Court further notes that Dr. Swerz s affidavit fails to adequately explain the gap in treatment between the plaintiff Mehmet Cambudak s cessation in treatment in 1997 and Dr. Swerz s subsequent re-examination on July 21,200O (see Grossman v. Wright, 268 AD2d 79, 707 NYS2d 233, Second Dept., 2000). The failure of the plaintiffs insurance carrier to provide insurance benefits for the plaintiffs treatment does not adequately explain the gap in treatment (see Villalta v. Schechter, _ADZd_, 710 NYS2d 87, Second Dept., 2000). A review of the plaintiffs deposition transcript and affidavit in substance sets forth subjective complaints of pain which is insufficient to establish a serious injury pursuant to the Insurance Law(see Rivera v. Pula, 173 AD2d 1000, 569 NYS2d 517, Third Dept., 1991). The Court further observes that although the plaintiff Mehmet Cambudak contends that he was unable to perform certain work-related duties at his employment, the plaintiff has failed to submit any medical proof in admissible form connecting any alleged work limitation to the alleged accident in issue (see Beckett v. Conte, 176 AD2d 774,575 NYS2d 102, Second Dept., 1991). Based on the foregoing, the defendants Town of Oyster Bay and James T. McKinley Ill s application for an Order, pursuant to CPLR 3212, granting summary judgment in favor of the aforesaid defendants and dismissing the plaintiffs complaint upon the ground that the personal injuries allegedly sustained by plaintiff Mehmet Cambudak do not constitute a serious injury within the meaning of New York Insurance Law 5102(d); and the defendants Elias Koudsi and Beryl B. Koudsi s cross-motion for an Order dismissing the complaint of plaintiffs in Action No. 2 and all cross-claims and granting summary judgment to the defendants Koudsi in Action No. 2 are both respectively aranted. SO ORDERED. x x x J.S.C. -8-