Almady v. Martinez
| Decision Date | 06 January 2020 |
| Docket Number | Index 51094/18 |
| Parties | AHMED M. ALMADY and HANIN ELHASSANIN, Plaintiffs, v. MARISSA A. MARTINEZ and DAWN M. MARTINEZ, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Present: Hon. Maria G. Rosa, Justice
DECISION AND ORDER
The following papers were read on Defendants' motion for summary judgment per Insurance Law Section 5102(d), and Plaintiffs' cross-motion for summary judgment on liability:
This is a negligence action in which Plaintiffs seek damages for injuries allegedly sustained in a motor vehicle accident on December 29, 2017. Plaintiff Ahmed Almady ("Plaintiff) was driving westbound on Route 82 in the Town of Fishkill. His wife, Plaintiff Hanin Elhassanin, was the front seat passenger. Defendant Marissa Martinez ("Defendant") was stopped in the eastbound land on Route 82 with her left turn signal activated. Her intention was to make a left turn across the westbound lane of Route 82 onto Riverview Drive. There was a light at the intersection which all parties testified was green immediately preceding the accident. As Defendant began making a left turn the front of Plaintiff s vehicle struck the passenger side of Defendants' vehicle. Defendants move for summary judgment alleging that neither Plaintiff sustained a "serious injury" within the meaning of Insurance Law §5102(b). Plaintiffs cross-move for summary judgment on the issue of liability and on the issue of whether Plaintiff Almady sustained a serious injury.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of triable issues of fact. See Zuckerman v New York, 49 N.Y.2d 557, 562 (1980). In deciding a motion for summary judgment, the court is required to view the evidence presented "in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion." Yelder v. Walters, 64 A.D.3d 762, 767 (2nd Dept 2009).
New York has enacted a no-fault system of automobile insurance that provides that a person injured in a motor vehicle accident may only recover damages in court if he or she has sustained a serious injury. See Insurance Law §5104(a). As relevant here, Insurance Law §5102(d) defines "serious injury" as a bodily injury resulting in "permanent consequential limitation of a 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 or customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment." A defendant moving for summary judgment on the ground that an accident did not cause a serious injury must submit competent medical evidence to make a. prima facie showing of entitlement to summary judgment. See Howard v Espinosa, 70 A.D.3d 1091 (3rd Dept 2010). If a defendant meets this burden, to avoid summary judgment the plaintiff must come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident. Id. As with any summary judgment motion, the court must view the evidence in a light most favorable to the non-moving party. Vega v. Resteni Const. Corp., 18 N.Y.3d 499 (2012).
A plaintiff claiming to have sustained a "significant limitation of use of a body function or system," must demonstrate that the injury alleged has limited the use of the afflicted area in a significant way rather than a mild one. Licari v. Elliot, 57 N.Y.2d 230 (1982). Mild, slight or minor limitations are insufficient to constitute a serious injury under Insurance Law §5102(d). Id. The word "significant" means that the injury is important and relates to medical significance. Toure v. Avis Rent A Car Systems. Inc., 98 N.Y.2d 345 (2002). The medical significance of an injury "involves a comparative determination of the degree or qualitative nature of an injury based on normal function, purpose and use of the body part." Id. at 353. Moreover, a plaintiff s serious injury claim must be supported by objective evidence. Id.
Plaintiff Almady alleges in his bill of particulars to have sustained a serious injury under the permanent loss of use, permanent consequential limitation, significant limitation of use and 90/180 day category of Insurance Law §5102(d). He claims to have sustained such injury to the neck, shoulders, left knee and back. In support of their claims that Plaintiff did not sustain a serious injury, Defendants have submitted copies of the pleadings, the Plaintiffs' deposition testimony, medical treatment records, reports of magnetic resonance imaging ("MRI") of his cervical and lumbar spine and a report of an independent medical examination conducted by Dr. Adam Soyer. The foregoing establishes that following the accident Plaintiff was transported to Vassar Brothers Medical Center Emergency Department for complaints of neck, head, back, shoulder and left leg pain. He was treated and released but returned the next day complaining he was in significant pain. X-rays were taken of his cervical spine, left ribs and chest. All were normal. On January 9, 2018, Plaintiff began treating with Dr. Louis Mendoza for complaints of severe pain to the neck, shoulders, left knee and upper and lower back. Dr. Mendoza diagnosed Plaintiff with cervical/lumbar disc injuries, radiculopathy and neuropathy, a torn meniscus in the left knee and sprains/strains with muscle spasms of the cervical, thoracic and lumbar spine. He directed Plaintiff to participate in physical therapy and found he was temporarily totally disabled. An MRI of the cervical spine in January 2018 revealed mild right foraminal stenosis at C2-C3 and C4-C5 with a shallow annular disc bulge, spondylotic ridging and uncovertebral joint hypertrophy resulting in mild central canal stenosis and moderate bilateral foraminal stenosis at C3-C4. A shallow annular disc bulge with mild central canal stenosis and mild bilateral foraminal stenosis was reported at C6-C7. An MR! of the lumbar spine showed mild foraminal stenosis at L3-L4 and mild canal stenosis at L4-L5. Plaintiff was subsequently diagnosis with a partial left knee medial meniscus tear and complete anterior cruciate ligament ("ACL") tear. He underwent a left knee arthroscopic partial medial and lateral meniscectomy in June 2018. Plaintiff testified at his deposition that during the accident his left knee hit the dashboard. For three months prior to the knee surgery he wore a brace but stated it did not help. After the accident he wore a different brace and used crutches for approximately two weeks. Plaintiff further testified to having two post-operative surgical follow-ups where fluid was drained from his left knee to alleviate swelling. He states his knee is still painful when he walks long distances and up stairs.
Dr. Adam Soyer performed an independent medical examination of Plaintiff in April 2019. He performed range of motion tests on the cervical, thoracic and lumbar spines, both shoulders and both knees using a hand-held goniometer or an inclinometer. He found significant range of motion limitations to the cervical spine, the thoracic spine was normal with the exception of right and left lateral flexion being 30° (normal 45°), normal range of motion in the shoulders with the exception of adduction right shoulder being 150° (normal 180°) and zero degrees (normal 30°), left shoulder 155° (normal 180°) and zero degrees (normal 30°). The flexion of the right knee range of motion was 138°, left knee 125° with normal being 150°. Based upon his review of Plaintiff s post-accident treatment records and his physical examination, Dr. Soyer diagnosed Plaintiff with a cervical spine strain, superimposed on a pre-existing degenerative disc disease that had resolved. He diagnosed Plaintiff with having resolved sprains of the thoracic and lumbar spine and left shoulder. He states that Plaintiffs left knee was in post arthroscopic surgical status. He found no objective evidence of disability and that Plaintiff was capable of performing his customary activities of daily living without limitation.
The foregoing is sufficient to establish prima facie that Plaintiff Almady did not sustain a serious injury under the permanent loss of use and permanent consequential limitation of use categories. Plaintiffs deposition testimony is further sufficient to establish that he did not sustain an injury that qualifies as serious under the 90/180 day category. However, Defendants have failed to establish a prima facie case that Plaintiff did not sustain a significant limitation of use of his left knee. The record is unrefuted that Plaintiff Almady had a medial meniscus and ACL tear of the left knee that required surgery to repair. Plaintiff testified at his deposition that his ability to walk was significantly impaired following the accident based upon the pain in his left knee. He states that even after the surgery it is still painful if he walks long distances and that he is no longer able to do much exercise. He...
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