Opinion
118235/03.
February 22, 2010.
The following papers, numbered 1 to were read on this motion to/for
PAPERS NUMBERED
Notice of Motion/Order to Show Cause — Affidavits — Exhibits . . . 1 Answering Affidavits — Exhibits 2 Replying Affidavits 3 Upon the foregoing papers, it is ordered that this motionIn this action to recover for personal injuries allegedly sustained in a motor vehicle accident defendants Alberto M. Fernandez and Franklin De. J. Caba (hereinafter defendants) move pursuant to CPLR § 3212 for summary judgment dismissing the complaint of plaintiff pro se Elam Yisrael (hereinafter plaintiff) on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 [d]. According to plaintiff's verified Bill of Particulars the alleged accident occurred on March 12, 2002 at or near the intersection of 44th Street and 10th Avenue in New York County. Plaintiff alleges that he sustained the following injuries: posterior disc bulging at the L4-5 and L5-S1; lumbar subluxation;, lumbar myalgia; lumbar sprain; lumbar strain; lumbrosacral paraspinal tenderness; C5-6 radiculopathy; bulging annulus fibrosus C5-6 impinging on the thecal sac; thoracic subluxation; thoracic sprain. Plaintiff further alleges that he sustained permanent loss of use of a body organ, member, function or system; 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 prevented him from performing substantially all of the material acts which constituted 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. The Verified Bill of Particulars that plaintiff was confined to his home for approximately three months, was totally disabled for approximately two months and remained partially disabled for approximately six weeks.
On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action ( Wadford v. Gruz, 2006 NY Slip Op 9381 [1st Dept]). "[A] defendant can establish that [a] plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" ( Grossman v Wright, 268 AD2d 79, 83-84 [1st Dept 2000]). If this initial burden is met, "the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" ( id. at 84). The plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is serious within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident ( Valentin v Pomilla, 59 AD3d 184 [1st Dept 2009]).
In support of their motion defendants offer the affirmed report of Dr. Jay A. Rosenblum, who performed a neurological examination of plaintiff on October 6, 2009.Comparing his findings to the normal ranges of motion listed in the published guidelines on the NYS Division of Disability Determination and the American Medical Association, Dr. Rosenblum found that plaintiff had normal range of motion in both his cervical and lumbar spines. Dr. Rosenblum found no weaknesses on formal and functional muscle testing and noted that plaintiff exhibited good strength/ Dr. Rosenblum concluded that plaintiff's neurological exam was normal and that there was no clinical evidence of neurological dysfunction referable to the motor vehicle accident.
Defendants also offer the affirmed report of Dr. Isaac Cohen, who performed a orthopedic examination of plaintiff on October 6, 2009. Dr. Cohen notes in his report that he spoke to plaintiff in Spanish during the examination, though plaintiff denies the ability to speak Spanish. Using a goniometer and comparing his findings to the normal ranges of motion issued by the American Academy of Orthopedic Surgeons, Dr. Cohen found that plaintiff had normal range of motion in his cervical spine and his lumbar spine. Straight leg sign was negative to 90 degrees in the sitting position bilaterally and examination of the bilateral knees revealed flexion from 0 to 140 degrees and full extension. Dr. Cohen diagnosed plaintiff as having resolved cervical and lumbar strains and normal bilateral knee examinations. Dr. Cohen also noted that the MRI examinations of plaintiff cervical and lumbar spines were unremarkable and concluded that, as a result of the accident, plaintiff sustained mild soft tissues that healed uneventfully without any evidence of sequelae or permanency.
Defendants established their initial burden of demonstrating, prima facie, that plaintiff did not sustain permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system through the affirmed reports of their examining neurologist and orthopedist ( Yagi v. Corbin, 2007 NY Slip Op 7749 [1st Dept]; Sone v Qamar, 2009 NY Slip Op 9383 [1st Dept]). Defendants also argue that a significant gap in treatment exists.
Under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102[d], plaintiff must submit medical proof containing "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" ( Gorden v. Tibulcio, 2008 NY Slip Op 3382 [1st Dept] quoting John v Engel, 2 AD3d 1027, 1029 [3rd Dept 2003]). Moreover, plaintiff must demonstrate a limitation of range of motion sustained by objective medical findings that are "based on a recent examination of the plaintiff" Thompson, 15 AD3d 95 quoting Grossman v Wright, 268 AD2d 79, 84, 707 NY2d 233). With respect to the "permanent loss of use" category, the permanent loss of use must be "total" in order to satisfy the serious injury threshold ( Oberly v Bangs Ambulance, 96 NY2d 295, 297, 751 NE2d 457, 727 NYS2d 378; Crespo v Kramer, 295 AD2d 467, 468, 744 NYS2d 187 [2d Dept 2002]). Hock v. Aviles, 2005 NY Slip Op 6732 [1st Dept]).
In opposition plaintiff submits his affirmation which though signed and notarized in New Jersey is not accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. Plaintiff's affirmation contains arguments pertaining to issues of liability and special damages he alleged incurred which are irrelevant to this motion and thus were not considered by the court. Plaintiff also challenges the sufficiency of defendants' medical examinations citing an article that purportedly appeared in the New York Times and questions that accuracy of Dr. Cohen's report on the ground that plaintiff does not speak Spanish, as the report indicates he does. Plaintiff further contends that Dr. Cohen's report is race-based, culturally insensitive and therefore should be deemed inadmissible by the court. With respect to the lengthy gap in treatment, plaintiff explains that he involuntarily ceased treatment for injuries in or about September 2003 because he began served a seventy eight month federal prison sentence. Plaintiff also contends that he did not resume medical treatment for his injuries upon his release from federal prison in or about September 2008 because he did not have insurance and could not afford to pay for treatment himself. Plaintiff also contends that this action was stayed from January 2006 until September 2008 when he was released from prison.
Defendants do not raise an objection to plaintiff's failure to include a certificate of conformity with his affirmation. Thus, the court will disregard the defect ( see Joseph v Joseph, 2009 NY Slip Op 51719[U] [App Term, 2d 11th Jud Dists]).
Plaintiff also submits an affirmation from Dr. Ivan J. Fernandez-Madrid, plaintiff's treating orthopedist. According to an unswom report dated November 16, 2009, which Dr. Fernandez-Madrid incorporates in his sworn affirmation, Dr. Fernandez-Madrid first examined plaintiff on March 19, 2002 at which time he found that plaintiff had limited range of motion in his lumbar spine with flexion to 60 degrees with 90 degrees being, extension to 20 degrees with 40 degrees being normal, and lateral rotation d to 60 degrees with 70 degrees being normal. Plaintiff had no restriction in lateral flexion. Dr. Fernandez-Madrid also found that plaintiff had limited range of motion in his cervical spine with extension to 30 degrees with 45 degrees being normal, lateral rotation to 70 degrees with 80 degrees being normal. As with his lumbar spine, plaintiff had no restriction in lateral flexion of his cervical spine. Dr. Fernandez-Madrid diagnosed plaintiff as having strains of the lumbar and cervical spine related to the March 12, 2002 accident. Dr. Fernandez-Madrid next examined plaintiff on November 16, 2009. Dr. Fernandez-Madrid that plaintiff's left and right lateral rotation of the cervical spine was to 70 degrees with 80 degrees being normal. Plaintiff was able to flex to the chest wall and extend to 45 degrees, both of which are normal. With respect to plaintiff's lumbosacral spine, Dr. Fernandez-Madrid found that plaintiff's forward flexion was to 80 degrees with 90 degrees being normal, extension was to 30 degrees with 40 degrees being normal, lateral flexion was to 20 degrees with 45 being normal and right and left trunk rotation was to 70 degrees with 80 degrees being normal. Straight leg raise was positive at 45 degrees and produced lower back pain bilaterally. Dr. Fernandez-Madrid's impression was that plaintiff has and will continue to have permanent pain and stiffness in his lower back. Dr. Fernandez-Madrid also concluded that plaintiff will have permanent loss of motion, permanent loss of function and permanent interference with activities of daily living and that the motor vehicle accident of March 12, 2002 was the competent cause of plaintiff's injuries. In light of the fact that Dr. Fernandez-Madrid performed a contemporaneous and recent examination of plaintiff and "identified measurements of loss of range of motion in plaintiff's cervical and lumbar spine, and on that predicate opined that plaintiff suffered severe and permanent injuries as a result of the accident" plaintiff has raised a triable issue of fact as to whether he suffered a significant or permanent consequential limitation of use of his spine ( Blake v Portexit, 2010 NY Slip Op 65 [1st Dept] quoting Pommells v Perez, 4 NY3d 566, 577, 830 NE2d 278, 797 NYS2d 380). However, plaintiff has not made any showing that his alleged loss of use of use of his spine is total and therefore his claim under the permanent loss of use category of Insurance Law § 5102 [d] is dismissed. Also dismissed is plaintiff's claim under the 90/180 category. In order to establish their prima facie entitlement to summary judgment under the 90/180 day category of the statute, defendants must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident ( Elias v Mahlah, 2009 NY Slip Op 43 [1st Dept]). "However, the First Department has previously held that a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiff's own deposition testimony or records demonstrating that he or she was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period"(id.). Plaintiff testified at his deposition was that he was confined two his bed for approximately one month after the accident, not the three months alleged in his Verified Bill of Particulars. Thus, plaintiff's 90/180 day claim must be dismissed ( Nguyen v. Abdel-Hamed, 61 AD3d 429 [1st Dept]). Even if the court were to assume that plaintiff was confined to his home for a period of three months there is no allegation in the Verified Bill of Particulars that such confinement was medically necessary ( Glover v. Capres Contr. Corp., 2009 NY Slip Op 3047 [1st Dept ]). Finally, plaintiff's incarceration and subsequent inability to pay for treatment constitutes a sufficient explanation for the gap in plaintiff's treatment. Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is granted solely to the extent that plaintiff's claims under the permanent loss of use and 90/180 day categories of Insurance Law § 5102 [d] are dismissed. Defendants' motion is otherwise denied; and it is further
ORDERED that counsel for defendants is to serve a copy of this order, with Notice of Entry, upon plaintiff pro se within 30 days.
This constitutes the decision and order of the court.