YB v. Carey

• Decision Date: 19 November 2021
• Citation: 2021 NY Slip Op 51115 (U)
• Parties: YB, Plaintiff, v. Daniela C Carey and Thomas F Carey, Defendants.
• Court: New York Civil Court

2021 NY Slip Op 51115(U)

YB, Plaintiff, v. Daniela C Carey and Thomas F Carey, Defendants.

Civil Court of the City of New York, Kings County

November 19, 2021

Unpublished Opinion

Daniel Eric Rausher, Esq. Counsel for Plaintiff

James G. Bilello & Associates Counsel for Defendants

Sandra E. Roper, J.

RECITATION AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

REPLY & EXH. ANNEXED 7-8

INTRODUCTION

Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 premised upon Plaintiff's failure to have sustained a Serious Injury pursuant to NY INS 5104 (a) as defined by NY INS 5102 (d) and for such other and further relief deemed just and proper. For the reasons set forth below, Defendant's Motion for Summary Judgment is hereby GRANTED.

PROCEDURAL AND FACTUAL HISTORY

This personal injury action in negligence commenced by Plaintiff YB arises from Motor Vehicle Accident (MVA) involving collision of Defendants' motor vehicle with 15 year-old minor Pedestrian YB on October 29, 2010 at or around 1:22 PM on McDonald Avenue near its intersection with Bay Parkway in Brooklyn, New York. YB was thereafter transported by ambulance to the Maimonides Medical Center Emergency Department in which medical records stated that he was "hit by a slow-moving car and c/o lower back and left foot pain" (affirmation in opposition, exhibit A). ED Discharge Instructions states the primary diagnosis as "Motor vehicle accident (MVA) - unspecified injury" and the secondary diagnosis as "Contusion - foot" (id.). ED attending physician, Dr. Patrick McGrory concluded after a series of tests and x-rays that YB's diagnosis did not require admission, but he may be sore with neck and shoulder muscle pain for which icing was instructed (id.). ED x-ray report of the sacrum coccyx, dated October 29, 2010 although indicating no fracture, found a transitional segment at L5-S1 on the left (id.).

About a week thereafter after missing school, YB sought treatment from Dr. Ahmed A. ElSoury ^[1] of Recover Medical on November 5 2010. During YB's examination a series of tests were conducted: Disability Index; Neck Disability Index Questionnaire; Oswestry Low Back Pain Disability Questionnaire; Roland Morris Disability Questionnaire Shoulder Pain and Disability Index; and Knee Score Questionnaire but no range of motion tests (see affirmation in opposition, exhibit A). Dr. ElSoury diagnosed Plaintiff with displacement of lumbar intervertebral discs Lumbar sprain/strain; Lumbar radiculitis; Lumbago; and Contusion of the left foot, and recommended the following therapy treatments: Hot/Cold packs, Electrical stimulation Therapeutic massage, Ultrasound, Range of motion and stretching exercises with frequency of three to four times a week, and referred Chiropractic Specialist, Nicolas A. Fennelli, DC and Acupuncture Specialist, Natalia Shatokhin, LAc and Physical Therapist (name illegible). LAc Shatokhin evaluated YB on same date finding that his chief complaint was moderate constant bilateral back pain (did not specify what part of back) and complained of mild periodic left toe pain. Oriental Medical Diagnosis as Foot Tai Yin SP, Foot Tai Yang UB, Foot Yang Ming ST, and Foot Jue Yin LV was checked off by LAc Shatokhin and treatment recommendation of three times a week as needed of distal acupuncture points and local acupuncture points without specification of body part or parts to be treated. Further, on same date, Chiropractic Specialist, Nicolas A. Fennelli, DC of Alignment Chiropractic Care P.C. examined Plaintiff and found the following Range of Motion (ROM) measurements:

Cervical

Normal/ActualLumbar

Normal/Actual

Flexion80/4080/30

Extension70/3030/15

Right Rotation90/4035/15

Left Rotation90/5035/20

Right Lateral Flexion45/2025/10

Left Lateral Flexion45/2525/15(affirmation in opposition, Exhibit A). DC Fennelli crossed out the ROM for Thoracic on the form without explanation whereas Dx Codes, indicated which were checked off: 739.1, Cervical Subluxation; 739.2, Thoracic Subluxation; 739.3, Lumbar Subluxation; 846.1, Sacroilliac Spist; 847.0, Cervical Sprain/Strain; 847.1, Thoracic Sprain/Strain; 847.2, Lumbar Sprain/Strain.

Dr ElSoury thereafter referred YB to Julius Tapan for Physical Capacity Testing on December 2, 2010 and a Re-Evaluation of the Physical Capacity Testing on December 31, 2010. On December 8, 2010, Dr. Elsoury conducted a Spinal Range of Motion Exam, Lumbar Range of Motion Exam, and Computerized Muscle Testing Exam on Plaintiff. On the Spinal Range of Motion Exam report, Cervical and Thoracic sections were left blank. Lumbar indicated the following:

Norm

Rep 1

Rep 2

Rep 3

Valid

Max

Avg

Dev

Impair

Left Lateral

25 +

10

10

11

Yes

11

10

1°

3%

Right Lateral

25 +

9

9

9

Yes

9

9

0°

5%

Min Lordosis

15 +

9

Flexion

60 +

35

34

34

Yes

35

34

1°

5%

Extension

25 +

12

12

13

Yes

13

12

1°

5%

(affirmation in opposition, exhibit A). On same date, Boubert Carline, PA prescribed Thermophore, LSPO Flexible Elastic, Orthopedic Lumbar Cushion, Bed Board, and Egg Crate Mattress for Plaintiff. Additionally, Plaintiff received an MRI of the lumbar spine at Excel Imaging, P.C. (id).

By report dated December 5, 2010, Board Certified Radiologist Dr. Mark Shapiro reviewed YB's December 2, 2010 MRI and found "T1 and T2 weighted images in multiple planes through the intervertebral disc spaces demonstrate straightening of the normal lumbar lordosis. There is a levoscoliosis The L3-4 and L4-5 discs are normal in height and signal. There are left foraminal herniations, creating nerve root impingement" (affirmation in opposition, exhibit A). At December 22, 2010 appointment, Dr. ElSoury's report stated that multi trigger point injections at lumbar left and lumbar right were administered to help release tension and muscle spasms and E.M.S. Unit 4 Lead/Accessory Kit, E.M.S. Placement Belt, Infra-Red Heating Lamp, Massager, and Hydrotherapy Whirlpool were prescribed. Dr. ElSoury thereafter referred YB for physical therapy three to four times a week for four weeks on his lower back and left foot using hot moist packs, ultrasound, therapeutic massage, electrical stimulation/TENS, therapeutic exercises, therapeutic activities, manual therapy techniques, and aqua med.

Dr. Stephen Wilson of PMR at Austin Diagnostic Medical, P.C. conducted neurological evaluation and electro-diagnostic studies on January 24, 2011 and reported YB's lower back pain, radiating from the left buttock, left lower extremity is associated with paresthesia and tingling sensation in the left lower extremity and toes. Dr. Wilson further states upon a general physical examination, "[m]oderately painful spasm of the paravertebral musculature in the lumbar area. Tenderness and pain at palpation of some trigger points at lower back on left side. Range of Motion: Flexion, Extension, Lateral Bending, Lateral rotation - decreased. Pain on Extreme ROM" (affirmation in opposition, exhibit A). A Nerve Conduction Study (NCV) and Electromyography (EMG) (B) LE were ordered due to the prolonged complaints of low back pain, paresthesia in lower extremities, which were not abated with therapy. Dr. Wilson recommended a continuation of "[c]hiro, massage, accu and PT 3-4 times weekly to relieve pain and muscle spasm, increase ROM and muscle strength, and achieve structural integrity" and home exercise was discussed (id.) . Dr. Wilson's prognosis states in part, "The patient has experienced derangement of function of the lumbo-sacral spine. Superimposed upon natural aging and degenerative process in the patient's spine, this injury, most probably, will result in a permanent reduction in the normal range of motion of the lumbar spine" (id.).

YB's lumbo-sacrum was treated with acupuncture on November 8, 2010, November 12, 2010, November 16, 2010, November 19, 2010, November 20, 2010, November 29, 2010, December 2, 2010, December 18, 2010, December 20, 2010, December 24, 2010, December 29, 2010, January 3, 2011, January 10, 2011, January 14, 2011, January 17, 2011, January 28, 2011, and February 2, 2011. YB's initial physical therapy evaluation on November 8, 2010 with complaints of lower back and foot pain resulted in treatments with hot packs, massage, and electrical stimulation on the lumbosacral area on November 8, 2010, November 10, 2010, November 12, 2010, November 16, 2010, November 17, 2010, November 19, 2010, November 22, 2010, November 24, 2010, November 29, 2010, December 2, 2010, December 3, 2010, December 7, 2010, December 8, 2010, December 17, 2010, December 21, 2010, January 28, 2011, February 3, 2011, February, 7, 2011, February 9, 2011, and February 14, 2011 (affirmation in opposition, exhibit A).

Dr. ElSoury performed follow up examination on March 2, 2011, to determine the effectiveness of therapeutic measures on Plaintiff's complaints. These tests were a spinal range of motion exam, lumbar range of motion exam, and a computerized muscle testing exam. The spinal range of motion exam returned the following results for Plaintiff's lumbar on that date:

Norm

Rep 1

Rep 2

Rep 3

Valid

Max

Avg

Dev

Impair

Left Lateral

25 +

12

14

13

Yes

14

13

1°

3%

Right Lateral

25 +

11

12

11

Yes

12

11

1°

3%

Min Lordosis

15 +

10

Flexion

60 +

35

38

36

Yes

38

36

2°

5%

Extension

25 +

13

14

12

Yes

14

13

1°

5%

(affirmation in opposition, exhibit A). Further, Dr. ElSoury reported YB's lumbosacral spine ROM on March 23, 2011 as the following:

Lumbosacral Spine Normal/Actual

Flexion

90/45

Extension

30/15

Right Rotation

30/15...