| Gorden v Tibulcio |
| 2008 NY Slip Op 03382 [50 AD3d 460] |
| April 17, 2008 |
| Appellate Division, First Department |
| Hassan Gorden, Appellant, v Leonite Liranzo Tibulcio etal., Respondents. (And a Third-Party Action.) |
—[*1] Picciano & Scahill, P.C., Westbury (Gilbert J. Hardy of counsel), for respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 9, 2006,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff alleges that he sustained personal injuries in September 2002 while a passenger in avehicle, driven by his brother, which became involved in an accident. He claims that when theaccident occurred, his chest and knees hit the dashboard and his right shoulder hit the door of thevehicle.
In his bill of particulars, plaintiff specified the following injuries: disc herniations, discbulging, degeneration of the parespinal muscles, sensory loss of the upper extremities, impairedmobility, pain aggravated by coughing and sneezing, difficulty standing or sitting, and difficultywalking and climbing stairs. His supplemental bill of particulars alleged injuries to his knees,including tears of the menisci, buckling, locking, instability, burning, clicking and swelling.Plaintiff claims he was confined to bed for approximately 90 days, confined to home forapproximately six months, and was partially disabled.
At his deposition, plaintiff testified that he could not return to work from the date of theaccident until January 2003, and that he remained confined to bed and/or home for approximatelyfour months after the accident. He also testified that he first sought medical treatmentapproximately one week after the accident, complaining of pain in both knees, both shoulders,and his neck and back. He undertook a four-month course of physical therapy, which includedacupuncture, massage, electrical stimulation and chiropractic, five days a week. He was also sentfor radiological studies, including an MRI.
Plaintiff further testified he had been involved in a prior auto accident in September 2000that resulted in injuries to his neck and lower back. He commenced a lawsuit for that accidentthat was settled for $500.
Two independent medical examinations were conducted on plaintiff. The first was performedin January 2005 by Dr. Michael J. Katz, an orthopedist. Dr. Katz reviewed the X-ray, MRI andEMG reports taken at the time of the 2002 accident and performed various range-of-[*2]motion tests on plaintiff's cervical and lumbar spine, knees andshoulders. Dr. Katz found plaintiff's range of motion to be normal and concluded that cervicaland lumbosacral strains, as well as the bilateral knee and shoulder contusions, were all"resolved." Dr. Katz further opined that plaintiff showed "no signs or symptoms of permanenceon a causally related basis," that he was not disabled, and was "capable of gainful employment asa security guard, but is not working by choice. He is capable of all activities of his daily living."
The second independent medical examination, conducted in June 2005 by Dr. Burton S.Diamond, a neurologist, also found plaintiff's range of motion to be within normal ranges.Although Dr. Diamond noted a decreased range of motion in the low back area, based upon theresults of various tests, he concluded that "this restriction was purely voluntary." He alsoconcluded that plaintiff's cervical and lumbar sprain was resolved, there was no permanency tohis condition, that plaintiff was capable of working on a full-time basis and performing thenormal activities of daily living.
Defendants moved for summary dismissal of the complaint on the ground that plaintiff didnot meet the serious injury threshold set forth in Insurance Law § 5102 (d). In opposition,plaintiff submitted four medical reports from his treating physicians at the time of the accident,which included copies of the radiologic and MRI studies. In an affirmed follow-up report datedOctober 28, 2002, Dr. Jefferson Gabella compared range-of-motion limitations to the normalrange in a percentage format, and he diagnosed plaintiff as having lumbar sprain/strain, lumbarradiculopathy, cervical herniated/bulging discs, and internal derangement of the left shoulder andright knee. Dr. Gabella opined that these injuries were causally related to the 2002 accident andlimited plaintiff in the activities of daily living.
Plaintiff also submitted the affirmed report of his current treating physician, Dr. Louis C.Rose, who first examined plaintiff some 3½ years after the accident. He also reviewed theMRI studies and X-ray evaluations from 2002. Although Dr. Rose reported restricted range ofmotion, he did not indicate in his report the normal range of motion for the areas tested. Dr. Roseconcluded plaintiff's injuries to his shoulders and knees were a "direct result" of the 2002accident, and his spinal injuries were due to an "exacerbation of a pre-existing injury to his neckand lower back."
The IAS court found that defendants established a prima facie case of entitlement tosummary judgment, and that plaintiff failed to raise triable issues of fact that he had sustained aqualifying injury under Insurance Law § 5102 (d). The court found that with the exceptionof Dr. Rose's affirmation, none of the medical documentation was submitted in admissible form.Moreover, Dr. Rose relied on unsworn medical reports to reach his conclusions after anexamination that took place more than three years after the accident, and his report failed to statewith specificity the normal range-of-motion with respect to tests he had performed on plaintiff.
Defendants met their burden of establishing prima facie entitlement to summary judgmentthat plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). The affirmedreports of an orthopedist and neurologist, made after a review of plaintiff's medical records and apersonal examination in 2005, stated that as of that date, plaintiff did not suffer from a neurologicor orthopedic disability, and that the injuries to plaintiff's shoulder, cervical and lumbar injurieswere resolved (see Perez v Hilarion,36 AD3d 536 [2007]). Moreover, the reviews conducted by these doctors of plaintiff'smedical records, MRIs and the treating physicians' reports, including the records of treatmentduring the 180-day treatment period immediately following the accident, were insufficient toestablish that plaintiff had sustained a serious injury under the 90/180 [*3]category of Insurance Law § 5102 (d), thus shifting theburden to plaintiff to establish triable issues of fact with respect to these claims (see Nelson vDistant, 308 AD2d 338, 339 [2003]).
At the time of the incident, plaintiff's physicians made three references to plaintiff's ability toperform his usual and customary activities for 90 of the 180 days following the incident: Dr.Gabella's September 30, 2002 report stated he instructed plaintiff not to perform "heavy work"until told to do so by the doctor; Dr. Mohamed K. Nour's October 15, 2002 report recommendedthat plaintiff "Avoid any strenuous activities as lifting, carrying, pushing or pulling heavyweights"; and Dr. Gabella's October 28, 2002 report concluded that "patient is somewhat limitedin activities of daily living." These statements are too general in nature to raise an issue of factthat plaintiff was unable to perform his usual and customary activities during the statutorilyrequired time period and do not support plaintiff's claim that his confinement to bed for 90 daysand to home for six months was medically required.
Under the permanent consequential limitation and significant limitation categories ofInsurance Law § 5102 (d), plaintiff must submit medical proof containing "objective,quantitative evidence with respect to diminished range of motion or a qualitative assessmentcomparing plaintiff's present limitations to the normal function, purpose and use of the affectedbody organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]). Certainly, the reports ofdefendants' examining doctors are detailed and contain such objective, quantitative evidence.While the unsworn MRI reports that plaintiff submitted in opposition to the motion wereimproperly rejected by the motion court (see Thompson v Abbasi, 15 AD3d 95, 97 [2005], citing, inter alia,Ayzen v Melendez, 299 AD2d 381 [2002]), the material contained therein was reviewedand cited by plaintiff's physicians in their respective reports. Dr. Rose's report cites an MRI takenof plaintiff's knees a few weeks after the accident, revealing "intrasubstance tear and/or mixoiddegeneration involving the posterior horn of both menisci." Dr. Rose diagnosed "internalderangement . . . with possible medial meniscal tear." However, he does not explainwhy he ruled out degenerative changes as the cause of the internal derangement. This failurerendered his opinion speculative that the derangement was caused by the accident (see Abreu v Bushwick Bldg. Prods. &Supplies, LLC, 43 AD3d 1091, 1092 [2007]). Similarly, MRIs of plaintiff's spine takenshortly after the accident revealed herniations and other pathologies that plaintiff's expert opineswere sustained in the September 2000 motor vehicle accident and exacerbated by the instantSeptember 2002 accident, but the expert does not indicate that he reviewed the medical recordsconcerning plaintiff's condition immediately following the previous accident. Thus, there is noobjective basis by which to measure the claimed aggravation of injuries, or to attribute any newinjuries to the later accident (McNeil vDixon, 9 AD3d 481, 483 [2004]). Moreover, while plaintiff's expert states plaintiff hada restricted range of motion, he does not indicate the normal range for the areas tested, and hefurther fails to describe the objective tests he used to measure the restrictions reported (see Shaw v Looking Glass Assoc., LP,8 AD3d 100, 103 [2004]). Also unexplained is plaintiff's lack of treatment since January2003 (see Pommells v Perez, 4NY3d 566, 574 [2005]).[*4]
We have considered plaintiff's remaining arguments andfind them unavailing. Concur—Mazzarelli, J.P., Andrias, Gonzalez and Sweeny, JJ.