Marta Alvarez, Appellant,v.NYLL Management Ltd., et al., Respondents.BriefN.Y.February 11, 2015THE LAW OFFICES OF JAMES M. SHERIDAN, JR., P.C. 200 Garden City Plaza, Suite 201 Garden City, New York 11530 JMSJrEsq@aol.com Tel.: (516) 739-5547 Fax: (516) 706-5557 New York State Court of Appeals Clerk's Office 20 Eagle Street Albany, New York 12207-1095 Attn.: Andrew W. Klein, Chief Clerk and Legal Counsel to the Court Re: Alvarez v. NYLL Management APL-2014-00256 Dear Honorable Clerk: November 15, 2014 I am of counsel to Hallock & Malerba, P.C., the attorneys for the Plaintiff- Appellant in connection with the above-referenced appeal. Plaintiff-Appellant respectfully submits this letter brief pursuant to the instruction of this Court contained in its correspondence dated October 22,2014 within the time prescribed for filing. Also enclosed and made a part of Appellant's submission are the Appellate Division briefs of all parties and the Appellate Division Record. The Court is also respectfully referred to the Appellate Division Decision, dated September 11,2014, annexed to the Plaintiff- Appellant's Preliminary Appeal Statement on file with this Court. This action arises from an April 4, 2009 motor vehicle accident in which the vehicle operated by plaintiff, MARTA ALVAREZ, was struck in the rear by the vehicle owned and operated by the defendants, NYLL MANAGEMENT LTD. and LEONCIO PEGUERO, at the intersection of Valentine Avenue and Webster Avenue in Bronx County, City and State of New York. As a result of the subj ect accident, plaintiff sustained serious and permanent injuries as defined in 5I02(d) of the New York State Insurance Law. A Verified Bill of Particulars was exchanged, which states that Plaintiff sustained injuries to her cervical spine, right shoulder and right knee. (R.66). She underwent surgery to both her right shoulder and right knee. (R.n). The plaintiffs injuries are serious and permanent, and are causally related to the accident of April 4, 2009, as established by her treating orthopedic surgeon, Mark S. McMahon, M.D. Based upon the arguments set forth below and in Appellant's Brief, the plaintiff raised issues of fact with regard to her right shoulder, right knee and cervical spine injuries. Re: Alvarez v. NYLL Management APL-2014-00256 Plaintiff was transported to St. Barnabas Hospital via ambulance from the scene of the accident. In the emergency room she was noted to have complaints of a headache, pain in her right shoulder and positive paraspinal tenderness in her neck (R.1 08). Her past medical history was noted as thyroid cancer, arthritis, depression and anxiety (R.108). Her past surgical history was noted as one concerning her thyroid and two c- sections (R.1 08). At the outset, it must be pointed out that the defense has argued that this one and only general notation of arthritis in an unspecified area of plaintiffs body is of some significance. However, the fact that this 40 year old plaintiff may have had arthritis in an unspecified part of her body, unknown on this record, is of absolutely no significance or consequence. Neither plaintiffs treating doctors, nor the defense experts allege that arthritis has any bearing on the injuries claimed. Yet the non-issue of arthritis argued by the defense without any medical support was adopted by the Supreme Court and the Appellate Division to the extent that there was significance and relevance to this one notation of arthritis. The fact that plaintiff and her treating orthopedic surgeon have stated that she never had any pain or sought any medical treatment for her neck, right shoulder or right knee prior to the accident at issue should have been the end of the inquiry. Since the defense doctors do not attribute her injuries to arthritis and the plaintiff was never asked about arthritis at her deposition, there is no issue as to arthritis which plaintiffs doctors were obligated to address. Plaintiff testified that the only medication she was taking at the time of the accident was that for her thyroid condition (R. 161, lines 3-14). She never injured her neck, right shoulder or right knee prior to the accident at issue (R. 194, lines 12-23). In her Affidavit she stated that she never had any pain and never received any medical treatment for her neck, right shoulder or right knee prior to the accident at issue (R. 275, paragraph 17). There is nothing in evidence to contradict these facts. As such, the issue regarding arthritis is irrelevant as the plaintiff testified that she never had any pain in the parts of her body injured in the accident. As such, her arthritis noted in the hospital record must be considered to affect another part of her body which has no bearing on this litigation. Consistent with the plaintiffs testimony, Dr. McMahon states that plaintiff informed him that she never had any prior injury or treatment to her neck, right shoulder or right knee prior to the accident (R. 245-246, paragraph 4). Dr. McMahon reviewed plaintiffs MRI films and observed bulging discs with impingement in the cervical spine and a supraspinatus tendon tear in the right shoulder (R. 247, paragraph 8). The best evidence regarding the shoulder tear is Dr. McMahon's visualization of same during the operation he performed on June 23, 2009 (R.72). He causally relates the bulging discs (R. 248, paragraph 16) and the tendon tear (R. 249, paragraph 17) to the accident at issue and states that same were not degenerative (R. 249, paragraph 19). He causally relates the range of motion deficits caused by these injuries to the accident. 2 Re: Alvarez v. NYLL Management APL-2014-00256 On April 14, 2009, ten days after the accident, Dr. Ketan Vora conducted quantified objective range of motion testing on plaintiffs cervical spine, revealing significant limitations (R.125). Plaintiff was examined by her treating orthopedic surgeon Mark S. McMahon, M.D. on July 25, 2011and found to have limitations in the range of motion of the cervical spine of up to 64% causally related to the accident of April 4, 2009. (R.245-253). Dr. McMahon reviewed the cervical MRIs and causally related the bulging discs he observed therein to the accident. As such, issues of fact are present and the motion should have been denied on this basis alone. Defendants-Respondents' Brief seemingly concedes the fact that plaintiff has raised an issue of fact with respect to her cervical spine injuries. The vast majority of the Brief attacks plaintiffs knee and shoulder injuries for which she underwent surgery, yet omits any discussion of the cervical spine injuries. As such, the Supreme Court's decision should have been reversed. In support of their motion, the defendants submitted the independent medical examination reports of an orthopedic, Edward M. Deeter, M.D. (R.86) and the film review reports of radiologist, Peter A. Ross, M.D. (R.75). Dr. Decter's conclusions regarding plaintiffs right shoulder are incomplete based upon his own admissions. He writes that" .. .it would be of the utmost importance to review any intraoperative photographs." (R.96). He acknowledges that his opinions or conclusions are incomplete when he writes, "Based on my review of the MRI studies as noted above, the surgical indication in this case is questionable, and that is why intraoperative photographs are necessary." (R.96). Dr. Deeter writes this with the knowledge that Dr. McMahon actually observed a tendon tear during surgery. This observation is the best evidence and only the intraoperative photos can compare, as Dr. Decter concedes. Neither Dr. Decter, nor Dr. Ross challenge Dr. McMahon's observation of a tear which he causally relates to the accident. Accordingly, Dr. Decter's opinions are speculative, conclusory and incomplete as he never reviewed the intraoperative photographs he sought. Further, nowhere in his report does Dr. Decter dispute the causal relationship between the accident at issue and plaintiffs cervical spine injuries or tendon tear. His only conclusion is that plaintiff did not sustain a "permanent orthopedic injury" to her neck, shoulder or knee. The Defendant submitted the contemporaneous range of motion testing results of one of plaintiffs treating physicians, Ketan Vora, M.D., containing deficits of as much as 33% in the cervical spine, ten days after the accident. Plaintiff submitted the recent results (as of the time of the motion) of plaintiffs treating surgeon, Mark S. McMahon, M.D., examination containing deficits of as much 64% in the cervical spine, 37% in the right shoulder and 29% in the right knee, over two years post-accident. Dr. McMahon also reviewed the MRls and other medical records and opined that the injuries contained therein as well as the range of motion limitations are permanent, significant and causally 3 Re: Alvarez v. NYLL Management APL-2014-00256 related to the subject accident. Therefore, defendant's motion should have been denied in its entirety and the Appellant Division's decision should be reversed. The defense further argued, and the Courts apparently agreed, that the fact that the first doctor the plaintiff saw after the accident, Dr. Vora, measured the range of motion of both of plaintiffs shoulder's and found the same limitations, somehow equates with full range of motion in plaintiffs right shoulder. To be clear, Dr. Vora found plaintiff to have the following limitations of motion in both shoulders on April 14, 2009: flexion 80/90 (17% deficit); extension 40/45 (12% deficit); abduction 1501180 (12% deficit) (R.l26). Six days later, on April 20, 2009, then sixteen days post accident, still contemporaneous by any standard, Dr. McMahon found plaintiff to continue to complain of pain in the right shoulder. He found her to have the following range of motion therein: abduction 1051180 (42% deficit); adduction 26/40 (35% deficit); forward flexion 1291180 (28% deficit); extension 45/60 (25% deficit); internal rotation 60/90 (33% deficit); external rotation 62/90 (32% deficit) (R.247-248). In sum, ten days after the accident plaintiff was found to have limitations in her right shoulder which had worsened when her range of motion was measured six days later. The fact that plaintiff had the same limitations in her left shoulder ten days after the accident is irrelevant. Interestingly, this holding by the Courts is based solely on defense counsel's argument. Defendant's examining physician, Dr. Decter, did not review Dr. Vora's records and therefore lends no support to defense counsel's medical conclusion that equal limitations in both shoulders somehow equates to full range of motion. Again, there is nothing by any medical professional before the COUli to support this conclusion which was apparently adopted by the lower Courts. Further, as with the red-herring arthritis issue, plaintiff was never asked about the condition of her left shoulder prior to this accident at her deposition. On this record, we only know that the plaintiff never had any pain and never sought any medical treatment for her right shoulder prior to this accident. We have no information as to whether she had left shoulder issues prior to this accident which could explain the limitations of motion therein that have somehow become so inexplicably important in this matter. In sum, there is no medical support for the legal conclusion that Dr. Vora found plaintiff to exhibit full range of motion in her right shoulder which would necessitate that Dr. McMahon address same. To the contrary, Dr. Vora found limits in the right shoulder ten days post-accident and Dr. McMahon found more significant limits sixteen days post-accident. Defendant's radiologist, Peter A. Ross, M.D., reviewed the MRI of plaintiffs cervical spine and concluded that there was no evidence of "focal disc herniations" caused by the accident. He found mild desiccation, or water loss, and no evidence of "diffuse annular" bulges. Plaintiffs radiologist, Ronald J. Roskin, M.D., noted desiccation but also noted bulging discs causing impingement (R.279). Dr. McMahon reviewed the MRI of the cervical spine and opined that the bUlging discs that he observed 4 Re: Alvarez v. NYLL Management APL-2014-00256 at the same levels as Dr. Roskin, C2-3, C3-4 and C4-5, were caused by the accident at issue, regardless of any desiccation present. To be clear, there is no argument that desiccation was caused by the accident, only that the bulging discs with resultant range of motion deficits were caused thereby. Hence, issues of fact exist. Plaintiff has set forth evidence that she sustained bulging discs as a result of the accident which continued to cause significant range of motion deficits in her cervical spine over two years post accident. Dr. Ross, also reviewed the MRls of the right shoulder. Notably, Dr. Ross never mentions that he observed a spur. Further, although he notes unspecified "supraspinatus tendinosis changes" which he believes to be degenerative, he makes no comment upon plaintiffs radiologists finding of increased signal consistent with a tear (R.277). More importantly, his observation of the MRI films is certainly of less evidentiary value than Dr. McMahon's actual visualization of a tear during surgery. Even defendant's examining physician, Dr. Decter, acknowledges that the best evidence of the injury is actually viewing it during surgery and this is why he considers any intraoperative photos to be of the "utmost importance" (R. 88). Dr. McMahon is silent on the presence of a spur in his surgical report which suggests that same was irrelevant to the tear which was the injury causing plaintiffs range of motion deficit. Neither Dr. Decter, nor Dr. Ross challenge the fact that there was a tear as observed by Dr. McMahon during surgery. The fact that Dr. McMahon causally relates said tear and the resultant range of motion deficits to the accident raises issues of fact. It is respectfully submitted that the Supreme Court erred in granting the defendants' motion for summary judgment and the Appellate Division, First Department en-ed in affirming that decision. The defendants failed to set forth a prima facie case that the plaintiff did not sustain a serious injury and that no questions of fact exist. The defendants' motion should have been denied because it was not supported by a sufficient medical report against plaintiff and, even if same were deemed sufficient, plaintiff raised questions of fact which must be decided by ajury. The lower Courts' decision constitute an erosion of this Court's holdings in see, Perl v. Meher, 18 NY.3d 208 (2011) and Linton v. Nawaz, 14 N.Y.821 (2010). The decisions lower the bar for defendants while raising it for injured plaintiffs. For all the reasons set forth herein, as well as in Appellant's Briefs, the decision of the Appellate Division, First Department should be reversed. If the defendant meets his initial burden, then to defeat defendant's motion, plaintiff needs merely to show that there is a genuine issue of material fact regarding whether he has suffered a "serious injury" as a result of the accident. Plaintiff need not prove that he has suffered a "serious injury". See CPLR '3212(b). Based upon Dr. McMahon's Affirmation and records, his own review of the MRls, the affirmed MRI reports, the plaintiffs Affidavit, together with all the exhibits, it is clear that plaintiff has indeed sustained serious injuries and that said injuries are causally related to the accident at issue. 5 Re: Alvarez v. NYLL Management APL-2014-00256 Based upon the facts at bar, the Appellate Division's decision is not consistent with current case law. This Court has held that a plaintiffs doctor's opinion that the plaintiffs injuries were causally related to the accident at issue, based on the contemporaneous and recent limitations of motion as well as a review of MRI reports, is sufficient to overcome a defense radiologist's claim of degeneration. (see, Perl v. Meher, 18 NY.3d 208 (2011), Kone v. Rodriguez, 107 A.D.3d 537, 967 N.Y.S.2d 359 (lst Dept., 2013), Linton v. Nawaz, 14 N.Y.821 (2010)). As is readily apparent from the plaintiff's submissions, as set forth in detail below, there are significant contemporaneous and recent range of motion deficits, based on objective tests, together with Dr. McMahon's explanation of the causal relationship between the accident and injuries, including two surgeries. Although not necessary, Dr. McMahon affirmed that the plaintiffs injuries are not degenerative in origin. His conclusions are based upon his treatment of the plaintiff, his review of the MRIs, the surgeries he performed on plaintiffs right shoulder and right knee, the affirmed MRI reports of plaintiff's radiologist, plaintiffs medical records and his own contemporaneous and recent clinical findings. He causally relates the objectively quantified limited range of motion plaintiff suffered initially and continues to suffer in her neck, right shoulder and right knee, to the findings of bulging discs in the cervical spine, a tendon tear in the right shoulder that he visualized during surgery, and chondromalacia of the patella of the right knee, all diagnosed through MRls and/or visualized, to the motor vehicle accident at issue. This evidence raises issues of fact which must be determined by a jury. On April 20, 2009, orthopedic surgeon, Dr. Mark S. McMahon conducted quantified objective range of motion testing on plaintiffs right knee as compared to normal, with the use of a goniometer, revealing significant limitations. Dr. McMahon measured the range of motion of plaintiffs right knee and found that her flexion was restricted at 100 degrees (l40 is normal), representing a 29% limitation. Dr. McMahon causally relates these limitation to the accident of April 4, 2009. (R.245-253). Pursuant to plaintiff's continuing complaints and her examinations, she was referred for diagnostic tests including MRIs of her neck, right knee and right shoulder. As evidenced by the sworn MRI rep0l1s of the cervical spine, Dr. Ronald Roskin found that plaintiff sustained posterior bulging discs at C2-C3, C3-C4 and C4-C5 causing impingement of the anterior thecal space at these levels. (R.278). The MRI of the right shoulder contained findings consistent with a Tear of the supraspinatus tendon. (R.276). Dr. McMahon reviewed plaintiffs MRls (R.247) and found a tear of the supraspinatus tendon in the right shoulder and bulging discs in the cervical spine which are causally related to the subject motor vehicle accident and stated that both were not degenerative. (R.249). 6 Re: Alvarez v. NYLL Management APL-2014-00256 Due to her continuing pain and failure to respond to conservative treatment, on June 23,2009, Dr. McMahon performed surgery on plaintiffs right shoulder and visualized a partial tear of the supraspinatus tendon. (R.72). On August 6, 2009, Dr. McMahon operated on plaintiffs right knee. (R.74). Pursuant to Plaintiff s affidavit, treatment was discontinued after approximately nine months when her No-Fault benefits were denied and she could not afford to pay for further treatment out-of-pocket. (R.273). Also, she was informed that she had reached maximum medical improvement from conservative treatment and that further conservative treatments would only be palliative in nature. (R.273). (Ramkumar v. Grand Style Transp. Enterprises, Inc., 2 N.y'3d 905,998 N.E.2d 801, 976 N.Y.S.2d 1 (2013), Trezza v. MTA, 113 A.D.3d (lst Dept. 2014). Plaintiff was again examined by her treating orthopedic surgeon, Mark S. McMahon, M.D. on July 25, 2011 (R.245-253). Pursuant to his Affidavit plaintiff continued to complain of pain in her neck, right knee and right shoulder. In his Affirmation, Dr. McMahon details and describes the serious nature of plaintiffs injuries. He once again conducted quantified objective range of motion testing on plaintiffs cervical spine, right shoulder and right knee as compared to normal, with the use of a goniometer, revealing significant limitations in each. As detailed below, this examination revealed that there is a significant and permanent partial disability to plaintiff s cervical spine, right knee and right shoulder as a result of this accident (R.245-253). Dr. McMahon notes that plaintiffs pain is aggravated with kneeling, lifting, performing household chores, running, sitting and standing for long periods, and an inability to exercise. (R.245-253). Dr. McMahon's July 25,2011 examination of the plaintiffs cervical spine demonstrated that flexion was to 45 degrees (normal is 80 degrees) - thereby reflecting a 44% loss of use; extension was to 25 degrees (normal is 70 degrees) - thereby reflecting a 64% loss of use; left and right lateral flexion was to 30 degrees (normal is 40 degrees) - thereby reflecting a 25% loss of use. Plaintiffs right shoulder revealed abduction to 135 degrees (normal is 180 degrees) - thereby reflecting a 25% loss of use; adduction was to 25 degrees (normal is 40 degrees) - thereby reflecting a 37% loss of use; forward flexion was to 150 degrees (normal is 180 degrees) - thereby reflecting a 17% loss of use; internal rotation was to 65 degrees (normal is 90 degrees) - thereby reflecting a 28% loss of use; external rotation was to 65 degrees (normal is 90 degrees) - thereby reflecting a 28% loss of use. Lastly, Dr. McMahon found plaintiffs right knee flexion to be restricted at 100 degrees (140 is normal), representing a 29% limitation. Also, the strength in plaintiffs quadriceps/hamstrings was restricted at 4+/5 (normal is 5/5), a 20% limitation. Dr. McMahon causally relates all of these continued limitations over two later to the accident of April 4, 2009. (R.245-253). 7 Re: Alvarez v. NYLL Management APL-2014-00256 Dr. McMahon opines with a reasonable degree of medical certainty that the plaintiff has significant and permanent injuries in the cervical spine, right knee and right shoulder as a result of this accident (R.251-252). As is readily apparent from the plaintiff s submissions, as set forth above, there are contemporaneous and recent range of motion deficits, based on objective tests, together with Dr. McMahon's explanation of the causal relationship between the accident and injuries. His conclusions are based upon his own care and treatment of the plaintiff, his review of the MRIs, his findings during surgery, and his own clinical findings. He causally relates the objectively quantified limited range of motion which plaintiff suffered initially and continues to suffer, the findings of bulging discs in the cervical spine diagnosed through MRIs and confirmed clinically, his own visualization and repair of a traumatic tear in the right shoulder, as well as traumatic findings in the right knee which he personally tried to repair, all causally related to the accident at issue (R.245-253). Further, Dr. McMahon affirmatively states that, based on his review of the records, including the MRIs, the contemporaneous and recent range of motion deficits, that the injuries were caused by the accident and not as a result of degeneration. (R.245- 253). Clearly, the medical proof submitted by plaintiff establishes that the plaintiff has sustained serious injuries as defined by Insurance Law §51 02. Accordingly, the defendants' motion should have been denied in its entirety. The First Department has held that significant decreased range of motion one year and three months after an accident constitutes a significant limitation (Kone v. Rodriguez, 107 AD.3d 537, 967 N.Y.S.2d 359 (Ist Dept., 2013). The Second Department has held similarly. (Estrella v. Geico Ins. Co., 102 AD.3d 730 (2d Dept. 2013)). Dr. McMahon related the injury to the accident based upon his own examinations, review of plaintiffs MRIs, medical records, and history. Accordingly, defendant's motion should have been denied in its entirety. The Court of Appeals has made it clear that a treating doctor's causal relation of injuries to an accident is sufficient to overcome the pervasive defense radiologist' opinion that a plaintiffs injuries are degenerative / pre-existing in Perl v. Meher, 18 NY.3d 208 (2011). Unquestionably, findings of range of motion deficits related to the accident continue to suffice to raise an issue of fact necessitating the denial of motions such as that currently at bar. In the instant matter, there is evidence of contemporaneous complaints of pain to the areas of the body alleged to have been injured, contemporaneous range of motion deficits ten and sixteen days post-accident, positive findings on MRI and during surgery, and recent significant range of motion deficits unequivocally causally related to the accident at issue by plaintiffs orthopedic surgeon. (Angeles v. American United Transportation, 110 AD.3d 639 (lst Dept. 2013), Clementson v. Price, 107 AD.3d 533, Pietropinto v. Benjamin, 104 AD.3d 617 (lst Dept. 2013), Young Kyu Kim v. Gomez, 105 AD.3d 415 (2013), Santos v. Perez, 107 AD.3d 572 (lst Dept. 2013), Thomas v. 8 Re: Alvarez v. NYLL Management APL-2014-00256 NYLL Management LTD., 110 A.D.3d 613 (1st Dept 2013), Joseph v. Francois, 103 A.D.3d 781,962 N.Y.Sold 197 (2d Dept. 2013). Accordingly, the instant motion should have been denied in its entirety. Based upon current case law, the Appellate Division's decision should be reversed. Further, the fact that the medical evidence before the Court is contradictory necessitates the denial of the defendant's motion. The defendant submitted Dr. Decter's report which is contradictory to the medical reports submitted by plaintiff with regard to her range of motion, thus raising issues of fact (Tsamos v. Diaz, 81 A.D.3d 546, 917 N.Y.S.2d 180 (1st Dept. 2011)). The same result must be had in the case at bar where the plaintiffs recent examination, conducted by Dr. McMahon, revealed significant limited ranges of motion in her cervical spine, lumbar spine, right knee and right shoulder. Dr. Decter finds full range of motion in every plane of motion. Clearly, there are contradictions between the plaintiffs doctors and defendants' doctor which necessitate the denial of the instant motion. At the very least, the conclusions of the physicians submitted on this record raise questions of fact and defendants' motion should have been denied as noted in the dissenting opinion. Servones v. Toribio, 2005 NY Slip Op 05984, (1 st Dept. 2005), (McDowell v. Abreu, 11 AD3d 590 [2004]; see also Thorner v. Latture, 11 AD 3d 448 [2004]). CONCLUSION Based on the foregoing, this Honorable Court should reverse the Appellate Division, First Department's Order, dated September 11, 2014, which affirmed the Supreme Court, Bronx County's Order, dated December 13,2012, which granted Defendants' summary judgment motion. Date: November 15,2014 Respectfully submitted, JAMES M. SHERIDAN, JR., ESQ. Of Counsel HALLOCK & MALERBA, P.c. Attorneys of Record for Plaintiff-Appellant MARTA ALVAREZ 1550 Deer Park Avenue, Suite 3 Deer Park, New York 11729 (631) 482-8888 9