Hines v. Ventura
| Decision Date | 23 December 2021 |
| Docket Number | Index 520137/2017 |
| Citation | 2021 NY Slip Op 32881 (U) |
| Parties | Davonna Hines, Plaintiff, v. Crystal Ventura, Defendant. |
| Court | New York Supreme Court |
DECISION & ORDER
Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion:
NYSCEF Doc. Nos.
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed......................
28-29, 31-37,
Opposing Affidavits (Affirmations).................................
39-46,
Reply Affidavits (Affirmations).......................................
Upon the foregoing papers, and after oral argument, the Court finds as follows:
Upon the foregoing papers in this personal injury action Defendant Crystal Ventura (hereinafter referred to as the "Defendant") moves (motion sequence #2), for an order, pursuant to CPLR 3212, granting her summary judgment on the ground that the Plaintiff, Davonna Hines (hereinafter referred to as the "Plaintiff), did not sustain a "serious injury" as a result of the subject accident as defined and required by Insurance Law §§5102 (d) and 5104 (a).
On October 18, 2017, Plaintiff commenced this personal injury action by filing a summons and a verified complaint alleging that she suffered severe personal injuries as a result of a May 3, 2017 motor vehicle accident in Queens, New York. Specifically, the complaint alleges that while Hines was driving in her Jeep on Astoria Boulevard, at its intersection with 77th Street, a motor vehicle owned, operated and maintained by Defendant came into contact with the rear of Plaintiff s vehicle causing her to suffer severe and permanent injuries. The complaint asserts a single cause of action against the Defendant for negligence.
On December 19, 2017, the Defendant answered the complaint and asserted affirmative defenses, including the seventh affirmative defense asserting that "[t]he plaintiff has not sustained a 'serious injury' as defined in Section 5102 (d) of the Insurance Law of the State of New York and is thereby not entitled ... to commence and maintain this action." After issue was joined, discovery ensued.
Thereafter on or about March 23, 2018, the Plaintiff produced a verified bill of particulars in which she averred that she suffered among other things, serious and permanent injuries to her back and spine, left shoulder, left elbow, left knee and left ankle. Specifically, the Plaintiff alleged in her bill of particulars that:
"[a]s a result of the negligence of the defendant [Crystal Hines] herein, plaintiff DAVONNA HINES was severely injured and damaged, rendered sick, sore, lame, and disabled, sustained severe emotional shock and mental anguish, suffered severe physical pain and impairment of her upper, lower and midback, neck and left shoulder, left elbow, left knee, left leg and ankle including, but not limited to, herniated and bulged discs in her cervical, thoracic and lumbar spine and derangement with radiculopathy, thoracic spine derangement with radiculopathy, lumbosacral spine derangement with radiculopathy; cervical stenosis, lumbar disc herniation at L5-S1 with central and left sided foraminal narrowing, which abuts the existing left L5 nerve root; cervical disc herniations with posterior disc protrusion, cord impingement, foraminal narrowing and encroachment upon the nerve root; lumbar disc herniation at L5/S1 with posterior disc protrusion, cord impingement, foraminal narrowing and encroachment upon the nerve root; total numbness and weakness of her back and neck; the potential need for corrective surgical procedures on her neck, back and left shoulder; suffering burning, tingling and numbness in her back, neck and left shoulder, sensitivity to touch, permanent loss of nerve function, difficulty walking, inability to walk without a limp, inability to walk up and down stairs, total loss of balance, extreme fatigue, inability to perform daily tasks, severe pain that is continuous and ongoing . . ." (see NYSCEF Doc No. 33).
On August 22, 2019, more than two years after the accident, Dr. Dorothy Scarpinato, an orthopedic surgeon, purportedly performed a medical examination of the Plaintiff. Thereafter, on February 25, 2019, the Plaintiff was deposed. On September 10, 2019, after discovery was complete, the Plaintiff filed a note of issue and a certificate of readiness.
The Defendant moved for summary judgment dismissing the complaint on the ground that the Plaintiffs alleged injuries fail to satisfy the requisite standards for "serious injury" under Insurance Law §5102 (d). The Defendant, in support of her motion, proffers an attorney affirmation, the Plaintiffs deposition testimony and the affirmed report of Dr. Scarpinato. The Defendant contends that the Plaintiff did not suffer any permanent injuries, did not suffer any significant limitations of use of a body function or system, nor was she prevented from performing her usual and customary daily activities for a period of ninety (90) out of one hundred eighty (180) days immediately following the accident.
Dr. Scarpinato, the orthopedic surgeon who examined the Plaintiff, concluded in her report that there are no objective findings that indicate Hines suffered from an orthopedic disability or that she requires orthopedic treatment. Dr. Scarpinato also concludes, after objective testing with the use of a goniometer, that Hines' cervical spine, lumbar spine, thoracic spine, left knee, left ankle, left foot, left elbow and left shoulder all had the normal range of motion, [1] with good muscle strength and no tenderness, swelling or atrophy.
The Plaintiff, in opposition, asserts that her injuries, meet the threshold for the following serious injury categories: (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and (3) a medically determined injury or impairment of a non-permanent nature which prevents her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment.
The Plaintiff submits an affirmation from Dr. Brian S. Haftel, a board-certified anesthesiologist, along with medical records and magnetic resonating imaging (MRI) reports of Dr. Thomas M. Kolbin. Dr. Haftel's expert affirmation is based on medical reports dated from May 5, 2017, (two days after the accident) through November 7, 2017, and concludes that the Plaintiff sustained, inter alia, herniated and bulging discs as a result of the accident. Dr. Hafter also relates the injuries to the accident and concludes that the injuries to her neck and back are permanent.
The Plaintiff argues that although Dr. Scarpinato reviewed her medical records, she did not review the MRI films. The Plaintiff claims that she suffered permanent consequential and significant limitations of the use of her cervical spine, lumbar spine, neck and back and suffers pain throughout her lower and upper extremities. The Plaintiff argues that because the examination by Dr. Scarpinato took place well after the first one hundred eighty (180) days following the accident, the Defendant cannot establish that she did not meet the "90/180" category of Insurance Law § 5102.
Lastly, the Plaintiff argues that there are material issues of fact for trial. Specifically, the Plaintiff argues that Dr. Haftel's affirmation and the MRIs evidence that her alleged injuries were not pre-existing. Hines contends that the MRI reports, Dr. Haftel's findings of her limited range of motion, and her continued complaints of pain are sufficient to rebut any prima facie showing made by Ventura.
The Defendant, in reply, asserts that to there are no issues of fact that require a trial. Although, Dr. Scarpinato's report found that there is a casual relationship between the accident and the Plaintiffs claimed injuries, she concluded that the Plaintiffs injuries were resolved. Additionally, the Defendant argues that Dr. Haftel's findings regarding the Plaintiffs limited ranges of motion are not based upon objective testing and do not reference a peer reviewed source. The Defendant notes that Dr. Scarpinato's report compares the Plaintiffs ranges of motion to those ranges provided by the American Medical Association's "Guides to the Evaluation of Permanent Impairment, Fifth Edition," while Dr. Haftel's report fails to provide the source for his proffered quantities of "normal ranges of motion." The Defendant also argues that the Plaintiff failed to rebut hex prima facie showing because the Plaintiff failed to provide the results of a recent physical examination.
On a motion for summary judgment the court's function is issue finding, not issue determination (see Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub Accountants, LLP, 164 A.D.3d 864, 865 [2d Dept 2018] [internal citations omitted]). "A party moving for summary judgment must demonstrate that 'the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment' in the moving party's favor" (Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014], quoting CPLR 3212 [b]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986...
To continue reading
Request your trial