Kearse v. Nyc Tr. Auth.

• Decision Date: 31 January 2005
• Docket Number: 2002-10935.
• Citation: 2005 NY Slip Op 00531,789 N.Y.S.2d 281,16 A.D.3d 45
• Parties: CHERYL KEARSE, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 45

789 N.Y.S.2d 281

2005 NY Slip Op 00531

CHERYL KEARSE, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.

2002-10935.

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

January 31, 2005.

Appeal from an order of the Supreme Court, Kings County (James W. Hutcherson, J.), dated August 13, 2002, and entered in an action to recover damages for personal injuries. The order denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellants.

Bruce S. Reznick, P.C., Brooklyn (Thomas Torto of counsel), for respondent.

OPINION OF THE COURT

CRANE, J.

This case presents the familiar question of whether the defendants on a motion for summary judgment have satisfied their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Just what evidence satisfies this burden has proven elusive, resulting in clarification by the Court of Appeals in more than one case (see e.g. Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). We take the opportunity in this case to shed some light on but one aspect of this issue: the effect of the passing mention of magnetic resonance imaging (hereinafter MRI) reports by a defense medical expert in an affirmed report supporting the motion. In doing so, we resolve a conflict in the case law in our Court between the holdings of Kowalek v Picariello (306 AD2d 249 [2003]) and Bernabel v Perullo (300 AD2d 330 [2002]).

The plaintiff, Cheryl Kearse, allegedly was injured on March 23, 2000, while boarding the defendant New York City Transit Authority's bus operated by the defendant Glenda Walker. The plaintiff claims that the bus doors closed on the left side of her body and that she remained trapped between these doors for several minutes. She sought medical attention later that day, complaining of pain in her neck, left shoulder, lower back, left knee, and left arm. X rays were negative and the plaintiff was diagnosed with a "contusion."

Five days after the accident, the plaintiff consulted her private physician who referred her for physical therapy. According to the plaintiff, she underwent physical therapy three times per week for approximately six to nine months thereafter. The plaintiff was also treated by a neurologist who ordered MRIs of the plaintiff's cervical and lumbar spines. The unaffirmed reports of the MRIs stated, insofar as relevant here, that the plaintiff had a central posterior disc herniation at C6-7, impinging on the ventral contour of the dural sac and the subarachnoid space, and a bulging disc at L4-5, impinging on the ventral aspect of the thecal sac.

The plaintiff commenced this action on June 30, 2000. She alleged in her bill of particulars and supplemental bill of particulars, inter alia, that she sustained injuries to her neck and lower back, including "cervical radiculopathy," "lumbar radiculopathy," "left C6 nerve root dysfunction," a central posterior C6-7 disc herniation with impingement, and a "diffuse bulging disc . . . at the L4-5 interspace."

The defendants moved for summary judgment, arguing that there existed no objective evidence to support the plaintiff's claim that she sustained a serious injury that was causally related to the accident. In support of their motion, the defendants submitted, among other things, the affirmed medical report of Dr. Joseph L. Paul, an orthopedist, who examined the plaintiff on their behalf on August 1, 2001. Dr. Paul performed specified tests and reported that the plaintiff had normal range of motion. He diagnosed the plaintiff as having sustained, inter alia, sprains of the cervical and lumbar spines which had resolved. Dr. Paul concluded that the plaintiff had no disability.

The defendants submitted the affirmed report of Dr. Naunihal S. Singh, a neurologist who also examined the plaintiff on their behalf on August 1, 2001. Dr. Singh opined that the plaintiff suffered no neurological disability.

The reports of both Dr. Paul and Dr. Singh listed the medical records that each reviewed in connection with their examinations of the plaintiff. The list included the unaffirmed reports of the MRIs of the plaintiff's cervical and lumbar spines although the reports themselves were withheld.¹ Neither doctor commented on the findings contained in the MRI reports.

In opposition to the defendants' motion, the plaintiff submitted, inter alia, an affidavit from James S. Kaufman, her chiropractor, who first examined the plaintiff on March 11, 2002, almost two years after the accident. Dr. Kaufman detailed the tests and reports he reviewed, which included the unaffirmed reports of the MRIs of the plaintiff's cervical and lumbar spines, and set forth the result of each test or report. He also performed various range of motion tests. Dr. Kaufman diagnosed the plaintiff as suffering from, among other things, chronic lumbar disc "lesion" with radiculopathy and traumatic cervical disc herniation with radiculopathy. Dr. Kaufman opined that the plaintiff's injuries and sequelae were directly related to the accident of March 23, 2000.

The plaintiff also submitted the unaffirmed reports of the MRIs of her cervical and lumbar spines which revealed the C6-7 disc herniation and L4-5 disc bulge.

The Supreme Court denied the defendants' motion for summary judgment. We reverse.

The plaintiff contends that the Supreme Court correctly denied the defendants' motion because the defendants failed to satisfy their burden of establishing that she did not sustain a serious injury. She relies primarily on the fact that the defendants' examining physicians both noted that they reviewed the reports of the MRIs of her cervical and lumbar spines, yet neither addressed the findings contained in these reports, that is, the disc herniation and disc bulge. The plaintiff also relies on this Court's decision in Kowalek v Picariello (306 AD2d 249 [2003]), in which we held that the defendants did not meet their initial burden on a motion for summary judgment because their medical experts failed to address the MRI findings of a disc herniation and failed to demonstrate that the herniation was not causally related to the motor vehicle accident, even though these medical experts found that the plaintiff had a full range of motion.

Kowalek v Picariello (supra) represents a departure from this Court's prior holdings and directly conflicts with Bernabel v Perullo (300 AD2d 330 [2002]), a case which is indistinguishable from Kowalek v Picariello (supra). In both Kowalek v Picariello (supra) and Bernabel v Perullo (supra), the defendants' medical experts presented evidence that the injured plaintiffs suffered no limitations in their ranges of motion. In both cases, the defendants' medical experts had reviewed reports of the MRIs that revealed either disc herniations or disc bulges. In neither case did the defendants' medical experts comment on the findings contained in the MRI reports. Nevertheless, we reached two different results. In Kowalek v Picariello (supra) we held that the failure to address the MRI findings was fatal to the defendants' motion despite the findings that the injured plaintiff suffered no limitation in her range of motion. In Bernabel v Perullo (supra) we held that the defendants sustained their prima facie burden through the affirmed medical reports showing that the injured plaintiff had a normal range of motion despite the MRI findings of a disc herniation.

The holding in Bernabel v Perullo (supra) represents a correct statement of the law. To the extent that Kowalek v Picariello (supra) and other cases from this Court (see e.g. Singh v Varano, 306 AD2d 340 [2003]; West v Rivera, 286 AD2d 327 [2001]; Chaplin v Taylor, 273 AD2d 188 [2000]) may be read to be contrary to the Bernabel holding, they should not be followed on this issue.² These cases imply that the mere existence of a disc bulge or herniation is sufficient to establish that the plaintiff may have sustained a serious injury. This is not a correct statement of the law because it eliminates the requirement that, to constitute a serious injury, a disc bulge or herniation must be accompanied by objective evidence of the extent of alleged physical limitations resulting from the disc injury (see Diaz v Turner, 306 AD2d 241, 242 [2003]; Monette v Keller, 281 AD2d 523 [2001]; Pierre v Nanton, 279 AD2d 621 [2001]; Guzman v Michael Mgt., 266 AD2d 508, 509 [1999]).

A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), despite the existence of an MRI which shows herniated or bulging discs (see e.g. Diaz v Turner, supra; Figueroa v Westbury Trans, 304 AD2d 614 [2003]; Fauk v Jenkins, 301 AD2d 564, 565 [2003]; Bernabel v Perullo, supra at 331; Malpica v Lavergne, 294 AD2d 340 [2002]; Espinal v Galicia, 290 AD2d 528 [2002]; Duldulao v City of New York, 284 AD2d 296, 297 [2001]; see also Brown v Achy, 9 AD3d 30, 31 [2004]). This holding naturally follows from the rule that the mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see e.g. Diaz v Turner, supra; Davis v New York City Tr. Auth., 294 AD2d 531, 532 [2002]; Espinal v Galicia, supra; Monette v Keller, supra; Pierre v Nanton, supra; Guzman v Michael Mgt., supra). Thus, the failure of a defendant's medical expert to address the findings contained in MRI reports reviewed as part of his or her examination...