Switzer v. Langewell, Index No.: 022911/08
| Decision Date | 30 September 2010 |
| Docket Number | Index No.: 022911/08,Motion Sequence: 03,Motion Sequence: 02 |
| Citation | 2010 NY Slip Op 32852 |
| Parties | ROBERTA. SWITZER, Plaintiff, v. JOHN D. LANGEWELL and HANNE L. LANGWELL, Defendants. |
| Court | New York Supreme Court |
SHORT FORM ORDER
Present:
HON. RANDY SUE MARBER
JUSTICE
Papers Submitted:
Notice of Motion...x
Notice of Cross-Motion...x
Affirmation in Reply...x
Upon the foregoing papers, the Defendants' motion seeking an order granting summary judgment pursuant to CPLR § 3212 and dismissing the complaint of the Plaintiff, on the grounds that the Plaintiff's injuries do not satisfy the "serious injury" threshold requirement of Insurance Law § 5102 (d) is determined as hereinafter provided. The Plaintiff s unopposed cross-motion, seeking an order granting him summary judgment on the issue of liability, is also determined as hereinafter provided.
The Plaintiff's personal injury action arises out of a motor vehicle accident that occurred on September 5, 2008 at or near the intersection of Atlantic Avenue and Carnation Avenue, Baldwin, County of Nassau. At the time of the accident, the Plaintiff was an occupant of a legally parked vehicle that was struck by a vehicle owned by the Defendant, JOHN D. LANGWELL and operated by the Defendant, HANNE L. LANGWELL. The Plaintiff alleges that, as a result of the accident, he sustained "serious injuries" as defined by Insurance Law § 5102. The Defendants argue that they are entitled to judgment as a matter of law as the Plaintiff suffered only minor strains and sprains as a result of the motor vehicle accident.
The Plaintiff's Verified Bill of Particulars, dated March 6, 2009, and Supplemental Verified Bill of Particulars, dated September 21, 2009, state that the Plaintiff sustained the following injuries as a result of the accident:
See Plaintiff's Verified Bill of Particulars and Supplemental Verified Bill of Particulars, attached to the Defendants' Notice of Motion as Exhibits "C" and "G", respectively.
Plaintiffs Prior Injuries:
The Plaintiff testified on September 14, 2009 at his Examination Before Trial that on July 23, 1988, he sustained a job related injury to his lower back. As a result of that accident, the Plaintiff was diagnosed with a herniation at L4-L5 and subsequently underwent surgery on December 4, 1990, where the L4 and L5 discs were fused. In or about November, 1995, the Plaintiff was involved in an motor vehicle accident that resulted in injury to the L4-L5 region of his back. As a result of that accident, the Plaintiff underwent physical therapy from January 1996 through July 1996. Also, on November 23, 2002, the Plaintiff was involved in another motor vehicle accident which resulted in a herniated disc at L4-L5. Plaintiff treated with a chiropractor from December, 2002 through July, 2003. The Plaintiff has been out on disability since 1990 due to the previous work-related injury in 1988.
Defendants' Proof in Support of Motion:
In support of their motion for summary judgment, the Defendants submitted the medical reports of Michael J. Katz, M.D., an orthopedic surgeon, Steven Ender, D.O., a neurologist, and Audrey Eisenstadt, M.D., a radiologist.
At the request of the Defendants, Dr. Katz performed an orthopedic exam on October 9, 2009 which revealed the following:
See Report of Dr. Katz, dated October 9, 2009, attached to the Defendants' Notice of Motion as Exhibit "P". The range of motion of the Plaintiff's cervical and lumbar spine was determined using a goniometer. At the conclusion of the examination, Dr. Katz' diagnosis was that the Plaintiff s cervical radiculopathy and left shoulder contusion were now resolved and the lumbar strain is resolved with pre-existing lumbosacral radiculopathy unrelated to the accident of September 5, 2008. Dr. Katz further opined that the Plaintiff currently shows no signs or symptoms of permanent loss of use relative to the neck or left shoulder and that with regard to his lower back, his pathology predates this accident by 20 years. Dr. Katz commented that the MRI reports of the cervical and lumbar spine indicate multi-level pre-existing degenerative disc disease. Dr. Katz stated that the Plaintiff is capable of performing his activities of daily living.
The neurological exam, conducted by Dr. Ender on November 10, 2009, revealed the following results:
See Report of Dr. Ender, dated November 10, 2009, attached to the Defendants' Notice of Motion as Exhibit "Q". Dr. Ender's impression revealed post cervical and lumbosacral paraspinal muscle strain. He stated that a causal relationship between the accident and injuries has been established, but opined that there is no residual neurological disability. Dr. Ender further opined that the Plaintiff can continue with his current activities of daily living without restrictions and that his injuries appear to be an exacerbation of the two prior injuries that occurred in 1988 and 2002.
At the Defendants' request, Dr. Eisenstadt, a radiologist, reviewed a cervical spine MRI performed on the Plaintiff on October 6, 2008, approximately one month following the accident. Dr. Eisenstadt's impression revealed the following:
Osteophyte formation C4-5 level. Desiccation of all cervical intervertebral discs. Discogenic ridging C3-4, C4-5, C5-6, and C6-7 levels. Superimposed small disc herniations at the C4-5 and C5-6 levels. Likely protrusion of the Tl-2 intervertebral disc space, which based on the images provided, appears to be bulging.
See Dr. Eisenstadt's Report dated February 5, 2010, attached to the Defendants' Notice of Motion as Exhibit "R". Dr. Eisenstadt concluded that MRI revealeddegenerative changes involving the osseous and intervertebral disc structures, which predate the September 5, 2008 accident. The osteophyte formation at the C4-5 level, a bony productive change, was greater than six months in origin predating the accident. The doctor explained that the disc desiccation was a drying out of disc material, greater than three months in origin, which could not have occurred in the short time interval between the MRI and the injury. Dr. Eisenstadt opined a similar result with respect to the bulging at the C4-5, C5-6 and C6-7 levels, stating that the bulging discs have no traumatic basis. With respect to the protrusion at the Tl-2 level, Dr. Eisenstadt concluded that the bulging was not traumatic in origin, but instead, related to ligamentous laxity, a degenerative process. See Dr. Eisenstadt's Report, dated February 5, 2010, attached to the Defendants' Notice of Motion as Exhibit "R".
Dr. Eisenstadt also reviewed two MRI scans of the lumbar spine, one which predates the accident by three months, and one that was taken one month after the accident. Dr. Eisenstadt opined that the pre-trauma examination revealed extensive degenerative changes which are longstanding in origin. Id. She further stated that the degenerative and surgical changes were present on the pre-trauma study and remained unchanged on the posttrauma examination. Id.
Plaintiffs Proof in Opposition:
In opposition to the Defendants' motion, the Plaintiff submitted the affirmation of Benzion Benatar, M.D., an orthopedic surgeon, and an affidavit of the Plaintiffs treatingchiropractor, William S. Thatcher, D.C. An examination was performed by Dr. Benatar on October 1, 2008, which revealed significant range of motion limitations in all planes of the Plaintiff's cervical spine. There was a mild restriction of the Plaintiff's left shoulder and straight leg raising tests were positive. As a result of the October 1, 2008 examination, Dr. Benatar concluded that the findings suggested the presence of a left cervical radiculopathy and...
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