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.