Castro v. Morales

• Decision Date: 12 September 2014
• Docket Number: Index No. 301039/2013
• Parties: MAXIMO CASTRO, Plaintiff, v. PEDRO MORALES and JORGE GARCIA, Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 32629(U)

MAXIMO CASTRO, Plaintiff,
v.
PEDRO MORALES and JORGE GARCIA, Defendants.

Index No. 301039/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: I.A.S. PART 19

FILED: September 17, 2014
September 12, 2014

DECISION AND ORDER

PRESENT: Hon. Lucindo Suarez

Upon defendants' notice of motion dated July 28, 2014 and the affirmation, affirmed reports (4), exhibits and memorandum of law submitted in support thereof; plaintiff's affirmation in opposition dated August 13, 2014 and the affidavits (7), affirmed reports (2), and exhibits annexed thereto; plaintiff's supplemental affirmation dated August 18, 2014 and the affirmed report (1) annexed thereto; defendants' reply affirmation dated September 5, 2014 and the exhibits and the reply memorandum of law submitted therewith; and due deliberation; the court finds:

In this action arising out of a September 15, 2012 motor vehicle accident, defendants move pursuant to CPLR 3212 for summary judgment on the ground that plaintiff did not sustain a "serious injury," as the phrase is defined in Insurance Law § 5102. Plaintiff alleges in his bill of particulars to have suffered partial thickness tears of the supraspinatus and infraspinatus tendons in his left shoulder; a complex tear of the medial meniscus in his left knee; disc herniations at C2-C3 through C4-C5 and at L5-S1; and disc bulges at C5-C6 and C7-T1, among other injuries. He was confined to his bed for two Weeks and to his home for nearly six months. While plaintiff did not identify a specific category of serious injury, it is apparent that the first five categories are inapplicable.

In support of the motion, defendants submit the pleadings; excerpts from plaintiff's deposition

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transcript; therapy records from Northcoast Physical Therapy & Rehab P.C.; the FDNY Prehospital Care Report dated September 15, 2012; emergency room records from Columbia Presbyterian Hospital; an unsigned evaluation dated September 21, 2012 from Alan C. Berger, D.C.; and emergency room records from Lincoln Hospital Center. Although the medical records are not certified, defendants may rely on the unsworn reports and uncertified records of plaintiff's treatment to demonstrate the lack of serious injury. See Elshaarawy v. U-Haul Co. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 (2d Dep't 2010). The Columbia Presbyterian Hospital records show that plaintiff exhibited normal ranges of motion for all his extremities in an examination performed shortly after the accident. CT scans of the cervical spine revealed evidence of degenerative changes and osteoarthrosis, and X-rays of the left knee showed mild osteoarthrosis. Plaintiff treated at Lincoln Hospital following an October 23, 2013 motor vehicle accident. Ranges of motion for the cervical spine and all extremities were full and painless and examinations of the bilateral shoulders and knees were normal after that accident.

Defendants also offer affirmed reports from orthopedist Frank Segreto, M.D., neurologist Roy Shanon, M.D., orthopedist Marvin Winell, M.D. and orthopedist Edward S. Crane, M.D. Drs. Segreto and Shanon each performed independent medical evaluations of plaintiff in November 2012 and reported finding normal ranges of motion for all areas tested and normal or negative results for all objective tests administered. Dr. Segreto opined that plaintiff's spine, left shoulder and left knee sprains had resolved without any evidence of an orthopedic disability. Dr. Shanon concluded that plaintiff exhibited no signs of a neurological disability. Dr. Winell conducted a peer review of the treatment records and opined that there was no medical necessity for the lumbar spine treatment plaintiff received. Dr. Crane found normal ranges of motion for all areas tested and negative results for all objective tests administered when he examined plaintiff on April 28, 2014. He concluded that plaintiff did not suffer from an ongoing disability related to the accident.

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