| Ramkumar v Grand Style Transp. Enters. Inc. |
| 2012 NY Slip Op 02597 [94 AD3d 484] |
| April 10, 2012 |
| Appellate Division, First Department |
| Nandkumar Ramkumar, Appellant, v Grand StyleTransportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc.et al., Third-Party Plaintiffs, v Georgina D. Castillo, Third-PartyDefendant-Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forGrand Style Transportation Enterprises, Inc. and Ibrahim S. Tandia, respondents. Burke, Gordon & Conway, White Plains (Ashley E. Sproat of counsel), for Bisnath Bissessarand Danish Bissessar, respondents. Kay & Gray, Westbury (Patricia K. Wilton of counsel), for Georgina D. Castillo,respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or aboutJuly 1, 2010, which, to the extent appealed from as limited by the briefs, granted defendants'cross motions for summary judgment dismissing the complaint on the ground that plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d), affirmed,without costs.
Defendants made a prima facie showing of entitlement to judgment as a matter of law. Thedifferences in the defense experts' range-of-motion findings are minor and both doctorsconcluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).
In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for asignificant gap in his medical treatment that was raised by the Bissessar defendants when theycross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566[2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming 'serious injury,' must offer some reasonableexplanation for having done so" (id. at 574).
Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on hisright knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommendedphysical therapy. When asked when he last received physical therapy, plaintiff testified that hewas "cut off" five months before his July 2008 deposition. Therefore, the record gives noindication that plaintiff received any medical treatment during the 24-month period before hesubmitted answering papers to defendants' motions. We assume, as the dissent does, that thereare limits to the amount of no-fault coverage for medical services such as physical therapy. Theinquiry, however, does not end there. A bare assertion that insurance coverage for medicallyrequired treatment was exhausted is unavailing without any documentary evidence of such or, atleast, an indication as to whether an injured claimant can afford to pay for the treatment out of hisor her own funds (see e.g. Gomez v FordMotor Credit Co., 10 Misc 3d 900, 903 [Sup Ct, Bronx County 2005]; see also Salman v Rosario, 87 AD3d482 [2011]; Jacobs v Rolon, 76AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no suchindication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy"is speculative and finds no support in the record. Concur—Friedman, Renwick andDeGrasse, JJ.
Saxe, J.P., and Freedman, J., dissent in a memorandum by Saxe, J.P., as follows: Althoughthe motion court dismissed plaintiff's serious injury claims on the ground that his physician'smeasurements of plaintiff's range-of-motion limitations were not made contemporaneously withthe accident, the majority affirms the dismissal based on different reasoning, namely, what itdeems to be an insufficiently-explained cessation of treatment. In view of plaintiff's assertion thathe ceased ongoing therapy when his no-fault benefits for that service ceased, I believe it is errorto affirm the dismissal of plaintiff's claims on that ground. I strenuously disagree with themajority's assertion that in order to be entitled to proceed with his serious injury claims, plaintiffhad an affirmative obligation to explain why he could not afford to pay out of pocket for hiscontinued therapy after his no-fault benefits stopped covering his therapy.
On April 8, 2007, plaintiff Nandkumar Ramkumar, then 23 years old, was a passenger in anautomobile owned by defendant Bisnath Bissessar and operated by codefendant DanishBissessar, when their car collided with another automobile owned by defendant Grand StyleTransportation Enterprises Inc. and operated by defendant Ibrahim S. Tandia. Plaintiff was takenby ambulance to a nearby hospital emergency room where he was diagnosed with soft tissueinjury, prescribed ibuprofen and released.
He sought treatment the next day, April 9, 2007, at Liberty Advanced Medical, P.C.,complaining of severe neck pain, lower back pain and pain in his right knee. Dr. William Mejiadiagnosed him with cervical and lumbar sprain and strain, and post-traumatic injury to the rightknee, and prescribed a course of physical therapy, with MRIs to be performed if the symptoms[*3]persisted. On May 25, 2007, an MRI of plaintiff's lumbarspine was performed, and a left foraminal herniation was found at L3-4, and a central discherniation was found at L4-5. On June 20, 2007, an MRI was performed on his right knee,revealing a tear of the lateral meniscus, involving both the anterior and posterior horns.Arthroscopic surgery was performed on plaintiff's knee by Dr. Mehran Manouel on June 29,2007. Plaintiff alleges that he was confined to bed for two days in April 2007 and for seven daysin June and July 2007 "and intermittently thereafter."
Plaintiff commenced this action on or about July 10, 2007, alleging that the accident resultedin tears to his right meniscus, and injuries to his shoulders, cervical spine and lumbar spine,including herniated discs at L3-4 and L4-5.
Defendants moved for summary judgment, contending that plaintiff cannot establish that hesuffered a serious injury as defined by Insurance Law § 5102 (d). They relied on thereports of three experts: two orthopedists and a radiologist.
Although their experts' findings satisfied defendants' burden of making a prima facieshowing of entitlement to summary judgment (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]), the evidenceoffered in response by plaintiff created an issue of fact as to whether plaintiff's injuriesconstituted serious injuries that were causally related to the accident, at the very least, with regardto the injuries to his right knee.
The affirmation by plaintiff's surgeon, Dr. Manouel, emphasized that based on his directobservations of plaintiff's knee during the surgery and the photographs taken at the time of thesurgery, the injury—a large flap and radial shaped tear on the anterior and middlehorn—was unmistakable, consistent with the described accident, and explained plaintiff'scomplaints of recurrent knee pain that began only after the accident and continued consistentlysince then. He added that causality was apparent since plaintiff was a young man with no historyof knee injury or previous complaints of knee pain. He further stated that the torn meniscus "is bydefinition a permanent injury in that the tear or fissure of the meniscus can never spontaneouslyheal by itself without surgical intervention. Furthermore, once surgically repaired, themeniscus has permanently lost its pre-injury stability with onset of scar tissue, instability and lossof range of motion and strength, with pain, all of which Mr. Ramkumar now has and willcontinue to have for the rest of his life" (emphasis added). He went on to explain the natureof the permanent injury in greater detail: "Due to the mechanism of trauma he has sustained inthis accident, there was a tearing of the right knee muscles, tendons, ligaments, blood vessels andnerves. These structures heal by formation of scar tissue, which is relatively inelastic andpermanent in nature and causes significant restriction of motions, limitations of activities andpain." In addition, in his examination of plaintiff on May 4, 2009, Dr. Manouel found significantlimitations in plaintiff's range of motion in flexion in his knee, as well as some continuedlimitations of motion in his lumbar spine and shoulder.
The motion court granted defendants' cross motions for summary judgment, concluding thatplaintiff failed to satisfy his evidentiary burden of submitting objective medical proof of seriousinjury causally related to the accident, by failing to offer a contemporaneous examination[*4]showing limitations in plaintiff's range of motion, or thenecessary objective evidence of the significant limitations resulting from the meniscal tear. It alsoheld that a lack of evidence that plaintiff underwent any therapy or treatment required dismissal.The majority affirms on the ground that plaintiff failed to sufficiently explain his cessation oftherapeutic treatment.
I respectfully dissent with regard to plaintiff's serious injury claims (other than his 90/180claim—as to which I agree that he failed to offer the requisite proof to support the claim).
Serious injury may be established under Insurance Law § 5102 (d) by a "permanentconsequential limitation of use of a body organ or member" or a "significant limitation of use ofa body function or system." Establishing that a plaintiff suffered a torn meniscus, or a bulging orherniated disc, as a result of the occurrence, is not enough. These types of soft-tissue injurymay constitute serious injuries within the meaning of the statute, but only if the necessaryshowing of objective evidence establishing that the injury resulted in significant physicallimitations of significant duration is made by the plaintiff (see Bamundo v Fiero, 88 AD3d 831 [2d Dept 2011]; Colon v Vincent Plumbing & Mech.Co., 85 AD3d 541 [1st Dept 2011]).
In Toure v Avis Rent A Car Sys. (98 NY2d 345, 350-351 [2002]), the Court ofAppeals wrote that, in "order to prove the extent or degree of physical limitation," plaintiff canprovide either "an expert's designation of a numeric percentage of a plaintiff's loss of range ofmotion," or "[a]n expert's qualitative assessment of a plaintiff's condition," provided thatsuch evaluation "has an objective basis and compares the plaintiff's limitations to the normalfunction, purpose and use of the affected body organ, member, function or system," so that it"can be tested during cross-examination, challenged by another expert and weighed by the trier offact." While Dr. Manouel did not initially perform quantified range of motion testing, he tendereda "qualitative assessment" of plaintiff's meniscal injuries, reporting that plaintiff experiencedpain, buckling and popping of the knee, and that the knee continued to have functionallimitations after surgery. Moreover, his assessment was supported by objective evidence, namely,the MRI of the knee and the observations during the arthroscopic surgery establishing theexistence of the tear, as well as the McMurray test that was performed.
Plaintiff adequately rebutted the assertion by defendants' experts that plaintiff's injuries weredegenerative rather than caused by the accident (see Spencer v Golden Eagle, Inc., 82 AD3d 589 [2011]). Plaintiff'sradiologist specifically stated that there was no indication of any degenerative condition presentwhen he read the films, and plaintiff's surgeon asserted that in view of plaintiff's age, the absenceof any prior complaints, and the nature of the injuries found in MRIs performed weeks after theaccident, the subject accident was the sole competent producing cause of plaintiff's injuries.
It was error to reject Dr. Manouel's measurements of plaintiff's limitations in his range ofmotion in the injured areas simply because those measurements were made in his follow-upexamination on May 4, 2009, two years after the accident, and were not "contemporaneous" withthe accident. The Court of Appeals explained in Perl v Meher (18 NY3d 208 [2011]), that there is no justificationfor imposing a requirement of "contemporaneous" quantitative measurements, since while "acontemporaneous doctor's report is important to proof of causation[ because] anexamination by a doctor years later cannot reliably connect the symptoms with the accident. . . where causation is proved, it is not unreasonable to measure the severityof the injuries at a later time" (id. at 217-218). Here, there is strong evidence causallyconnecting the injuries to the accident, so the measurements of limitations taken two years laterare valid evidence that plaintiff experienced continuing significant limitations due to his injuries.The surgeon's quantification [*5]of limitations in plaintiff's rangeof motion of the knee two years after the accident is therefore sufficient.
In my estimation, the majority's reliance on a so-called cessation of treatment is misplacedhere. Injuries are not always treatable by physical therapy, but even when therapy might help,sometimes the medical coverage of injured plaintiffs limits them to a set number of weeks orsessions or physical therapy, leaving them no choice but to cease treatment. Here, for instance,plaintiff testified during his July 2008 deposition that he had no medical insurance at the time ofthe accident, that he obtained treatment at the Liberty Medical clinic after this accident, receivedtherapy three days a week for "more than six months," but in response to the question of when hewas last treated at the Liberty Medical clinic, he answered "they cut me off like five months,"although he added that he did have a subsequent follow-up appointment with Dr. Manouel,whose orthopedic practice was located elsewhere.
In Pommells v Perez (4 NY3d566, 574 [2005]), the Court explained that "[w]hile a cessation of treatment is notdispositive—the law surely does not require a record of needless treatment in order tosurvive summary judgment—a plaintiff who terminates therapeutic measures following theaccident, while claiming 'serious injury,' must offer some reasonable explanation for having doneso." In the Pommells matter, the Court held that dismissal was proper becauseneither the plaintiff nor his doctors explained why he did not pursue anytreatment for his injuries after the initial six-month period (id.), while in the relatedmatter of Brown v Dunlap, the gap of 2½ years during which that plaintiff receivedno treatment for his injuries was explained by his doctor, who said he terminated treatment oncehe determined further medical therapy would be only palliative in nature (id. at 577).Here, the necessary explanation was offered by plaintiff when he said, perhaps unartfully, that hisbenefits were "cut off" at some point.
The majority suggests that a plaintiff cannot satisfactorily explain the cessation of treatmentsolely with the information that insurance coverage for continued therapy had ceased. It holdsthat the plaintiff must offer documentary evidence, "or, at least, an indication as to whether aninjured claimant can afford to pay for the treatment out of his or her own funds." This proposalengrafts a new requirement onto our jurisprudence in the area of serious injury under InsuranceLaw § 5102 (d), one that is not justified by the language of Pommells v Perez.
In support of imposing such an obligation on plaintiff, the majority cites Salman v Rosario (87 AD3d 482[2011]) and Jacobs v Rolon (76AD3d 905 [2010]), in which this Court accepted the explanations provided by the plaintiffsthat once their no-fault benefits stopped, they could not afford to pay for continued medical care.There is nothing incorrect about these rulings, but they were never intended to establish theminimum acceptable explanation as contemplated in Pommells v Perez.
Also offered in support for the majority's ruling is a lower court decision in Gomez v Ford Motor Credit Co. (10Misc 3d 900, 903 [Sup Ct, Bronx County 2005]). The court in Gomez analyzed therequirements set out in Pommells v Perez and concluded that a plaintiff's burden ofexplaining a gap or cessation in treatment was not satisfied by the explanation that no-faultbenefits had been discontinued. The court there held that the plaintiff was required to submitsubstantiation for the assertion that no-fault benefits were discontinued, adding that "[a]t the veryleast, counsel for plaintiff should have provided a letter from the insurance carrier as to when andwhy the carrier discontinued coverage" (id.). It termed an unsubstantiated claim"conclusory and nonprobative" (id.). It then went even further, blaming the plaintiff forfailing to "provide[ ] an [*6]explanation as to why he could nothave continued treatment paid out of his own pocket" (id.).
This proposed requirement in Gomez of "substantiation" of the plaintiff's explanationfor the cessation of treatment would engraft onto section 5102 (d) an unfair and unreasonablestandard of proof. Anyone who has ever dealt with no-fault carriers would understand the likelyfutility of obtaining the suggested letter from them. The onerous nature of the Gomezrequirements is highlighted by the companion requirement suggested there—one thatseems to be adopted by the majority here—requiring a plaintiff to "explain" why he couldnot have paid out of pocket to continue his treatment when insurance benefits terminated. If wewere to adopt such a requirement, a plaintiff with a substantial, lasting injury that was not healedduring the course of the covered therapeutic treatment, would not be entitled to proceed with alawsuit unless and until the plaintiff either dug deep into savings to pay for continued therapeutictreatment, or explained why his or her financial circumstances did not permit it. Indeed,consistent with Gomez's proposed "substantiation" requirement, proof of the plaintiff'sfinancial condition would be necessary.
The fact of the matter is that for most people, when insurance coverage ends, treatment ends.Very few people have the means to pay the substantial fees that the uninsured are charged formedical care. People who are employed have regular expenses on which they must spend theirearnings; even people with savings most often have plans for the use of those funds. The right tosue for a serious injury cannot be predicated on the plaintiff paying those substantial fees out ofpocket, assuming that the funds exist.
Pommells v Perez requires only that a plaintiff who claims that an injury remainsafter terminating treatment for it "must offer some reasonable explanation for having done so" (4NY3d at 574). It does not treat such an explanation as conclusory or nonprobative in the absenceof corroborating documentation. I therefore disagree with the majority's ruling that a reasonableexplanation for a gap in treatment due to a cessation of insurance benefits must includedocumentation or a showing as to whether the plaintiff can afford to pay for the treatment out ofpocket.
I would reinstate plaintiff's serious injury claims.