Balkaran v. Shapiro-Shellaby
| Decision Date | 05 June 2009 |
| Docket Number | Index No. 7600/2007 |
| Parties | PRAKASH BALKARAN, Plaintiff v. NATHAN SHAPIRO-SHELLABY and RICHARD SHAPIRO, Defendants |
| Court | New York Supreme Court |
For Plaintiff
Jeffrey S. Stillman Esq.
Stillman & Stillman, PC
Nicole R. Kilburg Esq.
Stockschlaeder, McDonald & Sules, P.C.
I. BACKGROUND
Plaintiff sues to recover for personal injuries he sustained July 16, 2006, when a motor vehicle operated by defendant Shapiro-Shellaby and owned by defendant Shapiro collided with a motor vehicle operated and owned by plaintiff. Defendants move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling him to recover for "non-economic loss." N.Y. Ins. Law §§ 5102(d), 5104(a). Upon oral argument April 2, 2009, for the reasons explained below, the court grants defendants' motion to the limited extent set forth, but otherwisedenies their motion. C.P.L.R. § 3212(b) and (e).
The most noteworthy issue is raised through an analysis of defendants' evidence supporting their motion. Their physicians assess plaintiff's range of motion at varying quantified, albeit normal, levels, so that comparison of one physician's assessment of plaintiff to the other physician's norm yields a significant loss of range of motion. Given the importance of accurately comparing plaintiff's range of motion with a baseline norm to determining whether plaintiff is significantly limited in functioning, these unexplained adjustments in the baseline undermine the assessments' reliability and permit varying inferences as to whether he is significantly limited. Thus, while plaintiff's evidence when compared to defendants' evidence raises a factual question regarding a significant limitation, the internal inconsistencies in defendants' own evidence themselves preclude summary judgment on this question.
II. SUMMARY JUDGMENT ON THE ABSENCE OF SERIOUS INJURY
To obtain summary judgment that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102(d), defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact that defendants caused plaintiff to sustain such an injury. C.P.L.R. § 3212(b); Shaw v. Looking Glass Assoc. LP, 8 A.D.3d 100, 102 (1st Dep't 2004); Chatah v. Iglesias, 5 A.D.3d 160 (1st Dep't 2004); Shinn v. Catanzaro, 1 A.D.3d 195, 197 (1st Dep't 2003). Only ifdefendants satisfy this standard, does the burden shift to plaintiff to rebut that prima facie showing, by producing admissible evidence sufficient to require a trial of material factual issues as to whether he sustained a serious injury. Knoll v. Seafood Express, 5 N.Y.3d 817, 818 (2005); Franchini v. Palmieri, 1 N.Y.3d 536, 537 (2003); Lamb v. Raj inder, 51 A.D.3d 430 (1st Dep't 2008); Shaw v. Looking Glass Assoc. LP, 8 A.D.3d at 102. If defendants fail to meet their burden, the court must deny summary judgment regardless of any insufficiency in plaintiff's opposition. Caballero v. Fev Taxi Corp., 49 A.D.3d 387, 388 (1st Dep't 2008); Offman v. Singh, 27 A.D.3d 284, 285 (1st Dep't 2006); Mix v. Yang Gao Xiang, 19 A.D.3d 227 (1st Dep't 2005); Diaz v. Nunez, 5 A.D.3d 302 (1st Dep't 2004).
III. DEFENDANTS' CONFLICTING EVIDENCE
Defendants' orthopedic surgeon, S. Farkas M.D., based on his review of plaintiff's medical records, including diagnostic studies, and his examination of plaintiff April 2, 2008, found full range of motion in his cervical and lumbar spine and diagnosed resolved cervical and lumbar sprains causing no current orthopedic disability or restriction in his daily activities. Defendants' neurologist, Maria De Jesus M.D., based on her review of plaintiff's medical records, including diagnostic studies, and her examination of plaintiff April 17, 2008, including range of motion, motor, reflex, and sensory testing, found no limitations of functioning in his cervical or lumbar spine. Dr. De Jesusdiagnosed plaintiff with resolved cervical and lumbar strains or sprains that required no further treatment or testing. She found no other neurological abnormalities in his spine.
Among plaintiff's medical records that Dr. De Jesus reviewed was a lumbar magnetic resonance imaging (MRI) dated July 22, 2006, that showed two disc herniations in plaintiff's lumbar spine. Because Dr. De Jesus found no abnormal functioning of plaintiff's spine, however, her failure to comment on the MRI does not undermine her conclusion that plaintiff did not sustain a permanent or significant limitation of functioning from the collision. Qnishi v. N & B Taxi, Inc., 51 A.D.3d 594, 595 (1st Dep't 2008); Santana v. Khan, 48 A.D.3d 318 (1st Dep't 2008); Style v. Joseph, 32 A.D.3d 212, 214 (1st Dep't 2006); Servones v. Toribio, 20 A.D.3d 330 (1st Dep't 2005).
Dr. De Jesus concluded that plaintiff had not lost range of motion by finding his ranges of motion equal to the normal ranges of motion set forth by the "A.M.A. 'Guides To The Evaluation Of Permanent Impairment,' fifth edition." Aff. of Nicole R. Kilburg, Esq., Ex. F at 2. Dr. Farkas drew a similar comparison, but used two other sets of guidelines along with an unspecified edition of the "American Medical Association Guidelines." Id., Ex. G at 2.
Consequently, Dr. De Jesus's normal cervical extension at which Dr. De Jesus assessed plaintiff was 60 degrees, compared to Dr. Farkas's norm of 50 degrees at which Dr. Farkas assessedplaintiff. Comparing Dr. Farkas's assessment of plaintiff to Dr. Jesus's norm, however, yields a 16.7% loss of cervical extension. Similarly, Dr. De Jesus's normal cervical rotation at which Dr. De Jesus assessed plaintiff was 80 degrees, compared to Dr. Farkas's norm of 70 degrees at which Dr. Farkas assessed plaintiff, yielding a 12.5% loss when comparing Dr. Farkas's assessment to Dr. De Jesus's norm. Using Dr. De Jesus's normal lumbar extension of 2 5 degrees at which Dr. De Jesus assessed plaintiff, Dr. Farkas's assessment of plaintiff at 20 degrees, which was Dr. Farkas's norm, yields a 20% loss.
Conversely, Dr. Farkas's normal lumbar flexion at which Dr. Farkas assessed plaintiff was 90 degrees, compared to Dr. De Jesus's norm of 60 degrees at which Dr. De Jesus assessed plaintiff, yielding a 3 3.3% loss when comparing Dr. De Jesus's assessment to Dr. Farkas's norm. Using Dr. Farkas's normal lateral bending of 30 degrees at which Dr. Farkas assessed plaintiff, Dr. DeJesus's assessment of plaintiff at 25 degrees, which was Dr. De Jesus's norm, yields a 16.7% loss.
These discrepancies in the assessments by defendants' physicians may well be explainable. Different physicians may find that the same patient's ranges of motion vary on different dates or may assess different normal ranges of motion for the same patient through different methods of measurement, for example. The assessments by defendants' physicians were only 15 days apart, however, and did not just find varying ranges of motion as exhibited by plaintiff through Dr. Farkas's use of agoniometer and Dr. De Jesus's use of visual means; the physicians also found that the normal ranges of motion for plaintiff varied, without explaining any basis for those differences.
Comparing the ranges of motion observed in plaintiff with a baseline norm and reaching an accurate "comparative quantification," Yasheyev v. Rodriguez, 28 A.D.3d 651, 652 (2d Dep't 2006), is critical to determining whether there are significant limitations on plaintiff's range of motion. Lattan v. Gretz Tr. Inc., 55 A.D.3d 449, 450 (1st Dep't 2008); McNair v. Lee, 24 A.D.3d 159, 160 (1st Dep't 2005); Wells v. Seckla, 11 A.D.3d 240, 241 (1st Dep't 2004) . See Tuico v. Maher, 52 A.D.3d 201 (1st Dep't 2008); Gorden v. Tibulcio, 50 A.D.3d 460, 463 (1st Dep't 2008). These physicians' adjustments in the baseline, absent explanation, thus erode the reliability of the physicians' assessments, "leaving the court to speculate" as to their ultimate meaning. Bray v. Rosas, 29 A.D.3d 422, 423 (1st Dep't 2006); Manceri v. Bowe, 19 A.D.3d 462, 463 (2d Dep't 2005). At minimum, they permit varying inferences as to whether there are significant restrictions on plaintiff's functioning. Martinez v. Pioneer Transp. Corp., 48 A.D.3d 306, 307 (1st Dep't 2008); Noble v. Ackerman, 252 A.D.2d 392, 395 (1st Dep't 1998).
Inconsistencies in the findings by defendants' physicians raise factual issues that defeat defendants' motion for summary judgment, where, as here, the inconsistency is unexplained, and no connection or reference is made between Dr. De Jesus's later findings and Dr. Farkas's findings 15 days earlier. Martinez v.Pioneer Transp. Corp., 48 A.D.3d at 307; Noble v. Ackerman, 252 A.D.2d at 395; Patterson v. Arshad, 209 A.D.2d 232, 233 (1st Dep't 1994); Williams v. Lucianatelli, 259 A.D.2d 1003 (4th Dep't 1999). See Nix v. Yang Gao Xiang, 19 A.D.3d 227; Abbadessa v. Rogers, 40 A.D.3d 665 (2d Dep't 2007); Coppage v. Svetlana Hacking Corp., 31 A.D.3d 366 (2d Dep't 2006) ; Browdame v. Candura, 25 A.D.3d 747, 748 (2d Dep't 2006). Their discrepant findings, each reaching the conclusion that, whatever the level of normal functioning might be, plaintiff met it, also suggest that their reports are tailored simply to elude the criteria for a serious injury. Munoz v. Hollingsworth, 18 A.D.3d 278, 279 (1st Dep't 2005); Simms v. APA Truck Leasing Corp., 14 A.D.3d 322 (1st Dep't 2005).
Thus, even though both Dr. Farkas and Dr. De Jesus found no underlying objective condition other than resolved sprains or strains in plaintiff's cervical and lumbar spine, their range of motion findings, considered together, reveal significant restrictions in both areas, which are not attributed to any cause other than the July 2006 vehicle collision. See Harris v. Ariel Transp. Corp., 55 A.D.3d...
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