| June v Akhtar |
| 2009 NY Slip Op 03665 [62 AD3d 427] |
| May 7, 2009 |
| Appellate Division, First Department |
| William June et al., Respondents, v Sheikh Ali Akhtar etal., Appellants. |
—[*1] Richard M. Altman, Bronx, for respondents.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about March20, 2008, which denied defendants' motion for summary judgment dismissing the complaint forlack of a serious injury as required by Insurance Law § 5102 (d), affirmed, without costs.
Defendants' examining physician noted limitations in range of motion with respect toplaintiff June's left knee and lumbar spine and with respect to plaintiff Smalls' right shoulder andcervical and lumbar spines, and plaintiffs' MRI results showed disc herniations and bulges, a tearto June's left meniscus, and a labral tear in Smalls' right shoulder. The cited impairments areconsistent with plaintiffs' description that June hit his left knee against the dashboard, and thatSmalls' upper body hit the steering wheel, when defendants' car collided with them, and thedoctor's notes and the MRI results support a finding of serious injury within the meaning ofInsurance Law § 5102 (seeGuerrero v Bernstein, 57 AD3d 845 [2008]; Noriega v Sauerhaft, 5 AD3d 121, 122 [2004]).
In the circumstances presented, particularly the fact that plaintiffs were relatively young(June was 31 years old and Smalls 25 at the time of the accident), defendants' claim that theabnormal MRI findings and restricted ranges of motion were due to degenerative changesunrelated to the accident requires further elaboration to satisfy defendants' burden on the motion,to establish prima facie entitlement to summary judgment (see Coscia v 938 TradingCorp., 283 AD2d 538 [2001]). Concur—Gonzalez, P.J., Moskowitz, DeGrasse andFreedman, JJ.
McGuire, J., dissents in a memorandum as follows:[*2] Idisagree with the majority's conclusion that the order denying defendants' motion for summaryjudgment dismissing the complaint should be affirmed. Accordingly, I respectfully dissent.
Plaintiffs were the driver and passenger of a vehicle involved in a motor vehicle accident onNovember 28, 2004 with a vehicle owned and operated by defendants. Plaintiffs commenced thisaction against defendants seeking to recover damages; June alleged that he sustained injuries tohis left knee and the cervical and lumbar portions of his spine, and Smalls alleged that hesustained injuries to his right shoulder and the cervical and lumbar portions of his spine.Defendants moved for summary judgment dismissing the complaint in its entirety, arguing thatneither of the plaintiffs sustained a "serious injury" under Insurance Law § 5102 (d).Notably, defendants asserted that both plaintiffs had preexisting conditions and that defendants'alleged negligence was not a proximate cause of the injuries of either of plaintiffs.
In support of their motion, defendants submitted the affirmation of a radiologist whoreviewed MRI films of June's spine taken on December 18, 2004, approximately three weeksafter the accident. The radiologist stated that "Review of the lumbar spine MRI examinationperformed three weeks following the accident reveals desiccation at the L5-S1 intervertebral disclevel. This is a drying out of disc material, a degenerative process, which could not haveoccurred in less than three [weeks] time and clearly predates the 11/28/04 accident. Bulging atthis level is seen. Bulging is not a traumatic abnormality. It is degeneratively induced, related toligamentous laxity. No osseous, ligamentous, or intervertebral disc abnormalities are seenattributable to the 11/28/2004 accident. No post-traumatic changes are seen." With respect to theMRI films of June's cervical spine, the radiologist stated that the films showed "cervicalstraightening, a nonspecific finding, frequently related to patient position and comfort for theexamination," and that "[n]o recent or post-traumatic changes" were present.
The radiologist also reviewed MRI films of June's left knee taken approximately one monthafter the accident. Her review of those films "reveale[d] [a] grade II mucoid degenerative signalchange in the posterior horn of the medial meniscus. As the name implies, this is a[n]intrasubstance, degenerative process without traumatic basis or causal relationship to the11/28/04 accident. The chronicity is further evident by the associated out-pouching of thesynovial lining, the parameniscal cyst which is indicative of a long term process."
An orthopedic surgeon examined June at defendants' behest. The surgeon opined, amongother things, that June's spinal condition was the result of degenerative changes. The surgeonalso opined that June did not suffer from any limitation in the range of motion in his cervicalspine, had only minor limitations in the range of motion in his lumbar spine and anapproximately 40% limitation in the range of motion in his left knee.
The radiologist also reviewed MRI films of Smalls' spine taken on December 18, 2004. Withrespect to Smalls' cervical spine, the radiologist averred that the MRI films"reveale[d] desiccation at the C4-5 and C5-6 intervertebral disc levels. This is a drying out ofdisc material, a degenerative process, which could not have occurred in less than three [weeks]time. Bulging is seen at the C5-6 intervertebral disc level. Bulging is not a traumaticabnormality. It is related to ligamentous laxity. No osseous, ligamentous, or intervertebral disc[*3]abnormalities are seen attributable to the 11/28/2004accident. No post-traumatic changes are seen." With respect to the films of Smalls' lumbar spine,the radiologist concluded that "[n]o post-traumatic abnormalities [we]re seen" and that thelumbar spine structure was "entirely normal." After reviewing MRI films of Smalls' rightshoulder taken approximately eight weeks after the accident, the radiologist stated that theshoulder was "entirely normal" and no "post-traumatic changes" were noticed.
The orthopedic surgeon also examined Smalls. The surgeon determined that Smalls hadlimitations in the range of motion in both the cervical and lumbar portions of his spine, and alimitation in the range of motion of his right shoulder. The surgeon opined that the limitations inthe range of motion Smalls exhibited in his spine were "grossly out of context from what is seenby objective MRI evaluation and is more likely a non-organic finding"; the physician also notedthat Smalls drove from Georgia to New York City for the evaluation and that such a trip "wouldbe inconsistent with someone who has severe ongoing neck and lower back symptoms[, and thatSmalls] is . . . well-developed, quite muscular, and this is also inconsistent with aclaim of significant disability or ongoing pain."
With respect to the limitation in the range of motion in Smalls' right shoulder, the surgeonstated that a similar limitation in Smalls' left shoulder, which was not injured in the accident,indicated that the limitations in the range of motion in the shoulders were based on Smalls' "pooreffort." The surgeon also stated that no substantial injury to the right shoulder was caused by theaccident—Smalls did not exhibit traditional symptoms of a shoulder injury immediatelyafter the accident, the MRI films of his right shoulder taken approximately eight weeks after theaccident did not indicate any significant injury to that shoulder, and a surgical procedure on thatshoulder, performed approximately four months after the accident, revealed that his rotator cuffwas intact and that the torn labrum that was repaired during the surgery was "an anatomicvariant" that is considered to be a congenital condition.
In opposition, June submitted the affirmation of a radiologist who reviewed the previouslynoted MRI films of June's spine and left knee. The radiologist concluded that June sustained a"Focal Central Herniation at L5-S1." With respect to June's left knee, the radiologist saw an "(a)Signal in the posterior horn of the Medial Meniscus, consistent with an intra meniscal tear; (b)Small popliteal cyst posteriorly which can be associated with Internal derangement of left knee."The radiologist stated that the disc herniation and knee injury "appear[ed] to be of non[sic] long-standing duration," and opined that those injuries were "traumatically related"to the accident.
June also submitted the affirmation of the orthopedic surgeon who operated on his left kneein 2005. The surgeon averred that June "suffered a meniscal injury with resultant synovitis andscar tissue formation in the left knee when he was involved in a motor vehicle accident onNovember 28, 2004. The patient suffers from continued deconditioning, stiffness, and weaknessof the left lower extremity. The current conditions and the initial injury are causally related to[the] motor vehicle accident." The surgeon also averred that, while the physician who authoredthe MRI report based on the films of June's left knee believed that June suffered a torn meniscus,June actually suffered a stretched meniscus.[*4]
Smalls submitted the affirmation of a radiologist whoreviewed the MRI films of his right shoulder. The radiologist stated that Smalls sustained alabral tear and effusion that "appear to be of non [sic] long-standing duration. . . [and] were traumatically related" to the accident. Smalls also submitted theaffirmation of an orthopedic surgeon who operated on his right shoulder in 2005. The surgeonaverred that Smalls sustained minor limitations in the range of motion in his rightshoulder—10 degrees of flexion, 15 degrees of abduction and 5 degrees of externalrotation—due to a labral tear that was caused by the accident.
Defendants made a prima facie showing of entitlement to judgment as a matter of lawdismissing June's claims related to his left knee and lumbar spine on the ground that anyabnormalities to those portions of his body were not caused by the accident. Defendants adducedexpert evidence that June experienced desiccation, i.e., drying out of disc material, at the L5-S1intervertebral disc level, which defendants' radiologist classified as a degenerative process thatcould not have occurred in the three-week period between the accident and the date the MRIfilms of June's spine were taken. Defendants also adduced expert evidence that a degenerativecondition was present in June's left knee. Thus, defendants' radiologist affirmed that the MRI ofJune's left knee, taken approximately one month after the accident, "reveale[d] [a] grade IImucoid degenerative signal change in the posterior horn of the medial meniscus. As the nameimplies, this is a[n] intrasubstance, degenerative process without traumatic basis or causalrelationship to the 11/28/04 accident. The chronicity is further evident by the associatedout-pouching of the synovial lining, the parameniscal cyst which is indicative of a long termprocess." The burden therefore shifted to June to adduce evidence addressing defendants'evidence that degenerative conditions were present in his spine and left knee (see Valentin v Pomilla, 59 AD3d184 [2009]; Ronda v FriendlyBaptist Church, 52 AD3d 440, 441 [2008]; Becerril v Sol Cab Corp., 50 AD3d 261, 261-262 [2008]; see also Brewster v FTM Servo, Corp.,44 AD3d 351, 352 [2007]; Shinn vCatanzaro, 1 AD3d 195 [2003]).
In opposition, June failed to raise a triable issue of fact because neither of his expertsaddressed defendants' expert evidence that June suffered from degenerative conditions in hislumbar spine and left knee (see e.g. Valentin, supra; Eichinger v Jone Cab Corp., 55 AD3d364 [2008]; Reyes v Esquilin,54 AD3d 615 [2008]; Becerril, supra; see also Charley v Goss, 54 AD3d 569 [2008], affd 12NY3d 750 [2009]; Lattan v Gretz Tr.Inc., 55 AD3d 449 [2008]; Page v Rain Hacking Corp., 52 AD3d 229 [2008];Ronda, supra).
Defendants are also entitled to summary judgment dismissing June's claim with respect toalleged injuries to his cervical spine. Defendants adduced expert evidence that June did notsustain an injury to that portion of his spine as a result of the accident. However, neither ofJune's experts addressed the condition of his cervical spine.
Defendants also made a prima facie showing of entitlement to judgment as a matter of lawdismissing Smalls' claim related to his right shoulder on the ground that any injuries to thatshoulder were not caused by the accident. Defendants adduced expert evidence that the tornlabrum in Smalls' right shoulder was "an anatomic variant" that is considered a congenitalcondition. In opposition, Smalls failed to raise a triable issue of fact. Neither of Smalls' expertsaddressed defendants' expert evidence that the torn labrum in his right shoulder was a congenitalcondition and was not caused by the accident (see e.g. Eichinger, supra;Reyes, supra; see also Page, supra). While Smalls' orthopedicsurgeon did aver that the accident caused that tear, the surgeon did not address the points madeby defendants' orthopedic surgeon. Specifically, defendants' expert stated that the location of thetear was not an area of the labrum that would [*5]typically tear asa result of a traumatic event and that the area of the tear was "consistent with a sub labral holewhich is an anatomic variant and can typically be seen during a routine shoulder arthroscopyoutside the context of any traumatic injury and is felt to be a congenital finding."
Smalls also failed to raise a triable issue of fact with respect to his claim based on injuries tohis spine. In opposition to defendants' prima facie showing that no injuries to the cervical andlumbar portions of Smalls' spine were caused by the accident, neither of Smalls' experts offeredan opinion regarding the condition of his spine.
The majority asserts that "[i]n the circumstances presented, particularly the fact thatplaintiffs were relatively young (June was 31 years old and Smalls 25 at the time of theaccident), defendants' claim that the abnormal MRI findings and restricted ranges of motion weredue to degenerative changes unrelated to the accident requires further elaboration to satisfydefendants' burden on the motion, to establish prima facie entitlement to summary judgment."Unsurprisingly, the majority cites no authority supporting its implicit conclusion that on accountof these respective ages it is unlikely that plaintiffs suffered from degenerativechanges.[FN1]Nor does it cite to anything in the record that supports that implicit conclusion. Of course, themembers of this panel are not competent to opine about whether, the extent to which or thefrequency with which individuals between the ages of 25 and 31 suffer from degenerativeconditions. In opposition to defendants' expert evidence stating that both plaintiffs suffered fromdegenerative conditions, it was incumbent upon plaintiffs to offer expert medical evidenceraising a triable issue of fact. They failed to do so, we cannot properly cure their failure and weshould reverse.
In light of my conclusion that the complaint should be dismissed for the reasons statedabove, I need not and do not pass on defendants' additional arguments. I note, however, thatdefendants make persuasive arguments that the 90/180 claims of[*6]both plaintiffs should be dismissed, but the majority does notdiscuss those arguments.[FN2]
Footnote 1: Although the majority citesCoscia v 938 Trading Corp. (283 AD2d 538 [2001]), Coscia does not remotelysupport the majority's position. The decision, in its entirety, reads as follows: "The SupremeCourt properly denied the defendants' motion for summary judgment. In support of their motion,the defendants submitted evidence that the plaintiff Phyllis Coscia was suffering fromrestrictions of motion in her lumbar spine. Furthermore, the defendants submitted contradictoryproof as to whether the injured plaintiff's lumbar spine condition was caused by the subjectaccident or a degenerative disease (see, Julemis v Gates, 281 AD2d 396; DeVeglio vOliveri, 277 AD2d 345). Accordingly, the defendants failed to establish a prima facie casethat the injuries allegedly sustained by Phyllis Coscia were not serious within the meaning ofInsurance Law § 5102 (d) (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437;Mendola v Demetres, 212 AD2d 515). Under these circumstances, it is not necessary toconsider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient toraise a triable issue of fact (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos vMizrhy, supra)."
Footnote 2: The majority's failure to grantdefendants partial summary judgment dismissing Smalls' claims for injuries to his spine isinexplicable. In opposition to defendants' prima facie showing that no injuries to Smalls' spinewere caused by the accident, Smalls submitted no expert evidence regarding the condition of hisspine.