Opinion
Index No. 528149/2019
09-13-2023
Zhan J. Chen, Plaintiff, v. Ugur Sahin, Defendant.
Baker, McEvoy & Moskovits, P.C., Brooklyn (Michael A. Fritz of counsel), for Defendant.
Unpublished Opinion
Baker, McEvoy & Moskovits, P.C., Brooklyn (Michael A. Fritz of counsel), for Defendant.
Aaron D. Maslow, J.
The following numbered papers were read on this motion:
Submitted by Defendant
NYSCEF Doc No. 45: Notice of Motion
NYSCEF Doc No. 46: Affirmation of Young Choo in Support
NYSCEF Doc No. 47: Exhibit A - Summons & Complaint
NYSCEF Doc No. 48: Exhibit B - Bill of Particulars
NYSCEF Doc No. 50: Exhibit D - Plaintiff's EBT Transcript
NYSCEF Doc No. 51: Exhibit E - Note of Issue
NYSCEF Doc No. 52: Exhibit F - Orthopedic IME Report of Dr. Jeffrey N. Guttman
NYSCEF Doc No. 53: Statement of Material Facts
Submitted by Plaintiff
NYSCEF Doc No. 55: Affirmation of Richard R. Mogg in Opposition
NYSCEF Doc No. 56: Exhibit 1 - Hospital Records
NYSCEF Doc No. 57: Exhibit 2 - Eighth Avenue Medical, PLLC Records
NYSCEF Doc No. 58: Exhibit 3 - Integrated Chiropractic, P.C. Records
NYSCEF Doc No. 59: Exhibit 4 - MRI Records
NYSCEF Doc No. 60: Exhibit 5 - Dr. Arden M. Kaisman Records; EMU Surgery Center Records
NYSCEF Doc No. 61: Exhibit 6 - Plaintiff's EBT Transcript
NYSCEF Doc No. 62: Exhibit 7 - Affidavit of Merit
NYSCEF Doc No. 63: Exhibit 8 - Bill of Particulars
NYSCEF Doc No. 64: Exhibit 9 - Photographs
NYSCEF Doc No. 65: Exhibit 10 - Police Report
NYSCEF Doc No. 66: Word Count Certification
NYSCEF Doc No. 67: Affirmation of Service
NYSCEF Doc No. 68: Statement of Material Facts
I. Introduction
Plaintiff Zhan J. Chen ("Plaintiff") asserts in this action that she sustained personal injuries while occupying and operating her vehicle on April 10, 2017, as a result of the negligent operation of another vehicle owned and operated by Defendant Ugur Sahin "(Defendant"). Defendant now moves for summary judgment, claiming that Plaintiff failed to meet the "serious injury" threshold of Insurance Law § 5104 (a), as defined in § 5102 (d). There are nine categories of serious injury, per Insurance Law § 5102 (d).
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Andre v Pomeroy, 35 N.Y.2d 361 [1974]).
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). The moving Defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [2016]).
If Defendant has made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., Plaintiff failed to establish that she qualified under the relevant serious injury threshold categories, the burden shifts to Plaintiff to submit evidence in admissible form, rebutting the presumption that there are no material issues of fact (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).
II. Bill of Particulars
Plaintiff, around 51 years old when the accident occurred, alleged in her bill of particulars that she sustained injuries to her lumbar spine and cervical spine (see NYSCEF Doc No. 48, bill of particulars ¶ 10 at 5-7). She asserted that she was confined to bed for approximately three (3) days and confined to home for approximately one (1) week following the accident (see id. ¶ 12 at 9). As for serious injury threshold categories, Plaintiff claimed, "permanent loss of use of a body organ, member, function or system ['permanent loss of use']; permanent consequential limitation of use of a body organ or member ['permanent consequential limitation']; significant limitation of use of a body function or system ['significant limitation']; or a medically determined injury or impairment... prevent[ing] the injured person from performing substantially all... daily activities for not less than ninety days during the one hundred eighty days immediately following the [subject accident] ['90/180']" (id. ¶ 20 at 11).
Notably, the bill of particulars also described Plaintiff's injuries as follows:
Limitations, diminution and/or impairment of functions, activities, vocation, avocation and other activities which Plaintiff engaged in prior to this accident. Impairment of spinal integrity and exacerbation of any pre-existing symptomatic and/or asymptomatic circulatory, podiatric and/or orthopaedic conditions, spondylitic changes, osteoporosis, arthritis, hypertrophic vertebral changes, narrowing of vertebral spaces, degenerative vertebral or disc changes. Aggravation, activation and/or precipitation of any underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous or systemic conditions complained of All of the above injuries are permanent in nature and duration, and were caused, precipitated aggravated and/or exacerbated by the aforementioned occurrence.(Id. ¶ 10 at 8 [emphasis added]).
III. Defendant's Evidence
Defendant's motion for summary judgment relied on an affirmed independent medical examination ("IME") report prepared by Dr. Jeffrey N. Guttman, M.D., a Board-certified orthopedic surgeon, on July 15, 2022, detailing the examination of Plaintiff, findings, and conclusions. Defendant also relied on the certified transcript of the examination before trial ("EBT") of Plaintiff which was conducted on October 18, 2021. It was Defendant's position that Plaintiff's injuries were not the result of the April 10, 2017 motor vehicle accident and that Plaintiff did not qualify under any of the four categories cited in her bill of particulars: permanent loss of use, permanent consequential limitation, significant limitation, and 90/180.
Regarding causality of any injuries claimed by Plaintiff, Defendant's counsel argued in their affirmation:
19. Based on the medical evidence submitted by defendants coupled with plaintiffs' testimony, we submit that plaintiffs' [sic] allegations of injury were not the result of this minor accident that plaintiffs [sic] did not sustain trauma, and the alleged injuries do not rise to the level of impairment sufficient to qualify under any category of the statute. Specifically, defendants' [sic] showing includes objective evidence establishing an "absence of trauma." See, Kester v. Sendoya, 123 A.D.3d 418 (1st Dept. 2014). Defendants provide radiological evidence confirming that no traumatic injury was sustained. This negates a claim of any causally related serious injury under the statute and is therefore sufficient to meet the defendants' burden on this motion. See Ikeda v. Hussain, 81 A.D.3d 496 (1st Dept. 2011); Johnson v. Singh, 82 A.D.3d 565 (1st Dept. 2011); Arroyo v. Morris, 85 A.D.3d 679 (1st Dept. 2011); Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept. 2009).
20. By eliminating the accident as a cause of the alleged conditions, defendants [sic] eliminate all categories of the statute. See Perl, supra; Toure v. Avis Rent A Car, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002); Linton v. Gonzales, 110 A.D.3d 534 (1st Dept. 2013); Rickert, supra; Batista v. Porro, 110 A.D.3d 609 (1st Dept. 2013); Kreimerman v. Stunis, 74 A.D.3d 753 (2nd Dept. 2010); Lall v. Ali, 101 A.D.3d 439 (1st Dept. 2012); Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept. 2009).(NYSCEF Doc No. 46, Young Choo Affirmation ¶¶ 20-21 at 6.)
Counsel did not specify which passages in Plaintiff's EBT transcript established that plaintiffs' allegations of injury were not the result of this minor accident. Neither was it specified which radiologist provided evidence "confirming that no traumatic injury was sustained."
A. Dr. Jeffrey N. Guttman's Exam Report (NYSCEF Doc No. 52)
Dr. Guttman misgendered Plaintiff Chen throughout the IME report, referring to Ms. Chen as Mr. and using such pronouns as he/him/his. He noted that Plaintiff was an unrestrained driver of a vehicle that was struck. Following the accident, Plaintiff went by ambulance to NYC Langone Hospital where she was evaluated, treated, and had x-rays taken. Plaintiff was not rendered unconscious by the accident, nor did she suffer lacerations. She was referred for such treatments as acupuncture and massage therapy. As a result of the accident, Plaintiff underwent lower back surgery and was provided a cervical spine immobilizer for home use. (See NYSCEF Doc No. 52, Dr. Guttman's IME Report at 1-2.)
At the IME, Plaintiff complained of hand numbness, stiff back pain, and leg pain. Dr. Guttman did not review or list any post-accident treatment records. Plaintiff walked with a normal gait and without assistive devices. Dr. Guttman recorded ranges of motion to what is considered "normal," finding full range of motion in Plaintiff's cervical spine and lumbar spine. Range of motion testing was performed using a goniometer but Dr. Guttman listed no set of guidelines specifying norms, such as that of the American Medical Association. (See id. at 2-4.)
For example, with respect to the cervical spine, "Active range of motion reveals flexion to 50 degrees (50 degrees normal), extension to 60 degrees (60 degrees normal)..." (NYSCEF Doc No. 52, Dr. Guttman's IME Report at 3).
Dr. Guttman also conducted the following orthopedic tests, which yielded negative results: Spurling's, Shoulder Shrug, Hoffman's. Atrophy of Scapula, Compression, Jackson's, Soto-Hall's (for the cervical spine), Fabere, Kemp's, Minor's sign, Laseque's, sitting straight leg raise, and supine straight leg raise (for the lumbar spine). Dr. Guttman also found that Plaintiff scored 5/5 for muscle range and had no atrophy; deep tendon reflexes, biceps, and triceps in addition to knee and ankle were at 2+ bilaterally; sensation to light touch and pinprick were within normal limits bilaterally for the cervical spine; and sensation to light touch was within normal limits bilaterally for the lumbar spine. (See id. at 3-4.)
Dr. Guttman also added:
Based on today's examination, the objective findings do not correlate with the subjective findings. Today's examination indicates that the injured body parts (alleged in the Bill of Particulars) have fully resolved. The claimant did not sustain any significant or permanent injury as a result of the motor vehicle accident. There are no objective clinical findings indicative of a present disability, and functional impairment, which prevents the examinee from engaging in ADL, and usual activities including work, school, and hobbies.(Id. at 5.)
B. Examination Before Trial
Defendant's counsel, in their affirmation (NYSCEF Doc No. 46, Young Choo Affirmation) did not emphasize testimony given by Plaintiff at her deposition, the transcript of which was submitted as NYSCEF Doc No. 50.
In Defendant's counsel's affirmation, with regard to this category, it was written merely:
7. Lastly, the defendant's proof rules out the 90/180-day category of the statute. Putting aside that this category requires proof that there was a causally related, medically determined injury, which we do not believe plaintiffs can establish, the 90/180 category requires proof that plaintiffs were medically prevented from performing "substantially all" of his usual and customary activities for the requisite period. See Travis v. Batchi, 18 N.Y.3d 208, (2011); Nesci v. Romanelli, 74 A.D.3d 765 (2nd Dept. 2010); Kreimerman v. Stunis, 74 A.D.3d 753 (2nd Dept. 2010); Camacho v. Dwelle, 54 A.D.3d 706 (2nd Dept. 2008); Hamilton v. Rouse, 46 A.D.3d 514 (2nd Dept. 2007).(NYSCEF Doc No. 46, Young Choo Affirmation ¶ 25 at 7.)
IV. Plaintiff's Evidence
In opposition, Plaintiff Chen submitted an affirmation from her attorney, Richard R. Mogg, that relied on the following: NYU Langone Hospital records from April 11, 2017; affirmed reports by Dr. Dante Lazo at Eighth Avenue Medical from April 19, 2017 to Sept. 20, 2017, detailing examinations of Plaintiff, findings, and conclusions; records from Integrated Chiropractic on the 20th and 29th of June, 2017, and July 25, 2017, detailing findings and conclusions; MRI reports taken at Bay Ridge Medical Imaging and submitted by Dr. Lazo regarding Plaintiff's lumbar and cervical spine; and an affirmed initial consultation report of June 13, 2017, a May 23, 2023 follow-up, and an operative report of June 28, 2017 by Dr. Arden M. Kaisman, detailing findings and conclusions. (See generally NYSCEF Doc Nos. 55-60.)
In NYSCEF Doc No. 59, Plaintiff submitted unaffirmed MRI reports. The MRI films revealed the following:
• MRI - April 24, 2017 Lumbar Spine
IMPRESSION:
L3-L4, left foraminal impingement
L4-L5, anterolisthesis. Bilateral foraminal impingement.
L5-S1, reduction in disc signal intensity and height. Disc bulge with central disc herniation. Anterior thecal sac impingement.(NYSCEF Doc No. 59 at 2.)
• MRI - April 29, 2017 Cervical Spine w/o Contrast
Impression:
Straightening of the normal cervical lordosis.
C3-C4, disc bulge with left paramedian disc herniation. Anterior thecal sac and spinal cord impingement. Central canal and left lateral recess stenosis.
C4-C5, disc bulge with left paramedian/central disc protrusion. Anterior thecal sac impingement. Abutment of the spinal cord with central canal stenosis. Bilateral foraminal impingement.
C5-C6, moderate disc spare height loss. There is bulge with right paramedian disc osteophyte herniation. Anterior thecal sac and spinal cord impingement. Central canal and right lateral recess stenosis. Bilateral foraminal impingement.
C6-C7, broad-based disc bulge with anterior thecal sac impingement abutting the spinal cord. Central canal stenosis bilateral foraminal impingement.(Id. at 6.)
The medical reports submitted by Defendant noted the disc herniations and bulges. Dr. Kaisman reviewed MRI films and conducted an initial examination of Plaintiff on June 13, 2017 (NYSCEF Doc No. 60). Dr. Kaisman opined that the MRI films taken April 29, 2017 of the cervical spine revealed disc bulges at C3-C4, C4-C5, and C5-C6, with herniations at C4-C5, and C5-C6. He further found that the MRI taken April 24, 2017 of the lumbar spine similarly revealed disc bulges at L3-L4, L4-L5, and L5-S1, with herniations at L5-S1. Dr. Kaisman also conducted range of motion testing and noted reduced ranges of motion for the lumbar spine. In a follow-up examination on May 23, 2023, Dr. Kaisman continued to find decreased ranges of motion of the lumbar spine. A goniometer was utilized during both examinations but no set of guidelines specifying norms was mentioned. (See id., Dr. Kaisman's Reports at 2-7.)
Plaintiff also submitted a chiropractic report in NYSCEF Doc No. 58. During an examination on June 20, 2017, an inclinometer was used to measure the cervical spine's flexion, extension, and rotation; thoracic spine's flexion; lumbar spine's flexion and extension; and sacral hip's flexion and extension. The averages of these tests were provided but not compared to norms. (See NYSCEF Doc No. 58, Chiropractic Report at 2.) At a follow-up on June 29, 2017, Dr. Stephen Matrangolo opined, "The above electrodiagnostic study reveals evidence of bilateral L4-L5 lumbar radiculopathy at this time. There are no evidence of peripheral neuropathy at this time" (id., EMG/NCV Reports at 24). Plaintiff returned on July 25, 2017, during which visit Dr. Matrangolo noted, "The above electrodiagnostic study reveals evidence of moderate acute C6 and C7 radiculopathy left" (id. at 16).
Dr. Dante Lazo of Eighth Avenue Medical conducted various examinations following the subject accident, documented in NYSCEF Doc No. 57. At the Plaintiff's six examinations, Dr. Lazo consistently noted decreased ranges of motion to the cervical and lumbar spines. However, Dr. Lazo failed to note use of a goniometer, meaning findings of limitations are conclusory and not objective (see Gersbeck v Cheema, 176 A.D.3d 684 [2d Dept 2019]). Dr. Lazo also omitted mention of the guidelines used to determine degrees and norms.
Additionally, NYU Langone Hospital records from April 11, 2017 totaled 48 pages (NYSCEF Doc No. 56). These records consisted of musculoskeletal and motor vehicle accident care instructions, emergency department records documenting pain in the thoracic spine and lumbar spine, and prescribed medication information.
V. Discussion
On this motion for summary judgment, Defendant failed to make out their prima facie case that Plaintiff Chen's alleged injuries were not serious as defined in Insurance Law § 5102 (d), as required by Insurance Law § 5104 (a).
(1) Proximate Causation
While Defendant's IME doctor, Dr. Guttman, opined that "The claimant did not sustain any significant or permanent injury as a result of the motor vehicle accident" (NYSCEF Doc No. 52, Dr. Guttman's IME Report at 5), this does not constitute an opinion that the claimed injuries were not caused by the accident. He merely opined that as a result of the accident any injuries did not rise to the level of significant or permanent injury.
As for the argument in counsel's affirmation that any injuries claimed were not the result of the subject motor vehicle accident, this Court notes that Dr. Guttman never opined as such. While defendant's counsel referred to "radiological evidence," none exists in Defendant's motion papers. There is simply no MRI or x-ray review in Defendant's submission. Counsel did not specify how "plaintiff's testimony" established a lack of proximate causation. (Supra at 4, 5.) With regard to proximate causation there is no prima facie case by Defendant (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955), and the burden of proof never shifted to Plaintiff to demonstrate a material issue of fact.
Even if Defendant's evidence did establish that Plaintiff did not sustain injuries proximately caused by the accident, it failed to establish that there was no exacerbation of previously existing injuries (see Menjivar v Capers, 214 A.D.3d 640 [2d Dept 2023], a burden imposed by virtue of Plaintiff having alleged exacerbation in her bill of particulars (see NYSCEF Doc No. 48, bill of particulars ¶ 10 at 8).
(2) Permanent Loss of Use of a Body Organ, Member, Function, or System
A plaintiff claiming this must prove that the permanent loss of use is a total loss of use (see Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]). Dr. Guttman's IME report established a prima facie case that Plaintiff did not sustain total loss of use of an organ, member, function or system as he recorded movements in the body parts examined.
Plaintiff did not rebut this. In fact, Plaintiff's own evidence established movements in her cervical and lumbar spines. It must be emphasized that this category requires complete and total loss of an organ, member, function, or system, and clearly this category was not met by Plaintiff. There is no issue of fact as to that, and this Court is puzzled why she would assert permanent loss of use when her own evidence proved that none of her body parts have succumbed to desuetude, obsolescence, paralysis, or amputation.
(3) Permanent Consequential Limitation of Use of a Body Organ or Member; Significant Limitation of Use of a Body Function or System
Dr. Guttman's IME report reflecting orthopedic testing recorded no limitations in the range of motion in Plaintiff's cervical and lumbar spines (see NYSCEF Doc No. 52, Dr. Guttman's IME Report at 3-4). Establishing a lack of limitations normally would enable a defendant to successfully establish that these two limitation categories have not been satisfied by Plaintiff.
However, although Dr. Guttman listed use of a goniometer in his IME Report, he failed to set forth the authority relied upon to determine norms for range of motion testing. As this Court noted in Wilks v Baichans, Inc. (79 Misc.3d 1226 [A], 2023 NY Slip Op 50731[U] [Sup Ct, Kings County 2023]), the importance in establishing which authority a medical expert utilized when determining range of motion degrees stems from the fact that not all doctors agree on range of motion norms. It might also be prudent to add that in the medico-scientific community, it is generally accepted practice for scientists and physicians to note authority and measurements to not only enable others to replicate their work but also for others to better understand the process. Thus, it is questionable how fairness can be demonstrated when medical experts, as members of the scientific community, offer degrees of measurement without at least stating what authority was used.
This Court wrote in Wilks:
Nonetheless, this Court finds that Defendants failed to make out a prima facie case of entitlement to summary judgment with respect to these two categories. Dr. Guttman did not set forth the authority he relied upon to determine what the norms are on range of motion testing. While this Court has not located appellate authority for the proposition that an examining doctor whose report is used on a motion for summary judgment to dismiss a complaint premised on the asserted ground of a lack of serious injury must set forth where the doctor derived the norms, this Court notes that doctors do not always agree on them (see Layne v Drouillard, 65 A.D.3d 1197 [2d Dept 2010, Spolzino, J., dissenting]; Balkaran v Shapiro-Shellaby, 26 Misc.3d 1228 (A), 2009 NY Slip Op 52755(U) (Sup. Ct. Bronx Co. 2009). Summary judgment dismissing a complaint and depriving a plaintiff of a jury trial is a drastic remedy. To premise a grant of summary judgment on a doctor's range of motion findings without the doctor stating the source of the "normal degrees" is inequitable and insufficient, inasmuch as case law has noted that there are at least several sources (e.g. Ramos v Keenan, 2017 NY Slip Op 31286(U), *1 [Sup Ct, NY County 2017] [AMA Guidelines 5th Edition, NYS guidelines, McBride's Guide to Permanent Disability]; Roldan v Perro, 2013 WL 9972883, *2 [Sup Ct, Nassau County, May 23, 2013, No. 16464/2011] [AMA guidelines]; Davis v Rivers, 2010 WL 3738550 [Sup Ct, Sept. 15, 2010, No. 19190/2008] [Physical Examination of the Spine and Extremities by Dr. Hoppenfeld, American Medical Association Guidelines to the Evaluation of Permanent Impairment, Campbell's Operative Orthopedics]).
Conclusory findings of a doctor are insufficient on a motion for summary judgment (see Pupko v Hassan, 149 A.D.3d 988 [2d Dept 2017] [conclusory and speculative opinion regarding causation]; Landman v Sarcona, 63 A.D.3d 690 [2d Dept 2009] [doctor's opinion that significant limitation due to plaintiff's age and evidence of degenerative disease conclusory]). Providing an opinion without stating the tests relied on is insufficient (see Smith v Quicci, 62 A.D.3d 858 [2d Dept 2009]; Rodriguez v J&K Taxi, Inc., 12 A.D.3d 434 [2d Dept 2004]). Stating results without the norms is insufficient (see Shirman v Lawal, 69 A.D.3d 838 [2d Dept 2010]; Malave v Basikov, 45 A.D.3d 539 [2d Dept 2007]; DeLuca v Miceli, 37 A.D.3d 643 [2d Dept 2007]; Frey v Fedorciuc, 36 A.D.3d 587 [2d Dept 2007]; Powell v Alade, 31 A.D.3d 523 [2d Dept 2006]). Likewise, without indicating where the norms were obtained from, it is insufficient to opine that "There were no objective findings on examination" (NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report at 7), especially since the doctor himself found reduced range of motion by his own lack-of-source standard.(Wilks, 2023 NY Slip Op 50731[U], *6-7.)
Finally, Plaintiff Chen raised an interesting issue of whether Dr. Guttman's IME report was admissible based on use of questionable language. All throughout the IME report, Dr. Guttman referred to Plaintiff, a female, as a man, using masculine pronouns and labeled her height as 5'7" when the hospital records listed her as female with a height of 5'1" (see NYSCEF Doc No. 55, Richard R. Mogg Affirmation ¶ 47 at 12; compare NYSCEF Doc No. 52, Dr. Guttman's IME Report at 3, with NYSCEF Doc No. 56, Hospital Records, at 2-6 ). While it is not uncommon for a physician conducting an IME to use boilerplate language and perhaps forget to correct a few pronouns, this creates a question of whether Dr. Guttman's report reflects his examination of the correct individual.
Plaintiff's medical records also describe her as a female (see, e.g. NYSCEF Doc No. 57, Eighth Avenue Medical, PLLC Records, at 2, 5, 8, 11, 14, 17; NYSCEF Doc No. 58, Integrated Chiropractic, P.C. Records at 2, 21; NYSCEF Doc No. 60, Dr. Arden M. Kaisman Records at 2, 5).
Defendant's counsel referred to Plaintiff in the feminine form: "After Plaintiff submitted her deposition..." (NYSCEF Doc No. 46, Young Choo Affirmation ¶10 at 3 [emphasis added]). To the extent that Dr. Guttman referred to Plaintiff as a male, this constituted an inconsistency akin to inconsistent medical evidence (see Black v County of Dutchess, 87 A.D.3d 1097 [2d Dept 2011]; Coscia v 938 Trading Corp., 283 A.D.2d 538 [2d Dept 2001]).
One could view the misdescription as but another manifestation of the routinized IME process which has been commented on with skepticism:
Initially defendant(s) submits medical affirmations which clearly, definitively and without any doubt or hesitation, after the usual cursory 15 minute physical examination of plaintiff(s), affirm under penalty of perjury, that plaintiff(s) has not sustained a serious injury. This IME, Independent Medical Examination, is neither independent nor truly a medical examination. Are we to obscure the truth and accept the fiction that the examining doctor, retained by the defendant(s) to conduct a physical examination, being paid by the defendant(s) for his or her examination and report, and to be further paid, in futuro, for his testimony at a trial of the action, is independent? Nothing can be further than the truth. Nor does this scenario absolve the plaintiff(s)' attorney(s) from the same fiction that plaintiff(s)' expert is totally free of any prejudice. Any doctor, not adhering to the unwritten code of either finding a "serious injury" or denying the existence of same, will no longer have that annuity income generated by his or her interpretation of the x-ray films, MRI films, CT scans, EEG's, EMG's, etc., etc., etc. The statute and case law have created a battle of experts and this court, cannot, as a matter of law, determine the credibility of the medical professionals based upon their affirmations.(Chand v Asghar, 6 Misc.3d 1010 [A], 2005 NY Slip Op 50025[U], *1 [Sup Ct, Queens County 2005].)
Another judge instructed the jury: "Now you must keep in mind that an IME means an independent medical examination. The operative word is independent. Is it really independent? One guy is summoned to come in to testify on its behalf. So an IME can be a misnomer is what I'm saying. You can realize that. All right." (Weiner v Jacobs, 2008 NY Slip Op 52655[U], * 2-3 [Sup Ct, NY County 2008].
This Court, however, treats the misdescription of Plaintiff seriously, placing the accuracy of Dr. Guttman's report in such doubt as to vitiate Defendant's argument that it is entitled to summary judgment on the limitation categories of serious injury as a matter of law.
(4) 90/180
This category is defined specifically as "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" (Insurance Law § 5102 [d]).
Plaintiff's bill of particulars stated that she was confined to bed for three days and confined to home for approximately one week (NYSCEF Doc No. 48, bill of particulars ¶ 12 at 9). Had this been mentioned in the affirmation, Defendant would have made out a prima facie case that there was no issue of fact concerning 90/180 category - that Plaintiff failed to establish a serious injury under this category (see Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 A.D.3d 664 [2d Dept 2008] [five weeks of missed work does not rebut prima facie case on 90/180; Charley v Goss, 12 N.Y.3d 750 [2009], affg 54 A.D.3d 569 [1st Dept 2008] [two weeks of missed work does not rebut prima facie case on 90/180]).
Defense counsel's affirmation, however, neither referred to this nor to anything else specific to make out a prima facie case of lack of serious injury within the context of the 90/180 category. As noted supra at 5, the affirmation stated merely:
7. Lastly, the defendant's proof rules out the 90/180-day category of the statute. Putting aside that this category requires proof that there was a causally related, medically determined injury, which we do not believe plaintiffs can establish, the 90/180 category requires proof that plaintiffs were medically prevented from performing "substantially all" of his usual and customary activities for the requisite period. See Travis v. Batchi, 18 N.Y.3d 208, (2011); Nesci v. Romanelli, 74 A.D.3d 765 (2nd Dept. 2010); Kreimerman v. Stunis, 74 A.D.3d 753 (2nd Dept. 2010); Camacho v. Dwelle, 54 A.D.3d 706 (2nd Dept. 2008); Hamilton v. Rouse, 46 A.D.3d 514 (2nd Dept. 2007).(NYSCEF Doc No. 46, Young Choo Affirmation ¶ 25 at 7.) This is too conclusory to establish a prima facie case ruling out the 90/180 category. This averment did not refer to either the bill of particulars or Plaintiff's EBT testimony.
Counsel's affirmation in paragraph 9 does allege, "In support of this motion, Defendants [sic] submit July 29, 2021, the deposition testimony of Plaintiff, and the affirmation of Dr. Guttman (Ex. D, and F respectively) (NYSCEF Doc No. 46, Young Choo Affirmation ¶ 9 at 3), but does not connect the deposition testimony to Plaintiff's situation during the 180 day-period following the accident.
Moreover, Dr. Guttman did not address this category, and in discussing Plaintiff's occupation, wrote just that "He [sic] missed time from work as a result of the accident of April 10, 2017" (NYSCEF Doc No. 52, Dr. Guttman's IME Report at 2 [not specifying duration of time lost from work]; see Rouach v Betts, 71 A.D.3d 977 [2d Dept 2010]).
In another area of the law involving motor vehicle accidents, it has been stated,
While plaintiff [insurer] submits the transcripts of the claimants' EUOs, it does not cite to any line or page of the claimants' testimony to support such claims. The Court should not have to undertake the toilsome task of reading through pages and pages of testimony in order to ascertain which portions support plaintiff's supposed contentions that there exists a founded belief that the alleged injuries did not arise from a covered accident. (Unitrin Advantage Ins. Co. v Advanced Orthopedics and Joint Preserv. P.C., 2018 NY Slip Op. 33296[U], *6-7 [Sup Ct, NY County 2018].)
Similarly,
It is not the duty of the arbiter, be it an arbitrator or Court, to parse though hundreds of pages of exhibits to make out a claim or defense for a party (see e.g. Barsella v. City of New York, 82 A.D.2d 747, 748 [1st Dept 1981]); such duty belongs to counsel, as advocate. Failing to elucidate evidence in support of a party's claim is not error of the arbitrator but is rather error of counsel, and such failure does not render an arbitrator's award arbitrary and capricious [citation omitted].(Country-Wide Ins. Co. v M El Sayed Physical Therapy, P.C., 2022 NY Slip Op. 31874[U], *2-3 (Sup Ct, NY County 2022]).
A defendant's papers in support of a summary judgment motion premised on a plaintiff not satisfying the 90/180 serious injury category must be sufficiently specific - contain "the requisite degree of certainty" - and if not, there is no prima facie showing of entitlement to judgment as a matter of law (Ames v Paquin, 40 A.D.3d 1379 [2d Dept 2007] [defendant's medical expert opined that he did not believe the accident was serious and did not address the post-180 day period following it]; see also Rahman v Sarpaz, 62 A.D.3d 979 [2d Dept 2009]).
Therefore, this Court finds that Defendant failed to meet its prima facie burden as to the 90/180 category of serious injury.
VI. Conclusion
In the absence of Defendant having failed to make out a prima facie case that Plaintiff Chen did not sustain a serious injury proximately resulting from the April 10, 2017 motor vehicle accident and did not sustain a serious injury of "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... prevent[ing] the injured person from performing substantially all... daily activities for not less than ninety days during the one hundred eighty days immediately following the [subject accident]" (Insurance Law § 5102 [d]), the burden did not shift to Plaintiff Chen to submit evidence in admissible form demonstrating a triable issue of fact (see Franchini v Palmieri, 1 N.Y.3d 536; Grasso v Angerami, 79 N.Y.2d 813; Curiale v Delfavero, 211 A.D.3d 905 [2d Dept 2022]).
Since Defendant did not eliminate a material issue of fact as to three categories of serious injury, the motion for summary judgment must be denied and Plaintiff Chen is entitled to seek recovery for all injuries proved at trial to have proximately been caused by the aforesaid accident (see Linton v Nawaz, 14 N.Y.3d 821 (2010); Detoma v Dobson, 214 A.D.3d 949 [2d Dept 2023]; O'Neill v O'Neill, 261 A.D.2d 459 (2d Dept 1999]).
Therefore, it is legally irrelevant that Plaintiff failed to demonstrate a triable issue of fact as to permanent loss of use once Defendant met its prima facie burden as to that category (see Curiale v Delfavero, 211 A.D.3d 905 [2d Dept 2022]).
Accordingly, IT IS HEREBY ORDERED that Defendant's motion for summary judgment is DENIED.