Collazo v. Collazo

• Decision Date: 11 June 2014
• Docket Number: Index 21268/11E
• Citation: 2014 NY Slip Op 34056 (U)
• Parties: Tiffani Collazo and Michael Ortiz, Plaintiffs, v. Javier Collazo, Jeffrey Roman and Praxair, Inc., Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 34056(U)

Tiffani Collazo and Michael Ortiz, Plaintiffs,
v.
Javier Collazo, Jeffrey Roman and Praxair, Inc., Defendants.

Index No. 21268/11E

Supreme Court, Bronx County

June 11, 2014

Unpublished Opinion

DECISION AND ORDER

ALEXANDER W. HUNTER, JR. JUDGE

The motion for summary judgment by defendant Javier Collazo, designated as motion sequence 005, and the motion for summary judgment by defendants Jeffrey Roman and Praxair, Inc., designated as motion sequence 006, are consolidated for joint disposition and decided herein.

The motion by defendant Javier Collazo for an order pursuant to CPLR 3212, granting summary judgment in his favor and dismissing the complaint on the ground that plaintiffs have not sustained a serious injury, is granted. The motion by defendants Jeffrey Roman and Praxair, Inc. for an order pursuant to CPLR 3212, granting summary judgment in their favor and dismissing the complaint on the ground that plaintiffs have not sustained a serious injury, is granted.

The cause of action is for personal injuries allegedly sustained by plaintiffs in a motor vehicle accident that occurred at the intersection of Poplar Street and Castle Hill Avenue in Bronx County on January 29, 2011 at approximately 12:53 A.M. At the time of the accident, Plaintiffs were passengers in a vehicle operated by defendant Javier Collazo. The vehicle plaintiffs were occupying was struck in the rear by a vehicle operated by defendant Jeffrey Roman and owned by defendant Praxair, Inc. Neither plaintiff was taken by ambulance to a hospital. Instead, they both left the scene of the accident in the vehicle operated by defendant Javier Collazo. (Tiffani Collazo tr at 26, lines 2-10; Michael Ortiz tr at 31, lines 2-3). Plaintiff Tiffani Collazo first sought medical treatment two to three weeks after the accident. (Tiffani Collazo tr at 27, lines 10-16). Plaintiff Michael Ortiz first sought medical treatment a few days after the accident. (Michael Ortiz tr at 33, lines 8-12). In their verified bill of particulars, plaintiff Tiffani Collazo alleges to have sustained injuries to her cervical spine, thoracic spine, and lumbar spine. Plaintiff Michael Ortiz alleges to have sustained injuries to his thoracic spine, lumbar spine, and right knee.

Defendant Javier Collazo argues that neither plaintiff has sustained a serious injury. In support, he submits the affirmed reports of Arnold T. Berman, M.D., FACS an orthopedic surgeon, who examined plaintiffs Michael Ortiz and Tiffani Collazo on September 12, 2013 and October 10, 2013, respectively. (Defendant Javier Collazo's Exhibits F and H). On the date of

1

the examination, Mr. Ortiz complained of pain in his right knee and lower back. He indicated to Dr. Berman that he stopped receiving treatment in 2012. All range of motion testing was conducted with the use of a goniometer. Plaintiff Michael Ortiz exhibited full ranges of motion in his cervical spine, lumbar spine, and right knee. Dr. Berman noted that the radiological studies on March 2, 2011 and the EMG studies dated March 8, 2011, both indicated preexisting degenerative changes in the lumbar spine. Dr. Berman diagnosed Mr. Ortiz with lumbar strain, resolved with no residuals and right knee strain and contusion, resolved with no residuals. Dr. Berman opined, "Mr. Ortiz sustained the above mentioned injuries which are now fully resolved with no clinical residuals. There were subjective complaints of pain without objective findings....Mr. Ortiz requires no further treatment or diagnostic testing as a direct result of the incident on 1/29/2011 ....The claimant can participate in all activities of daily living."

On the date of her examination, plaintiff Tiffani Collazo complained of pain in her lower and upper back. All range of motion testing was conducted with the use of a goniometer. Plaintiff Tiffani Collazo exhibited full ranges of motion in her cervical spine and lumbar spine. Dr. Berman diagnosed Ms. Collazo with cervical strain/sprain resolved with no residuals and lumbar strain/sprain with no residuals. Dr. Berman noted that MRI studies of her lumbar spine demonstrated findings of pre-existing degeneration that predated the accident. Dr. Berman opined, "Ms. Collazo requires no further treatment or diagnostic testing. The claimant can participate in all activities of daily living, including all occupational duties full time with no restrictions."

Defendant Javier Collazo refers to the deposition testimonies of both plaintiffs and their verified bill of particulars to demonstrate that the plaintiffs did not sustain a medically determined injury that prevented them from performing substantially all of their usual and customary daily activities for at least 90 days out of the first 180 days post-accident. In their verified bill of particulars, plaintiff Tiffani Collazo alleges to have been confined to bed for one week and to home for two months while plaintiff Michael Ortiz alleges to have been confined to bed for two weeks and to home for two weeks. Neither plaintiff was employed at the time of the accident. At her deposition, plaintiff Tiffani Collazo testified that she missed one to two weeks of school as a result of the accident. (Tiffani Collazo tr at 14, lines 5-9).

Defendants Jeffrey Roman and Praxair, Inc. move for the same relief as defendant Javier Collazo. In support, they submit the affirmed reports of Bradley D. Weiner, an orthopedist, who examined plaintiffs Tiffani Collazo and Michael Ortiz on December 9, 2013 and October 4, 2013, respectively. (Defendants Jeffrey Roman and Praxair, Inc.'s Exhibits J and K). At the time of her examination, Ms. Collazo complained of occasional lumbar pain. Active range of motion was measured with an inclinometer. Dr. Weiner measured full ranges of motion in her cervical spine and lumbar spine. After reviewing her medical records and upon physical examination, Dr. Weiner diagnosed Ms. Collazo with cervical strain (by report) and lumbosacral strain now resolved. In his opinion, Dr. Weiner determined that Ms. Collazo "has returned to status quo ante." There was no evidence of a permanent limitation in function or use of the cervical spine or lumbar spine as a result of the accident.

2

With respect to plaintiff Michael Ortiz, active range of motion was also measured with an inclinometer. Despite complaints of ongoing right knee pain, Mr. Ortiz had yet to be evaluated by an orthopedist. Although he found limited ranges of motion in both the lumbosacral spine and the right knee, Dr. Weiner opined that they were self-limited. Dr. Weiner diagnosed Michael Ortiz with lumbosacral strain, right knee contusion, and symptom magnification.

In opposition...