Bushay-clark v. Bus
| Decision Date | 16 July 2010 |
| Docket Number | Motion Sequence.01,Index No. 015572/08 |
| Citation | 2010 NY Slip Op 31828 |
| Parties | MAXINE BUSHAY-CLARK, Plaintiff, v. MTA LONG ISLAND BUS, Defendant. |
| Court | New York Supreme Court |
HON. RANDY SUE MARBER J.
Upon the foregoing papers, the Defendant, MTA Long Island Bus' [hereinafter MTA], motion pursuant to CPLR § 3212, seeking an order dismissing the within complaint on the basis that the Plaintiff, Maxine Bushay-Clark, has not sustained a serious injury within the ambit of Insurance Law § 5102 [d] and that the Defendant did not have actual or constructive notice of the defect alleged to have caused the Plaintiff's injuries is determined as hereinafter provided.
On November 2, 2007, the Plaintiff was a seated passenger on a bus owned and operated by MTA, when a window partially came loose from the frame and allegedly fellonto her head (see Paretsky Affirmation in Support at ¶3; see Exhibit A at¶¶4, 5, 11; see also Exhibit C at ¶ 5). The Plaintiff alleges that as a consequence thereof, she has sustained the following serious injuries: posterior disc herniation at C3-C4 impinging on the anterior aspect of the spinal cord; concussion; headaches; cervical sprain with muscle spasm; mild swelling and tenderness in the right parietal area; cervical radiculitis; post concussion syndrome; blurred vision, and; decreased range of motion of the cervical spine (id. at Exhibit Cat ¶9).
As noted above, the Defendant's application contains two branches, the first of which seeks dismissal based upon the Plaintiff failing to suffer a serious injury and the second which seeks dismissal due to the Defendant's lack of actual or constructive notice with respect to the condition claimed to have caused the Plaintiff's injuries. The Court will initially address the issue of whether the Plaintiff has sustained a serious injury.
Serious Injury:
In support of the within application, the Defendant provides the affirmed, independent medical reports of Dr. Stanley Ross, M.D., and Dr. Larry Berstein, M.D. (id.at Exhibits F and G).
Dr. Ross, an orthopedic surgeon, conducted a physical examination of the Plaintiff on 10/15/09, at which time he also reviewed various medical records, including an MRI of the Plaintiff's cervical spine completed on 12/6/07, which revealed a posterior disc herniation at C3-C4 impinging on the anterior aspect of the spinal cord, as well as an MRIof the Plaintiff's brain taken on 12/6/07, which revealed normal findings (id. at Exhibit F).
The examination conducted by Dr. Ross included an evaluation of the Plaintiff's cervical, lumbar and thoracic spines (id.). With regard to the cervical spine, range of motion testing was accomplished by way of a goniometer and revealed normal findings (id.). Dr. Ross noted the absence of muscle spasm and tenderness and that the Distraction Test, Compression Test, Jackson's Test and Soto Hall Test were all negative (id.). As to the Thoracic spine, Dr. Ross stated that there was no tenderness or paraspinal spasm (id.). With regard to the lumbar spine, range of motion testing, again measured by a goniometer, revealed normal findings and Dr. Ross noted that the Fabere, Ely's and Kemp's tests each yielded negative findings (id.). Dr. Ross ultimately diagnosed the Plaintiff as having sustained cervical, thoracic and lumbar spine "sprain/strain" all of which had resolved and that there was "no evidence of an orthopedic disability" (id.).
Dr. Berstein, an ophthalmologist, conducted an examination of the Plaintiff on October 12, 2009 (id. at Exhibit G). Dr. Berstein stated that upon examination the "ocular pressures were normal" and that "slit lamp examination was normal other than a corneal scar on the right eye which * * * the claimant did indicate * * * was old and she was aware of having this scar on her right eye cornea" before the subject accident (id.). Dr. Ross further stated that the "dilated retinal examination revealed a normal optic nerve head" and that his examination revealed "no evidence for direct ocular trauma" related to the subject accident (id.).
It is well settled that the proponent of a motion for summary judgment must make a. prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v. Twentieth Century Fox, 3 N.Y.2d 395 [1957]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]; Bhatti v. Roche, 140 A.D.2d 660 [2d Dept. 1998]). To obtain summary judgment, the moving party must establish it's claim or defense by tendering proof, in admissible form, sufficient to warrant the Court to direct judgment in the movant's favor (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 [1979]).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980], supra). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Sillman v. Twentieth Century Fox, 3 N.Y.2d 395 [1957], supra).
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury (Gaddy v. Eyler, 79 N.Y.2d 955 [1992]). Upon such a showing, it becomes incumbent upon the nonmoving party to come forth with sufficientevidence, in admissible form, to raise an issue of fact as to the existence thereof (Licari v. Elliott, 57 N.Y.2d 230 [1982]).
Within the scope of the movants' burden, a defendants' medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff's range of motion, must compare any findings to those ranges of motion considered normal for the particular body part (Gastaldi v. Chen, 56 A.D.3d 420 [2d Dept. 2008]; Malave v. Basikov, 45 A.D.3d 539 [2d Dept. 2007]; Nociforo v. Penna, 42 A.D.3d 514 [2d Dept. 2007]; Qu v. Doshna, 12 A.D.3d 578 [2d Dept. 2004]; Browdame v. Candura, 25 A.D.3d 747 [2d Dept. 2006]; Mondi v. Keahan, 32 A.D.3d 506 [2d Dept. 2006]).
In the matter sub judice, while not expressly articulated in the Plaintiff's Bill of Particulars, it appears from the injuries therein recited that the Plaintiff is claiming injuries which fall within the following statutory categories: a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and 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 [hereinafter the 90/180 category] (see Paretsky Affirmation in Support at Exhibit C at ¶¶ 10,
II)1
Applying the aforesaid criteria to the medical reports submitted herein, this Court finds that the Defendant has established a prima facie case that the Plaintiff failed to sustain a serious injury within the categories of either a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (Gaddy v. Eyler, 79 N.Y.2d 955 [1992], supra). In his medical report, Dr. Ross clearly opined that the Plaintiff exhibited full range of motion with respect to the cervical and lumbar spines, that there was no tenderness or spasm in the thoracic spine, and that the examination yielded no evidence of any orthopedic disability (Kearse v. New York City Transit Authority, 16 A.D.3d45 [2d Dept. 2005]). Further, Dr. Ross recited the specific tests upon which his medical conclusions were based and compared the Plaintiff's ranges of motion to those ranges considered normal (Qu v. Doshna, 12 A.D.3d 578 [2d Dept. 2004], supra; Browdame v. Candura, 25 A.D.3d 747 [2d Dept. 2006], supra; Gastaldi v. Chen, 56 A.D.3d 420 [2d Dept. 2008], supra). Additionally, Dr. Berstein also set forth the objective tests upon which he predicated his findings, which, as noted above, revealed that the Plaintiff did not suffer any "ocular trauma" causally related to the subject incident (Qu v. Doshna, 12 A.D.3d 578 [2d Dept. 2004], supra; Nozine v. Sav-On Car Rentals, 15 A.D.3d 555 [2d Dept. 2005]).
In addition to the foregoing medical evidence, a reading of the Plaintiff's deposition transcript, which is annexed to the moving papers, clearly reveals that Ms. Bushay-Clark testified she lost two weeks from work as a result of the subject accident and thus the Defendant has sustained its initial burden of demonstrating the Plaintiff did not sustain an injury within the 90/180 category (Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 A.D.3d 664 [2d Dept. 2008]; Geliga v. Karibian, 56 A.D.3d 518 [2d Dept. 2008]). Thus, the burden now shifts to the Plaintiff to demonstrate a triable issue of fact with respect to the existence of a "serious injury" (Licari v. Elliott, 57 N.Y.2d 230 [1982], supra).
In opposition to the instant application, the Plaintiff, in addition to providing her own supporting affidavit, provides the affirmation of Dr. Richard J. Rizzuti, M.D., as well as the affidavit of Dr. Mark Snyder, D.C. (see Feliciano Affirmation in Opposition at Exhibits...
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