Wilks v. Baichans, Inc.

• Court: New York Supreme Court
• Writing for the Court: AARON D. MASLOW, Justice of the Supreme Court
• Citation: Wilks v. Baichans, Inc., 2023 NY Slip Op 50731(U), Index No. 525701/2018 (N.Y. Sup. Ct. Jul 18, 2023)
• Docket Number: Index No. 525701/2018
• Decision Date: 18 July 2023
• Parties: Gerald Wilks, Plaintiff, v. Baichans, Inc. and AMADOU BABAYEL SAM, Defendants.

2023 NY Slip Op 50731(U)

Gerald Wilks, Plaintiff, v. Baichans, Inc. and AMADOU BABAYEL SAM, Defendants.

Index No. 525701/2018

Supreme Court, Kings County

July 18, 2023

Unpublished Opinion

Cherny & Podolsky, Brooklyn (Kardon A. Stolzman of counsel), for plaintiff.

Aaron D. Maslow, J.

AARON D. MASLOW, Justice of the Supreme Court

Introduction

Plaintiff Gerald Wilks asserts in this action that he sustained personal injuries while occupying and operating his vehicle on October 4, 2018 as a result of negligent operation of another vehicle, operated by Defendant Sam Amadou Babayel and owned by Defendant Baichains, Inc.

Said Defendants now move for summary judgment, claiming that Plaintiff failed to meet the "serious injury" threshold of Insurance Law § 5104 (a), as defined in § 5102 (d). There are nine categories of serious injury per Insurance Law § 5102 (d).

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Andre v Pomeroy 35 N.Y.2d 361 [1974]).

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). The moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [2016]).

If Defendants have made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that Plaintiff does not qualify under the relevant serious injury threshold categories as there are no material issues of fact, the burden shifts to Plaintiff to submit evidence in admissible form to establish that there are material issues of fact (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).

Bill of Particulars

In his bill of particulars, Plaintiff, who was about 59 years old when the accident occurred, alleged that he sustained injuries in the accident to the right knee. He asserted that he was confined to bed for one week and confined to home for approximately four months following the accident, leaving him totally incapacitated from work since the accident (see NYSCEF Doc No. 87, bill of particulars ¶¶ 12-13). As for serious injury threshold categories, Defendant claimed "permanent loss of use of a body organ, member, function or system; or permanent consequential limitation of use of a body organ or member and/or significant limitation of use of a body function or system and/or... prevented... from performing substantially all of the material acts which constitute [his] usual and customary daily activities not less than ninety (90) days during one hundred eighty (180) days immediately following the [subject accident]" (Id. ¶ 20).

Notably the bill of particulars also included: "The above said injuries are permanent in nature and duration and were precipitated, aggravated and/or exacerbated by the occurrence herein. That to the extent the above injuries, conditions, and/or diagnoses are shown to pre-date the accident, then such injuries, conditions and/or diagnoses were latent, and inactive, and as a result of the accident, were activated, accelerated, aggravated and exacerbated therein" (Id. ¶ 21 [emphasis added]).

Defendants' Evidence

In moving for summary judgment, Defendants relied on an affirmed independent medical examination ("IME") report prepared by Dr. Jeffrey N. Guttman, a Board-certified orthopedic surgeon, who examined Plaintiff on February 23, 2023. Dr. Guttman detailed his examination of Plaintiff, related his findings, and set forth conclusions. Defendants also relied on a report prepared by Dr. Jessica F. Berkowitz, M.D., a Board-certified radiologist, who evaluated MRI imaging of Plaintiff's right knee performed on October 22, 2018. As well, Defendants relied on the certified transcript of the deposition examination before trial of Plaintiff conducted on December 7, 2021.

Dr. Jeffrey N. Guttman's Exam Report

Dr. Guttman noted that Plaintiff was a restrained driver when he was rear-ended. He did not report if he lost consciousness or if he sustained any lacerations as a result of the accident. Plaintiff did not state whether he went to the hospital or received emergency medical care following the accident, but he sustained injuries to the neck, low back, and right knee. Treatment consisted of physical therapy, acupuncture, and chiropractic therapy. At the IME, Plaintiff complained of back pain. (See NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report at 4.) ^[1] Dr. Guttman listed the various post-accident treatment records which he reviewed. He summarized them in chronological order. He noted the right knee MRI revealed a tear of the medial meniscus, a contusion overlying the patellar tendon, and a small joint effusion. On November 29, 2018, Dr. Stan Avshalumov performed right knee arthroscopic surgery which included: partial medial and partial lateral meniscectomy; synovectomy; chondroplasty of medial femoral condyle; and intraarticular injections for post-operative pain control. (See id. at 5-6.)

At the IME, Plaintiff walked with a normal gait and without assistive devices. Dr. Guttman compared Plaintiff's observed ranges of motion to what he considered to be normal and found full range of motion in the right knee on extension (0/0 degrees). Flexion was recorded at 120/140 degrees. Range of motion testing was performed using a goniometer. (See id. at 6.)

Dr. Guttman also conducted the following orthopedic tests, which yielded negative results: Lachman's, Patella Tracking, Anterior Drawer, Posterior Drawer, Patella Grind, Patella Bursitis, McMurray's, Bounce, and Pivot Shift; no varus/valgus deformity was detected and Plaintiff was stable on varus/valgus stress. Dr. Guttman also found that Plaintiff scored 5/5 for a strength test of the quadriceps and hamstring; had no atrophy in the quadriceps and hamstring muscles; and had no chondromalacia on palpation of the patella. No heat, swelling, effusion, or erythema crepitus was appreciated, and neither was there tenderness upon palpation. Multiple healed arthroscopic scars were noted. (See id. at 6-7.)

Dr. Guttman opined at the end of his report, "The medical records provided have zero objective evidence that the right knee claims are causally related to the MVA of October 4, 2018." He added, "Mr. Wilks reportedly sustained the above-mentioned injury as a result of the accident of October 4, 2018 which is now resolved. There were no objective findings on examination. He can participate in all activities of daily living. He may work at his regular employment, full time without restrictions. He did not sustain any permanent injury or disability." (Id. at 7.)

Dr. Jessica F. Berkowitz's MRI Report

Dr. Berkowitz reviewed MRI imaging of Plaintiff's right knee taken on October 22, 2018, and provided findings as follows (NYSCEF Doc No. 89, Dr. Jessica F. Berkowitz MRI review at 4):

The submitted examination consists of axial T2, fat suppressed T2, sagittal fat suppressed T2 and coronal proton density, T2 and fat suppressed T2 weighed pulse sequences of the knee. The sagittal images are moderately degraded by motion artifact and other sequences are slightly degraded by motion artifact.

There is a bipartite patella. There appear to be areas of cartilage loss involving the lateral joint compartment. No areas of abnormal bone marrow signal intensity are noted. No joint effusion is present. The anterior and posterior cruciate ligaments and medial and lateral collateral ligaments are intact. The quadriceps and patellar tendons appear to be substantially intact on the axial images. The menisci cannot be evaluated due to patient motion.

Impression: Bipartite patella. This is developmental. Probable cartilage loss involving the lateral joint compartment. The examination is moderately degraded by motion artifact. The quadriceps and patellar tendons ca only be seen in the axial plane and the menisci cannot be evaluated. There I no evidence of acute traumatic injury to the knee such as fracture, traumatic bone marrow edema or ligamentous tear.

Causal Relationship: Evaluation of this MRI examination reveals no causal relationship between the claimants's alleged accident and the findings of the MRI examination.

Deposition Examination Before Trial

In his affirmation (NYSCEF Doc. No. 83, Michael Lachman Affirmation ¶¶ 13-14), Defendants' counsel emphasized the following alleged testimony given by Plaintiff at his deposition, the transcript of which was submitted as NYSCEF Doc No. 90:

Following the accident on October 4, 2018, Plaintiff called 911 and specifically stated that he did not need an ambulance (citing NYSCEF Doc No. 90, deposition at 26). He drove himself home afterward and did not seek medical treatment until after a week (citing id. at 28-29). Plaintiff sought treatment at a physical therapy facility but ceased treatment after six months (citing id. at 29, 31).

As a result of the accident, Plaintiff missed three to six weeks of work as a social worker (citing id. at 8, 38-40). He also admitted that he was at no point confined to bed though was confined to home for a period of three...