Docket No. 14-5960, Mot. Seq. No. 002-MG;CASEDISP.

2017 NY Slip Op 30671(U)


Supreme Court, Suffolk County.

September 15, 2016.

April 5, 2017.

Attorney(s) appearing for the Case

LAW OFFICES OF JOSEPH B. FRUCHTER, 140 Fell Court, Suite 301, Hauppauge, New York 11788, Attorney for Plaintiff.

RICHARD T. LAU & ASSOCIATES, 300 Jericho Quadrangle, Suite 260, Jericho, New York 11753-9040, Attorney for Defendant.


It is,

ORDERED that the motion by defendant Michael Fredericks for summary judgment dismissing plaintiff's complaint is granted.

Plaintiff Jeannixsa Serrano commenced this action to recover damages for injuries she allegedly sustained as the result of a motor vehicle accident that occurred at the intersection of Route 27 and North Monroe Avenue in the Town of Babylon on March 20, 2011. It is alleged that the accident occurred when the vehicle operated and owned by defendant Michael Fredericks struck the rear of plaintiff's vehicle while it was stopped at red traffic light in the left lane of westbound Route 27. By her bill of particulars, plaintiff alleges, among other things, to have sustained cervical trauma and pain, right shoulder pain and trauma, thoracolumboscral pain and trauma, and headaches as a result of the subject accident.

Defendant now moves for summary judgment on the basis that plaintiff's alleged injuries fail to meet the serious injury threshold requirement of Section 5102(d) of the Insurance Law. In support of the motion, defendant submits copies of the pleadings, plaintiff's deposition transcript, uncertified copies of plaintiff's medical records regarding the injuries at issue, and the sworn medical report of Dr. Gary Kelman. At defendant's request, Dr. Kelman conducted an independent orthopedic examination of plaintiff on January 25, 2016. Plaintiff opposes the motion on the grounds that defendant failed to meet his prima facie burden to show that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and that the evidence submitted in opposition to the motion demonstrates that she sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits her own affidavit and the affidavit of Dr. Beth Cohen.

It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v. Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984], aff'd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).

Insurance Law § 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; 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 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."

A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiff's deposition testimony and medical reports and records prepared by the plaintiff's own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).

Here, defendant through the submission of plaintiff's deposition transcript and competent medical evidence established a prima face case that plaintiff did not sustain an injury within the meaning of § 5102(d) of the Insurance Law as a result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Torres v Ozel, 92 A.D.3d 770, 938 N.Y.S.2d 469 [2d Dept 2012]; Wunderlich v Bhuiyan, 99 A.D.3d 795, 951 N.Y.S.2d 885 [2d Dept 2007]). Defendant's examining orthopedist, Dr. Kelman, used a goniometer to test plaintiff's ranges of motion in her spine and shoulders, set forth his specific findings, and compared those findings to the normal ranges (see Martin v Portexit Corp., 98 A.D.3d 63, 948 N.Y.S.2d 21 [1st Dept 2012]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]; DeSulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]). Dr. Kelman states in his medical report that an examination of plaintiff revealed she has full range of motion in her spine and shoulders, that there was no paraspinal tenderness, muscle spasm, or trapezii tenderness upon palpation of the paraspinal muscles, that there was no tenderness to palpation of the right or left shoulder, that there was no effusion or muscle atrophy observed, and that the impingement sign and O'Brien's test were negative. Dr. Kelman further states that plaintiff ambulates without a limp or antalgic gait, that her muscle strength is 5/5, and that her sensory responses were intact throughout her upper and lower extremities. Dr. Kelman opines that the strains plaintiff sustained to her spine and shoulders as a result of the subject accident have resolved, and that she does not have any objective evidence of an orthopedic disability.

Moreover, plaintiff's own medical records from Good Samaritan Hospital's emergency room demonstrate that plaintiff did not sustain a serious injury (see Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Estaba v Quow, 74 A.D.3d 734, 902 N.Y.S.2d 155 [2d Dept 2010]). Significantly, the records state that plaintiff did not have any back pain, weakness, numbness, or other complaints of pain, besides the complaint of pain to the back of her head, and that her examination was without any acute findings, except for an incidental finding of pregnancy. Indeed, plaintiff stated to the triage nurse that following the accident she was able to "get out of her car, walk without difficulty, and that she sat down to wait for the ambulance." While these records may not have been certified, a defendant is allowed to rely upon the uncertified and unsworn medical reports of an injured plaintiff to establish the lack of a serious injury by a plaintiff (see Elshaarawy v U-Haul Co. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]; Itkin v Devlin, 286 A.D.2d 477, 729 N.Y.S.2d 537 [2d Dept 2001]).

Furthermore, plaintiff's deposition testimony demonstrates that "substantially all" of her daily activities were not curtailed (see e.g. Karpinos v Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383 [2d Dept 2011]; Kolodziej v Savarese. 88 A.D.3d 851, 931 N.Y.S.2d 509 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]). Plaintiff at an examination before trial testified that at the time of the subject accident she was employed as a pharmacist assistant at Target Pharmacy, working approximately 30 hours per week, that she missed approximately one day from her employment as a pharmacist assistant, and that her duties were modified to the extent that she no longer assisted with guest services and lifting boxes due to the pain in her back, but her duties as a pharmacist assistant remained the same. Plaintiff also testified that while at the emergency room following the subject accident she was informed that she was pregnant and needed to immediately follow-up with an obstetrician-gynecologist. Plaintiff testified that she did not continue physical therapy or any treatment once her No-Fault benefits were terminated after she received physical therapy for about six months, because she did not have private medical insurance. Plaintiff further testified that she continues to be employed with Target Pharmacy, working approximately 32 hours per week, and, that, although she began her studies at Suffolk County Community College in Brentwood in 2005, she was not enrolled at the time of the accident, but after the accident she re-enrolled in classes as a full-time student.

Therefore, defendants have shifted the burden to plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v Perez. 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is `significant' or `consequential' (i.e. important . . .), relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part. (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).

In opposition, plaintiff failed to raise a triable issue of fact to refute defendant's prima facie showing that she did not sustain a serious injury as a result of the accident (see John v Linden, 124 A.D.3d 598, 1 N.Y.S.3d 274 [2d Dept 2015]; Cherry v Jones, 62 A.D.3d 742, 879 N.Y.S.2d 170 [2d Dept 2009]; Tudisco v James, 28 A.D.3d 536, 813 N.Y.S.2d 482 [2d Dept 2006]). A plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is within the serious injury threshold of Insurance Law § 5102(d), but also that the injury was casually related to the subject accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see Valentin v Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [1st Dept 2009]). Plaintiff has proffered insufficient medical evidence to demonstrate that her alleged injuries meet the serious injury threshold requirement of the Insurance Law (see Licari v Elliott, supra; Ali v Khan, 50 A.D.3d 454, 857 N.Y.S.2d 71 [1st Dept 2008]). Plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact as to whether she sustained a serious injury, since there is no objective medical evidence supporting the allegation of significant joint restriction in her spine or shoulders that is causally related to the subject accident (see Ferber v Madorran, 60 A.D.3d 725, 875 N.Y.S.2d 518 [2d Dept 2008]; Smeja v Fuentes, 54 A.D.3d 326, 863 N.Y.S.2d 689 [2d Dept 2008]; Shvartsman v Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600 [2d Dept 2008]).

In addition, plaintiff has submitted the affidavit of her treating chiropractor, Beth Cohen, who states that "there is no question that plaintiff's injuries are completely and solely causally related to the accident of March 20, 2011," that plaintiff sustained significant range of motion limitations to her spine due to the accident, and that despite intensive treatment using different modalities, plaintiff did not have a full recovery and continued to have restrictions in her range of motion, as well as, residual inflammatory pathology to the muscular and supportive structures of her cervical and thoracic region. Dr. Cohen further states that as a result of the injuries plaintiff sustained to her spine during the subject accident, plaintiff has been rendered partially, permanently disabled, and will require continued care in the future. Despite plaintiff having submitted the affidavit of Dr. Cohen, she failed to submit any objective admissible medical proof demonstrating the existence of such limitations based upon a recent examination (see Estrella v GEICO Ins. Co., 102 A.D.3d 730, 959 N.Y.S.2d 210 [2d Dept 2013]; Calabro v Petersen, 82 A.D.3d 1030, 918 N.Y.S.2d 900 [2d Dept 2011]; Nesci v Romanelli, 74 A.D.3d 765, 902 N.Y.S.2d 172 [2d Dept 2010]; Leeber v Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614 [2d Dept 2008]). Of significance, Dr. Cohen's affidavit does not actually state the exact date she began treating plaintiff or when her treatment of plaintiff terminated, thus, leaving the Court to speculate as to whether plaintiff has even presented evidence of a contemporaneous examination. "The absence of a contemporaneous medical report invites speculation as to causation" (Griffiths v Munoz, 98 A.D.3d 997, 999, 950 N.Y.S.2d 787 [2d Dept 2012]). Instead, Dr. Cohen in her affidavit perfunctory states that "I treated plaintiff for over one year for injuries sustained in an automobile accident occurring on March 20, 2011. Following the accident, [plaintiff] presented herself for an examination."

More importantly, the only quantifiable range of motion testing of plaintiff's spine by Dr. Cohen that she reports in her affidavit occurred on May 5, 2011, approximately two months after the subject accident, which shows plaintiff had decreased range of motion in her spine. Indeed, Dr. Cohen's entire affidavit, including her findings and conclusions, appears to be based upon that one testing date of May 5, 2011. As a result, Dr. Cohen is unable to substantiate the extent or degree of the limitations to plaintiff's spine caused by the alleged injury and its duration (see Wong v Cruz, 140 A.D.3d 860, 32 N.Y.S.3d 641 [2d Dept 2016]; Caliendo v Ellington, 104 A.D.3d 635, 960 N.Y.S.2d 471 [2d Dept 2013]; Bacon v Bostany, 104 A.D.3d 625, 960 N.Y.S.2d 190 [2d Dept 2013]). Moreover, Dr. Cohen's report fails to address the fact that during her treatment of plaintiff, plaintiff was pregnant, and how plaintiff's pregnancy may have affected her range of motion limitations or the treatment she received (see La Rue v Tucker, 247 A.D.2d 702, 668 N.Y.S.2d 745 [3d Dept 1988]; see also Jackson v Willis, 2000 NY Misc. LEXIS 184 [2000]).

Finally, plaintiff failed to produce any objective medical evidence to substantiate the existence of an injury which limited her usual and customary daily activities for at least 90 of the first 180 days immediately following the subject accident (see Catalano v Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759 [2d Dept 2010]; Haber v Ullah, 69 A.D.3d 796, 892 N.Y.S.2d 531 [2d Dept 2010]). Accordingly, defendant's motion for summary judgment dismissing the complaint is granted.


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