Mckenna v. Williams
| Decision Date | 27 October 2010 |
| Docket Number | Motion Seq. No.: 01,Index No.: 16832/08 |
| Citation | 2010 NY Slip Op 33056 |
| Parties | MARY McKENNA, Plaintiff, v. LOUELLA WILLIAMS and ECONOMIC OPPORTUNITY COMMISSION OF NASSAU, Defendants. |
| Court | New York Supreme Court |
This opinion is uncorrected and not selected for official publication.
The following papers have been read on this motion:
_____________Papers______________________________________________________________ Numbered
Notice of Motion for Summary Judgment Affirmations and Exhibits___________________1
Affirmation in Opposition and Exhibits__________________________________________2
Reply Affirmation___________________________________________________________3
The motion by defendants Louella Williams ("Mrs. Williams") and the Economic Opportunity Commission of Nassau ("E.O.C.") for summary judgment on the grounds that the plaintiff did not sustain a serious injury is granted for the reasons set forth herein.
Plaintiff commenced this action for damages due to a collision between E.O.C.'s van driven by Mrs. Williams and plaintiff. Plaintiff was on a bicycle at the time. The incident occurred at approximately 4:00 p.m. on December 17, 2007, on West Broadway, Hewlett, New York.
Defendants offer the sworn report dated January 7, 2010 of Dr. Leon Sultan, an orthopedist. See Defendants' Affirmation in Support Exhibit F. Dr. Sultan stated, after his examination of plaintiff, that there were no causally related orthopedic or neurological impairment to plaintiff due to the incident of December 17, 2007. Dr. Sultan found plaintiff orthopedically stable and neurologically in tact.
Plaintiff's deposition is revealing (see Defendants' Affirmation in Support Exhibit E; the following pages refer to that exhibit); plaintiff was struck by the mini-bus (p. 37); she was transferred to the hospital by ambulance (p. 38); plaintiff was treated and released from the hospital and went home (p. 42); plaintiff claims she was confined to bed for four (4) weeks and to her house for four (4) weeks but she states no physician advised such confinement (pp. 65-66, 69). As to things plaintiff cannot do, she is terrified to ride a bicycle, no physician advised her not to ride a bike, and she can no longer lift up her nieces and nephews (p. 70); plaintiff has difficulty with household chores, cooking, gardening and walking the dog (which she, plaintiff, had to give away) (p. 72).
In a serious injury matter, when a defendant seeks summary judgment on the issue that the plaintiff did not sustain a serious injury, the burden is placed on the defendant to prove through admissible evidence that the plaintiff failed to meet the statutory threshold of "serious injury." See Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 (1992); Lagois v. Public Administrator of Suffolk County, 303 A.D.2d 644, 760 N.Y.S.2d 52 (2d Dept. 2003).
The affirmed medical reports of defendants' physician (here, an orthopedist) as well as the plaintiff's deposition testimony can be sufficient to establish prima facie that the plaintiff did not sustain a serious injury in a motor vehicle collision within the meaning of Insurance Law § 5102(d). See Park v. Orellana, 49 A.D.3d 721, 854 N.Y.S.2d 447 (2d Dept. 2008); Tarhen v. Kabashi, 44 A.D.3d 847, 844 N.Y.S.2d 89 (2d Dept. 2007).
A defendant moving for summary judgment on the grounds that the plaintiff did not sustain a "serious injury" under Insurance Law § 5102(d) must meet the initial burden of establishing prima facie entitlement to judgment. See Matthews v. Cupie Transportation Corp., 302 A.D.2d 566, 758 N.Y.S.2d 66 (2d Dept. 2003)). In an automobile negligence case, it is only after a defendant has made a prima facie showing of entitlement to summary judgment that it becomes incumbent on the plaintiff to present medical evidence to support plaintiff's claim of serious injury. See Franchini v. Palmieri, 307 A.D.2d 1056, 763 N.Y.S.2d 381 (3d Dept. 2003).
A defendant in an automobile negligence/serious injury case can establish his or her entitlement to judgment by a physician's report, from the qualitative assessment therein, that the plaintiff has not sustained a serious injury. See Toure v. Avis Rent-a-Car Systems, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002); Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182 (2d Dept. 2008).
Examining the report of defendants' physician, there are enough tests set forth therein to provide an objective basis so that his respective qualitative assessment of plaintiff could readily be challenged by any of plaintiff's expert(s) during cross-examination at trial as well as to provide enough to be evaluated by the trier of fact. See Toure v. Avis Rent A Car Systems, Inc., supra; Gonzales v. Fiallo, supra.
Thus, as noted, defendant's submission of relevant portions of plaintiff's deposition (see Jackson v. Colvert, 24 A.D.3d 420, 805 N.Y.S.2d 424 (2d Dept. 2005); Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54 (2d Dept. 2005) and affirmations of defendants' physician aresufficient herein to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). See Paul v. Trerotola, 11 A.D.3d 441, 782 N.Y.S.2d 773 (2d Dept. 2004). The plaintiff is now required to come forward with viable, valid objective evidence to verify her complaints of pain and limitations of motion. See Farozes v. Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 (2d Dept. 2005). Here, plaintiff has not met her burden.
Here, the affirmation of Dr. David Steiner dated August 5, 2010 (see Plaintiff's Affirmation in Opposition Exhibit F) does not proffer competent medical evidence that revealed the existence of significant limitations which were contemporaneous with the December 17, 2007 subject incident. See Pierson v. Edwards, _NYS2d_, 2010 WL3910185 (2d Dept.); Srebnickv. Quinn, 75 A.D.3d 637, 904 N.Y.S.2d 675 (2d Dept. 2010).
Plaintiff had been a patient of Dr. Steiner since March 24, 2008 (see Exhibit F, ¶ 3), some three (3) months after the incident.
The same lack of contemporaneousness is lacking in the post-dated report of Dr. F. David Hannanian. See Plaintiff's Affirmation in Opposition Exhibit G. Dr. Hannanian's neurological consult was February 20, 2008 or two months after the incident.
Robert Marks, D.C., (see Plaintiff's Affirmation in Opposition Exhibit H) did not examine plaintiff until June 14, 2010. His post-sworn data does not present contemporaneous data on plaintiff. See Pierson v. Edwards, supra; Srebnick v. Quinn, supra.
Dr. Leo Belogianis' post sworn physician's affidavit (see Plaintiffs Affirmation in Opposition Exhibit I) offers a "paraspinal digital infrared imaging report" dated January 25, 2008. Here, Dr. Belogianis should be required to explain his "paraspinal digital infraredimaging" report. See Duldulao v. City of New York, 284 A.D.2d 296, 725 N.Y.S.2d 380 (2d Dept. 2001).
Dr. Belogianis also offers an undated report (see Plaintiff's Affirmation in Opposition Exhibit I) which alleges the collision of December 17, 2007 caused subluxation, muscle and ligament strains, inflammation and pain. The report directed to a "claim's representative" must be disregarded as its date is missing. Defendants' expert, Dr. Sultan concluded all strains and sprains were resolved in his report of July 7, 2010. A "chiropractic subluxation" is not a dislocation. "Accordingly, a chiropractic vertebral subluxation is a misalignment or a malpositioning of a vertebra within its joint; it is a condition of a vertebra that has lost its proper juxtaposition with the one above or the one below, or both, to an extent less than [a] medical... subluxation since there is no separation of joint surfaces." See Coyoc v. New York City Housing Authority, _Misc 2nd_, 2002 WL1396031.
As to the subluxation and the allegation of inflammation, the lack of a date on the report renders the information useless in determining if plaintiff did indeed suffer a serious injury.
Plaintiff has offered the MRI reports of Dr. Daniel Beyda. See Plaintiff's Affirmation in Opposition Exhibit J. The report reflects an MRI that occurred on April 16, 2008-four plus months after the December 17, 2007 incident. The MRI report does not causally relate to the issue of plaintiff's herniation and disc bulges to the December 17, 2007 incident. See Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719 (2d Dept. 2009); Munoz v. Koyfman, 44 A.D.3d 914, 844 N.Y.S.2d 111 (2d Dept. 2007).
Plaintiff's reports indicate a herniated or bulging disc. Also the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidenceof the extent of the alleged physical limitations resulting from the disc injury and its duration....
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