Opinion
Index #: 153999/14
03-17-2016
TERRY BRIENZA, Plaintiff(s), v. BONNIE SHIMKIN and ANTHONY SHIMKIN, Defendant(s).
Mot. Seq: 01 DECISION/ORDER HON. LETICIA M. RAMIREZ
Defendants' motion, pursuant to CPLR §3212, for summary judgment on the basis that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §5102(d) is denied.
It is well settled that summary judgment is a drastic remedy and cannot be granted where there is any doubt as to the existence of triable issues of fact or if there is even arguably such an issue. Hourigan v. McGarry, 106 A.D.2d 845, appeal dismissed 65 N.Y.2d 637 (1985); Andre v. Pomeroy, 35 N.Y.2d 361. 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). The function of a court in deciding a summary judgment motion is to determine whether any issues of fact exist which preclude summary resolution of the dispute between the parties on the merits. Consolidated Edison Co. v Zebler, 40 Misc3d 1230A (Sup. Ct. N.Y. 2013). See also, Menzel v. Plotnick, 202 A.D.2d 558, 610 N.Y.S.2d 50 (2nd Dept. 1994). Furthermore, in deciding motions for summary judgment, the Court must accept, as true, the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. Warney v Haddad, 237 A.D.2d 123 (1st Dept. 1997). See also, Menzel v. Plotnick, supra.
In support of their motion, defendants submitted, inter alia, plaintiff's Verified Bill of Particulars and Verified Amended Bill of Particulars. In his Bill of Particulars, plaintiff alleges, inter alia, the following injuries as a result of the subject accident on March 10, 2014: left elbow partial tear at the insertion of the distal biceps tendon; left elbow tendinosis; and left elbow trace joint effusion. In his Amended Bill of Particulars, plaintiff claims the following additional injuries as a result of the subject accident: approximately 50% partial biceps tear of the left elbow and left elbow tendinosis.
Defendants also submitted the affirmed report of orthopedist, Dr. Edmund Ganal, who examined plaintiff on March 30, 3015. At that time, plaintiff complained of left arm pain with weakness and occasional left hand numbness with worsening pain upon lifting. Dr. Ganal noted that plaintiff had tenderness to palpation at the distal left biceps upon his examination. However, he found that plaintiff had full range of motion of the left elbow. A Tinel's sign test was negative. A manual muscle power test was not conducted. Dr. Ganal noted that he reviewed plaintiff's left elbow MRI conducted on March 17, 2014, which indicated tendinosis and partial tear at the insertion of the distal biceps tendon and trace joint effusion. He also reviewed plaintiff's left elbow MRI conducted on July 25, 2014, which indicated tendinosis and chronic partial tear of the distal biceps tendon. [Although these MRI reports are unsworn, as they were reviewed and considered by the defendant's expert, they are properly before the Court for consideration. Nelson v Distant, 308 A.D.2d 308 (1st Dept. 2003)]. Dr. Ganal diagnosed plaintiff with status post left biceps tendon strain as a result of the subject accident and opined that plaintiff did not have any disabilities or restrictions as a result of the subject accident.
Although Dr. Ganal did not reconcile his diagnosis with the results of plaintiff's MRIs, as he quantitatively measured plaintiff's left elbow range of motion, identifying how the measurement was conducted and plaintiff's specific measurements with normal range comparisons, and found normal results, defendants met their burden of making a prima facie showing that plaintiff did not sustain a "significant" and/or "permanent consequential" limitation as a matter of law. Toure v Avis Rent-A-Car Systems, Inc., 98 N.Y.2d 345 (2002).
The burden then shifted to plaintiff to raise a triable issue of fact that he sustained a "serious injury" within the meaning of the Insurance Law. In opposition, plaintiff submitted, inter alia, the affirmation of Dr. Ali Guy dated December 15, 2015. Dr. Guy last examined plaintiff on November 10, 2015. At that time, plaintiff complained of left elbow/left forearm pain and weakness, with episodes of left hand numbness. Although noting that plaintiff had restricted range of motion of the left elbow, Dr. Guy did not quantify the measurements of the restriction. However, he conducted a manual muscle power test, which was 4+/5 of the biceps. Dr. Guy stated that this finding was 2 grades weaker than normal and opined that this was a significant loss. He further noted that there was a positive visible and palpable tear of the left biceps and that left biceps sensation was diminished to pinprick and touch. He diagnosed plaintiff with a post- traumatic partial tear of the left biceps as a result of the subject accident and opined that plaintiff had a permanent partial disability of his left biceps as a result of the accident. He stated that the pain and loss of strength in plaintiff's left arm restricts his ability to lift, carry, bend and move his left elbow. He further stated that plaintiff is limited in his ability to play sports and hold things such as groceries or a lunch tray arid that plaintiff can no longer pick up his children, fully extend his left arm or put excessive weight on his left arm, as his left arm "shakes" upon his attempts to hold excessive weight. He further advised that plaintiff should not work full duty, but should be placed on restricted duty to protect himself and others.
In light of the foregoing, plaintiff has sufficiently raised a triable issue of fact as to whether he sustained, inter alia, a "significant" and/or "permanent consequential" limitation of his left elbow and/or biceps as a result of the subject accident. Although a manual muscle power test, alone, is insufficient quantitative evidence to support a "serious injury" claim, the manual muscle power test, coupled with plaintiff's MRI findings and Dr. Guy's assessment of plaintiff's quality of life limitations, is sufficient qualitative evidence to raise a triable issue of fact as to the significant and permanence of plaintiff's left elbow/biceps injury. Toure v Avis Rent-A-Car Systems, Inc., supra.
An expert's specification of the numerical percentage of a plaintiff's loss of range of motion, or measured actual degrees of range of motion compared to normal ranges, is sufficient quantitative evidence to demonstrate a "serious injury" claim. However, an expert may also use a qualitative assessment of plaintiff's condition, provided that the assessment includes an objective basis and compares plaintiff's limitations to normal function, purpose and use of the affected body organ, member, function or system. Toure v Avis Rent-A-Car Systems, Inc., supra.
Here, Dr. Guy provided a sufficient assessment of plaintiff's physical limitations and attributed plaintiff's injury and limitations to the subject accident. Dr. Guy's assessment is support by his personal observations upon examination of plaintiff, including the manual muscle power test, during which he compared plaintiff's limitation to normal findings, and the results of plaintiff's MRIs, which he reviewed and interpreted in reaching his opinion. As such, plaintiff has raised a material issue of fact for jury determination. Toure v Avis Rent-A-Car Systems, Inc., supra.
Finally, contrary to the defendants' contention, this Court finds that plaintiff adequately explained his approximate 10-month gap in medical treatment. An unexplained gap in, or cessation of, treatment, can result in a finding that plaintiff's injuries have resolved and, therefore, are not significant in accordance with the Insurance Law. Pommells v. Perez, 4 N.Y.3d 566 (2005). However, in Ramkumar v Grand Style Tansp. Enters. Inc., where the plaintiff ended medical treatment after denial of further no-fault benefits, the Court held that a requirement of additional evidence to support the plaintiff's explanation for the gap in treatment was an unwarranted expansion of Pommells v. Perez, supra. The Court noted that, while it would have been preferable for the plaintiff to submit an affidavit in opposition to the summary judgment to explain why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, the plaintiff raised an issue of fact by giving "some reasonable explanation" for his cessation of treatment. Ramkumar v Grand Style Tansp. Enters. Inc., 22 N.Y.3d 905 (2013). See also, Wadford v Gruz 35 A .D.3d 258 (1st Dept. 2006) and Francovig v Senekis Cab Corp., 41 A.D.3d 643 (2nd Dept. 2007), where the Court held that the plaintiff's explanation that he could not to afford continued treatment after no-fault benefits were discontinued was a reasonable explanation for cessation of treatment.
Here, plaintiff, a New York City Police Department ("NYPD") detective, states in his affidavit, submitted in opposition to defendants' motion, that his treatment ended because the NYPD District Surgeon would no longer authorize treatment and he could not afford to pay for further treatment as his medical bills were not paid through private insurance, but through the NYPD. As such, the Court finds that plaintiff has offered a reasonable explanation for cessation of treatment. Ramkumar v Grand Style Tansp. Enters. Inc., 22 N.Y.3d 905 (2013); Wadford v Gruz 35 A .D.3d 258 (1st Dept. 2006); Francovig v Senekis Cab Corp., 41 A.D.3d 643 (2nd Dept. 2007).
Given the triable issues of fact that remain, summary judgment is inappropriate in this action. Hourigan v. McGarry, 106 A.D.2d 845, appeal dismissed 65 N.Y.2d 637 (1985); Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). It is well settled that the finder of fact must resolve conflicts in expert medical opinions. Ugarriza v. Schmider, 46 N.Y.2d 471 (1979); Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Moreno v. Chemtob, 706 N.Y.S.2d 150 (2nd Dept. 2000).
Accordingly, the defendants' summary judgment motion is denied, in its entirety. This constitutes the Decision/Order of the Court. Dated: March 17, 2016
New York, New York
/s/_________
HON. LETICIA M. RAMIREZ, J.S.C.