| Salman v Rosario |
| 2011 NY Slip Op 06323 [87 AD3d 482] |
| August 25, 2011 |
| Appellate Division, First Department |
| Allan Salman et al., Plaintiffs, and Zorazella Garcia,Appellant, v Hector Rosario et al., Defendants, and Bassough Kanate,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about July 6, 2009,which, to the extent appealed from as limited by the briefs, upon renewal and reargument,adhered to a prior order, same court and Justice, entered December 4, 2008, granting defendantKanate's motion for summary judgment dismissing plaintiff Garcia's complaint, modified, on thelaw and the facts and in the exercise of discretion, to deny the motion insofar as plaintiff claims apermanent limitation serious injury to her right knee, and otherwise affirmed, without costs.
As an initial matter, while plaintiff's doctors' conclusions were arguably based on medicalinformation previously available and she could arguably have included this information in heroriginal motion, a court has latitude, in the interest of justice, to grant renewal, even on factsknown to the movant at the time of the original motion (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460 [2007]).Here, plaintiff's lawyer avers that she was unable to locate the records from Crotona HeightsMedical, the initial treating facility after her emergency room visit, in time to submit those papersin opposition to defendant's summary judgment motion because that medical office had closed.The law firm was only able to locate the records in conjunction with another case.
On November 28, 2005, the then 21-year-old plaintiff was a passenger in a motor vehicle thatdefendant rear-ended with his vehicle. Shortly after the accident, an EMT removed plaintiff fromthe vehicle. At that time, plaintiff complained to the EMT that she had a "burning sensationgoing up her spine, [a] headache from her head hitting the car and [her] knee." Plaintiff testifiedthat she had never hurt those body parts in any other accidents before or after the accident.
After the accident, plaintiff was taken by ambulance to the emergency room at [*2]Metropolitan Hospital where she made the same physicalcomplaints. The hospital took X rays, but found nothing broken. Plaintiff believed she was thengiven a prescription for Motrin and was driven home.
Plaintiff testified that she missed three days of work after the accident and then returned towork. However, she had to quit work approximately three weeks before having knee surgery onMarch 30, 2006 because her knee was "extremely swollen." Plaintiff stated that, beginningapproximately one week after the accident, she received physical therapy for approximately twomonths. Following her surgery in March 2006, plaintiff resumed physical therapy forapproximately one month. In her affidavit in opposition, plaintiff explained her gap in treatment.She stated that once her no-fault benefits stopped, she could not afford to pay for medical care(see Mendez v Mendez, 72 AD3d402 [2010] ["(p)laintiff's experts also explained any gap in her treatment by stating that shehad reached the maximum benefit possible from the treatment"]). Plaintiff also testified that, as aresult of the accident, she cannot stand for long periods, has difficulty walking and running,cannot lift heavy objects, has trouble sleeping and is sensitive to light.
Dr. Andrew Cordaro, who examined plaintiff just one month after the accident, noted thatplaintiff complained about her right knee. He referred her for X rays and an evaluation with anorthopedic surgeon.[FN*]The MRI report from Dr. Andrew Caruthers, dated March 13, 2006, describes a "longitudinaltear of the lateral meniscus contacting superior surface" and "small knee joint effusion."
Most important, plaintiff's orthopedic surgeon, Dr. Ehrlich, who performed arthroscopicsurgery on plaintiff's knee only four months after the accident, opined that "to a reasonabledegree of medical certainty, the motor vehicle accident of 11/28/05 is the proximate cause of hercondition, and not from a pre-existing or long standing degenerative process." Plaintiff's surgeonbased this conclusion on his observations of plaintiff's knee during surgery (documented in theoperative report plaintiff submitted on the original motion) and because plaintiff's MRI films(plaintiff submitted the MRI report on the original motion) did not depict the existence ofosteophytes, show evidence of spondylosis or show other symptoms of degenerative processes.Thus, plaintiff's surgeon countered defendant's orthopedist's observation that plaintiff's injurieshad no traumatic basis. Plaintiff's surgeon also documented range-of-motion limitations in theknee. Dr. Mian, who also conducted an orthopedic examination in 2008 and found deficits inplaintiff's range of motion, opined that the right knee tear was causally related to the accident.Thus, the evidence more than amply raised an issue of fact as to whether plaintiff had sustained a"serious injury" of a permanent nature to the right knee within the meaning of Insurance Law§ 5102 (d).
Plaintiff's objective evidence of injury, four months postaccident, was sufficientlycontemporaneous to establish that plaintiff had suffered a serious injury within the meaning ofthe statute. Dr. Ehrlich based his conclusions in large part on his actual observations of [*3]plaintiff's knee during the surgery he performed. This conclusion issignificant because the doctor was able to see exactly what the injuries were. Moreover, in heraffidavit, plaintiff stated that, prior to surgery, she had physical therapy five times a week forthree months. It is not unreasonable to try to resolve an injury with physical therapy beforeresorting to surgery. The circumstances, i.e., plaintiff's initial medical exam that was close intime to the accident, her intensive physical therapy, her young age and eventual surgery, make thefour months between the accident and plaintiff's objective medical evidence sufficientlycontemporaneous to withstand a motion for summary judgment (see Gonzalez vVasquez, 301 AD2d 438 [2003] [examining physician's affirmation correlating motorist'sneck and back pain two years after rear-end collision to quantified range of motion limitationsfound on physical examination and bulging and herniated discs described in MRI reports, andopining that motorist's symptoms were permanent, raised genuine issue of material fact as towhether motorist suffered serious injury]; see also Rosario v Universal Truck & Trailer Serv., 7 AD3d 306,309 [2004]).
However, defendants did establish, prima facie, that plaintiff did not suffer a 90/180-dayinjury, and plaintiff failed to raise a triable issue of fact, given her testimony that she was out ofwork for only three days (see Pou vE&S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]). Concur—Saxe, J.P.,Moskowitz, Richter and Manzanet-Daniels.
RomÁn, J., dissents in a memorandum as follows: To the extent that the majorityconcludes that renewal of the motion court's order granting summary judgment in favor ofKanate was warranted, and that upon renewal Garcia's evidence precluded summary judgment, Idissent. Here, renewal would only have been warranted in the interest of justice, and to the extentthat Garcia's evidentiary submission on renewal failed to establish any injury contemporaneouswith her accident, renewal should have been denied.
To the extent that Garcia submitted medical evidence failing to establish treatment earlierthan January 25, 2006, two months after this accident, Garcia failed to raise a triable issue of factas to whether she sustained a serious injury because she failed to submit competent andadmissible medical evidence of injury contemporaneous with her accident (see Ortega v Maldonado, 38 AD3d388 [2007]; Toulson v Young HanPae, 13 AD3d 317, 319 [2004]; Alicea v Troy Trans, Inc., 60 AD3d 521, 522 [2009]; Migliaccio v Miruku, 56 AD3d393, 394 [2008]). Accordingly, the motion court properly granted Kanate's initial motion forsummary judgment with respect to all categories of injury under Insurance Law § 5102.
On her motion to renew, seeking to remedy shortcomings in her prior submission, Garciatendered, inter alia, medical records, not previously submitted, purportedly evincing medicaltreatment contemporaneous with her accident. Specifically and to the extent relevant here, onrenewal Garcia submitted records evincing a medical examination occurring a month after heraccident. Nothing submitted competently evinced medical treatment at anytime prior thereto. Amotion to renew "must be based upon additional material facts which existed at the time the priormotion was made, but were not then known to the party seeking leave to renew, and, therefore,not made known to the court" (Foley v Roche, 68 AD2d 558, 568 [1979]). However,when the proponent of renewal seeks to proffer new evidence of which he/she was previouslyaware but did not provide to the court on a prior motion, renewal may be granted if the interest ofjustice so [*4]dictates (Tishman Constr. Corp. of N.Y. v Cityof New York, 280 AD2d 374, 376-377 [2001]; Mejia v Nanni, 307 AD2d 870, 871[2003]). Generally, the interest of justice requires renewal when the newly submitted evidencechanges the outcome of the prior motion. Here, Garcia sought renewal in order to have themotion court consider evidence previously known to her. Accordingly, renewal would have onlybeen warranted if it served the interest of justice. At best, Garcia's medical evidence of injury onrenewal established medical treatment beginning no sooner than a month after her accident. Amedical examination occurring a month after an accident is not contemporaneous. Given its plainand ordinary meaning, contemporaneous means "existing, happening in the same period of time"(Webster's New World Dictionary 300 [3rd college ed 2004]). Accordingly, insofar as Garcia'sevidence on renewal did not evince medical treatment contemporaneous with the accident,renewal in the interest of justice should have been denied.
The majority takes the untenable position that not only is Garcia's medical examination,occurring a month after the accident, contemporaneous with her accident, but paradoxically thatthe report of her surgeon, who did not see plaintiff for the first time until four monthsafter her accident, is sufficient to establish the causal link between Garcia's knee injury and heraccident such that she raised an issue of fact precluding summary judgment in Kanate's favor.First, if a medical examination occurring one month after an accident is not contemporaneous,then an examination occurring four months after an accident is certainly less so (Mancini v Lali NY, Inc., 77 AD3d797, 798 [2010] [medical findings made by plaintiff's doctor four months after his accidentnot sufficiently contemporaneous with the accident to establish a serious injury]; Resek v Morreale, 74 AD3d 1043,1044-1045 [2010] [medical findings made by plaintiff's doctor five months after his accident notsufficiently contemporaneous with the accident to establish a serious injury]). Moreover, even ifwe assume that this report was temporally contemporaneous with her accident, it wasnevertheless bereft of any objective, qualitative, or quantitative evidence of injury to her knee (Blackmon v Dinstuhl, 27 AD3d241, 242 [2006]; Thompson vAbbasi, 15 AD3d 95, 98 [2005]). Second, contrary to the majority's assertion, the reportof Garcia's orthopedist might have been probative as to her knee injury on the date he performedsurgery, but standing alone, his observations on that date could not have been probative as towhether that injury was caused by this accident (see Pommells v Perez, 4 AD3d 101, 101-102 [2004], affd 4NY3d 566 [2005] [medical opinion as to causation is speculative when the record is bereft of anyevidence establishing contemporaneous medical treatment and the doctor proffering opinion seesplaintiff for the first time after a substantial period of time since the accident]; Vaughan vBaez, 305 AD2d 101, 101 [2003]; Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003]; Komar vShowers, 227 AD2d 135, 136 [1996]).
The majority relies on two cases in support of its holding, Gonzalez v Vasquez (301AD2d 438 [2003]) and Rosario vUniversal Truck & Trailer Serv. (7 AD3d 306 [2004]), neither of which bears on theissue of contemporaneous medical treatment and both of which, to [*5]the extent that they allow a doctor to establish causation upon aninitial examination conducted a substantial time after an accident, are at odds with Vaughan,Shinn, Komar and Pommells.
Footnote *: Although the records from Dr.Cordaro's office are unsworn, it is of no moment. The documents are properly certified asbusiness records (see Mayblum v Schwarzbaum, 253 AD2d 380 [1998]; CPLR 4518 [a]),and are referenced only to show plaintiff's complaints and the doctor's referral rather than amedical opinion about a causal relation to the accident.