Tran v. Mueller

• Decision Date: 07 June 2019
• Docket Number: Index No. 15-611224,Mot. Seq. No. 002 - MG; CASEDISP
• Citation: 2019 NY Slip Op 34760 (U)
• Parties: BINHLAN TRAN, Plaintiff, v. GLEN MUELLER, Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 34760(U)

BINHLAN TRAN, Plaintiff, v. GLEN MUELLER, Defendant.

Index No. 15-611224, Mot. Seq. No. 002 - MG; CASEDISP

Supreme Court, Suffolk County

June 7, 2019

Unpublished Opinion

MOTION DATE 3-1-19

ADJ. DATE 4-26-19

DELL & DEAN, PLLC Attorney for Plaintiff

RUSSO & TAMBASCO Attorney for Defendant

SHORT FORM ORDER

Denise F. Molia, Justice

Upon the following papers read on this e-filed motion for summary judgment: Notice of Motions/Order to Show Cause and supporting papers dated January 22, 2019; Notice of Cross-Motion and supporting papers; Answering Affidavits and supporting papers dated April 16, 2019; Replying Affidavits and supporting papers dated April 22, 2019; Other __ (and-after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is granted.

This is an action to recover damages for personal injuries sustained by plaintiff when her vehicle collided with a vehicle owned and operated by defendant. The accident allegedly occurred on November 20, 2012, on Motor Parkway, in Commack, New York. By her bill of particulars, plaintiff alleges that, as a result of the subject accident, she sustained serious injuries and conditions, including "post traumatic trauma" to head, vision difficulty, bulging discs in the cervical region, sprain and strain in the cervical and lumbar regions and hands, lumbar radiculopathy, and numbness to hands.

Defendant moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d).

Insurance Law § 5102 (d) defines "serious injury" 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 constitute 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."

In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 8 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).

On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).

Here defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) through the affirmed reports of his examining physicians (see Bailey v Islam, 99 A.D.3d 633, 953 N.Y.S.2d 39 [1st Dept 2012]; Sierra v Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863 [2d Dept 2010]; Staff v Yslma, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]). On July 17, 2018, approximately five years and eight months after the subject accident, defendant's examining orthopedist, Dr. Stuart Hershon, examined plaintiff and performed certain orthopedic and neurological tests, including the straight leg raising test and the Tinel sign. Dr. Hershon found that all the test results were negative or normal, and that there was no tenderness or spasm on plaintiffs cervical and lumbar regions and hands. Dr. Hershon also performed range of motion testing on plaintiffs cervical and lumbar regions, elbows, hands, hips, knees, and ankles, using a goniometer to measure her joint movement. Dr. Hershon found that plaintiff exhibited normal joint function. Dr. Hershon opined that plaintiff had no orthopedic disability at the time2f ofex5ination (see Willis v New York City Tr. Auth. 14 A.D.3d 696, 789 N.Y.S.2d 223 [2d Dept 2005]). On August 9, 2018, moving defendant's examining neurologist, Dr. Edward Weiland, examined plaintiff and performed certain orthopedic and neurological tests, including the Funduscopic evaluation, the examination for spontaneous venous pulsation, the Nylen-Barany maneuver, the Adson's test, the Lhermitfs sign, and the Tinel sigm Dr. Weiland found that all the test results were negative or normal. Dr. Weiland found that plaintiffs pupils reacted briskly, and that no apparent pupillary defect was noted. Dr. Weiland also performed range of motion testing on plaintiffs spine and shoulders, using a goniometer to measure her joint movement. Dr. Weiland found that plaintiff exhibited normal joint function. Dr. Weiland opined that plaintiff had no ongoing neurological disability at the time of the examination.

Further at her deposition, plaintiff testified that following the accident, she missed about a month from work She testified that there is no activity that she is unable to perform because of the accident except for sleeping with a pillow. Plaintiffs deposition testimony established that her injuries did not -prevent her from performing "substantially all" of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident. (see Burns v McCabe, 17 A.D.3d 1111, 794 N.Y.S.2d 267 (4th Dept 2005]; Curry v Velez, 243 A.D.2d 442,663 N.Y.S.2d 63 [2d Dept 1997]).

Thus defendant met his initial burden of establishing that plaintiff did not sustain a permanent consequential limitation of use of a body organ or member or significant limitation of use of a body fi.nct4 or system and that she was not prevented from performing substantially al! of her usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) (see Gonzalez v Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 [3d Dept 2005]).

The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, supra). A plaintiff claiming injury within the "limitation of use" categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitation of movement caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008J; Mejia v DeRose 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006J; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006J; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination of the plaintiff or a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, supra; Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra; Cebron v Tuncoglu, supra). Furthermore, a plaintiff claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so (Pommells v Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 (2005]; see Vasquez v John Doe #1, 73 A.D.3d 1033, 905 N.Y.S.2d 188 [2d Dept 2010]; Rivera v Bush wick Ridgewood Props., Inc., 63 A.D.3d 712, 880 N.Y.S.2d...