Linton v. Nawaz

• Decision Date: 07 May 2009
• Docket Number: 4305.
• Parties: JOHN R. LINTON et al., Respondents, v. MUHAMMAD NAWAZ et al., Appellants.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 434

879 N.Y.S.2d 82

2009 NY Slip Op 03666

JOHN R. LINTON et al., Respondents, v. MUHAMMAD NAWAZ et al., Appellants.

4305.

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

Decided May 7, 2009.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 26, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff John Linton did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), modified, on the law, to grant the motion to the extent of dismissing plaintiff's claim that he sustained a medically determined injury of a nonpermanent nature that prevented him from performing substantially all of his usual and customary activities for 90 of the 180 days immediately following the accident, and otherwise affirmed, without costs.

This action arises out of a motor vehicle accident which occurred on August 29, 2002. Plaintiff, a pedestrian, was struck by a taxicab owned by defendant Chire Taxi, Inc. and operated by defendant Muhammad Nawaz. After striking plaintiff, the cab jumped the curb and, in the process, pushed plaintiff's body into a mailbox. Bleeding from his right knee and right ankle, plaintiff was transported by ambulance to Mt. Sinai Hospital, where he was examined and prescribed pain medication before being released. Plaintiff was unable to stand or walk in the days immediately following the accident, and experienced radiating neck and back pain.

Eight days after the accident, plaintiff consulted with Noel Fleischer, M.D., a neurologist, who examined him and made an initial diagnosis of traumatic cervical and lumbar radiculopathy and internal derangements of the left knee and right shoulder. MRIs prescribed by Dr. Fleischer revealed a tear of the right rotator cuff, a tear of the left medial meniscus, and multiple cervical disc herniations. Plaintiff continued to treat with Dr. Fleischer and to receive physical therapy. However, as of four years after the accident, Dr. Fleischer considered plaintiff's prognosis for full recovery to be "guarded" and found him to be "functionally impaired." Plaintiff missed 3½ months of work immediately after the accident.

Plaintiff alleged in his bill of particulars that as a result of the accident he sustained permanent injuries to his lumbosacral and cervical spines, his left knee and his right shoulder. He claimed that his injuries met the definition of "serious injury" in Insurance Law § 5102 because he suffered a permanent consequential limitation of use of a body organ or member and/or a significant limitation of a body function or system. He also stated that he had medically determined injuries of a nonpermanent nature that prevented him from performing his usual and daily activities for more than 90 of the first 180 days following the accident.

Defendants moved for summary judgment on the basis that plaintiff did not sustain a serious injury. Their motion relied on the affirmed reports of Audrey Eisenstadt, M.D., a radiologist, and Nicholas Stratigakis, M.D., an orthopedist who had performed an examination of plaintiff. In her report, Dr. Eisenstadt stated that she had reviewed MRI films taken within five weeks of the accident of plaintiff's right shoulder, left knee and cervical spine. She said that the MRI of the left knee revealed: "a small area of a bone contusion. The bone contusion should heal without sequela. The grade II mucoid degenerative signal change is as the name implies, an intrasubstance degenerative process without traumatic basis or causal relationship to the accident. Not even a joint effusion to suggest any significant trauma to this knee is noted. I agree ... as to the presence of a contusion of the medial femoral condyle and medial tibial plateau. I agree with the presence of grade II linear signal change in the medial meniscus. However, no abnormality is seen in the medial collateral ligament. No joint effusion is noted. No post-traumatic changes are seen."

As to the cervical spine, Dr. Eisenstadt interpreted the MRI as containing "evidence of longstanding, pre-existing, degenerative disc disease." She stated that bony changes along the spine were "greater than six months in development and due to [the] extent are more likely years in origin. These changes could not have occurred in the time interval between examination and injury and clearly predate the accident." She acknowledged the presence of disc bulges but opined that they were chronic and degenerative in nature, and that they predated the accident.

Finally, Dr. Eisenstadt wrote that the MRI revealed a partial tear of the distal, supraspinatus tendon in the right shoulder but that the shoulder was otherwise normal. Although she stated that "[t]he etiology is uncertain based on this single study," she found that the "absence of a joint effusion is clearly indicative of the lack of significant recent trauma."

In his report, Dr. Stratigakis stated that plaintiff denied a history of injury to, or pain in, the spine, right shoulder or left knee. Dr. Stratigakis wrote that he examined plaintiff's neck, back, right shoulder and left knee. He compared the ranges of motion in the neck, back and shoulder to the normal ranges of motion and concluded that plaintiff had full range of motion in all planes. His examination of the knees revealed "flexion to 130 degrees, extension to 0 degrees and internal and external [sic] to 10 degrees." However, he did not state the normal ranges of motion for the knees. Moreover, Dr. Stratigakis failed to identify what objective tests he performed on plaintiff which led him to conclude that he had full ranges of motion in the spine, right shoulder and left knee. Dr. Stratigakis concluded that plaintiff had sustained sprains and strains to the injured body parts, all of which had resolved. He further found there to be no objective evidence of disability and no residual effects or permanency.

In opposition to the motion, plaintiff submitted his own affidavit, as well as the affirmation of Dr. Fleischer. Dr. Fleischer explained in his affirmation that plaintiff first came to see him on September 6, 2002, eight days after the accident. He related that plaintiff complained to him during that initial consultation of injuries to his left knee and right shoulder, of neck pain radiating into his right shoulder and right arm with numbness. He also said he had lower back pain radiating to his left leg, and difficulty walking and sleeping. All of the complaints plaintiff made to Dr. Fleischer were related to the accident.

Dr. Fleischer stated that he examined plaintiff and found cervical and dorsal spasm and tenderness with impaired range of motion, especially on extension, lateral flexion and rotation. He also noted lumbosacral spasm and tenderness with impaired range of motion on all planes, as well as tenderness and swelling of the left knee, right shoulder and right ankle. Dr. Fleischer performed the straight leg raising test, which was positive bilaterally at 45 degrees. He found that plaintiff's gait and station were antalgic and that his heel/toe walk demonstrated weakness.

Dr. Fleischer further recounted that he prescribed physical therapy, MRI scans and an EMG test. The MRIs of plaintiff's right shoulder, left knee and cervical spine were taken in September 2002 and October 2002. He explained that the MRI of plaintiff's right shoulder revealed a tear of the rotator cuff, that the MRI of the left knee revealed a tear of the medial meniscus, and that the MRI of plaintiff's cervical spine showed multiple disc herniations at C3 through C7. The EMG, he noted, confirmed evidence of a right C6-C7 radiculopathy and bilateral carpal tunnel syndrome.

The affirmation detailed the subsequent history of plaintiff's treatment and recovery. In that regard, Dr. Fleischer stated that plaintiff continued to receive physical therapy, although the frequency of his sessions had decreased over time. He further stated that plaintiff continued to complain to him of intermittent headaches, dizziness and neck pain radiating towards his right shoulder and arm. He also complained that his lower back pain was becoming progressively worse. Indeed, Dr. Fleischer asserted that he had examined plaintiff at a recent office visit and that there was tenderness in the cervical and lumbar spines and an impaired range of motion. He also found tenderness in the right shoulder and left knee. The straight leg raising test was again positive.

Dr. Fleischer concluded by stating that plaintiff's prognosis for a full recovery is poor, and that his injuries are permanent. He further stated that

"It is my professional opinion, with a reasonable degree of medical certainty that given the findings of my exam, plaintiff, John Linton's, injuries were causally related to his motor vehicle accident of August 29, 2002 and consistent with the type of injury that he sustained. Plaintiff, John Linton, requires further treatment, including additional physical therapy for pain management, and surgical debridement and/or other intervention. Further, it is very likely that plaintiff, John Linton, will develop arthritis as a result of his injuries.

"Based upon my examination of Mr. Linton, my review of his medical records, and the long duration of his pain and injuries, I can state with a reasonable degree of medical certainty that the foregoing injuries which were proximately and directly caused by the motor vehicle accident of August 29, 2002 are of a permanent nature. Mr. Linton has sustained a significant, consequential, permanent limitation and permanent impairment of his neck, back, left knee and right shoulder."

The motion court denied defendants' motion.^* It held that defendants failed to meet their initial burden of submitting proof in admissible form demonstrating the absence of any material issues of fact and their entitlement to judgment as a matter of law. This, ...