The action arises from a motor vehicle accident involving a collision between a 2009 BMW 328 owned by defendant Brea and operated by defendant Baez and a 2008 Honda Accord owned by defendant Salvatore J. Romano (“S. R.”) and operated by defendant Robert J. Romano (“R.R.”). Plaintiff Lutzky was a passenger in the right side backseat of defendants S.R. and R.R.’s automobile. Plaintiff Vrabel was a passenger in the front seat of defendants S.R. and R.R.’s automobile. The accident occurred at on October 25, 2009, on Meadowbrook State Parkway near its intersection with Zeckendorf Boulevard, County of Nassau, State of New York. It is alleged that at the time of the accident, the 2008 Honda Accord being operated by defendant R.R., in which plaintiffs were passengers, was traveling in the left northbound lane of the Meadowbrook State Parkway. As said vehicle was traveling straight and fully within the left lane of travel, the 2009 BMW 328, operated by defendant Baez, attempted to change lanes from the middle lane to the left lane where defendants R.R. and S.R.’s automobile was traveling. Defendant Baez attempted an abrupt and quick lane change as a result of his engagement in a race with an uninvolved black GTI vehicle. According to defendant Baez’s Examination Before Trial (“EBT”) testimony, he admits that the accident occurred as his vehicle was straddling the line located on the roadway between the middle and left lanes, while he was in the process of changing from the middle lane to the left lane. The rear left driver’s side portion of defendant Baez’s vehicle struck the front right passenger side of defendants R.R. and S.R.’s vehicle. Defendants R.R. and S.R.’s vehicle then crashed into the concrete median.
As a result of the accident, a Nassau Personal Injury Lawyer said that, plaintiff Lutzky claims that he sustained the following injuries: Scapholunate ligament tear right hand and wrist with severe pain, swelling and deformity; Right arm contusion; Swelling over the distal portion of the forearm. Whereas, plaintiff Vrabel claims that he sustained the following injuries: L5-S1 paracentral right disc herniation with contact of the right S1 nerve root as it exits the thecal sac; Mild broad bulge at L4-5; Inability to sleep; Inability to defecate without severe pain; Weight loss; Cerebral concussion; Loss of consciousness; Vomiting; Left temple ecchymosis; Severe anxiety reaction; Back pain; Neck pain; Pain and tenderness over the transverse mid abdomen; Right rib and chest pain; Left knee pain.
Thereafter, plaintiffs filed an action to recover damages for personal injuries sustained due to the accident, by service of a Summons and Verified Complaint. Issue was joined by the defendants herein.
Defendants filed a motion for summary judgment both on the ground that plaintiffs’ did not sustain “serious injury” in the subject accident as defined by New York State Insurance Law. Plaintiffs Lutzky and Vrabel oppose the motion and cross-move pursuant to CPLR § 3212, granting them summary judgment against defendants Baez and Brea on the issue of liability and setting this matter down for a trial as the issue of damages only.
The issue in this case is whether defendants are entitled to summary judgment on the ground that plaintiffs’ did not sustain serious personal injury as defined under New York State Insurance Law.
The Court in deciding the case said that, tt 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. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation.
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. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist.
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.” In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendants’ examining physicians or the unsworn reports of the plaintiff’s examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment.
Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s personal injury. Conversely, even where there is ample proof of a plaintiff’s 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 the case, the Court said that, plaintiffs Lutzky and Vrabel claim that as a consequence of the above described automobile accident, they have sustained serious injuries as defined in § 5102(d) of the New York State Insurance Law and which fall within the following statutory categories of injuries:
1) a permanent consequential limitation of use of a body organ or member; 2) a significant limitation of use of a body function or system;
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.
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. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute.
A claim raised under the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation.
Finally, to prevail under the “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, 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.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.
With these guidelines in mind, the Court will now turn to the merits of defendants S.R. and R.R.’s motion and defendants Baez and Brea’s cross-motions. In support of their motion, defendants S.R. and R.R. submit the pleadings, plaintiff’s’ Verified Bill of Particulars, the affirmed reports of John C. Killian, M.D., who performed an independent orthopedic medical examination of plaintiff Lutzky and an independent orthopedic medical examination of plaintiff Vrabel, the transcript of plaintiff Lutzky’s EBT testimony and the transcript of plaintiff Vrabel’s EBT testimony.
In support of their cross-motion with respect to plaintiff Lutzky, defendants Baez and Brea submit the pleadings, plaintiff’s’ Verified Bill of Particulars, the transcript of plaintiff Lutzky’s EBT testimony, the affirmed report of John C. Killian, M.D., who performed an independent orthopedic medical examination of plaintiff Lutzky and the affirmed report of Scott S. Coyne, M.D., who reviewed plaintiff Lutzky’s right wrist MRI that was performed at Orthopedic Associates of Manhasset. In support of their cross-motion with respect to plaintiff Vrabel defendants Baez and Brea submit the pleadings, plaintiff’s’ Verified Bill of Particulars and the affirmed reports of Scott S. Coyne, M.D., who reviewed plaintiff Vrabel’s thoracic spine MRI that was performed, at Metropolitan Diagnostic, and plaintiff Vrabel’s lumbosacral spine MRI that was performed, at Metropolitan Diagnostic.
Dr. John C. Killian, a board certified orthopedic surgeon, reviewed plaintiff Lutzky’s medical records and conducted a physical examination. Dr. Killian states, on inspection the normal bony and soft tissue contours of his right wrist and hand were maintained without evidence of atrophy, asymmetry, deformity, swelling or discoloration. On palpitation he did not complain of tenderness and there was no palpable swelling or deformity. The range of motion of his wrist was tested and found to be full and symmetrical with the left wrist with dorsiflexion and palmar flexion to 70 degrees (normal 70 degrees), radial deviation to 15 degrees (normal 15 degrees) and ulnar deviation to 30 degrees (normal 30 degrees). He did not complain of pain with any of the wrist motions. Finkelstein’s test was negative and there were no specific areas of tenderness over the tendons in the wrist. There was no clicking or instability on the radial side of the wrist between the scaphoid and lunate. He had normal grip strength. On sensory testing he reported normal sensation. It was noted that there were equally heavy callouses on the palms of both hands. His forearms were measured and found to be symmetrical at 11″ in circumference and his wrists were symmetrical at 7″ in circumference.” Dr. Killian concluded that Mr. Lutzky has recovered fully from the problems with his right wrist for which he was treated after this accident. There is no objective evidence of any residual impairment of disability from any injury from this accident. He is capable of working at his normal capacity and performing all of his usual activities of daily living without limitations.
Dr. Killian also reviewed plaintiff Vrabel’s medical records and conducted a physical examination. Said examination included an evaluation of plaintiff Vrabel’s spinal column and a neurological examination. With respect to the spinal column, Dr. Killian states, on inspection in the standing position the normal cervical lordosis, thoracic kyphosis and lumbar lordosis were maintained without evidence of atrophy, asymmetry, deformity or muscle spasm. His head was held in a normal attitude, his shoulders and pelvis were level and there was no evidence of scoliosis. On palpitation he complained of tenderness in the mid to lower cervical spine and in the trapezii on both sides. He complained of extreme tenderness from the mid thoracic spine through the rest of the thoracic spine down the lumbar spine to include the bony outer aspect of the sacrum and he complained of bilateral paraspinal tenderness from the thoracic spine down to the buttocks on both sides. He complained of equal tenderness to light touch and deeper pressure and he complained of pain with pinch roll testing over the entire thoracic and lumbar regions. There was no palpable muscle spasm or deformity. The spinal motions were tested (by visual observation) and found that cervical flexion and extension were full at 45 degrees (normal 45 degrees), right and left rotation were full at 80 to 90 degrees (normal 80 to 90 degrees) and right and left lateral flexion were full at 45 degrees (normal 45 degrees) with complaints of pain going into the upper back and middle back with all of the motions of the neck. With respect to the neurological examination, Dr. Killian states, the upper and lower extremity neurological examination was done and it was found that the reflexes including the biceps, triceps, brachioradialis, knee jerks and ankle jerks were intact and symmetrical. All major muscle groups in both upper extremities and lower extremities were 5 out of 5 in strength and symmetrical. Sensation was intact and symmetrical to pin and light touch over both upper extremities but on testing sensation in the lower extremities he indicated that there was a feeling of numbness to pin and light touch over the lower thighs just above the knees on both dies but sensation was intact and symmetrical to pin and light touch extending from the knees down to the feet on both sides. Dr. Killian concluded there were no consistently positive objective physical findings in this examination to confirm Mr. Vrabel’s subjective complaints. He is capable of working at his normal capacity and performing all of his usual activities of daily living without restrictions due to injuries caused by the accident. There is no need for further causally related orthopedic evaluation, follow-up or treatment.
Dr. Coyne conducted an independent film review of plaintiff Vrabel’s thoracic and lumbosacral spine. With respect to his review of the thoracic spine MRI, Dr. Coyne’s findings were mild to moderate degenerative changes are certainly longstanding, pre-existent and causally unrelated to the accident. This MRI demonstrates no osseous or soft tissue abnormality or other trauma casually related to the accident. With respect to his review of the lumbosacral spine MRI, Dr. Coyne’s findings were this MRI reveals degenerative disc and facet joint changes, which are focally advanced at L5-S1, and more mild changes at other levels. These degenerative changes are certainly chronic and long-standing, preexistent and causally unrelated to the accident.
The Court notes that Dr. Killian fails to set forth the specific tests administered on plaintiff’s to arrive at his findings with respect to the examination of plaintiff Lutzky’s right wrist and plaintiff Vrabel’s spinal column. In fact, Dr. Killian merely bases his conclusions on “visual observation” not any objective tests which he administered, nor were measurements of range of motion taken with a goniometer. Where the defendants’ expert fail to set forth objective tests administered which resulted in normal ranges of motion, the court will find that the defendants have failed to meet their prima facie burden.
Furthermore, the Court held that, Dr. Killian fails to address plaintiff’s’ claim in their Bill of Particulars that they were unable to perform substantially all of the acts which constitute their usual and customary daily activities for ninety (90) out of one hundred eighty days (180) following the accident. The Court will find that defendants S.R., R.R., Baez and Brea have failed to meet their prima facie burden on a summary judgment motion, such as the instant one, where plaintiff’s allege to have suffered serious injury under this category and defendants’ medical expert does not address this allegation in his affirmations.
Where, as here, defendants S.R., R.R., Baez and Brea have failed to demonstrate that they have met their prima facie burden the Court will deny the motions for summary judgment on the threshold issue regardless of the sufficiency of the opposition papers. Therefore, the Court hereby holds that defendants’ motion for summary judgment is denied.
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