McHugh v. Martin
| Decision Date | 26 April 2012 |
| Docket Number | INDEX No:37944/10 |
| Citation | 2012 NY Slip Op 31173 |
| Parties | SYREETA C. MCHUGH, Plaintiff, v. GLENN J. MARTIN, Defendant. |
| Court | New York Supreme Court |
PRESENT:
Hon. ARTHUR G. PITTS
RUSSO, APOZNANSKI & TOMBASCO
By: Sonia Michelle Gassan, Esq.
Upon the following papers numbered 1 to -31 read on this motion summary iudgment./cross summary judgment Notice of Motion and supporting papers 1-12 ; Notice of Cross-Motion and supporting papers ___ 13-25 ___ Affirmation/affidavit in opposition and supporting papers 26-28 : Affirmation/affidavit in reply and supporting papers 29-31; Other ___; (and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that the defendant Glenn J. Martin's motion for summary judgment is denied under the circumstances presented herein. (CPLR 3212; Insurance Law 5102 (d)) It is further
ORDERED that the plaintiff's cross motion for summary judgment as to the issue of liability only, is granted.
The matter at bar is one for personal injuries sounding in negligence that arose out of a motor vehicle accident that occurred on June 29, 2010 on Expressway Drive North at or near the entrance to the Sunken Meadow Parkway, Smithtown, Suffolk County, New York. By way of her complaint, plaintiff Syreeta C. McHugh alleges that as a result thereof, she sustained serious personal injuries. As a basis of the instant motion, the defendant asserts that the plaintiff has not sustained such serious injury as defined by Insurance Law 5102 (d).
Said section provides in part that "serious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member;significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment." (Insurance Law 5102 (d)) In the context of the plaintiff's claims, the term "consequential" means important or significant (Kordana v. Pomellito, 121 A.D.2d 783, 503 N.Y.S.2d 198 , 200 [ 3rd Dept. 1986] , App. Dis. 68 N.Y.2d 848, 508 N.Y.S.2d 425) The term, "significant" as it appears in the statute has been defined as "something more than a minor limitation of use" and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment" (Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982])
On a motion for summary judgment to dismiss the complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law 5102 (d), the initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action" (Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d 395, 396 [ 1st Dept. 1992]) . Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. (DeAngelo v. Fidel Corp. Services, Inc., 171 A.D.2d 588, 567 N.Y.S.2d 454, 455 [1st Dept. 1991]). Such proof in order to be in a competent or admissible form, shall consist of affidavits or affirmations (Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2nd Dept. 1992]). The proof must be viewed in a light most favorable to the non-moving party. (Cammarere v. Villanova, 166A.D.2d 760, 562 N.Y.S.2d 808, 810 [ 3rd Dept. 1990]).
The plaintiff has alleged by way of a verified bill of particulars that she has sustained the following injuries as a result of the aforesaid accident: Left upper convexity of the thoracic curvature; large extruded disc herniations left of midline both T6/7 and T7/8 that impresses the thecal sac; T6/7 is more left paramedian and impresses on the left ventral cord; T7/8 is more left sided and impresses the left thecal sac and comes in close proximity to the cord and is abutting its contour and flattening the left anterolateral margin; disc hydration loss with anterior disc extension T7/8; T9/10 central subligamentous disc herniation that impresses on the thecal sac; left convexity of lumbar curvature; reversal of lordosis with apex at L1/2; posterior disc bulges impress the thecal sac at Ll/2 and L2/3; inferior endplate Schmorl's Node at L4 level; uniform increase in degree of lumbar lordosis with apex remaining at Ll/2; relative straightening of lumbar curvature from L2 through L5; reversal of the cervical lordosis; posterior disc bulges impress on the thecal sac from C2/3 and C7/T1; abutting of the ventral margin of the cord at the C4/5 and C5/6; increase in the degree of reversal of the cervical lordosis; pain in the back radiating into buttocks with numbness or tingling of the lower lateral legs and lateral feet; cervical and lumbar sprain/strain with a radiculopathy; thoracic sprain/strain; post concussion syndrome; muscle spasm; headaches; pain in neck radiation into both shoulders; bruise to big toe of right foot with pain; bilateral shoulder pain; and contusions under eyes.
In support of the instant motion, the defendant has submitted the affirmed reports of Jeffrey Guttman, M.D., an orthopedist, who had the opportunity to examine the plaintiff and/or review all relevant medical records on May 27, 2011 and, after such examination, concluded as follows: As to the cervicalspine, there is a normal maintenance of the cervical curvature. As to the plaintiff's thoracolumbar spine, after examination Dr. Guttman found In summation, he diagnosed the plaintiff with "status post cervical and lumbar strain" and that there was no evidence of an orthopedic disability. Accordingly, based upon the foregoing report, the defendant has demonstrated, as a matter of law, that the plaintiff has not sustained a serious injury. (see Reeves v. Scopaz, 227 A.D.2d 606, 643 N.Y.S.2d 620 [2nd Dept. 1996]; Horan v. Mirando, 221 A.D.2d 506, 633 N.Y.S.2d 402 [ 2nd Dept. 1995])
In opposition thereto, the plaintiff has submitted the affirmed report of her treating physician, Timothy J. Mosomillo, D.O. and the affirmed reports of Steven Winter, M.D., a radiologist dated August 13, 2010, August 16, 2010 and September 7, 2010 "To successfully oppose the motion, plaintiffs 'must set forth competent medical evidence based upon objective medical findings and diagnostic tests to support [their] claim * * * ' of a serious injury (Tankersley v. Szesnat, 235 A.D.2d 1010, 1012, 653 N.Y.S.2d 184, quoting Eisen v. Walter & Samuels, 215 A.D.2d 149, 150, 626 N.Y.S.2d 109)." (Trotter v. Hart, 285 A.D.2d 772, 728 N.Y.S.2d 561, 562 [3rd Dept 2001]) However, it is well settled that "mere subjective complaints of pain alone, as well as medical opinions clearly based upon such complaints, are insufficient to raise a triable issue of fact" (Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681, 682 [2nd Dept. 1994]) unless such a finding by a medical expert describes the qualitative nature of the plaintiff's limitations (including specific designation of numeric percentages of the plaintiff's loss of range of motion after testing) which is based on the normal function, purpose and use of the body part, and attributed to such limitations to the injuries sustained together with further medical...
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