This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when her vehicle was struck by a vehicle owned and leased by the defendant Enterprise, and operated by the defendant Driver. The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, a rep said that the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing spine injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4, 2009 until September 29, 2009 and intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations in a company, as an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29, 2009, from December 5, 2009 until December 9, 2009, and from December 30, 2009 until January 6, 2010.
A source said that, the NYC defendant Enterprise now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC § 30106 (the Graves Amendment). Defendant Enterprise submits a faxed copy of an affidavit of its employee, that lacks an original signature. The Court considers said affidavit despite its defect. The said employee indicates in his affidavit that he is a regional risk supervisor for defendant Enterprise, and that the day before the subject accident, defendant Enterprise rented its vehicle, a Chevy vehicle, to defendant Driver who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that defendant Driver was not employed by defendant Enterprise on the date of the accident.
On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law. The Act is now codified at 49 USC § 30106. The section is entitled “Rented or leased motor vehicle safety and responsibility”. “The section applies to all actions commenced on or after August 10, 2005, and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law § 388”.
A rep said that defendant Enterprise established that it is an “owner (or an affiliate of the owner) engaged in the trade or business of renting or leasing motor vehicles. In addition, the employee demonstrated through his affidavit that the plaintiff’s allegations of failing to maintain the vehicle in a proper state of repair and respondent superior are unfounded such that there is no negligence or wrongdoing on the part of defendant Enterprise. Moreover, the plaintiff’s vicarious liability claims pursuant to Vehicle and Traffic Law § 388 as against ELRAC are barred by 49 USC § 30106. The plaintiff failed to raise any opposition warranting the denial of defendant Enterprise’s request. Therefore, defendant Enterprise’s is entitled to dismissal of the complaint as against it.
A Lawyer said that, the defendant Driver seeks summary judgment in his favor dismissing the complaint as against him on the ground that the plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.
The issue n this case is whether plaintiff failed to establish serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.
The Court said that, on a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102 (d). The defendant may satisfy this burden by submitting the plaintiff’s own deposition testimony and the affirmed medical report of the defendant’s own examining physician. The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers.
Insurance Law § 5102 (d) defines “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.”
“It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified, compared to the norms, and based upon identified objective tests”. “These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment”. The defendants must submit admissible medical evidence demonstrating that the plaintiff’s range of motion was not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height.
For a Queens plaintiff to recover under the “permanent loss of use” category, he or she must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories, the plaintiff must provide either objective evidence of the limitation or loss of range of motion and its duration based on findings from an examination contemporaneous to the accident and a recent examination or the plaintiff must provide a sufficient description of the “qualitative nature” of his or her limitations, with an objective basis, correlating the plaintiff’s limitations to the normal function, purpose and use of the body part.
The defendant Driver relies on the affirmed medical reports of the defendants’ examining orthopedic surgeon, and examining neurologist. The report dated November 9, 2010 indicates that he examined the plaintiff on said date and performed range of motion testing of her cervical spine, right and left shoulders, right and left elbows, right and left wrist and hand, lumbosacral spine, and right and left ankle and foot using a goniometer. The doctor’s findings with respect to the cervical spine injury revealed decreased bilateral rotation of 30 degrees (normal 80 degrees), flexion of 10 degrees (normal 50 degrees), and extension of 10 degrees (normal 60 degrees), with no evidence of paracervical muscle spasm or atrophy. His findings regarding range of motion of the plaintiff’s lumbosacral spine injury revealed decreased flexion of 30 degrees (normal 60 degrees) limited by pain, and normal extension, bilateral lateral bending and bilateral rotation but with complaints of pain at the extremes of motion. The doctor stated that the plaintiff has evidence of symptom magnification based on her complaints of pain in her lumbar spine when he lightly touched the skin overlying her paralumbar muscles, her complaints of pain in her lumbar spine when he rotated her body at the hips while maintaining her lumbar spine completely stable, and her complaints of pain radiating from her head to her lower back when he tapped the top of her head. The doctor noted that there was no paralumbar muscle spasm or loss of normal lumbar lordosis and that straight leg raising was bilaterally full and pain free. In conclusion, the doctor opined that the plaintiff showed evidence of a resolved cervical hyperextension injury, resolved left foot contusion, resolved right shoulder strain, and resolved low back strain. He also opined that she had evidence of symptom magnification and noted that the range of motion examination is a subjective test under the voluntary control of the individual being tested. The doctor concluded that the spinal injuries appeared to be causally related to the subject accident, that the plaintiff had no pre-existing conditions affecting her recovery, and that she was presently able to perform the duties of her occupation.
The doctor indicated in his report that he examined the plaintiff on November 8, 2010 and found a normal neurological examination. However, he reported that the plaintiff’s spinal range of motion testing with a goniometer revealed lumbar flexion to 20 degrees (60 to 90 degrees normal), cervical flexion to 20 degrees (50 to 60 degrees normal), cervical extension to 20 degrees (40 to 60 degrees normal), and cervical lateral flexion to the left was 20 degrees (45 degrees normal) and cervical lateral flexion to the right was 25 degrees (45 degrees normal). The doctor also reported that the plaintiff needed effort to rotate to the left and rotated to the right 20 out of the maximum 80 degrees. He concluded his report by diagnosing cervical sprain injury superimposed upon cervical degenerative disc disease, ossified ligaments and congenitally narrowed spinal canal, and subjective headaches, “cervically mediated from spondylosis and sprain/strain.” He opined that there was no evidence of cervical radiculopathy, lumbosacral radiculopathy, or central or peripheral nervous system dysfunction and that the plaintiff’s reduced range of motion was secondary to spondylitic disease and diminished effort. He further opined that there was no causally related neurologic injury or impairment but that the cervical sprain appeared to be causally related to the subject accident, superimposed upon pre-existing degenerative changes, and that her lumbar condition appeared to be an entirely pre-existing condition.
Here, the Court held that the defendant Driver failed to meet his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The doctor reported the existence of significant limitations in the plaintiff’s cervical and lumbosacral spine range of motion more than a year after the subject. Although he stated that the plaintiff had evidence of symptom magnification and that range of motion testing is subjective, he failed to substantiate those conclusions with objective medical evidence. In addition, it appears that the doctor also found significant limitations in range of motion of the plaintiff’s cervical and lumbar spine, the extent of which is difficult to determine. He reported ranges of motion for the plaintiff’s lumbar flexion, cervical flexion, and cervical extension that were expressed in certain or definitive numerical degrees but he failed to provide the corresponding certain or definitive normal values and instead gave ranges or spectrums of degrees spanning 10 to 30 degrees for his normal standards of comparison. When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate. Furthermore, both physicians failed to address the plaintiff’s claim, as set forth in her bill of particulars, that she sustained a medically-determined personal injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident. Neither physician related his findings to this category of serious injury for the period of time immediately following the subject accident. Inasmuch as the defendant Driver failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff’s papers submitted in opposition to his motion for summary judgment were sufficient to raise a triable issue of fact.