Articles Posted in Suffolk County

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In this case, plaintiffs filed an action to recover damages against the defendants for the injuries allegedly sustained by the plaintiff in a car accident on February 16, 2009, on Motor Parkway at or near its intersection with Express Drive North, County of Suffolk, State of New York, when Plaintiff was operating his vehicle and it was struck by the vehicle owned by defendants.

Plaintiff alleged that he sustained injuries consisting of, inter alia, lumbar disc herniation at L4-5 impinging on the anterior aspect of the spinal canal and the nerve roots bilaterally; lumbar sprain and strain with muscle spasms, severe pain, tenderness, swelling, and permanent and significant restriction and limitation of motion; posterior disc herniation at C5-6 and C6-7 abutting the anterior aspect of the spinal cord; possible cervical radiculopathy; cervical sprain, strain, with muscle spasms, severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion; right knee sprain, strain, contusion; peripatellar bursitis; severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion.

The defendants sought summary judgment dismissing the complaint on the basis that the injuries claimed failed to meet the threshold imposed by Insurance Law § 5102 (d).

Jurisprudence dictates that It is for the court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action.”

Defendants submitted, inter alia, the sworn report their orthopedist; the sworn report of their neurologist; and the sworn report of Plaintiff’s orthopedist.

Plaintiff’s orthopedist reported, inter alia, that the range of motion examination is a subjective test under the voluntary control of the individual being tested, thus raising credibility issues which are to be determined by the trier of fact. The court’s function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment.

Plaintiff’s orthopedist also submitted admissible evidence to demonstrate findings of a herniated lumbar disc and a deficit in the lumbar flexion range of motion. While such injuries may constitute evidence of serious injury based upon objective findings, the defendants’ expert does not comment on the cause of the cervical disc herniations and does not rule out that the cervical herniated discs were not caused by the subject accident.

Defendant’s orthopedist reported, inter alia, that the plaintiff did not show clinical findings consistent with radiculopathy on the date of the examination, thus raising factual issue with the EMG findings and determinations made relative to that test. He also does not believe that further intervention is needed and that the plaintiff has sustained full and maximal recovery.
Defendant’s orthopedist does not address the issue of proximate cause of the injuries and does not rule out that the herniated discs were not caused by the subject accident, nor does he dispute that the plaintiff sustained such injuries. Thus, Defendant’s orthopedist has not established prima facie that the plaintiff did not sustain a serious injury based upon the diagnosis of both cervical and lumbar herniated discs. The two opposing orthopedist have set forth differing normal range of motion values for lumbar extension and lateral rotation, and for cervical flexion and rotation. Defendant’s orthopedist did not state a measurement for cervical rotation. Thus, this Court is left to speculate as to what the normal ranges of motion are, and what the range of motion for cervical rotation finding was upon Defendant’s orthopedist examination. Defendant’s orthopedist has also failed to set forth the objective method employed to obtain the range of motion measurements he reported for the plaintiff’s cervical and lumbar spine, such as the goniometer, inclinometer or arthroidal protractor, leaving it to the court to speculate as to how he determined such ranges of motions when examining the plaintiff.

Defendant’s neurologist reported, inter alia, that Nassau Plaintiff presents with ongoing subjective post-traumatic symptoms of intermittent pain in his posterior neck and low back regions.

Additionally, the defendants’ examining physicians did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering defendants physician’s affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident, and defendants’ experts do not comment on the same.

Based upon the foregoing, the defendants have not established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance law § 5102 (d) or 5104. The court had no other recourse but to deny the motion.
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A fifty-three year old Nassau medical secretary had been working at a hospital for a number of years when on December 29, 1967 she slipped on a door sill. The medical secretary fractured her left hip. A nail and a pin were used to repair the medical secretary’s hip. She was confined to bed at a nursing home for six months. The medical secretary filed a claim for permanent total disability benefits. After her surgery, a neurologist examined the medical secretary and found that she was also suffering from a spinal degenerative process and that around thirty to fifty per cent of her condition was related to the degenerative disease instead of to the accident.

For this cause, the employer refused to pay the permanent total disability benefits after six months. The employer claims to have paid for her medical care until maximum medical improvement had been reached. After the sixth month, the total disability of the medical secretary was no longer due to the accident at work but it was due to the pr-existing spinal disease.

At the trial, the Suffolk doctor to whom the medical secretary was assigned testified that the medical secretary had worked for him for years. And he had been largely satisfied with the medical secretary’s work performance. However, he had noticed that the medical secretary’s health has been consistently and continuously deteriorating. She had lost a lot of weight and appeared severely malnourished. She had difficulty walking and often, she had to brace herself because she was unsteady on her feet. The doctor testified that had the medical secretary not injured herself, he would have asked her to resign. Her work has deteriorated just before the accident. If the medical secretary applied for a job on the day of his accident, he would not have hired her. He thought that the woman’s severe malnutrition could also be the reason why a slip resulted in a severe fracture.

The judge of Industrial Claims was sympathetic with the medical secretary but he denied her claim. He did not think that the accident aggravated the medical secretary’s underlying psychological and neurological disease. He also found that the medical secretary’s disabilities were not aggravated by the injury she sustained at the workplace. Despite this, the judge found that the woman was now completely unemployable.

The only question on appeal is whether or not the accident and the resulting disability to the medical secretary are compensable.

The Court finds that her immediate supervisor knew that the medical secretary was already disabled even before her accident and while she was working on the job. The immediate supervisor was a medical doctor and he observed that the medical secretary’s health was already failing. She could barely move and walked very slowly; he noted that her behavior was becoming more and more eccentric and if he even testified that if she had not been injured, she would have been terminated because of her disability. Her disability was obvious for a long time. After the accident the medical secretary was no longer able to work. It is clear that her disability was aggravated by the injury she sustained at the workplace. The mental and emotional collapse which accompanied the injury is also a disability. At the time of her injury her work was passable-it was a downgrade from the good and excellent work she used to be capable of but at the time of her spinal injury, her work was still acceptable. The Court found that the Judge of Industrial Claims erred when he did not find her disability compensable under the Special Disability Fund.

The order of the Judge of Industrial Claims is reversed and remanded.
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Claimant was employed as a housekeeper at a Mental Health Center. She held the job for approximately three years until she was injured on 27 January 1993. While at work and engaged in the duties of her job on the premises of her employer, claimant suffered a knee injury. She squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. It turns out that she sustained a tear of the lateral meniscus in that knee. Thereafter, the Judge of Compensation Claims ruled that the injury was idiopathic and not compensable because the claimant failed to prove that her employment involved an exertion greater than that performed during her daily life. The Suffolk Judge issued a worker’s compensation order denying compensation. According to the order, the claimant did not fall, twist, lose her balance or experience any other unusual movement, and the claimant’s injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed. The claimant then filed an appeal from the said order.
Under the law, for an injury to be compensable it must arise out of one’s employment and must occur in the course and scope of that employment. Here, the employer and carrier have conceded that the spinal injury to the claimant occurred in the course and scope of her employment, while performing her job duties on the employer’s premises. The question now is whether the injury arose out of the claimant’s employment.

As a rule, an unexpected injury sustained during the ordinary performance of one’s duties in the usual manner is a compensable accident and it is not necessary for the claimant to demonstrate that there was a slip and fall accident or other mishap. The term “accident” includes an internal failure such as a ruptured disc or a snapped knee cap. Here, the court finds that it was sufficient for the claimant to prove that her spinal injury occurred in the period of her employment and at a place where she would reasonably be, while fulfilling her duties, to establish that her accident arose out of, and occurred in the course and scope of her employment,. The “arising out of” prong of this test is satisfied by evidence that the injury originated in some work connected with the employment, that is, the claimant must show that his injury can be attributed to some event or circumstances connected with his work. Based on the facts and evidence presented, the claimant has done this. Staten Island Claimant produced evidence that she was squatting to pick up a bag of laundry which is one of her job duties.

On another note, when the employer and carrier assert that an injury is the result of a personal risk such as an idiopathic preexisting condition, they must carry the burden of proving the existence of such a condition. Only if the employer and carrier have satisfied that burden of proof is it appropriate for the JCC to hold the claimant to the more stringent standard for compensability which was erroneously applied by the JCC, to establish that the employment exposed the claimant to a risk of injury greater than that the employee would normally encounter in non-employment life. However, if the employee has no prior weakness or disease, any exertion connected with employment and causally connected with the injury as a medical fact is adequate to satisfy the legal test of causation. Here, there was no evidence to support the conclusion that the claimant’s injury was the result of a preexisting condition. There was only one medical expert, presented before the court, who offered evidence relevant to this issue. According to the expert, some older women, over 45 or 50, in express and direct contrast to the 28 year old claimant, may experience meniscal tears simply upon squatting, however, he specifically refuted any suggestion of an abnormality in the claimant’s knee or any knowledge of a preexisting injury. Thus, in the absence of any evidence which could support a finding that there was a preexisting abnormality, the court concludes that the Judge of Compensation Claims erred in ruling that this injury was not compensable.

In view of the foregoing, the court finds that the order must be reversed and remanded for further proceedings. The Judge of Compensation Claims applied the wrong test for determining compensability.
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This action was commenced to recover for personal injuries allegedly sustained by a man as a result of a motor vehicle accident that occurred on or about October 20, 2004. On that date, the complainant man was riding his bicycle when a taxi cab owned and operated by the accused allegedly hit the rear tire of the complainant man’s bicycle.

The Suffolk driver and the taxi company have moved for summary judgment, arguing that the accused man has not met the serious injury threshold as set forth in Insurance Law. In support thereof, the accused driver and taxi company have submitted, among other things, an affirmation of the counsel, the complainant man’s verified bill of particulars, the complainant’s deposition testimony, a report from a radiologist who reviewed an MRI examination of the man, and a report from a neurologist who conducted an independent medical examination of the complainant man.

The complainant man served a verified bill of particulars which alleged that he suffered numerous personal injuries as a result of the. The spine injury claimed by the man was to be of a permanent nature.

The complainant man was physically examined by a neurologist designated by the accused parties. The neurologist found, as indicated in his sworn report of event date, that the woman exhibited no signs of any lateralizing neurological deficits. Further, the Staten island neurologist found no neurologic residual or permanency based upon his examination. He concluded that any head trauma and spinal injury had resolved, and that the man was capable of performing normal activities of daily living, including gainful employment activities, without restrictions.

In addition, on or about August 31, 2006, another doctor reviewed the MRI film of the man’s cervical spine performed on December 8, 2004, approximately eight weeks after the accident, and found evidence of spine injury. However, she opined that such degeneration could not have occurred in less than six months time. She also found bulging at the spine, but stated that the bulging was related to loose ligaments and was temporary in origin. Based upon the foregoing findings, as well as the assertion that the complainant man missed only two days of work as a result of the accident, the driver and the taxi company argue that the man has not satisfied the serious injury threshold set forth in Insurance Law. The accused parties contend that the complainant’s alleged soft tissue injuries do not constitute a serious injury.

In opposition to the application, the man has provided recent medical evidence of his limitations. Since the accident, he has been regularly treated by a doctor who performed a complete re-examination of him on August 7, 2007, and that he has also received chiropractic care, physical therapy, and pain management. He submitted an affirmation of a doctor, dated October 9, 2007, wherein he opines that he sustained ruptured disc, and that based upon the examination of August 7, 2007, the complainant man has severely restricted cervical range of motion of a permanent nature. The doctor attributes the foregoing trauma to the injuries that the man suffered in the accident.

In addition, the complainant man has submitted an MRI report of a radiologist dated December 9, 2004, who interpreted a December 8, 2004 MRI of the man’s cervical spine. He found that the complainant man suffered spinal injury with flattening of the left, ventral margin of the cod and left spine. By affirmation dated September 21, 2007, the radiologist indicates that if called as a witness, he would testify in conformance with his report. The complainant man argues that the foregoing submissions establish that he has suffered a serious injury, in that the medical records and reports, which are based upon objective tests and diagnostic studies, show that the man has sustained a significant limitation to his cervical spine as a direct result of the injuries suffered in the subject accident.

New York’s No-Fault Insurance Law precludes recovery for any noneconomic loss, except in the case of serious injury, or for basic economic loss arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries. The Legislature also intended that the issue of whether a complainant sustained a serious injury could be determined by the courts as a matter of law on a motion for summary judgment.

Insurance Law 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 clays during the one hundred eighty days immediately following the occurrence of the injury or impairment.
To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a complainant must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the complainant’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. Whether a limitation of use or function is significant or consequential 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. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the complainant man.

An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. Once an accused meets this burden, the complainant must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

The Court finds that the driver and the taxi company’s submission were sufficient to establish that the complainant man did not sustain a serious injury as a result of the accident. The burden, therefore, shifted to the complainant to raise a triable issue of fact. In opposition, the complainant presented competent evidence, including the affirmation of another doctor dated October 9, 2007, substantiating his claim that his injuries caused a significant limitation in the use of his cervical spine. The Court finds that such submission was sufficient to rebut the driver and the taxi company’s legitimate showing of no serious injury. Accordingly, the motion by the accused parties for summary judgment dismissing the man’s complaint on the grounds that as a complainant, he failed to sustain a serious injury as that term is defined by Insurance Law is denied.
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The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

The investigator then met with her DCF supervisor in Miami because she wanted to share with him her concerns about the child. They agreed that the Miami DCF office could not place a hold on the child because the Miami office lacked jurisdiction as the child was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, the investigator received a phone call from a social worker at MCH. The investigator informed the social worker that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to the investigator’s testimony, the social worker informed her that a hold was appropriate at that time because of all of the concerns regarding the child’s safety. The investigator testified that she shared these concerns with the social worker.

The investigator testified that the social worker then consulted with her supervisor at MCH, and both the social worker and her supervisor called the investigator again on December 12, 2000, which was the second phone call that day from the social worker to the investigator. The investigator testified that the social worker and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator who would be following up on the case so that they could speak with that person. Ten minutes later, the investigator called the DCF office and was informed that before the case could be reassigned to another investigator, she would have to update the computer with all of the information concerning the case. While updating the computer, she received a third phone call from the social worker, who again sounded concerned. She testified that she had nothing new to tell the social worker because she was still in the process of updating the computer and that no investigator had been assigned to the case at that point. After completing the update, she called DCF in Lake Worth, informing them that the update had been completed, and she was given the name of the protective investigator in Lake Worth assigned to do the OTI. The investigator testified that she told the Lake Worth office that the case was urgent because there were many concerns about the mother’s ability to care for the child. She also testified that she then called the social worker and informed her that the case had been reassigned and gave her the name of the DCF protective investigator.

Thereafter, a DCF attorney advised the investigator that DCF must contact the father of the child’s half-sister in New Jersey, run criminal checks on the mother and boyfriend, staff the case with the Child Protection Team (CPT), and complete a home study before the child is sent home. The investigator testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. The DCF investigator in the Lake Worth office testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.

As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. The DCF supervisor testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. The CAT head also testified that he was not serving in any official capacity as part of a CPT. A DCF’s own retained expert testified that there was no CPT or equivalent review of the child’s medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 11, 2001. The DCF expert agreed that a CPT review of the child’s available charts and medical history would have shown that the child more likely than not was the victim of abusively-inflicted injuries. Furthermore, the expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.

As for the home study, which is the review of the child’s living situation, the DCF investigator testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. She did go to the mother’s apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home study, she would have spoken with people who were allegedly responsible for watching the child and most certainly the live-in boyfriend, but she never did.

Despite DCF’s failure to contact the father, to staff the case with a CPT team, and to conduct a home study, the child was released from the hospital on December 15, 2000. It is undisputed that on January 11, 2001, the mother’s boyfriend physically abused the child and caused her permanent and serious injuries. She sustained traumatic brain and spinal injury. Her brain damage prevents her from swallowing properly, and she has weakness in all of her extremities as well as a significant degree of cognitive delay. Furthermore, it is improbable that she will ever be able to walk independently, she will most likely need a feeding tube, and in one doctor’s opinion, she will never have the ability to have a meaningful two-way conversation due to the impact on her speech. The child also takes numerous medications and requires speech, occupational, and physical therapy five days a week. Her injuries will require her dependency on caregivers for the rest of her life.

The couple who adopted the child near the end of 2001, sued for negligence, alleging, that DCF negligently failed to adequately and reasonably investigate the matter involving the child and that DCF’s negligence was the proximate cause of the injuries sustained by the child. The jury reached a verdict for the couple and found DCF 75% responsible for causing the child’s catastrophic injuries, MCH 20% responsible, and the mother 5% responsible. Final judgment was entered against DCF for $26,849,849.06.

On appeal, DCF argues that the trial court erred in denying its motion for directed verdict because the couple failed to show that the alleged negligence of DCF was the legal cause of the injuries sustained by the child, and that any finding of causation could be based only on a stacking of inferences. According to DCF, the inferences that would need to be stacked to reach a finding of causation are that had DCF completed its investigations, DCF would have uncovered the boyfriend’s abuse of the child, that the discovery of abuse would have led to the child’s removal from the mother’s custody, and thus, prevented the abuse perpetrated by the boyfriend on January 11, 2001.

Concerning DCF’s argument that the complainants failed to establish that the alleged negligence was the legal or proximate cause of the child’s injuries, the issue of proximate cause is generally a question of fact concerned with whether and to what extent the accused party’s conduct foreseeably and substantially caused the specific injury that actually occurred.
After reviewing the record in a light most favorable to the complainant couple, the case was properly submitted to the jury as there is competent substantial evidence in the record to support a finding that DCF’s failure to adequately and reasonably investigate the matters involving the child foreseeably and substantially caused the injuries sustained by her.

Under the facts of the case, the jury could conclude that DCF’s inaction unreasonably exposed the child to physical abuse leading to traumatic brain and spinal injury requiring dependency on caregivers for the rest of her life. Furthermore, The DCF expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse. The evidence could lead a jury to reasonably conclude that it was foreseeable to DCF that if the child was released to her mother without further investigation, she could sustain more abuse.

The trial court did not err in denying DCF’s motion for directed verdict. The complainant couple made a legitimate case on the issue of legal causation, which issue was properly submitted to the jury. As the Supreme Court declared DCF is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime. The primary duty of DCF is to immediately prevent any further harm to the child and that the relationship established between DCF and the abused child is a very special one.
Children are supposed to be protected from all forms of harm.
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A man was born with a chromosomal condition and began receiving medical assistance from the State’s social services. He subsequently suffered an injury during his corrective spinal injury surgery, which resulted in his partial paralysis. A medical malpractice action was commenced by the man’s sister on his behalf against the hospital and several doctors where the surgery was performed. The man continued to receive medical assistance from the State’s social services and they filed a lien for recovery from any award made in the medical malpractice action, for such assistance for which the third-party offender was found to be liable.

Consequently, the parties to the medical malpractice action reached a settlement. Based upon the proposed settlement, the state’s social service agreed to accept the sum of $102,423.56 to settle the lien. The amount necessary to settle the medical claim was premised on a letter from the social services stating that it would accept that amount on the lien against the proceeds of the personal injury lawsuit, based on the proposed settlement of the lawsuit for the sum of $1,600,000. The letter further provided that the state’s social services reserved the right to collect any unpaid balance of the lien if the man reached a further settlement that provided additional proceeds or if he should receive funds from another source such as the lottery.
The settlement of the medical malpractice action was approved by the Supreme Court with the direction that payment made to the state’s social service in the amount of $102,423.56, in full satisfaction of the lien to the date of the order.

In accordance with a further direction of the Supreme Court, the man’s sister petitioned for appointment as guardian of the person and property of her brother and for approval of the creation of a supplemental needs trust. The man was declared to be an incapacitated person by order and decision and his Suffolk sister was appointed as his guardian and a supplemental needs trust was created, with the sister as trustee.

Until the Supreme Court approved the settlement of the medical malpractice action, the Nassau man possessed a claim against a third party, but he did not have any present properties or resources to meet his needs.

The medical assistance provided to the man during his lifetime may be viewed in three different parts. Those are the period, when the man received medical assistance as a result of his chromosomal condition, the period when he received medical assistance as a consequence of the failed medical procedure that left him partially paralyzed, in addition to the continued receipt of assistance attributable to his chromosomal condition and the period when he continued to receive medical assistance in spite of his receipt of assets from the settlement of the medical malpractice action.

Upon the settlement of the negligence action, the man was in possession of the properties and resources that would have rendered him ineligible for continuing medical assistance but for the special treatment accorded the assets placed in a supplemental needs trust. Based on records, there was no interruption of receipt of assistance by the man while the petition for guardianship and creation of the supplemental needs trust was pending judicial consideration. The state’s social service department is entitled for a reimbursement for all the medical assistance provided to the man.

Consequently, the court ordered to modify the decision by deleting the provision in denying the branch of motion of the state’s social services which was for reimbursement of the amount of medical assistance provided by the health program of the state to the man and substituting therefore a provision granting the branch of the motion. The order is further affirmed by the court.
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This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Suffolk Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Long Island doctor said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff’s Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff’s cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was “5/5” in all extremities with normal tone; DTR’s that were “2 +” and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was “5/5.” His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

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.”
The Court said that, in order to recover under the “permanent loss of use” category, plaintiff 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 a “significant limitation of use of a body function or system” categories, either a specific percentage of the loss of range of motion must be ascribed 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. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

It is for the Court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action”. Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants’ examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants’ examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants’ examining radiologist opined, based upon his review of plaintiff’s MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff’s deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff’s proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff’s treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant’s examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff’s claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants’ motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff’s alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff’s cross motion is denied as moot.
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On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

After the trial, the judges of compensation claim accepted the opinion of the treating orthopedist that the complainant’s injury was wholly attributable to his preexisting condition and therefore found that his current condition is not compensable as it did not arise out of the course and scope of his employment and no further treatment is awarded.

The Suffolk judges of compensation claim further concluded that there was nothing in the record that would have reasonably placed the employer on notice of the complainant’s personal condition being the major contributing cause of the injury until the conference between its attorney and the orthopedist was done. As a result, the employer denied the medical treatment within 120 days from the notification it had then received and the compensability of the injury was considered timely denied. With that, the judges of compensation claim refused both the claims for compensability of the complainant’s back condition and authorization of a neurologist.
Based on records, the carrier had such information through the condition of the orthopedist’s notes. In fact, the court’s case law interprets the ruling language pertaining to the commencement of the running of the 120-day period from the initial condition of benefits to mean the date the employee’s first visits to the authorized physician, which could produce the first available information useful to the employer and carrier to determine whether the injury is compensable.

Consequently, the court considered that the issue of the complainant’s entitlement to the authorization of a neurologist is controlled by the rule and the court’s earlier decision with other previous court case. In the case cited by the court, the carrier authorized medical treatment for the worsening of the employee’s disc condition during the complainant’s employment, and treatment for same continued for more than 120 days. Thereafter, the authorized physician recommended a laminectomy for the back condition, for which the complainant sought approval, and the carrier timely denied.

In affirming the judges of compensation claim’s denial of the claim, the court noted that the recommended surgery was not intended to address the exacerbation, but to resolve the entire disc herniation, which medical evidence revealed had occurred before the work-related accident happened. The court also concluded that the provisions applied only to the compensability of the exacerbation of the condition and not to a major surgical procedure which involved a condition that had pre-existed the work-related accident.

As a result, the court decided that under such circumstances, the provisions relating to the carrier’s obligations in responding to an appeal for benefits and on its timely denial on the specifically requested surgery just after it had been claimed, it could not be considered to have waived its right to contest. The court finds that the employer timely denied the appeal seeking the authorization of a neurologist within 14 days after the receipt of the appeal.
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A man was working as a construction worker on June 24, 1983. He was on the tenth floor of a building. He lost his balance while at that height. He fell and hit a concrete floor below. He injured his head and he lost all sensation in both his arms. His Nassau-Suffolk employer paid him temporary total disability until March 15, 1984. After this, his employer paid him temporary partial disability benefits. The construction worker filed a claim for catastrophic loss benefits. When he recovered from the head injury, the construction worker still had no feeling in both his arms. He could not move his arms or do his customary work as a construction worker.

Two months after the accident the construction worker consulted a neurosurgeon. The neurosurgeon found that the reason for the numbness in his arms is that he had a spinal cord injury. The bones of his spine were compressing on his nerves causing the loss of sensation to his two arms. The neurosurgeon performed two surgeries in September and October 1983 to correct the compression. He removed the bone which was causing the compression on his spinal cord. He did not touch or repair the nerves, just the bone. After the surgeries, the man gained strength in his arms but three fingers on each hand still did not have any feeling. He was able to do simple and light chores at home but he was unable to continue with his work as a construction worker.

Four months after the surgery, the man was still experiencing pain, tingling, numbness and weakness in his fingers and hands. The neurosurgeon determined that these were not due to damage or compression to the nerves but were now only orthopedic in nature. He certified that the construction worker can go back to work but with limits. He cannot do any lifting, or do heavy construction work or work at elevations.

During the neurosurgeon’s testimony he said that the construction worker did not have any lesion in the nerves of his spine. Instead, he said that the construction worker suffered from an unstable neck due to the injury he sustained from his fall at the job site. When he moved his neck a certain way, he would experience tingling and loss of sensation in some part of his arms and hands. This meant that his neck bone was compressing on his nerves in the neck area of his spine. For this reason, the neurosurgeon relieved the pressure in his neck by removing the bone that was compressing on the nerves. He also rendered an opinion that because of the unstable neck of the construction worker, he would no longer be able to do any construction work whatsoever.

Because of the neurosurgeon’s testimony, the deputy commissioner awarded catastrophic benefits amounting to $400 weekly beginning June 24, continuing for 26 weeks. The commissioner based his ruling on the fact that the man suffered from an unstable neck and would be unable to use his arms to do any kind of activity. He then ruled that because the man was unable to use both his arms until the surgical intervention, he finds that the construction worker must have suffered nerve damage and trauma to his nervous system. He ruled that the construction worker was entitled to catastrophic benefits.

The employer appealed this finding. The only question is whether or not he is entitled to catastrophic benefits for the loss of the use of both his arms.

The Court reversed the commissioner’s order. The Court ruled that catastrophic benefits can be awarded only if there is organic damage to the nerves; if there are any lesions or injury or trauma to the nerves off the spine. There being no trauma to the nerves in this case as testified to by the neurosurgeon, the construction worker is not entitled to catastrophic benefits.
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The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of an automobile accident with defendant occurred on May 16, 2008, when plaintiffs’ vehicle was exiting Northern State Parkway to Route 110 in Melville, County of Suffolk, State of New York. Plaintiff was operating a 2003 Lincoln Town Car which was owned by his employer Executive Limo. Defendant was the owner and operator of a 2001 Chevrolet. It is alleged that the automobile that was being driven by plaintiff was struck in the rear by the automobile being driven by defendant. Defendant claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted.

A Suffolk man said that, as a result of the accident plaintiff claims that he sustained the following injuries: Sprain of the anterior cruciate ligament/left knee; Tear in the posterior horn of the medial meniscus of the left knee and may require future surgery; Acromion impingement on the supraspinatous muscle of the left shoulder which may require future surgery; Increased signal in the supraspinatous tendon consistent with tendonopathy/left shoulder; Subligamentous posterior disc herniations at C3-4, C4-5, C5-6 impinging on the anterior aspect of the spinal canal at C3-4 and C4-5 and on the anterior aspect of the spinal cord at C5-6; Subligamentous posterior disc herniations of the lumbosacral spine at L4-5 and L5-S1 impinging on the anterior aspect of the spinal canal, the neural foramina bilaterally and left nerve root at L4-5; Moderate to sever stenosis from L3-L5; Cervical, thoracic and lumbar myofascitis; Lumbar and cervical radiculitis/radiculopathy; Left bicepital tendonitis; Left shoulder derangement; Left knee derangement; Left ankle sprain/strain; Left foot contusion and left plantar fascitis; Cervical sprain/strain; Thoracic sprain/strain; Lumbar sprain/strain; Cervical acceleration/deceleration injury; Myofascitis; Bilateral ulnar motor neuropathy at elbows; Borderline left median motor neuropathy; Right, distal medial sensory neuropathy; Bilateral ulnar sensory neuropathy; Left rotator cuff sprain; Decreased range of motion of the cervical spine; Decreased range of motion of the left shoulder; Myofascitis of the cervical, thoracic and lumbar spine; Left supraspinatus tendinopathy and impingement.

Plaintiff commenced the action with service of a Summons and Verified Complaint. Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendant’s motion.

The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Court in deciding the motion sais that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial.

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.

In support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians in Queens. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s spinal injury such as sworn MRI and CT scan tests. Conversely, even where there is ample proof of a plaintiff’s spinal injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

In case at bar, the Court said that, plaintiff claims that as a consequence of the above described automobile accident with defendant, he has sustained serious spinal injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

1) a permanent consequential limitation of use of a body organ or member; (Category 7)
2) a significant limitation of use of a body function or system; (Category 8)
3) 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.(Category 9).

As previously stated, to meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. In addition, an expert’s qualitative assessment of a plaintiff’s condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff’s limitation to the normal function, purpose and use of the affected body organ, member, function or system. See id.

Finally, to prevail under the “medically determined spine 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” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” which would have caused the alleged limitations on the plaintiff’s daily activities. A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.
When moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movants’ burden, a defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

Defendant submits that, in 2005, plaintiff was involved in a major motor vehicle accident for which he had seen a variety of medical providers and commenced a lawsuit for personal injuries arising out of said accident, with representation by the same attorneys who are representing him in the instant matter. Defendant further submits that in addition to that prior accident in 2005, the Plaintiff was involved in six other prior automobile accidents, for which he commenced a lawsuit each time. He was represented by the same counsel. Defendant adds the spinal injuries claimed herein for the subject accident are set forth in the plaintiff’s Bill of Particulars. They include claims for injuries to his left knee, left shoulder, cervical spine, lumbar spine, radiculopathy, and neuropathy. Similarly, in the Bill of Particulars dated July 13, 2006 and Supplemental Bill of Particulars for the Plaintiff’s motor vehicle accident and lawsuit arising out of his accident on February 11, 2005, the claims are also for the same injuries abovementioned. Defendant argues that in plaintiff’s EBT testimony, he admitted that his automobile’s air bag did not inflate, that he did not strike anything in the interior of the automobile and the he did not lose consciousness. Plaintiff also testified that, after the accident, he stood outside his car for approximately a half-hour before the police arrived and, when they did, he declined needing medical attention. Plaintiff then drove to his meeting in Melville and later returned home to Valley Stream. Defendant states that following the accident, plaintiff went for treatment to Dr. Lauren Stimler-Levy at New York Pain Management and Medical Services, P.C. Plaintiff had been a patient at New York Pain Management and Medical Services, P.C. since his accident in 2005. Plaintiff’s treatment there continued there until 2007. Defendant argues that the treatment that plaintiff received at New York Pain Management and Medical Services, P.C. following the May 2008 accident was similar to the prior treatment that he received following his 2005 accident although he also had treatment on his left knee after the 2005 accident. Defendant contends that a review of plaintiff’s EBT testimony with respect to his 2005 accident and his 2008 accident “reveals that this plaintiff has claimed injuries to the same parts of his body for at least the two accidents in 2005 and the subject accident in 2008, and was involved in numerous other accidents for which he commenced seven different personal injury lawsuits.” Defendant argues that plaintiff cannot establish the requisite causation through any legally admissible evidence that his current claims are proximately related solely to the accident of May 16, 2008. Defendant states that it is undisputed that the plaintiff had long-standing complaints with regard to his left shoulder, back, knees and neck. They are related to his prior accidents, as well as his pre-existing degenerative conditions, and his diabetes. Defendant argues that plaintiff’s complaints alleged to be related to spine injuries sustained in the May 2008 accident are simply not proximately connected.

Dr. Leon Sultan, a board certified orthopedist, reviewed plaintiff’s medical records and conducted a physical examination of plaintiff. Dr. Cohen examined the plaintiff and performed quantified and comparative range of motion tests on plaintiff’s cervical spine, left shoulder, thoracolumbar spine, left knee and left ankle/foot. The results of the tests indicated no deviations from normal.

With respect to plaintiff’s 90/180 claim, defendant relies on the EBT testimony of plaintiff which indicates that following the subject accident he did not miss any time for work at Executive Limo or his own company, that he had bed rest for only one day, that he continued his walking regimen after the accident-slowly returning to his one mile distance, five days per week, twice a day and that he engaged in his home exercises.

Based upon this evidence, the Court finds that the defendant has established a prima facie case that the plaintiff did not sustain serious injury within the meaning of New York State Insurance Law § 5102(d).

The burden now shifts to the plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained.

As indicated above, plaintiff submitted the affirmation of Lauren Stimler-Levy, M.D. who treated plaintiff. Dr. Stimler-Levy states that plaintiff presented himself to my office in regard to a motor vehicle accident he was involved in on May 16, 2008 wherein he sustained injuries to his lower back, cervical spine and mid back for which he underwent treatment until July of 2005 in the form of TENS unit and massage as well as physical therapy exercises. In regard to that accident, the patient underwent MRIS which revealed disc herniation at L5-S1 and L4-5 as well as disc bulges at L2-3, L3-4 and LI-2. Plaintiff indicated he had stopped treating in July 2005 as his pain and symptomology had abated. Dr. Stimler-Levy examined plaintiff and performed quantified and comparative range of motion tests on plaintiff’s cervical spine, left shoulder and left knee. Dr. Stimler-Levy concluded it was my expert opinion that the injuries as diagnosed were causally related to the motor vehicle accident and that said injuries were consistent with the clinical presentation in my office.

Plaintiff also submitted the affidavit of Filippo Ragone, D.C., a chiropractor who examined plaintiff and stated that he was aware of plaintiff’s prior motor vehicle accidents and the injuries and treatments that resulted therefrom. Dr. Ragone’s initial diagnosis was “cervical acceleration/deceleration injury; mid back pain; low back pain; left shoulder pain and derangement; and myofascitis.”

In support of his 90/180 argument, plaintiff submits his own affidavit in which he states “during the first six months after the accident, I was unable to perform the following: food shopping; carrying groceries; exercising; participating in daily morning walks; maintaining my car; washing my car; spending time caring for grandchild; taking grandchild to park to go bike riding; enjoying social gatherings and parties with friends and family during the summertime; long drives to visit family; take care of chores outside; gardening; and dancing and enjoying myself with friends and family. Despite the prior accidents I was involved in, at the time of this accident, I was pain free and leading a full normal active lifestyle including going to work every day as a limo driver.

The Court concludes that the affirmations and affidavits provided by plaintiff raise genuine issues of fact as to spine injuries causally related to the May 17, 2008 accident. Consequently, defendant’s motion for summary judgment is denied.
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