Gorden v. Tibulcio

• Decision Date: 17 April 2008
• Docket Number: 2902.
• Parties: HASSAN GORDEN, Appellant, v. LEONITE LIRANZO TIBULCIO et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 460

855 N.Y.S.2d 515

2008 NY Slip Op 03382

HASSAN GORDEN, Appellant, v. LEONITE LIRANZO TIBULCIO et al., Respondents. (And a Third-Party Action.)

2902.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided April 17, 2008.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 9, 2006, which granted defendants' motion

for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he sustained personal injuries in September 2002 while a passenger in a vehicle, driven by his brother, which became involved in an accident. He claims that when the accident occurred, his chest and knees hit the dashboard and his right shoulder hit the door of the vehicle.

In his bill of particulars, plaintiff specified the following injuries: disc herniations, disc bulging, degeneration of the parespinal muscles, sensory loss of the upper extremities, impaired mobility, pain aggravated by coughing and sneezing, difficulty standing or sitting, and difficulty walking and climbing stairs. His supplemental bill of particulars alleged injuries to his knees, including tears of the menisci, buckling, locking, instability, burning, clicking and swelling. Plaintiff claims he was confined to bed for approximately 90 days, confined to home for approximately six months, and was partially disabled.

At his deposition, plaintiff testified that he could not return to work from the date of the accident until January 2003, and that he remained confined to bed and/or home for approximately four months after the accident. He also testified that he first sought medical treatment approximately one week after the accident, complaining of pain in both knees, both shoulders, and his neck and back. He undertook a four-month course of physical therapy, which included acupuncture, massage, electrical stimulation and chiropractic, five days a week. He was also sent for radiological studies, including an MRI.

Plaintiff further testified he had been involved in a prior auto accident in September 2000 that resulted in injuries to his neck and lower back. He commenced a lawsuit for that accident that was settled for $500.

Two independent medical examinations were conducted on plaintiff. The first was performed in January 2005 by Dr. Michael J. Katz, an orthopedist. Dr. Katz reviewed the X-ray, MRI and EMG reports taken at the time of the 2002 accident and performed various range-of-motion tests on plaintiff's cervical and lumbar spine, knees and shoulders. Dr. Katz found plaintiff's range of motion to be normal and concluded that cervical and lumbosacral strains, as well as the bilateral knee and shoulder contusions, were all "resolved." Dr. Katz further opined that plaintiff showed "no signs or symptoms of permanence on a causally related basis," that he was not disabled, and was "capable of gainful employment as a security guard, but is not working by choice. He is capable of all activities of his daily living."

The second independent medical examination, conducted in June 2005 by Dr. Burton S. Diamond, a neurologist, also found plaintiff's range of motion to be within normal ranges. Although Dr. Diamond noted a decreased range of motion in the low back area, based upon the results of various tests, he concluded that "this restriction was purely voluntary." He also concluded that plaintiff's cervical and lumbar sprain was resolved, there was no permanency to his condition, that plaintiff was capable of working on a full-time basis and performing the normal activities of daily living.

Defendants moved for summary dismissal of the complaint on the ground that plaintiff did not meet the serious injury threshold set forth in Insurance Law § 5102 (d). In opposition, plaintiff submitted four medical reports from his treating physicians at the time of the accident, which included copies of the radiologic and MRI studies. In an affirmed follow-up report dated October 28, 2002, Dr. Jefferson Gabella compared range-of-motion limitations to the normal range in a percentage format, and he diagnosed plaintiff as having lumbar sprain/strain, lumbar radiculopathy, cervical herniated/bulging discs, and internal derangement of the left shoulder and right knee. Dr. Gabella opined that these injuries were causally related to the 2002 accident and limited plaintiff in the activities of daily living.

Plaintiff also submitted the affirmed report of his current treating physician, Dr. Louis C. Rose, who first examined plaintiff some 3½ years after the accident. He also reviewed the MRI studies and X-ray evaluations from 2002. Although Dr. Rose reported restricted range of motion, he did not indicate in his report the normal range of motion for the areas tested. Dr. Rose concluded plaintiff's injuries to his shoulders and knees were a "direct result" of the 2002 accident, and his spinal injuries were due to an "exacerbation of a pre-existing injury to his neck and lower back."

The IAS court found that defendants established a prima facie case of entitlement to summary judgment, and that plaintiff failed to raise triable issues of fact that he had sustained a qualifying injury under Insurance Law § 5102 (d). The court found that with the exception of...