Pappas v. Afshani

• Decision Date: 14 October 2021
• Docket Number: Index No. 620968/2019,Mot. Seq. 02-MD
• Parties: STEPHEN L. PAPPAS, Plaintiff, v. MARIE F. AFSHANI and ARMAN D. AFSHANI, Defendants.
• Court: New York Supreme Court

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2021 NY Slip Op 33783(U)

STEPHEN L. PAPPAS, Plaintiff, v. MARIE F. AFSHANI and ARMAN D. AFSHANI, Defendants.

Index No. 620968/2019, Mot. Seq. 02-MD

Supreme Court, Suffolk County

October 14, 2021

Unpublished Opinion

MOTION DATE 5-20-2021

SUBMIT DATE 8-26-2021

THE LAW OFFICES OF NEIL H. GREENBERG & ASSOCIATES, PC Attys for Plaintiff THE LAW OFFICES OF NEIL H. GREENBERG &amp ASSOCIATES, PC ttys

HAEGLIN SPENCER, LLP Attys for Defendants HAEGLIN SPENCER LLP Attys for Defendants

PRESENT Hon. JOSEPH A. SANTORELLI Justice

HON. JOSEPH A. SANTORELLI J.S.C

Upon the following papers read on this motion for summary judgment e-filed on the NYSCEF system as documents 32 - 43,55 - 74 & 75 - 77, it is, ORDERED, that the motion is determined as follows:

This motion by defendants, Marie F. Afshani and Arman D. Afshani,, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Stephen L. Pappas, did. not sustain a "serious injury" within the meaning of N.Y. Insurance Law S 5102(d) is denied.

The plaintiff seeks recovery of damages for personal injuries sustained as the result of a motor vehicle accident on August 20,2099 at 8:35 pm, on Main Street at or near its intersection with Ridge Court North, Town of Amherst, County of Erie, State of New York. Plaintiff alleges that he was operating a 2009 Saturn motor vehicle eastbound on Main Street when a 2014 Dodge Ram pickup truck operated by defendant Marie F. Afshani and owned by defendant Arman D. Afshani, which was traveling westbound on Main Street did not yield the right of way and made a left turn directly in front of the plaintiffs vehicle resulting in a collision. Defendant Marie F. Afshani testified at her examination before trial that she was issued a ticket at the time of this accident. The plaintiff went via ambulance to the hospital emergency room complaining of pain in his back, collar bone and legs. It is alleged in the bill of particulars that plaintiff sustained L2-3 left foraminal disc herniation; L5-S 1 Grade 1 anterolisthesis with uncovering of the intervertebral disc; moderate bilateral facet arthrosis, posterior annular fissure, severe bilateral neural foraminal narrowing, left greater than right with impingement of the exiting L5 nerve root; transitional vertebrae with lumbarization of the designated S1 vertebral body; severe bilateral neural foraminal narrowing at L5-S1 with impingement of the exiting L5 nerve roots, left greater than right; grade 1 anterolisthesis of L5 on S1 secondary to bilateral L5 spondylosis; lumbosacral spondylolisthesis with bilateral L5 spondylolysis and lumbosacral radiculopathy as well as L5 on S1 anterolisthesis, Grade 1; loss of range of motion of lumbar spine; exacerbation of an asymptomic lumbar spine condition; in the event that the injuries to the plaintiffs lumbar spine were superimposed upon any pre-existing conditions which may have contributed to the extent and severity of her injuries and rendered her more prone or susceptible to further injury, then such pre-existing conditions or susceptibility, if any, were aggravated, activated, precipitated, accelerated and acted upon by the injuries sustained by her in the subject occurrence; contusion of left arm; contusion of left leg; left shoulder sprain and strain; cervical sprain and strain; and left hip sprain and strain. The plaintiff also underwent lumbar spine injections on October 9, 2019 and October 30,2019, and lumbar spine fusion surgery on December 17, 2019. Subsequent to the surgery the plaintiff claims urological injuries.

In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 N.Y.2d 230,455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982]; Brown v Stark, 205 A.D.2d 725,613 N.Y.S.2d 705 [2d Dept 1994]). If it is found . that the injury sustained does not fit within the definition of "serious injury" under Insurance Law S 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed (Licari v Elliott, supra, at 57 N.Y.2d 238; Velez v Cohan, 203 A.D.2d 156,610 N.Y.S.2d 257 [1st Dept 1994]). A "serious injury" is defined as 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 constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." (Insurance Law S 5102 [d]).

Defendants submitted the affirmed medical report of Dr. Stephen W Lastig, MD, who reviewed the chest x-ray of the plaintiff taken on August 20,209.. It was opined by Dr. Lastig that "there are no findings on this study which are causally related to the reported accident 8/20/10 and that he saw "no evidence of an osseous or visceral injury". Dr. Lastig also reviewed the venous Doppler ultrasound examination of the lower extremities of the plaintiff taken on December 22, 2019. He opined that there was "no evidence of intraluminal thrombus" and "no sonographic evidence of deep venous thrombosis". Dr. Latig also reviewed the MRI study of the plaintiffs right shoulder taken on June 22, 2010 that predates the accident at issue in this case. He opined that there was "no evidence of rotator cuff tear or labral tear" and "no evidence of osseous injury". Dr. Lastig also reviewed the x-ray study of the right knee of the plaintiff taken on August 13,2014 that predates the accident. He opined that there was "no evidence of an acute fracture or dislocation". Dr. Lastig also reviewed the venous Doppler ultrasound examination of the right lower extremity of the plaintiff taken on August 13,2014 that predates the accident. He opined that there was "no evidence of intraluminal thrombus" and "no sonographic evidence of deep venous thrombosis within the right lower extremity". Dr. Lastig also reviewed the x-ray study of the right tibia and fibula of the plaintiff taken on August 14,2014 that predates the accident. He opined that there was "no evidence of an acute fracture or dislocation". Dr. Lastig also reviewed the ultrasound examination of the right groin and right inguinal region of the plaintiff taken on November 14,2014 that predates the accident. He opined that there was "no evidence of a mass or localized fluid collection" and "no evidence of a hernia". Dr. Lastig also reviewed the ultrasound examination of the scrotum and testicles of the plaintiff taken on December 30,2014 that predates the accident. He opined that there was "no testicular masses are identified", "no evidence of testicular torsion" and "there is a small 3 mm. left epidiymal cyst or spermatocele". Dr. Lastig also reviewed the radiographic study of the lumbosacral spine of the plaintiff taken on March 9, 2015 that predates the accident. He opined that there was "no evidence of an acute fracture or subluxation", and there is a "Grade 1 anterior spondylolisthesis of L5 on S1, Bilateral spondylolysis defects are present within the L5 pars intra-articularis". Dr. Lastig also reviewed the x-ray study of the orbits of the plaintiff taken on March 6, 2017 that predates the accident. He opined that there was "no evidence of an acute fracture", and "no radio-opaque foreign bodies are identified". Dr. Lastig also reviewed the x-ray study of the orbits of the plaintiff taken on September 5, 2019. He opined that there was "no evidence of an acute fracture"," no evidence of an osseous injury", "no radio-opaque foreign bodies are identified", and "no findings on this study which are causally related to the reported accident of 8/20/19." Dr. Lastig also reviewed the CT study of the abdomen and pelvis of the plaintiff taken on February 15,2019 that predates the accident. He opined that there was a "small 2 mm. non-obstructing right renal stone", "no evidence of a mechanical bowel obstruction or acute inflammatory bowel disease", "no evidence of ascites or adenopathy", and "L5-S1 disc degeneration. Mild Grade 1 anterior spondylolisthesis of L5 on S1 with bilateral spondylolysis defects present within the L5 pars intra-articularis". Dr. Lastig also reviewed the MRI study of the lumbar spine of the plaintiff taken on March 11, 2015 that predates the accident. He opined that there was "lumbarization of the transitional SI vertebral body. Mild disc desiccation at L5-S1", "Focal right paracentral disc protrusion at L5-SI which is encroaching on the right neural foremen", "Mild Grade 1 anterior spondylolisthesis of L5 on S1 with bilateral spondylolysis defects present within the L5 pars intra-articularis", and "Mild degeneration lower lumbar facet arthropathy. No evidence of spinal stenosis". Dr. Lastig also reviewed the MRI study of the lumbar spine of the plaintiff taken on September 5, 2019. He opined that there was "again noted to be a Grade 1 anterior spondylolisthesis of L5 on S1 with bilateral spondylolysis defects present within the L5 pars intra-articularis. The degree of slippage of L5 on S1 has increased compared with the prior study from 3/11/15 resulting in bilateral cephalocaudad foraminal narrowing and compromise of the exiting L5 nerve roots", "the previously described right paracentral disc protrusion at the L5-S1 level is no longer...