This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.
Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)
The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.
Defendants essentially argue that plaintiff’s alleged spinal injuries are minor and not causally connected to the accident. In support of their motion for summary judgment, defendants submit the affirmed reports of a neurologist and an orthopedic surgeon. (Martorella Affirm, dated 3/18/11, Exs G, H.) Defendants also maintain that plaintiff’s alleged cervical and lumbar spinal injuries were pre-existing injuries, based on plaintiff’s deposition testimony and medical records.
The Manhattan neurologist examined plaintiff on August 25, 2008. According to her report, the examination covered areas such as “mental status,” “cranial nerves,” “motor examination,” “reflexes,” “sensory,” “gait and coordination,” and “cerebellar examination.” The neurologist also recorded the ranges of motion, expressed in degrees, and corresponding normal values, at plaintiff’s neck, and found full range of motion. The neurologist concluded that “exacerbation of preexisting spinal injury, resolved” and that “from a neurologic standpoint, there is no need for further treatment.” (Martorella Affirm, dated 3/18/11, Ex G.)
The Westchester orthopedic surgeon also examined plaintiff on August 25, 2008. The orthopedic surgeon recorded the ranges of motion, expressed in degrees, and corresponding normal values, in plaintiff’s cervical spine, right shoulder, lumbosacral spine, and right hip. The orthopedic surgeon found that plaintiff had normal ranges of motion in his right shoulder, lumbosacral spine, and right hip. He noted “slightly decreased range of motion of the cervical spine on flexion to 30 degrees (45 degrees normal), extension to 30 degrees (45 degrees normal), lateral bend to 35 degrees (45 degrees normal), right and left rotation to 50 degrees (70 degrees normal).” (Martorella Affirm, dated 3/18/11, Ex H.). The orthopedic surgeon stated, “In my opinion, I find the claimant has no disability.” (Id.)
According to the court, the defendants have not met their prima facie burden of summary judgment, based on the affirmed reports of the neurologist and orthopedic surgeon, who both did not state the objective methods used to measure plaintiff’s ranges of motion. “The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion.” [“Defendants’ failure to indicate the objective tests used to determine the range of motion in plaintiff’s cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal”].)
As defendants point out, the neurologist and orthopedic surgeon both noted under “Past Medical History,” that plaintiff was attacked/assaulted by a guard, sustaining injuries to his neck and back. However, neither the neurologist and orthopedic surgeon conclude that plaintiff’s alleged injuries were pre-existing in nature. Therefore, defendant’s contention that plaintiff’s injuries are preexisting is unsubstantiated.
Because defendants do not demonstrate, as a matter of law, that none of plaintiff’s injuries meet the No Fault threshold, “it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.” (Linton v Nawaz, 14 NY3d at 821.)
Our Spinal Injury Lawyers from Stephen Bilkis and Associates are knowledgeable with law and jurisprudence involving similar cases to provide you with legal advice conforming to your situation. It has offices conveniently located within New York Metropolitan area, including Corona, New York.