Vasquez v. Reluzco, 2005 NY Slip Op 30393(U) (N.Y. Sup. Ct. 3/15/2005)
| Decision Date | 15 March 2005 |
| Docket Number | 108143/03 |
| Citation | 2005 NY Slip Op 30393 |
| Parties | CLARA VASQUEZ and TOMAS PACHECO, Plaintiffs, v. EDUARDO RELUZCO, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and THE CITY OF NEW YORK, Defendants. |
| Court | New York Supreme Court |
This is an action brought to recover for personal injuries allegedly suffered in a May 15, 2002 automobile accident. Defendants now move for summary judgment dismissing the complaint, alleging that plaintiffs suffered no serious injury.1 In support, they have submitted the affirmation of counsel and copies of: the summons and complaint; the accident report, dated May 15,2002; defendants' verified answer and demands; plaintiffs' verified bill of particulars; and the sworn reports of Daniel J. Feuer, M.D. Plaintiffs have opposed, submitting the affirmation of counsel as well as copies of: certified mail receipts; notices of claim; uncertified hospital records from the Metropolitan Hospital emergency room; uncertified medical records from Neuro Care Associates, P.C., et al.; the affirmations of Larry N. Neuman, M.D. and accompanying medical report for each plaintiff; plaintiffs' affidavits; and uncertified MRI reports. Defendants have replied.
The complaint alleges that plaintiff Vasquez "sustained severe injury and considerable pain and suffering, was compelled to seek medical care, was prevented from attending to her usual duties and may continue to be so damaged in the future." Compl., para. 18. The verified bill of particulars further delineates Ms. Vasquez's injuries as permanent and consisting of:
Post concussion syndrome, traumatic cervical syndrome with multiple cervical disc herniations, traumatic low back syndrome with a lumber disc herniation, post traumatic stress disorder, shock[,] tension, pain and embarrassment.
Bill of Particulars, para. 9.
The complaint then alleges that plaintiff Pacheco "sustained severe injury and considerable pain and suffering, was compelled to seek medical care, was prevented from attending to his usual duties, and may continue to be damaged in the future. Compl., para. 24. The verified bill of particulars specifies Mr. Pacheco's injuries as:
Disc bulges at C2-C3, C3-C4, C4-C5, C5-C6, C6-C7, shock, pain, tension and embarrassment.
Bill of Particulars, para. 9. The injuries of both plaintiffs were claimed to be permanent. Id.
By affirmation, Dr. Daniel J. Feuer has reported on both plaintiffs. In his May 10, 2004 affirmed report, he states that Ms. Vasquez is a forty-two year old woman who described her health as good until May 15, 2002, when she was involved in the instant automobile accident. She was self-employed in a housekeeping business and denied any past medical history involving trauma.
Ms. Vasquez told Dr. Feuer she sustained no head trauma or loss of consciousness, but injured her neck and lower back. She told Dr. Feuer that she was taken from the accident scene to the Metropolitan Hospital emergency room, was examined and x-rayed there and was then released. She obtained treatment from a doctor to whom her lawyer referred her, the next day. At the time of Dr. Feuer's examination, Ms. Vasquez complained of recurrent neck and low back pain. She denied radiating pain, bowel or bladder dysfunction or focal weakness. Further, at the time, she was not taking any medication and was not undergoing therapy or treatment.
Upon examination, Dr. Feuer found that Ms. Vasquez was in no acute distress and had no trouble getting on or off the examining table. Dr. Feuer found Ms. Vasquez's cervical spine to be "nontender," without spasm and with full range of motion horizontally and vertically. He also found the thoracic spine "nontender" and with full range of motion. In the lumbosacral spine, he found "mild bilateral paraspinal tenderness," but found no spasm and found no problem with leg raising. The remainder of the examination covered mental status, the cranial nerves, motor and sensory tests, coordination and gait, which were found to be normal. Dr. Feuer found Ms. Vasquez's neurological examination normal.
As to Mr. Pacheco, Dr. Feuer, in his May 10, 2004 affirmed report, stated that Mr. Pacheco was a fifty-one year old male who complained of neck and lower back injury as a result of the May 15,2002 accident. There was no head trauma, and Mr. Vasquez, who did not lose consciousness, was taken to the Metropolitan Hospital emergency room where he was examined and x-rayed. No fractures were found, and he was released. He was then treated by Dr. Neuman, a physician to whom he was referred by his lawyer.
Mr. Pacheco denied radiating pain, bladder or bowel dysfunction and focal weakness. Nor was he, at the time of the examination, taking medication or undergoing treatment. Mr. Pacheco denied any medical history and was retired from active employment.
Dr. Feuer found that Mr. Pacheco was in no acute stress. His head was normal and his cervical spine was not tender, had no spasm and had full range of motion. His lumbosacral spine also was not tender and had no spasm, and he was able to leg raise bilaterally. His mental status, cranial nerves, motor abilities, sensory nerves, coordination and gait were all normal. Dr. Feuer found the neurological examination failed "to demonstrate objective deficits referable to the central or peripheral nervous system." He found no objective deficits and diagnosed Mr. Pacheco as normal and not in need of treatment.
Ms. Vasquez has submitted an affidavit, dated October 15, 2004, in which she avers that, on May 15, 2002, her vehicle was struck by an automobile owned by defendant Relizco. She was taken by ambulance to metropolitan hospital, complaining of back and neck pain, was x-rayed and was released with medication. She then went to Dr. Larry Neuman for treatment and was treated by him until February 24, 2003. She also consulted with Dr. Carr, a neurologist on June 3, 2002, Dr. Gutstein on June 3 and 5,2002 and underwent physical therapy sessions in 2002. She further avers that she experienced headaches, nausea, poor concentration, dizziness, neck pain radiating to her arms, low back pain and anxiety and depression during this period. In October 2004, she avers she often has difficulty getting out of bed due to low back pain, was unable to return to her exercise routine at her gym "3 months after the accident," cannot carry heavy grocery bags, cannot do certain types of dancing and, although she cleans as part of her ownership and operation of a cleaning service, she cannot do heavy cleaning and must rely on employees.
An affirmation of Dr. Larry N. Neuman, dated October 1, 2004, avers that his September 7,2004 report was prepared by him and is true. That report states that Ms. Vasquez was seen at his office on May 16, 2002 for injuries she stated she sustained in a May 15,2002 accident. She was treated at and released from the Metropolitan Hospital emergency room where no fractures were found, but analgesics were prescribed.
Ms. Vasquez was described as a forty year old mother of three who was a maintenance worker. She was complaining of: daily headaches, poor concentration, sleep impairment, nausea and dizziness; constant and frequent neck pain which was severe and radiated to both arms and related to weakness and paresthesias of the upper extremities.; frequent, severe low-back pain exacerbated by prolonged sitting, standing walking or weight-bearing; and anxiety and depression.
Dr. Neuman found percussion pain over the C2 and C7 spinous processes `with marked tenderness and spasm of the cervical paravertebral muscles and range of motion of the cervical spine limited by 50 to 75% in all planes." He also found percussion pain, tenderness and spasm over the L2-L5 spinous processes and limited range of motion in the lumbosacral spine of 50%. He further found diminished grip strength and positive leg raising. He diagnosed post-concussion syndrome, traumatic cervical syndrome with disc herniation at C5-C7 and L5-S1, traumatic low back syndrome with herniation at L5-S1 and post-traumatic stress disorder. He referred to the MRI and EMG reports. He further found that Ms. Vasquez continued to "manifest functional impairment as [sic] at the most recent visit to this office on 2/24/03." He diagnosed a permanent disability and a guarded prognosis, finding the May 15 accident a competent producing cause of the disability. It appears from the papers that the MRI was conducted by Dr. John T. Rigney and the EMG testing was conducted by Dr. Hal Gutstein. No affirmations from Dr. Rigney or Dr. Gutstein were submitted.
Thomas Pacheco submitted an affidavit, dated October 15, 2004, in which he averred that he was a passenger in Ms. Vasquez's vehicle on may 15, 2002 when the vehicle was struck and was taken by ambulance to Metropolitan Hospital where he complained fo pain to his neck and lower back. He was x-rayed and given pain medication upon discharge. The next day, he visited Dr. Neuman and treated with him until November 22, 2002. Further, he avers that he had a CT scan of his head in May 2002and an MRI of his neck and back in June and July 2002. During the above period, he averred he experienced poor concentration, sleep impairment, nausea, dizziness, neck pain and anxiety and depression. He further averred he was restricted in moving his head and lower back areas and that his life was impacted since he could no longer exercise at the gym, could no longer play league baseball, found it often difficult to get out of bed due to lower back pain, picked up heavy objects with difficulty and could not help his wife in her cleaning business on a regular basis.
An affirmation of Dr. Neuman, dated October 1, 2004, stated that a report for Tomas Pacheco dated September 6, 2004 was prepared by him and is true. In the report, Dr. Neuman states that Mr. Pacheco's last visit was August 12,2004 and notes that Mr. Pacheco...
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