Williams v. Emil Yedowitz Landscaping Corp.

• Decision Date: 08 April 2020
• Docket Number: Index 032049/2018
• Citation: 2020 NY Slip Op 34891 (U)
• Parties: DIANA B. WILLIAMS, Plaintiff, v. EMIL YEDOWITZ LANDSCAPING CORP. and JOSEPH YEDOWITZ, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 34891(U)

DIANA B. WILLIAMS, Plaintiff,
v.
EMIL YEDOWITZ LANDSCAPING CORP. and JOSEPH YEDOWITZ, Defendants.

Index No. 032049/2018

Supreme Court, Rockland County

April 8, 2020

Unpublished Opinion

DECISION/ORDER

HON. SHERRI L. EISENPRESS, A.J.S.C.

The following papers, numbered 1-5, were read in connection with Defendants EMIL YEDOWITZ LANDSCAPING CORP. and JOSEPH YEDOWITZ' (collectively "Defendants") Notice of Motion for summary judgment and dismissal of the Complaint against them on the ground the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d):

PAPERS NUMBERED

NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS "A"-"O" 1-2

PLAINTIFF'S AFFIRMATION IN OPPOSITION/PLAINTIFF'S AFFIDAVIT EXHIBITS "A-J" 3-4

AFFIRMATION IN REPLY 5

Plaintiff commenced the instant action to recover damages for personal injuries arising out of an automobile accident which occurred on March 5, 2018, on Route 303 northbound at or near its intersection with Route 59, in the Town of Clarkstown, County of Rockland. At the time of the subject occurrence, Plaintiff's stopped vehicle was struck in the rear by Defendants' vehicle. Plaintiff, a 50 year old woman at the time, alleges that as a result of the accident, she sustained the following injuries: C4-C5 midline disc herniation; cervical radiculopathy; L4-L5 disc herniation; and lumbar radiculopathy. In a supplemental

1

Bill of Particulars, Plaintiff alleges that as a result of the accident, she underwent a surgical procedure in the nature of an anterior cervical discectomy at C4-C5; lumbar laminectomy and discectomy at L4-L5 and L5-S1.

In support of their summary judgment, Defendants submit Plaintiff's Nyack Hospital records; Atlas Spine Medical Records; MRI report of the cervical spine taken on March 12, 2018 which found degenerative spondylosis at C4-C5 through C6-C7 and a small midline disc herniation at C4-C5; and MRI report of the lumbar spine dated March 12, 2018, which found a small midline disc herniation at L4-L5. Additionally, Defendants submit a lumbar EMG report dated August 13, 2018, which notes the following finding: "the above electrical findings are suggestive of a left ongoing, active upon chronic lumbar radiculopathy at L5 root level. The lumbar EMG of the same date notes: "[T]he above electrical findings are suggestive of a left ongoing, active upon chronic cervical radiculopathy at C5 root level. Both referrals for the EMG note the onset of pain related to the accident of March 5, 2018. Defendants also submit Plaintiff's medical records from Gramercy Pain Management^[1]; Advanced Orthopaedic and Plaintiff's employment records.

Defendants also submit the affirmed medical reports of neurologist, Rene Elkin M.D., who examined Plaintiff on March 2, 2019, and then again after Plaintiff's surgery, on October 12, 2019. Upon initial examination, approximately one year after the accident, Dr. Elkin noted significant restriction of motion in Plaintiff's cervical spine including flexion of 40 degrees (normal 50); retroflexion of 30 degrees (normal 60); lateral rotation of both sides to 50 degrees (normal 80). She also noted tenderness to palpation of the cervical spine and

2

cervical musculature and in the left upper extremity extending into the forearm. Examination of Plaintiff's lumbar spine also revealed limitations as to forward flexion of 20 degrees (normal 60). Dr. Elkin noted tenderness to palpation of the lumbar spine and paralumbar muscles more on the left than the right side. Additionally, Dr. Elkin noted that examination of the shoulders revealed elevation to 90 degrees (norma! 180) and abduction to 120 degrees (normal 180), as well as tenderness to palpation. Notwithstanding these limitations, Dr. Elkin concludes that there is no objective findings for a neurological injury resulting from the accident; that the radiological studies reveal nonspecific age-related degenerative changes and there are no objective findings for cervical or lumbar radiculopathy to corroborate the electrodiagnostic studies as reported. Upon re-examination after surgery, Dr. Elkin finds normal ranges of motion except with respect to her shoulder wherein Dr. Elkin notes Plaintiff was unable to elevated or abduct or raise her left arm.

In opposition to the motion, Plaintiff points out that Plaintiff saw Dr. Gottlieb from Gramercy Pain Management on March 7 2018, two days post-accident, at which time he notes a positive Sperling sign on the left and a positive straight leg raising test on the left at 30 degrees bilaterally. He further notes restricted external rotation and external rotation to the shoulders. Follow up visits on March 21, 2018 and April 11, 2018 further noted diminished rage of motion in her neck, lower back and shoulder. On June 7, 2018, Plaintiff presented to Dr. Steven Waldman at Atlas Spin and Interventional Medicine and was noted to have radicular symptoms in the upper and lower extremities since the accident. On July 26, 2018, Plaintiff presented to the Nyack Hospital emergency room with complaints of worsening numbness and pain radiating from the neck to the fingers on the left arm. EMG testing revealed evidence of radiculopathy at C5 and L5 nerve roots. Plaintiff came under the care of Dr. Gerard Remy in October 2018 who reported objective evidence of severe functional limitation in cervical spine range of motion related to the subject accident. Eventually, Plaintiff came under the care of Dr. Scott Katzman at Advanced Orthopedics who performed a lumbar

3

laminotomy and discectomy at L4-L5, (eft to right...