Opinion
EF2019-66534
02-20-2020
Travis M. SCARINCIO, Plaintiff, v. Sarah CERILLO, Defendant.
Brian Lee Law Firm, PLLC, Saratoga Springs (James A. Lombardo of counsel), for plaintiff. Hurwitz & Fine, P.C., Buffalo (Brian M. Webb of counsel), for defendant.
Brian Lee Law Firm, PLLC, Saratoga Springs (James A. Lombardo of counsel), for plaintiff.
Hurwitz & Fine, P.C., Buffalo (Brian M. Webb of counsel), for defendant.
Robert J. Muller, J.
"[T]his Court is called upon, yet again, to embrace the Sisyphean challenge of whether a plaintiff's evidence of personal injury meets the statutory threshold set by Insurance Law § 5102 (d), ‘an elusive standard that all too frequently escapes facile and final resolution’ " ( McNeil v. Hockey , 37 Misc 3d 1231[A], 2012 NY Slip Op. 52252[U], *1 [Sup Ct, Clinton County 2012], quoting Brown v. Achy , 9 AD3d 30, 31 [2004] ).
Plaintiff commenced this action seeking to recover for injuries he allegedly sustained on June 29, 2016 when the automobile he was operating was involved in an intersection collision with an automobile operated by defendant. Plaintiff alleges that, as a result of the collision, he suffered a serious injury within the meaning of Insurance Law § 5102 (d) and incurred an economic loss in excess of basic economic loss, as that term is defined in Insurance Law § 5102 (a). Issue has been joined and discovery completed. Defendant now moves for summary judgment dismissing the complaint, contending plaintiff did not suffer a serious injury under any of the enumerated categories set forth in the statute. Plaintiff opposes the motion, arguing that — at the very least — the records present questions of fact in this regard.
According to the bill of particulars, this economic loss claim has been abandoned.
Insofar as is relevant here, a serious injury includes a "permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 [90] days during the [180] days immediately following the occurrence of the injury or impairment" ( Insurance Law § 5102 [d] ).
Since plaintiff relies upon the permanent consequential limitation and/or significant limitation of use categories, such claims must be grounded upon "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( Raucci v. Hester , 119 AD3d 1044, 1045-1046 [2014] [internal quotation marks and citations omitted]; accord Davis v. Cottrell , 101 AD3d 1300, 1301 [2012] ; see Vanalstyne v. Gordon , ––– AD3d ––––, ––––, 2020 NY Slip Op. 00994, *1 [2020] ). Furthermore, "a plaintiff must demonstrate that the limitation of use that he or she sustained was more than mild, minor or slight" ( DeHaas v. Kathan , 100 AD3d 1057, 1058 [2012] ). Objective evidence, such as medically imposed limitations upon daily activities, must support plaintiff's claim under the 90/180-day category; self-serving assertions in this regard cannot suffice (see Shea v. Ives , 137 AD3d 1404, 1406 [2016] ; Clausi v. Hall , 127 AD3d 1324, 1327 [2015] ).
As the proponent of the motion for summary judgment, defendant carries the "initial burden of establishing with competent medical evidence that [plaintiff] did not suffer a serious injury as a result of the accident" ( Jones v. Marshall , 147 A.D3d 1279, 1281 [2017] ; see Vanalstyne v. Gordon , 2020 NY Slip Op. 00994 at *1; Murray v. Helderberg Ambulance Squad, Inc. , 133 AD3d 1001, 1001 [2015] ; St. Clair v. Giroux , 132 AD3d 1199, 1199 [2015] ; Clausi v. Hall , 127 AD3d at 1325 ).
In support of defendant's motion, plaintiff's medical records and deposition testimony are proffered. In the verified bill of particulars plaintiff claims to have suffered injuries to his neck, both shoulders and left hand/fingers that ultimately resulted in him undergoing a carpal tunnel release surgery in April of 2019. He also alleges that he missed a total of "113 hours of work" and "a few days of school" as a result of his injuries and asserts that such injuries qualify under the following "serious injury" categories: (1) permanent consequential limitation of use; (2) significant limitation of use; and (3) a medically determined injury of a non-permanent nature that prevented him from performing substantially all of his usual and customary activities for 90 of the 180 days following the accident.
At the time of the accident plaintiff worked part-time for approximately 30 hours per week, with his job including a wide variety of clerical and office activities. He describes losing three workdays immediately following the accident and then losing an additional 113 hours of work sporadically for medical appointments. His return to work was without specific medical restrictions. He was also a student at the time and claims he missed 14 days of school as a result of his injuries, although these interruptions were incurred over the course of two years and did not prevent him from graduating on time.
Review of the medical records from the day of the accident indicate pain in the neck and left shoulder area. There are no complaints of left hand/finger pain and the discharge diagnosis is of a cervical sprain. Diagnostic tests include a normal MRI of his cervical spine in September of 2016. In November of 2016 the records of Total Care & Rehabilitation Medicine (hereinafter Total Care) make reference to reductions in range of motion and cervical range of motion without describing which objective tests were undertaken to obtain those findings — and without reference to what would be a normal function for point of comparison. These records do not indicate plaintiff was taken out of work or school or placed under any restrictions in his ability to work or attend school.
On November 7, 2017 plaintiff had a neurosurgical consultation with Louis Noce, M.D., whose records indicate that he also found no pathology on any of the imaging tests performed on plaintiff. Noce observed that no neurosurgical care was warranted at that time and concluded plaintiff had a 0% disability.
On November 14, 2017, approximately one-and-a-half years after the accident, plaintiff presented to the Albany and Saratoga Centers for Pain Management upon referral from his attorney. Although the primary focus of this treatment was for complaints of neck pain, the records reference "left thumb numbness/tingling" with a nurse practitioner injecting her belief of causality for a "carpal tunnel syndrome to the left hand ... directly related to gripping with such force on the steering wheel." The assessment from this visit was that of a cervical spondylosis — commonly understood to represent age related wear and tear — without myelopathy or radiculopathy. Without informing the nature of the tests performed these records set forth — by percentages — limited ranges of motion to the cervical spine. The records also include comment that the "force of this trauma is significant enough to cause pain that is generated from the posterior joints of the cervical spine."
On November 27, 2018 plaintiff underwent EMG/Nerve Conduction studies with a finding of "no peripheral neurological cause of the patient's [left wrist] symptoms." Nevertheless, on April 5, 2019 a left endoscopic carpal tunnel release was performed which produced "resolution of the right (sic) numbness." After the surgical release plaintiff had "between [a] 75 and 90 percent" improvement and his carpal tunnel complaints diminished.
With the foregoing background defendant argues that none of the plaintiff's medical records include any physician's diagnosis that the injuries treated are permanent as is required to establish a serious injury under the permanent consequential limitation category of the statute. Similarly it is argued that none of the medical providers have described any medically significant limitation of use of a body function or system.
Viewing this evidence in a light most favorable to plaintiff (see Toure v. Avis Rent A Car Sys. , 98 NY2d 345, 355 [2002] ), I find that — even accepting the medical opinions supporting causation — the described limitations are not sufficiently medically significant to permit recovery beyond that authorized by the no-fault law (see Baker v. Thorpe , 43 AD3d 535, 537 [2007] ; Tuna v. Babendererde , 32 AD3d 574, 575-576 [2006] ; compare Toure v. Avis Rent A Car Sys. , 98 NY2d at 355 ).
With the burden thus shifted to plaintiff to raise a triable issue of fact regarding a significant limitation, I proceed with the "recognition that carpal tunnel syndrome can form the basis for a significant limitation of use under Insurance Law § 5102 (d)" ( Baker v. Thorpe , 43 AD3d at 537 ; see Apuzzo v. Ferguson , 20 AD3d 647, 648 [2005] ). "However, where, as here, there are no significant problems after successful surgery and the residual symptoms are nothing more than mild, minor or slight impairments, no triable issues will be raised by this proof" ( Baker v. Thorpe , 43 AD3d at 537 ; see Tuna v. Babendererde , 32 AD3d 574, 576 [2006] ; Simpson v. Feyrer , 27 AD3d 881, 884 [2006] ; Palmer v. Moulton , 16 AD3d 933, 934-935 [2005] ).
In opposition to defendant's motion plaintiff relies upon the medical records of David J. Cunningham, M.D. for November 30, 2016, December 8, 2016 and December 12, 2016, which I find irrelevant as they do not address the questions at hand. Plaintiff also submits additional records from Total Care for October 11, 2016 and November 2, 2016, as well as the No-Fault independent medical examination reports of Steven C. Weinstein, M.D. dated April 17, 2017 and Michael Dudick, D.C. dated June 27, 2017. These records and reports, prepared bordering on three years prior to this summary judgment motion, make no reference to permanency and neither "contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( Pugh v. DeSantis , 37 AD3d 1026, 1029 [2007], quoting John v. Engel , 2 AD3d 1027, 1029 [2003] ; accord Wolff v. Schweitzer , 56 AD3d 859, 861 [2008] ; Saleh v. Bryant , 49 AD3d 991, 992 [2008] ). In addition, these medical practitioners do not describe any medically imposed limitations upon plaintiff's daily activities.
This latter report includes a graph of purported range of motion measurements with several footnote references that are not reproduced within the submitted record, offering no guidance for determining the significance of that which plaintiff asks consideration of.
Finally, plaintiff's examination before trial testimony describing his curtailment of activities is insufficient to raise a question of fact as to whether he sustained a permanent consequential limitation or significant limitation of use of a body organ, member, function or system or a medically determined injury or impairment of a nonpermanent nature which endured for 90 days of the first 180 days following the accident (see Vanalstyne v. Gordon , 2020 NY Slip Op. 00994 at *2; Tuna v. Babendererde , 32 AD3d at 577 ; compare Chunn v. Carman , 8 AD3d 745, 747 [2004] ).
For all of these reasons, I find that plaintiff has failed to raise an issue of fact sufficient to withstand summary judgment (see Baker v. Thorpe , 43 AD3d at 537 ; see Tuna v. Babendererde , 32 AD3d at 577 ; Simpson v. Feyrer , 27 AD3d at 883-884 ; Palmer v. Moulton , 16 AD3d at 935 ; compare Owad v. Mayone , 299 AD2d 795, 796 [2002] ; Hassam v. Rock , 290 AD2d 625, 626 [2002] ).
Based upon the foregoing, defendant's motion for summary judgment is granted in its entirety and the complaint dismissed.
Therefore, having considered the Affirmation of Brian M. Webb, Esq. with Exhibits "A" through "K" attached thereto, dated November 14, 2019; supporting Memorandum of Law of Brian M. Webb, Esq., dated November 14, 2019; Affidavit in Opposition of James A. Lombardo, Esq. with Exhibits "A" through "E" attached thereto, sworn to January 27, 2020; and Affirmation in Reply of Brian M. Webb, Esq., dated February 2, 2020, it is hereby
ORDERED the defendant's motion for summary judgment is granted in its entirety and the complaint dismissed; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been e-filed by the Court. Counsel for defendant is directed to obtain a filed copy of the Decision and Order for service with notice of entry upon counsel for plaintiff in accordance with CPLR 5513.