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This is a personal injury action in which plaintiff, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on December 22, 2009, at the intersection of 23rd Avenue and 97th Street, Queens County, New York. At the time of the incident, the plaintiff was proceeding on 23rd Avenue when the vehicle operated by the defendant, pulled out of a parking space and collided with the plaintiff’s vehicle while attempting to make a U-turn. The plaintiff claims that as a result of the car accident he sustained injuries to his neck, including a herniated disc at C5-C6, injuries to his right shoulder, lower back and a partial tear of the ACL of the right knee.
A reporter said that the plaintiff commenced this action by filing a summons and complaint on June 18, 2010. Plaintiff contends that he sustained a serious injury as defined in Insurance Law § 5102(d) in that he sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
A witness said that, defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff’s complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.
The Court said that, in support of the motion, defendants submit an affirmation from counsel; a copy of the pleadings; the affirmed medical reports of board certified orthopedic surgeon, and neurologist; and a copy of the transcript of the examination before trial of plaintiff.
The orthopedic surgeon retained by the defendants, examined plaintiff on August 11, 2011. Plaintiff presented with pain in the cervical spine, pain in the right shoulder, pain in the lumbar spine and pain in the right knee. The orthopedic surgeon performed quantified and comparative range of motion tests. She found that the plaintiff had no limitations of range of motion in the cervical spine injury, right shoulder, lumbar spine injury and right knee. The doctor states that “based on today’s findings, it is my opinion that the claimant has no objective evidence of disability. The claimant may work and perform daily living activities without boundaries or restrictions.”
The neurologist, saw the plaintiff in her office for a neurological evaluation she performed quantified and comparative range of motion tests. She found full range of motion in the plaintiff’s cervical spine and lumbar spine injury, with a significant limitation in right leg raising due to pain in the right knee. She states that there are no abnormal neurologic findings at all. She states that she cannot comment on the knee but she saw no evidence of any ongoing problems related to the lumbosacral spine.
Defendant’s counsel contends that the medical reports of the orthopedic surgeon and the neurologist, as well as the transcript of the plaintiff’s examination before trial are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his 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.
In opposition, plaintiff’s attorney, submits his own affirmation as well as the medical report of the neurologist of the Med Care Health & Rehabilitation Services, P.C., the radiological report of with respect to the MRI of plaintiff’s right knee, the medical report of orthopedic surgeon and the affidavit of plaintiff dated May 16, 2012. The orthopedic surgeon, examined the plaintiff, at that time he found that the plaintiff sustained acute cervical and lumbar trauma and traumatic synovitis of the right knee. He referred the plaintiff for MRI testing and for physiotherapy modalities. The doctor states that as a result of the accident the plaintiff sustained cervical strain/sprain, C5-C6 disc herniation, lumbar sprain/strain and right knee derangement with partial ACL tear.
In his affidavit of May 9, 2012, the plaintiff states that as a result of the accident he injured his neck, back and right knee. He went to physical therapy weekly until March 2011 when he stopped because his insurance would not pay for the treatments and he was financially unable to make the payments himself. He states that following the accident he was confined to his bed and home for three months. He continues to have pain in his right knee, neck, and back.
On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, it is defendant’s initial obligation to demonstrate that the plaintiff has not sustained a “serious injury” by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff’s claim. Where defendants’ motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury.
As stated above, the medical report of the defendant’s examining neurologist, relied on by the defendant, clearly set forth that upon her examination of the defendant she found significant limitation in the plaintiff’s range of motion when conducting the straight leg raising test on the right leg. The neurologist attributed the limitation to pain in the plaintiff’s right knee but she failed to test the range of motion of the plaintiff’s right knee. The defendant did not annex a copy of the plaintiff’s bill of particulars, however, plaintiff’s radiologist, when interpreting the MRI studies, observed a torn ACL of the right knee. Thus, as the plaintiff is alleging a right knee injury and complained of pain in the right knee, it was incumbent upon the defendant’s doctor to examine the range of motion of the plaintiff’s right knee. The neurologist states that she did not review any medical records prior to her examination but was aware that the plaintiff complained of pain to the right knee. She did not attempt to explain the pain in plaintiff’s right knee. Therefore, although the doctor found a clear limitation in straight leg raising due to pain in the plaintiff’s knee, the extent of the knee problem was not quantified since she did not test the range of motion. As such, her report is insufficient to eliminate all triable issues of fact.
Without such comparative quantification of the range of motion of the right knee or explanation of the limitation found with regard to straight leg raising test, the Court cannot conclude that there were no abnormal findings in her report. Further, the defendant failed to submit evidence to dispute the findings of the plaintiff’s radiologist that plaintiff sustained a torn ACL as a result of recent trauma Thus, the defendants failed to objectively demonstrate that plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d).
Therefore, this Court finds that the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact. Since the defendants failed to satisfy their initial burden on their motion, it is not necessary to consider whether the plaintiffs’ papers in opposition were sufficient to raise a triable issue of fact.
Accordingly, for the reasons set forth above, it is hereby, ordered, that the defendants’ motion for an order granting summary judgment dismissing plaintiff’s complaint is denied.
Serious injury in every claim for damages must be proven. There is a need for the assistance of Queens Spinal Injury Attorney and Queens Personal Injury Attorney at Stephen Bilkis and Associates in order to disprove the claim.