Bishop v. Estevez
| Docket Number | Index No. 521978/2020 |
| Decision Date | 02 May 2023 |
| Citation | 2023 NY Slip Op 50401 (U) |
| Parties | Yvonne Bishop and TYSHON BISHOP, Plaintiffs, v. Jeffrey Estevez and JOSE ESTEVEZ, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Harmon, Linder & Rogowsky, New York City (Brett I Myerson of counsel), for plaintiffs.
Scahill Law Group P.C., Bethpage (Gerard Ferrara of counsel) for defendants.
The following numbered papers were read on this motion:
NYSCEF Document Nos. 44-54 (notice of motion, affirmation in support, exhibits, statement of material facts, and affidavit of service
Plaintiffs Yvonne Bishop ("YB" hereinafter) and Tyshon Bishop ("TB" hereinafter") assert in this action that they sustained personal injuries while occupying a vehicle driven by YB on April 17, 2020, as a result of the negligent operation of another vehicle driven by Defendant Jeffrey Estevez and owned by Defendant Jose Estevez. [1]
Said Defendants now move for summary judgment, claiming that both Plaintiffs 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 Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiffs have 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 Defendants have made such a showing that Plaintiffs have not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., Plaintiffs failed to establish that they qualified under the relevant serious injury threshold categories, the burden shifts to Plaintiffs 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]).
In Plaintiffs' bill of particulars, YB (57 years old when the accident occurred) claimed injuries to the right shoulder (including arthroscopic surgery), left shoulder, cervical spine (including disc herniations), thoracic spine (including a disc herniation), and lumbar spine (including disc herniations). She asserted that she was confined to bed/home for a period of approximately two weeks except for necessary and essential excursions for required purposes, and that she was totally disabled for a period of approximately three weeks and partially disabled since the accident date. As for serious injury threshold categories, YB claimed, (NYSCEF Doc No. 49, bill of particulars ¶¶ 9, 11, 15).
In the same bill of particulars, TB (28 years old when the accident occurred) claimed injuries to the right shoulder (including arthroscopic surgery), right shoulder, bilateral knees, cervical spine (including disc herniation), and lumbar spine (including disc herniations). He asserted that he was confined to bed/home for a period of approximately two weeks except for necessary and essential excursions for required purposes, and that he was totally disabled for a period of approximately three weeks and partially disabled since the accident date. As for serious injury threshold categories, TB claimed, (id.).
In its motion for summary judgment, Defendants relied on affirmed independent medical examination ("IME") reports prepared by Dr. Douglas B. Unis, M.D., a Board-certified orthopedic surgeon, on August 2, 2021, detailing his examinations of Plaintiffs, findings, and conclusions Defendants also relied on the certified transcripts of the examinations before trial ("EBTs") of Defendants it conducted on July 7, 2021.
(1) Dr. Douglas B. Unis's Exam Report (NYSCEF Doc No. 51)
Dr. Unis noted that YB was the restrained driver of a vehicle traveling on Bushwick Avenue when she was rear-ended at a stop light. She reported no loss of consciousness or airbag deployment. She was taken to Woodhull Hospital following the accident and saw an orthopedist for neck, low back, and bilateral shoulder pain. Treatment consisted of physical therapy, acupuncture, and right shoulder arthroscopy. At the IME, YB complained of mild right shoulder pain and neck and low back pain. She had no other complaints at the time of the examination. Dr. Unis listed the numerous post-accident treatment records which he reviewed. He summarized them in chronological order. He noted that MRIs revealed disc herniations. On July 24, 2020, Dr. Andrew Miller performed right shoulder arthroscopic surgery which included repair of a SLAP lesion, subacromial decompression and debridement, a synovectomy of the subacromial space, and a partial acromioplasty.
YB walked in and out of the exam room with a non-antalgic gait and without assistive devices. She was able to get on and off the elevated exam table with both arms hyperextended with no pain or difficulty. Dr. Unis compared YB's observed ranges of motion to what is considered to be normal and found full range of motion throughout all planes of her cervical spine, right shoulder, left shoulder, bilateral elbows, bilateral hands and wrists, right knee, left knee, and bilateral feet and ankles; there was normal range of motion in the thoracolumbar spine, right hip, and left hip. Range of motion testing was performed using a goniometer and the standards were based on the AMA Guides to Evaluation of Permanent Impairment, 6th Edition.
Dr. Unis also conducted the following extensive panoply of provocative orthopedic tests, which yielded negative results: Tenderness Paraspinals Test, Tenderness Trapezii Test, Spurling's Test, Clonus Test, Babinski Sign Test, Sternal Compression Test, Straight Leg Raise Test, Heel-Toe Walk Test, Hawkins Sign Test, Impingement Sign Test, Speed's Test, Yergason's Test, O'Brien's Test, Tinel's Sign Test, Phalen's Sign Test, Ober's Test, Stinchfield Test, FADIR Test, Trendelenberg Test, Thomas Test, McMurray Test, Lachman Test, Pivot Shift Test, Valgus Stress Test, and Varus Stress Test. Dr. Unis also found that YB scored five out of possible five (5/5) in neurological muscle strength testing in all upper and lower extremities; had 5/5 serial grip strength; had no radiculopathy or internal derangement; had no tenderness, no spasm, no atrophy, no warmth, no swelling, no effusion, and no crepitus; and had normal deep tendon reflexes, normal patellar and Achilles' reflexes, and normal sensory reception.
Dr. Unis diagnosed resolved cervical and lumbar spine sprain superimposed on pre-existing degenerative changes, as well as resolved bilateral shoulder contusion/status post right shoulder arthroscopic surgery. Notably, he added:
(2) Examination Before Trial
Defendants' counsel, in his affirmation (...
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