The action for damages stems from personal injuries allegedly sustained by the plaintiff as a result of an automobile accidentoccurred at westbound Jericho Turnpike approximately fifty (50) feet east of Wellington Road, in the County of Nassau, Town of North Hempstead, New York. The accident involved two vehicles, a 2004 Honda operated by plaintiff and a 2004 Jeep owned and operated by defendant.
A Lawyer said that, at the time of the accident, plaintiff’s vehicle was traveling westbound on Jericho Turnpike. Defendant’s vehicle was also traveling westbound on Jericho Turnpike. Plaintiff contends that her vehicle was stopped in traffic in the left lane on Jericho Turnpike when the defendant’s vehicle struck her from behind, pushing her car forward approximately one car length. Plaintiff further contends that, as a result of the heavy impact, her body was caused to move forward and backward in her vehicle and said impact caused her neck and back to strike the headrest and seat. As a result of the collision, plaintiff claims that she sustained the following injuries:
Posterior disc bulges at C3-C4, C-4-C-5 and C6-C7 impinging on the anterior aspect of the spinal canal; Small joint effusion of the left knee; Menisci and ligament/ right knee; Posterior disc herniations at the L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally; Decreased range of motion of the cervical and lumbar spine; Decreased range of motion of the left knee; Left knee pain/sprain; Cervicalgia; Lumbar disc herniation at L5-S1; Pain in the limbs; Neuropathy; Cervical sprain and strain; Lumbar sprain and strain; Lumbargo; Weakness in muscles.
Plaintiff commenced the action by 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 him summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes the motion.
The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.
The Court in The Bronx in resolving the motion said 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.
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 defendant’s 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 injury, stated that a plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor’s observations during the physical examination of the plaintiff Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.
Conversely, even where there is ample proof of a plaintiff’s personal 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.
The Brooklyn Plaintiff claims that, as a consequence of the above described automobile accident with defendants he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:
1) permanent loss of a body organ, member, function or system; (Category 6)
2) a permanent consequential limitation of use of a body organ or member; (Category 7)
3) a significant limitation of use of a body function or system; (Category 8)
4) 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).
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” (Insurance Law § 5102(d)) “which would have caused the alleged limitations on the plaintiff’s daily activities.” 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 defendant’s motion. In support of his motion, defendant submits the pleadings, plaintiff’s Verified Bill of Particulars, the transcript of plaintiff’s Examination Before Trial testimony, the affirmed report of Jacquelin Emmanuel, M.D., who performed an independent orthopedic examination of plaintiff and the affirmed reports of A. Robert Tantleff, M.D., who reviewed plaintiff’s lumbar spine MRI and plaintiff’s cervical spine MRI.
Based upon this evidence, the Court finds that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).
Dr. Jacquelin Emmanuel, a board certified orthopedist, reviewed plaintiff’s medical records and conducted an examination of plaintiff’s cervical spine, thoracic spine, lumbar spine, left shoulder, right shoulder, left knee and right knee. The results of the tests indicated no deviations from normal. Dr. A. Robert Tantleff, a board certified radiologist, conducted an independent film review of the MRI of plaintiff’s lumbar spine MRI and cervical spine MRI. With respect to his review of the lumbar spine MRI, Dr. Tantleff’s findings were, amongst other things, “MRI examination of the Lumbar Spine reveals longstanding chronic degenerative discogenic disc disease and thoracolumbar spondylosis as described with advanced discogenic changes as detailed at L5-S1, there is a focal central degenerative disc protrusion of no definable clinical significance. The findings are consistent with the individual’s age and not causally related to the date of the subject incident, approximately one month prior to the performance of the MRI examination as the findings are chronic longstanding processes requiring years to develop as presented and are consistent with wear-and-tear of the normal aging process.”
With respect to plaintiff’s 90/180 claim, defendant relies on the EBT testimony of plaintiff which indicates that she did not lose any time from work as a result of the accident. Plaintiff testified that she was not confined to bed, nor confined to home, for any length of time and that, since the accident.
The burden now shifts to plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.
To support her burden, plaintiff submitted the affidavit of Richard Grosso, D.C. who examined plaintiff and continued to see her for chiropractic treatment. Dr. Grosso examined plaintiff and performed quantified and comparative range of motion tests on her cervical spine and lumbar spine. The results of the tests indicated deviations from normal. Dr, Grosso states that it was his expert chiropractic opinion that the spinal injuries sustained by the patient were causally related to the motor vehicle accident. It was further his expert chiropractic opinion that the limitation of motion of the cervical and lumbar spine was significant and permanent in nature. It was further his expert chiropractic opinion that the spinal injuries as diagnosed would inhibit the patient’s ability to carry out normal activities of daily living such as sitting, standing, bending lifting and other strenuous activities. It is his expert chiropractic opinion that the disc pathology diagnosed via MRI are causally related to the subject motor vehicle accident as the findings are consistent with the clinical presentation in my office and further said spinal injuries are of a permanent nature and not subject to resolution without surgery. It is further his expert chiropractic opinion that surgery cannot be ruled out in the future with regard to her cervical spine and lumbar spine injury.
In view of the foregoing, the Court held that, even though some of the evidence presented by plaintiff did not constitute competent admissible evidence in opposition to defendant’s motion for summary judgment, the Court concludes that the affidavits of plaintiff, herself, and Dr. Grosso raise genuine issues of fact as to the spine injuries causally related to the subject accident. Consequently, defendant’s motion for summary judgment is denied.
If you suffered spinal injuries as a result of a motor vehicle accident, you need to seek the help of a Nassau Spinal Injury Attorney and Nassau Personal Injury Attorney in order to be compensated for the injuries you have sustained. Stephen Bilkis and associates can help you with that.