| Farrington v Go On Time Car Serv. |
| 2010 NY Slip Op 06538 [76 AD3d 818] |
| September 7, 2010 |
| Appellate Division, First Department |
| Elline Farrington, Respondent, v Go On Time Car Serviceet al., Defendants, and Miguel A. Chavez, Appellant. |
—[*1] Silbowitz, Garafola, Silbowitz & Schatz, New York (David M. Kert of counsel), forrespondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or aboutSeptember 16, 2009, which denied defendant Chavez's motion for summary judgment dismissingthe complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directedto enter judgment dismissing the complaint as against that defendant.
The court properly concluded that defendant, through his medical experts, made a primafacie showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law§ 5102 (d) in her accident on January 13, 2008. Indeed, even where there is objectivemedical proof of an injury, summary dismissal of a serious injury claim may be appropriate whenadditional contributory factors, such as preexisting conditions, interrupt the chain of causationbetween the accident and the claimed injury (see Pommells v Perez, 4 NY3d 566, 572 [2005]). Here, plaintiffclaims she suffered degenerative disc herniations and disc bulges in her lower back as a result ofthe accident, as well as injuries to her head, neck, shoulder and left knee. Chavez supported hismotion with the reports of three physicians. Neurologist Michael J. Carciente, who examinedplaintiff on March 18, 2009, opined that there were no objective findings such as myotomalweakness, dermatomal sensory deficits, asymmetric reflexes or atrophy supporting the presenceof a cervical or lumbosacral radiculopathy. Dr. Carciente concluded that there was no evidence ofa causally related neurological injury or disability, or the need for any specific neurologicaltreatment in reference to the accident. Orthopedic surgeon John H. Buckner, who also examinedplaintiff 14 months after the accident, concluded that her spinal examination was normal exceptfor degenerative changes common for a person of her age, physique and preexisting scoliosis. Inparticular, Dr. Buckner noted that the ranges of motion of plaintiff's cervical spine were greaterthan most standard tables, while those of her thoracic and lumbar spine were lower. He attributedthe difference to preexisting idiopathic scoliosis unrelated to any injury. Dr. Buckner also opinedthat MRI findings with respect to plaintiff's left knee were indicative of a preexisting condition.In this respect, he also noted that the first medical report submitted for his review, [*2]which is dated a month after the accident, does not mentioncomplaints of left knee pain or injury. David A. Fisher, a radiologist, reviewed MRIs of plaintiff'scervical and lumbar spine and left knee which were taken two months after the accident. As tothe spinal MRIs, Dr. Fisher found degenerative changes consistent with a preexisting condition.He further opined that there was no radiographic evidence of recent traumatic or causally relatedinjury to plaintiff's cervical or lumbar spine, or to the left knee. Hardly conclusory, the reports ofall of defendants' examining physicians cite cervical, lumbar and left knee MRIs taken twomonths after the accident. In addition, the reports of Drs. Carciente and Buckner recite a reviewof reports prepared by plaintiff's treating physicians.
Notwithstanding Chavez's prima facie showing that plaintiff did not suffer a serious injury,the court denied his motion, finding the reports of plaintiff's physicians sufficient to enable her tosurvive the motion for summary judgment. This was error because plaintiff's physicians did notaddress the medical findings of preexisting degenerative conditions (see e.g. Depena v Sylla, 63 AD3d504, 505 [2009], lv denied 13 NY3d 706 [2009]; Valentin v Pomilla, 59 AD3d 184 [2009]; cf. Linton v Nawaz, 62 AD3d 434[2009], affd 14 NY3d 821 [2010]). In addition, plaintiff's deposition testimony that shestayed home for a few days after the accident and lost no time from work demonstrates primafacie that she did not sustain a 90/180-day injury (see Cruz v Aponte, 60 AD3d 431, 432 [2009]), and the medicalevidence she submitted in opposition to defendant's motion fails to substantiate any qualifyinginjury or impairment (Nelson v Distant, 308 AD2d 338, 339-340 [2003]).Concur—Tom, J.P., Renwick and DeGrasse, JJ.
Moskowitz and Manzanet-Daniels, JJ., dissent in part in a memorandum byManzanet-Daniels, J., as follows: I take issue with the majority's conclusion that plaintiff'smedical evidence failed to address defendant's alleged expert opinions that her claimedlimitations are the result of preexisting conditions and not attributable to the January 13, 2008accident.
Defendant's experts merely alleged, in entirely conclusory terms, that plaintiff's injuries wereattributable to a "pre-existing condition." In this case there is no "persuasive" evidence of apreexisting injury of the type described in Pommells v Perez (4 NY3d 566 [2005]). Because I believe theseconclusory assertions do not satisfy defendant Chavez's burden on a motion to dismiss for lack ofserious physical injury, the burden never shifted to plaintiff. Even assuming the burden hadshifted to plaintiff, the affirmations of plaintiff's treating physicians and experts more thansufficed to raise a triable issue of fact. Plaintiff's treating physicians and experts, uponexamination and after considering all of the medical records, unequivocally opined that herinjuries were caused by the January 13, 2008 accident. Therefore, I respectfully dissent.
The record evidence herein shows that plaintiff, 49 years old, had never suffered priorinjuries to her neck, back or left knee. Prior to the accident, she was asymptomatic. Only after theaccident did she complain of neck, back and knee pain. She was found, upon examination, tohave range-of-motion limitations in the left knee and in the cervical and lumbar spine. A cervicalEMG showed the existence of left-sided C-7 radiculopathy and bilateral median sensoryentrapment neuropathies at the wrists. MRI studies on March 29, 2008 showed bulging and [*3]herniated discs at multiple levels in the cervical (C2-3, C3-4, C4-5,C5-6, C6-7, C-7-T1) and lumbar (L2-3, L3-4, L4-5, L5-S1) spine, with thecal sac and nerve rootimpingement. The reports noted disc dessication and degenerative endplate changes at L5-S1, butdid not describe the numerous other positive findings as degenerative in nature. The radiologicalreports noted, in passing, that axial images demonstrated counterclockwise rotary scoliosis. AnMRI study of the left knee revealed a lateral shift of the patella, with mild arthrosis, a tear of theposterior horn of the medial meniscus, degenerative thinning of the anterior cruciate ligament,and scarring of the medial collateral ligament.
Plaintiff commenced physical therapy immediately after the accident, which she continueduntil it was determined, in December 2008, that she had reached the maximum medicalimprovement from conservative management. Approximately six months after the accident, sheunderwent arthroscopic knee surgery for chondral erosion of the patella femoral joint and apartial thickness tearing of the posterior horn of the lateral meniscus.
Chavez moved for summary judgment, relying, inter alia, on the affirmed medical reports ofDr. Carciente, a neurologist, Dr. Buckner, an orthopedist, and Dr. Fisher, a radiologist. Both Dr.Carciente and Dr. Buckner, in rendering their opinions, reviewed plaintiff's medical records,including the MRI reports, but did not review the MRI films. Dr. Carciente found "no correlationbetween the findings allegedly found in the spine MRI reports" and plaintiff's examination,which he described as normal, observing that as "is well known, bulges and herniations may alsobe seen in completely asymptomatic and atraumatic individuals."
Dr. Buckner concluded that plaintiff's spinal examination was normal except for degenerativechanges common to a person of her age, physique and preexisting scoliosis. He opined therewere "no reported findings" on the MRI "to suggest recent onset of any of the putativeabnormalities," that in fact the " 'findings' [we]re more consistent with normal findings for aperson of her age, habitus and pre-existing scoliosis than with any trauma or injury." With regardto the positive findings on the MRI study of plaintiff's left knee, Dr. Buckner opined that theywere "clearly pre-existing." If a knee injury had been related to the accident, plaintiff would havebeen fitted with an immobolizer and crutches in the emergency room.
Chavez also relied on the report of Dr. Fisher, who reviewed the MRI studies of plaintiff'sleft knee and cervical and lumbar spine. With respect to the cervical spine, Dr. Fisher opined thatthe study demonstrated "mild diffuse degenerative changes" consistent with a preexistingcondition, with no evidence of herniations or bulges, and no evidence of recent trauma. Withrespect to the lumbar spine, Dr. Fisher opined that the study demonstrated degenerative changesat the level of L5-S1 consistent with a preexisting condition, with no herniations and only a"mild" disc bulge at L5-S1 that was compatible with the amount of degenerative change present.He opined that there was no evidence of recent trauma. As to the left knee, Dr. Fisher opined thatit showed "[g]rade II signal within the posterior horn of the medial meniscus," and "[m]ilddiffuse articular cartilage loss," consistent with a preexisting condition. Dr. Fisher found nodiscrete meniscal or ligament tear, nor evidence of recent trauma.
In my opinion, defendant's expert affirmations failed to meet defendant's prima facie burdenof showing lack of "serious injury" within the meaning of the Insurance Law. The affirmations ofdefendants' neurologist and orthopedist were entirely conclusory and insufficient to satisfy theirburden. Dr. Carciente merely opined, in entirely conclusory terms, that there was "no correlation"between the positive findings in plaintiff's MRI reports and plaintiff's examination, which hedescribed as normal. Dr. Buckner similarly opined, in conclusory [*4]fashion, that there were no reported findings in the MRI studies tosuggest recent onset of any of the putative abnormalities and that the findings were "moreconsistent" with normal findings for a person of her age, habitus and preexisting scoliosis.
Defendants' expert radiologist, Dr. Fisher, opined that the MRI of the cervical spinedemonstrated "mild diffuse changes," most pronounced at C5-6 and C6-7, which he does notdescribe, and which he similarly attributed, in conclusory fashion, to "a preexisting condition."Dr. Fisher opined that the "degenerative changes" at the L5-S1 level shown in the MRI ofplaintiff's lumbar spine were "consistent" with a preexisting condition, but did not address theother positive findings in the lumbar spine. Dr. Fisher opined that plaintiff suffered degenerativechanges of the knee, but failed to address the positive findings in the March 2008 report, namely,that in addition to a degenerative thinning of the anterior cruciate ligament, plaintiff had alsosuffered a "lateral shift of the patella," and a tear of the posterior horn of the medial meniscus.The radiologist further failed to address the various disc herniations and bulges, at multiplelevels, clearly identified in the contemporaneous MRI studies of the cervical and lumbar spine,and failed to address the evidence of patella shift and meniscal tear shown in thecontemporaneous MRI study of the left knee.
The conclusory assertions of defendants' experts—which, I note, are couched inconditional terms such as "more consistent with"—were insufficient to meet Chavez'sprima facie burden. Nowhere do these experts explain how the injuries suffered byplaintiff—who, it is undisputed, was previously asymptomatic and had never been in anaccident—were attributable to a "degenerative" condition rather than to the January 13,2008 accident. Defendant cannot shift the burden of proof merely by submitting expert affidavitsthat aver, in conclusory terms, that a previously asymptomatic plaintiff, with no history of prior(or subsequent) accidents, suffers from degenerative changes that are the cause of her currentcomplaints.
Even assuming—which I do not concede—that Chavez satisfied his initialburden, plaintiff's submissions raise a triable issue of fact. Plaintiff's treating physicians andexperts reviewed the relevant MRI reports, discussing at length the positive findings of therespective MRIs (including, for example, degenerative thinning of the anterior cruciate ligament),yet nonetheless opined that her injuries were attributable to the January 13, 2008 accident, thusrefuting the defense experts' contention that the evidence was consistent with preexistingdegenerative changes (see Norfleet vDeme Enter., Inc., 58 AD3d 499 [2009]).
Dr. Alexander Visco, plaintiff's treating physiatrist, examined plaintiff shortly after theaccident and noted range-of-motion restrictions in the cervical and lumbar spine, as well as theleft knee. Visco opined that plaintiff had suffered these injuries as a result of the January 13,2008 accident. MRIs taken two months after the accident showed disc bulges and herniations atmultiple levels of the cervical and lumbar spine. An MRI of the left knee disclosed a tear of themedial meniscus and a lateral shift of the patella. An April 2, 2008 EMG showed left-sided C7radiculopathy.
On July 18, 2008, Dr. Dov Berkowitz performed arthroscopic surgery on plaintiff's knee. Dr.Berkowitz found plaintiff, on examination, to have limited range of motion in the knee andattributed her knee injuries to the accident. Dr. Visco's follow-up reports, dated April 1, May 20,July 8, September 16, and December 17, 2008, discussed the positive findings detailed in therespective MRIs of plaintiff's cervical and lumbar spine and left knee, as well as the EMG, notedrange-of-motion restrictions, and continued to describe plaintiff as a patient "status post motorvehicle accident on January 13, 2008 with cervical disc herniations and disc bulges, left C7 [*5]cervical radiculopathy, lumbar disc herniations and bulges and leftknee sprain and internal derangement." In June 2009, plaintiff's expert physiatrist, Dr. GautamKhakhar, examined plaintiff and noted her still to have significant range-of-motion restrictions.Dr. Khakhar noted that plaintiff suffered from disc herniations and bulges at multiple levels ofthe cervical and lumbar spine, left-sided C7 radiculopathy, and left knee internal derangement,status postarthroscopic procedure, and opined that her injuries were attributable to the January13, 2008 accident. Dr. Khakhar, like Dr. Visco, reviewed the relevant MRIs andelectrodiagnostic studies.
Their conclusions that plaintiff's symptoms were related to the accident were not speculativeor conclusory, but rather, based on physical examinations of the patient made shortly after theonset of her complaints of pain and other symptoms, which she claimed arose after the January13, 2008 accident. The affirmations of plaintiff's experts raised an issue of triable fact, and a jurywas entitled to determine which medical opinion deserved greater weight (see Linton v Nawaz, 62 AD3d 434[2009], affd 14 NY3d 821 [2010]). As we stated in Linton (at 443) there is "nobasis on this record to afford more weight to defendants' expert's opinion and there are no 'magicwords' which plaintiff's expert was required to utter to create an issue of fact" concerning whetherthe injuries alleged were degenerative in nature. "If anything, plaintiff's expert's opinion isentitled to more weight [and] that opinion constituted an unmistakable rejection of defendants'expert's theory." (Id.)
Plaintiff's experts were clearly aware of the relevant MRI findings, yet ascribed her injuriesto the accident. For example, in his July 2009 report, Dr. Khakhar discussed at length theabnormal findings as noted in the relevant studies, attributing these findings to the accident:
"As a result of the accident of January 13, 2008, [plaintiff] has sustained significant injuriesto her left knee and cervical and lumbar spine.
"The impact caused by the accident exerted pressure to the structural integrity of the patient'sleft knee resulting in a meniscal tear causing the patient significant pain and difficulty with theleft knee . . .
"Furthermore, the impact caused by the accident exerted tremendous pressure to thestructural integrity of the nucleus pulposus, annulus fibrosis and facet joints of the cervical andlumbar spine resulting in multiple cervical (C2-3, C6-7 and C7-T1) and lumbar (L4-5 and L5-S1)disc herniations, in addition to, cervical (C3-4, C4-5 and C5-6) and lumbar (L2-3, L3-4) discbulges . . . In addition, range of motion testing revealed consistent and significantlimitations in cervical and lumbar range of motion. Cervical R.O.M. was restricted up to 25%,and lumbar R.O.M. was limited up to 33% . . .
"These pathologies are clinically correlated with the patient's symptomatology, examfindings and physical limitations. The above objective findings help to explain the ongoing painand [*6]impairments of the patient's cervical and lumbar spine, aswell as her left knee. Also, the absence of prior trauma at these levels suggests that the left kneetear, disc pathologies and nerve injuries did not pre-exist the above noted accident."
I would affirm the order of the lower court insofar as it denied Chavez's motion to dismissplaintiff's claims alleging "serious injury" based on significant limitation of use or permanentconsequential limitation of use of a body function or system.