| Henry v Peguero |
| 2010 NY Slip Op 03477 [72 AD3d 600] |
| April 29, 2010 |
| Appellate Division, First Department |
| Robert Henry, Respondent, v Pedro L. Peguero et al.,Appellants. |
—[*1] Mitchell Dranow, Mineola, for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about June 1, 2009,which, upon plaintiff's motion to renew and reargue a prior order, same court and Justice, enteredNovember 10, 2008, granting summary dismissal of the complaint, granted defendants' motionfor summary judgment only to the extent of dismissing plaintiff's claims under the 90/180-daytest, reversed, on the law, without costs, the motion denied and the order dismissing the entirecomplaint reinstated. The Clerk is directed to enter judgment accordingly.
Plaintiff alleged that he was injured on September 27, 2006 when a Lincoln Town Car,owned and operated by defendants, struck the passenger side of his Honda Accord. Plaintiff didnot seek immediate medical treatment but flew to Florida to visit a friend, initially consulting Dr.Bhupinder S. Sawhney on October 11, 2006, following his return. The doctor's November 20,2006 report of an MRI of the lumbar spine notes a degenerative condition ("Facet arthropathyfrom L4 through S1 is evident bilaterally"), and a subsequent report by Dr. Shahid Mian states,"MRI scan of the cervical spine dated 10/12/06 report [sic] diffuse disc dessication." Onthe prior motion, defendants sought dismissal on the ground that plaintiff had failed todemonstrate that he sustained a serious injury (Insurance Law § 5102 [d]). Defendantstendered the report of a physician, Dr. Gregory Montalbano, who observed that the November20, 2006 MRI, consistent with one performed on March 23, 2007, showed "degenerative changeswhich occur over time." Noting that "[s]ingle level acute disc herniations typically causeincapacitation for two or more weeks and require marked activity modification, bed rest andstrong prescription pain medications," Dr. Montalbano concluded that plaintiff "suffers from apre-existing condition of degenerative disc disease involving the lumbar spine at multiple levelswhich is reported for both scans."
In opposition, plaintiff submitted an affirmation by Dr. Mian stating that "Mr. Henry'sinjuries are causally related to the motor vehicle accident of 9/27/06." However, in the orderfrom which renewal was sought, Supreme Court agreed with defendants that plaintiff's "injuriesand his subsequent surgery were due to a pre-existing degenerative condition," further findingthat plaintiff had "failed to provide an adequate explanation for the gap in treatment."
On his motion for renewal, plaintiff offered an addendum from Dr. Mian, which [*2]concluded that the "disc herniation of L4-5 and L5-S1 of thelumbar spine are causally related to the accident, and not from a pre-existing condition or longstanding degenerative process." The addendum adds that "the impact from the subject accidentplainly made the disc pathologies symptomatic."
It is apparent that the supplemental medical statement was submitted in the attempt toremedy a weakness in plaintiff's opposition to defendants' original motion, endeavoring to relatethe degenerative changes in plaintiff's spine to the motor vehicle accident. As this Court hasemphasized, "Renewal is granted sparingly . . . ; it is not a second chance freelygiven to parties who have not exercised due diligence in making their first factual presentation"(Matter of Weinberg, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994[1988]). It is statutorily decreed that a renewal motion "shall be based upon new facts not offeredon the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and that theapplication "shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [3]). While the statutory prescription to present new evidence "need notbe applied to defeat substantive fairness" (Lambert v Williams, 218 AD2d 618, 621[1995]), such treatment is available only in a "rare case" (Pinto v Pinto, 120 AD2d 337,338 [1986]), such as where liberality is warranted as a matter of judicial policy (see Wattsonv TMC Holdings Corp., 135 AD2d 375 [1987] [leave to amend complaint]), and then onlywhere the movant presents a reasonable excuse for the failure to provide the evidence in the firstinstance (see Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 377[2001]).
This construction is consistent with this Court's view that motion practice in connection withsummary judgment should be confined to the limits imposed by CPLR 2214 (b). As we havestated, "We perceive no reason to protract a procedure designed 'to expedite the disposition ofcivil cases where no issue of material fact is presented to justify a trial' (Di Sabato vSoffes, 9 AD2d 297, 299 [1959]) by encouraging submission of yet another set of papers, anunnecessary and unauthorized elaboration of motion practice" (Ritt v Lenox Hill Hosp.,182 AD2d 560, 562 [1992]). Thus, a deficiency of proof in moving papers cannot be cured bysubmitting evidentiary material in reply (see Migdol v City of New York, 291 AD2d 201[2002]), the function of which is "to address arguments made in opposition to the position takenby the movant and not to permit the movant to introduce new arguments in support of, or newgrounds for the motion" (Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Nor can adeficiency in opposing a motion be cured by resorting to a surreply (see e.g. Garced v Clinton ArmsAssoc., 58 AD3d 506, 509 [2009]).
Supreme Court's grant of renewal in this matter contravenes this Court's policy of confiningmotion practice to the limits imposed by the CPLR. Neither of the statutory requirements forrenewal was satisfied by plaintiff. Dr. Mian's addendum was not the result of any additionalexamination or medical testing; rather, the doctor's conclusion was based on the medicalinformation previously available to him and could have been included in his original affidavit(see Cillo v Schioppo, 250 AD2d 416 [1998]). While, in appropriate circumstances,renewal may be predicated on previously known facts, it is settled that "[t]he movant must offera reasonable excuse for failure to submit the additional evidence on the original motion"(Segall v Heyer, 161 AD2d 471, 473 [1990]), which plaintiff neglected to do.
Even if this Court were to accept the proffered addendum, it is insufficient to rebut thefinding of defendants' physician that plaintiff's affliction is degenerative in nature rather than theconsequence of a serious injury causally related to the accident (see Lopez v American United [*3]Transp., Inc., 66 AD3d 407 [2009]; Eichinger v Jone Cab Corp., 55 AD3d364 [2008]). While Dr. Mian's addendum states that the accident caused plaintiff'sunderlying pathology to become manifest, it utterly fails to explain the two-week gap betweenthe accident and the commencement of treatment, which "interrupt[s] the chain of causationbetween the accident and claimed injury" (Pommells v Perez, 4 NY3d 566, 572 [2005]). Thus, we concludethat defendants submitted "evidence of a preexisting degenerative disc condition causingplaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issueof fact" (id. at 579). Concur—Tom, J.P., Andrias and McGuire, JJ.
All concur except Saxe and Manzanet-Daniels, JJ., who dissent in a memorandum byManzanet-Daniels, J., as follows: The motion court properly entertained plaintiff's motion torenew, based on the addendum report of Dr. Mian, and upon renewal, properly denieddefendants' motion to the extent it sought dismissal of plaintiff's claims alleging a significantlimitation of use of bodily function or system and a permanent consequential limitation of use ofa body organ and/or member. This case, like the recent case of Linton v Nawaz (62 AD3d 434[2009]), presents the vexing question of the quantum of proof necessary to raise a triable issue offact concerning causation where defendant alleges the existence of a preexisting, degenerativecondition. Defendants failed to present persuasive proof of a preexisting degenerative condition,as described in Pommells v Perez(4 NY3d 566 [2005]), and plaintiff's submissions sufficiently raised a triable issue of fact asto whether his injuries were attributable to the accident as opposed to a preexisting, degenerativecondition. I would accordingly affirm the order of the motion court in all respects.
Plaintiff, born December 28, 1958, commenced this action to recover damages for personalinjuries allegedly sustained in an automobile accident on September 27, 2006. In his bill ofparticulars, plaintiff identified various injuries including (1) tears of the annulus fibrosus atL4-L5 and L5-S1, (2) disc herniations at L1-L2, L4-L5 and L5-S1, and (3) disc bulges at L3-L4and L4-L5. In his supplemental bill of particulars, plaintiff noted that he had undergone apercutaneous discectomy at L4-L5 and L5-S1 levels with the Stryker Dekompressor system.
Defendants filed a motion for summary judgment dismissing the complaint on the groundthat plaintiff failed to establish the existence of a "serious injury" (Insurance Law § 5102[d]). In support, defendants submitted, inter alia, an affirmation from Dr. Gregory Montalbano,who performed an orthopedic examination of plaintiff on March 14, 2008.
Dr. Montalbano indicated that he had reviewed plaintiff's medical records and had conductedan independent medical examination, including range of motion tests. He concluded that at thetime of this examination, plaintiff had normal range of motion in his cervical and lumbar spine,which Dr. Montalbano quantified and compared to the norm, with no orthopedic disability. Themedical records reviewed by Dr. Montalbano included a November 20, 2006 MRI report (but notthe films themselves) of plaintiff's lumbar spine, as interpreted by plaintiff's radiologist, Dr. AlanGreenfield. The MRI report found evidence of midline tears in the annulus fibrosus with centraldisc herniation at L4-L5 and L5-S1, along with disc dessication, and bilateral facet arthropathyfrom L4 through S1. Dr. Montalbano also reviewed a March 23, 2007 MRI report of the lumbarspine interpreted by Dr. Richard Heiden, which found right-sided [*4]herniation at L1-L2, bulges at L3-L4 and left-sided herniation atL5-S1.
Dr. Montalbano opined that plaintiff had not sustained an injury to the lower back as a resultof the accident. Dr. Montalbano based this conclusion on two factors. First, he noted thatimmediately after the accident, plaintiff flew to Florida for a week, which was "extremelyunusual behavior" for anyone traumatically sustaining not one but two disc herniations. Dr.Montalbano stated that single level acute disc herniations typically caused incapacitation for twoor more weeks, and required marked activity modification, bed rest and strong prescription painmedication. Second, Dr. Montalbano opined that the degenerative changes shown in both MRIs,i.e., multiple-level disc bulges and herniations and facet arthropathy from L4 through S1, werethe type that would occur over time and not over a two-month period.[FN1]These degenerative changes were consistent with plaintiff's age and occupation as a boilerfireman. Dr. Montalbano further opined that the discectomy surgery was performed for thepurpose of correcting plaintiff's preexisting lumbar condition.
In opposition to the motion, plaintiff relied on Dr. Greenfield's MRI report of plaintiff'slumbar spine on November 20, 2006; the March 20, 2007 affirmed medical report of his surgeon,Dr. Mian, who opined that plaintiff's injuries were causally related to the accident; the June 3,2008 affirmed report of neurologist Paul Lerner, who found deficits in lumbar range of motionand opined that plaintiff's injuries were causally related to the accident; and the affirmed reportof Dr. Mitchell Kaphan, an orthopedist who examined plaintiff on December 21, 2006 and foundrange-of-motion limitations in the cervical and lumbar spine, and opined that plaintiff's injurieswere causally related to the accident.
By order entered November 10, 2008, the court granted defendants' motion for summaryjudgment dismissing the complaint in its entirety, finding that defendants had established, primafacie, that plaintiff had not sustained a "serious injury." The court relied, inter alia, upon Dr.Montalbano's opinion, based on his examination of plaintiff and his review of the medicalrecords, that plaintiff did not sustain cervical or spinal injury as a result of the accident, and thatthe MRI of plaintiff's lumbar spine demonstrated he suffered from preexisting degenerative discdisease. The court found, in turn, that plaintiff had failed to raise a triable issue of fact as towhether he had sustained a serious injury within the meaning of the statute. The court noted that"not one of the records or reports" of plaintiff's treating physicians "addresses the pre-existingdegenerative disc disease reported by Dr. Greenfield and described in Dr. Montalbano's affirmedreport," or "give[s] any objective basis for concluding that plaintiff's alleged limitations result"from the accident rather than his preexisting degenerative condition, rendering causalityconclusions speculative and insufficient to defeat the summary judgment motion.
Plaintiff moved, by order to show cause, for renewal of the order pursuant to CPLR 2221 (e),based on the December 11, 2008 "addendum" report of Dr. Mian. Counsel asserted that plaintiffhad not submitted the addendum report in his original opposition papers because both counseland Dr. Mian were under the belief that the doctor's determination that plaintiff's injuries werecausally related to the subject accident—which was based upon his review of the MRIfilms, the MRI report, his examination of plaintiff and observation of the injured discs [*5]during the operation he performed on plaintiff—had beensufficient to rebut Dr. Montalbano's findings of degeneration, which were based solely on thelatter's review of the MRI report and not review of the actual MRI films.
In his addendum report, Dr. Mian opined, based on his review of the MRI films, hisexamination of plaintiff, plaintiff's lack of any prior neck or back injury, and complaints relatingto his neck and lower back since the accident, that plaintiff's lumbar disc herniations werecausally related to the accident and not a preexisting condition or long-standing degenerativeprocess. Dr. Mian further opined that "even if the disc pathologies reflected in [plaintiff's] MRIscans were pre-existing or degenerative in nature, given [plaintiff's] complaints relating to hisback since the accident and his lack of any prior injury to those parts of his body, the impactfrom the subject accident plainly made the disc pathologies symptomatic."
By order entered June 1, 2009, the court granted renewal, vacated the prior order, restoredthe case to the calendar, and granted defendants' motion for summary judgment only to theextent of dismissing the 90/180-day claims. The court noted that although renewal was notgenerally available when the newly submitted material was available at the time of the originalmotion, a court had "broad discretion" to grant renewal, and under the appropriate circumstancescould do so even upon facts known to the movant at the time of the original motion. The courtstated that although it had originally decided that plaintiff's evidence in opposition to the motionwas insufficient to raise a triable issue of fact because it failed to address Dr. Montalbano'sopinion that plaintiff's injuries were preexisting and not causally related to the accident, "uponreflection," and "in light of" our recent holding in Linton, the court found that theopinions of Drs. Mian and Kaphan with respect to causality were "no more conclusory" thatthose of Dr. Montalbano, particularly in light of Dr. Mian's addendum report.
I would hold that the lower court properly granted the motion to renew, and thereuponproperly denied defendants' motion to dismiss the complaint to the extent indicated above. It waswithin the court's discretion to grant leave to renew upon facts known to the moving party at thetime of the original motion. Plaintiff provided a reasonable justification for the failure to includeinformation provided in the addendum of his medical witness, citing counsel's belief that themedical submissions in opposition to defendants' summary judgment motion were sufficient torebut defendants' expert's finding that the injuries claimed by plaintiff were degenerative (see Rancho Santa Fe Assn. vDolan-King, 36 AD3d 460 [2007] [court, in its discretion, may grant renewal, in theinterest of justice, upon facts known to the movant at the time of the original motion];Nutting v Associates in Obstetrics & Gynecology, 130 AD2d 870 [1987] [court properlygranted motion to renew based on affidavit of medical doctor where defendants reasonablybelieved plaintiffs' failure to provide an affidavit of merit from a medical expert would precludeplaintiffs from successfully vacating default]).
Indeed, the reports of plaintiff's experts, who had examined him and opined that his injurieswere causally related to the accident, were more than sufficient to raise a triable issue of fact (see Norfleet v Deme Enter., Inc., 58AD3d 499 [2009]). Their conclusions that plaintiff's symptoms were related to the accidentwere not speculative or conclusory, but rather, based on physical examinations of plaintiff madeshortly after the onset of his complaints of pain and other symptoms, which he claimed aroseafter his involvement in the motor vehicle accident. By attributing plaintiff's injuries to adifferent, yet equally plausible cause (i.e., the accident), the affirmations of plaintiff's expertsraised an issue of triable fact, and a jury was entitled to determine which medical opinion wasentitled to greater weight (see Linton v Nawaz, 62 AD3d [*6]434 [2009], supra).
In this case there is no "persuasive" evidence of a preexisting injury of the type described inPommells v Perez (4 NY3d566, 580 [2005], supra). Dr. Montalbano, who examined plaintiff 1½ yearsafter the accident, merely opined that the type of injuries revealed by plaintiff's MRI (i.e.,multi-level disc bulges and herniations and facet arthropathy) were degenerative changesconsistent with plaintiff's age and occupation. Significantly, he did not examine the MRI filmsthemselves, more specifically describe the nature of plaintiff's injuries or explain why he hadconclusively determined that plaintiff's injuries were degenerative in origin.[FN2]
In any event, the addendum provided sufficient evidence to rebut defendants' expert's findingthat disc pathologies were degenerative in nature rather than a serious injury causally related tothe accident. Dr. Mian opined that the disc pathologies observed by Dr. Montalbano werecausally related to the accident, based on his examination of plaintiff, his review of the MRIfilms, plaintiff's lack of prior neck or back injury, and the onset of plaintiff's symptoms followingthe accident. Dr. Mian further opined that even if disc pathologies were preexisting in nature, theaccident served to aggravate them. This was more than sufficient, at this stage, to raise a triableissue of fact regarding causation (seee.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008] [report of plaintiff's doctor that hersymptoms were caused by accident, and that her condition was permanent in nature and in partan "exacerbation of underlying degenerative joint disease and prior injuries," sufficient to raise atriable issue of fact]).
Footnote 1: Dr. Montalbano noted that theNovember 20, 2006 MRI of the lumbar spine showed midline tears of the annulus fibrosus;however, he did not specifically opine that this was a degenerative change.
Footnote 2: Indeed, given the conclusorynature of Dr. Montalbano's opinions regarding causation, it is questionable whether defendantsmade a prima facie case. However, it is not necessary to determine this question since plaintiff,in moving for renewal, accepted the motion court's rationale that defendants' submissionssufficed to establish a prima facie case, and rather (assuming that a prima facie case had beenmade), contended that Dr. Mian's submissions were sufficient to raise a triable issue of fact.