| Rodriguez v Abdallah |
| 2008 NY Slip Op 04780 [51 AD3d 590] |
| May 29, 2008 |
| Appellate Division, First Department |
| Ramon Rodriguez et al., Appellants, v Hamada Abdallah,Defendant, and Jose Cruz, Respondent. |
—[*1] Law Office of John P. Humphreys, New York (Evy Kazansky of counsel), forrespondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered March 30, 2007,which granted defendants' motions for summary judgment dismissing the complaint on theground that the injured plaintiff, a taxi driver who was the victim of a rear-end collision while histaxi was stopped at a red light, did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d), unanimously affirmed, without costs.
The record evidence supports the motion court's determination that defendants establishedtheir entitlement to summary judgment as a matter of law. Defendants' experts—aneurologist, an orthopedic surgeon and a radiologist, each board certified—submittedaffirmed, objective medical reports sufficient to disprove plaintiffs' claims of serious injury onthe theories of permanent consequential limitation of use of body organ or member, significantlimitation of the use of a body function or system, and the 90-out-of-180-day period of disabilityimmediately following injury. Plaintiffs' objective medical evidence—an affidavit by histreating physician, Dr. Melamed, a family practitioner—failed to raise a material issue offact as to any of these theories (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955 [1992]).
In particular, plaintiff failed to rebut defendants' objective medical proof that some 33½months after the accident, the neurologist, after performing various tests on the injured plaintiff,found his neurological condition to be "essentially normal"; the orthopedic surgeon, afterexamination, found that any spinal injuries (sprains and strains) from the accident had healed andthat disc bulges in the lumbar spine were degenerative and not traumatic; and that the radiologist,after review of an MRI taken less than two months after the accident, found no evidence of acutetraumatic injury to the lumbar spine, that the disc bulges in the lumbar spine were "chronic anddegenerative in origin," and that there was "no causal relationship between the claimant's allegedaccident and the findings on the MRI examination." Specifically, Dr. Berkowitz, the radiologist,explained that she found "no evidence of acute traumatic injury to the lumbar spine such asvertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma."[*2]
Dr. Melamed stated in his affidavit that he treated theinjured plaintiff's symptoms—pain, tenderness and spasms in the posterior cervical spinewith highly restricted movement of the head and neck—for six months with physicaltherapy, chiropractic and acupuncture. He also alleged that he instructed this plaintiff to refrainfrom activities that caused discomfort, and the patient exercised his discretion by staying homefrom work for three months. Dr. Melamed's review of the MRI led him to conclude that the discbulges were caused by the accident, not by the aging process; however, unlike Dr. Berkowitz, heoffered no objective medical support for his opinion on this issue. Finally, Dr. Melamed statedthat on the patient's last visit, approximately five weeks before he was examined by defendants'medical experts, he performed undisclosed range-of-motion tests in response to complaints ofback pain with numbness and tingling aggravated by "pulling, pushing, stretching, cold andhumidity." Dr. Melamed found a 30% restriction in the lumbosacral spine and a 15% restrictionin the posterior cervical spine. He concluded, without detailing an objective basis for hisassessment, that these conditions were caused by the injured plaintiff's accident, and that theywould require physical therapy into the indefinite future, rendering the patient permanentlydisabled.
Plaintiffs' proof, therefore, was insufficient to establish a material issue of fact regarding anInsurance Law § 5102 (d) serious injury under any of the theories alleged. It failed to rebutdefendants' doctors' conclusions as to the causation of the bulging disc condition or to objectivelylink it to the accident (Carrasco v Mendez, 4 NY3d 566 [2005]; Montgomery v Pena, 19 AD3d288, 290 [2005]; see also Otero v971 Only U, Inc., 36 AD3d 430 [2007]). It failed to properly explicate therange-of-motion test results cited by disclosing the tests used and how the assessment was made(see Toure, 98 NY2d at 350). Thus, the evidence failed to sufficiently establishpermanent consequential limitation of use of a body organ or member, or significant limitation ofuse of a body function or system. It also failed to establish a medically substantiated,nonpermanent impairment satisfying the 90-out-of-180-day category (Cruz v Calabiza,226 AD2d 242 [1996]; cf. Loesburg v Jovanovic, 264 AD2d 301 [1999]), offeringinstead an apparently self-imposed absence, based upon the injured plaintiff's subjectivecomplaints of pain and discomfort (see Abrahamson v Premier Car Rental of Smithtown,261 AD2d 562 [1999]; McLoyrd v Pennypacker, 178 AD2d 227 [1991], lvdenied 79 NY2d 754 [1992]; Kimball v Baker, 174 AD2d 925 [1991]).Concur—Tom, J.P., Williams, Catterson and Acosta, JJ. [See 2007 NY Slip Op30441(U).]