Perez v. Rodriguez

• Decision Date: 31 January 2006
• Docket Number: 6011.
• Citation: 25 A.D.3d 506,2006 NY Slip Op 00552,809 N.Y.S.2d 15
• Parties: DOLORES PEREZ et al., Respondents, v. MILCIADEZ RODRIGUEZ, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 506

809 N.Y.S.2d 15

2006 NY Slip Op 00552

DOLORES PEREZ et al., Respondents, v. MILCIADEZ RODRIGUEZ, Appellant, et al., Defendants.

6011.

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

January 31, 2006.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 22, 2004, which, to the extent appealed from, denied defendant Milciadez Rodriguez's cross motion for summary judgment dismissing the complaint as against him on the ground that plaintiffs failed to meet the serious injury threshold of Insurance Law § 5102 (d), reversed, on the law, without costs, the cross motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

This is a personal injury action which arises out of a motor vehicle accident that occurred on November 7, 1999. Plaintiff Dolores Perez alleges that she was a passenger in a vehicle driven by defendant Rodriguez when it struck the rear of a vehicle owned by defendant Silver Spring Service, Inc. and operated by defendant Pablo Sandoval. Plaintiff was apparently treated at the scene of the accident by an "emergency crew" but was not hospitalized. Plaintiff thereafter sought treatment at Webster Comprehensive Medical, P.C., which visits lasted approximately five months.

Plaintiff subsequently commenced this action in October 2000, asserting that she had sustained a serious injury as defined in Insurance Law § 5102 (d). Defendants Sandoval and Silver Spring, after issue was joined, moved to dismiss the complaint as against them on the ground that they had no liability as a matter of law since Rodriguez's vehicle hit their vehicle in the rear while it was stopped. Rodriguez then cross-moved to dismiss the complaint as against him on the ground that plaintiff did not sustain a serious injury. The motion court granted Sandoval and Silver Spring's motion, which disposition is not within the scope of this appeal, but denied Rodriguez's cross motion. We disagree with the motion court insofar as it denied the cross motion and, accordingly, reverse.

The Court of Appeals has oft-stated that the "`legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). The issue of whether a claimed injury falls within the statutory definition of a "serious injury" is a question of law for the courts which may be decided on a motion for summary judgment (Licari v Elliott, 57 NY2d 230, 237 [1982]; Martin v Schwartz, 308 AD2d 318, 319 [2003]). Once the proponent of a motion for summary judgment has set forth a prima facie case that the claimed injury is not serious the burden shifts to the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he/she did sustain such an injury, or that there are questions of fact as to whether the purported injury was "serious" (Toure, 98 NY2d at 350; Cortez v Manhattan Bible Church, 14 AD3d 466, 467 [2005]; Martin v Schwartz, supra). However, "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment . . . summary dismissal of the complaint may be appropriate" (Pommells v Perez, 4 NY3d 566, 572 [2005] [emphasis added]).

Initially, we find that defendant shouldered his burden of proof that plaintiff did not sustain a serious injury, within the statutory definition, by the submission of reports from Doctors Dick, Krishna and Eisenstadt, who are, respectively, an orthopedist, neurologist and a radiologist. Doctor Dick found, after examining plaintiff, that despite her claims herein, "there is no evidence of injury to the cervical spine, lumbosacral spine, left shoulder or left knee. All injuries allegedly related to the accident . . . are resolved by objective clinical criteria . . . Based on today's examination, it is my opinion that [plaintiff] is not disabled." Dr. Krishna concluded that: plaintiff had sustained sprain/strain of the cervical and lumbosacral areas, which had resolved; objective findings indicated that plaintiff's "neurological perspective was normal" and she required no further treatment; and plaintiff "is capable of performing all activities of daily living, and is capable of gainful employment without restrictions." Dr. Eisenstadt noted that plaintiff had a normal MRI study of the left knee and as for her lumbar spine, Dr. Eisenstadt found normal lumbar alignment, with desiccation in the intervertebral discs at the L4-5 level, as well as a small central disc herniation at the L4-5 level. Dr. Eisenstadt determined, however, that the desiccation indicated preexisting degenerative disease which takes months to years to develop.

In response, plaintiff, in addition to her own affidavit, submitted an affirmation from Dr. Jay Zaretsky, an orthopedic and arthropedic surgeon, who examined plaintiff on April 25, 2003, approximately 3½ years after the accident, more than three years after she discontinued treatment at Webster Comprehensive, and in response to defendant's cross motion. Dr. Zaretsky, however, never stated that he reviewed plaintiff's MRI films and, apparently, relied solely on the unsworn reports of the doctors who reviewed those films three years earlier. Dr. Zaretsky also neglected to discuss the prolonged gap in plaintiff's treatment and, indeed, exacerbated the significance of that unexplained gap by stating that plaintiff "is permanently disabled as a result of the automobile accident of November 7, 1999, her condition is chronic and permanent and she has suffered partial but significant impairments to the spine, shoulder and left knee which requires surgery and will necessarily require future medical care at least in the nature of therapy and steroid injections" (emphasis added). Moreover, plaintiff's assertions that when she returned to work at the beauty salon (she could not remember when that was) she could only work for 1½ hours and could no longer blow-dry hair are merely subjective complaints based upon her testimony, and are unsupported by medical evidence.

Given the absence of admissible evidence that plaintiff suffered a serious injury in 1999, when the accident occurred, the utter failure to explain the gap in plaintiff's medical treatment, and the lack of objective evidence that plaintiff suffered permanent loss of use or permanent consequential limitation of use of a body organ, member or function, or impairment in her daily activities for 90 days in the 180-day period following the accident (Insurance Law § 5102 [d]), the complaint must be dismissed.

Concur — Buckley, P.J., Nardelli, Williams and Catterson, JJ.

Saxe, J., dissents in a memorandum as follows:

The motion court's denial of summary judgment, on the ground that issues of fact exist as to whether plaintiff suffered a serious injury as defined in Insurance Law § 5102 (d), should be affirmed. Plaintiff's showing included sufficient objective medical evidence of serious physical injury, including the results of MRIs and physical range of motion assessments, to avoid dismissal at this juncture.

Plaintiff Dolores Perez was allegedly injured on November 7, 1999, when the vehicle in which she was a passenger, which was operated by defendant Milciadez Rodriguez, struck another vehicle. The radiating pain she began to experience immediately following the accident, in her shoulders, arms, buttocks and legs, has, according to her deposition testimony and affidavit, continued virtually unabated. Beginning two days after the accident, plaintiff was tested and treated by various medical practitioners at the clinic she consulted, Webster Comprehensive Medical, P.C. The clinic also referred her for MRIs of the cervical spine, lumbosacral spine, and left knee, and electrodiagnostic tests.

The MRI of the cervical spine, which was performed on November 16, 1999, revealed an anterior disc herniation at C5-C6 level, and a reversal of the normal cervical curve due to muscular spasm. An MRI of the lumbosacral spine performed on December 14, 1999 revealed a focal disc herniation at the L4-L5 level. An MRI of the left knee performed on February 17, 2000, revealed an interstitial tear involving the posterior horn of the medial meniscus. Although a nerve conduction...