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Petito v Command Bus Co., Inc.
2008 NY Slip Op 51507(U) [20 Misc 3d 1121(A)]
Decided on July 21, 2008
Supreme Court, Kings County
Miller, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 21, 2008
Supreme Court, Kings County


Stephanie Petito, Plaintiff,

against

Command Bus Co., Inc., and Willie S. Johnson, Defendants,




21826/04



The plaintiff is represented by Pazer & Epstein, P.C., by Matthew J. Fein, Esq., of counsel,

The defendants Command Bus Company, Inc., and Willie Johnson are represented by the law firm of Edward Garfinkel, by Barry N. Greenberg, Esq., of counsel,

The defendant the City of New York is represented by Michael A. Cordozo, Corporation Counsel of the City of New York, by Don H. Nyuyen, Esq., of counsel.

Robert J. Miller, J.

In this action to recover damages for personal injuries, the defendants the Command Bus

Co., Inc. and Willie S. Johnson (collectively "Command"), move pursuant to CPLR §3212 for summary judgment granting dismissal of the plaintiff, Stephanie Petito's ("Petito") claim on the grounds she has not sustained a serious injury as defined by New York State Insurance Law §5102(d). The defendants have interposed a third-party action against the City of New York, however the City has taken no position on this motion.

Plaintiff was involved in an automobile accident on October, 27, 2003, on East 85th Street and Avenue K in, Brooklyn, New York. The police report indicates that the accident between the plaintiff's car and the Command bus occurred at the intersection of the two streets. The bus was traveling north bound on East 85th Street and the plaintiff was traveling east bound on Avenue K. Plaintiff stated to the police officer taking the report that the bus "appeared" in front of her. The police report notes that the bus did have a stop sign at the intersection , [*2]however, the stop sign was "knocked down recently

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and is not visible to the North bound traffic on East 85th Street". The Fire Department of New York's call report indicates that the plaintiff was walking and alert at the scene of the accident and complained that her "cheek hurt". Plaintiff was treated immediately after the accident at the emergency department of Beth Israel Hospital. The triage assessment notes that she initially complained that her face and right wrist hurt, and she was referred for an x-ray of her cervical spine and right wrist The hospital's discharge instructions in the diagnosis portion states that she had a contusion to her right hand and muscular strain to the right side of her neck.

In her bill of particulars, plaintiff alleges she sustained personal injuries that include head trauma with post-traumatic headaches; cervical sprain with possible disc herniations; right shoulder derangement with impingment syndrome; right bronchial plexopathy; bilateral elbows medial lateral epicondylitis; right wrist sprain; lumbosacral derangement; right knee internal derangement; left knee sprain; MRI-confirmed AC joint hypertrophy resulting in Grade I impingement to right shoulder; MRI-confirmed 2mm disc buldge, L5-S1 elevating the epidural fat, loss of posterior concavity of the annulus fibrosis; straightened cervical lordosis, consistent with muscle spasm; joint fluid consistent with synovitis, right knee; cervical radiculopathy, right L5-S1 lumbosacral radiculopathy; head injury.

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In its motion, Command asserts an absence of objective support for the vast majority of plaintiff's injuries and that those injuries for which there is objective support are so insubstantial as to not qualify as serious. Command also asserts that a four-year unexplained gap in plaintiff's treatment is further evidence of the absence of serious injury. Defendants' moving papers present in admissible form, the affirmed reports of defendants' examining physicians, Dr. Daniel Feuer, a neurologist, Dr. Andrew Miller, an orthopedist, and Dr. Andrew W. Litt, a radiologist.

The report of neurologist Dr. Daniel Feuer dated June 12, 2007 recites that his findings on physical examination of plaintiff's cervical and lumbar spine were all normal. He found no objective evidence of clinical deficits on examination to support a diagnosis of either cervical or lumbosacral radiculopathy. Dr. Feuer's report states plaintiff did "not offer any radicular complaints" and that the MRI testing of plaintiff's cervical and lumbosacral spine does not evidence any nerve root impingement to support a diagnosis of radiculopathy. Dr. Feuer notes that a neurological examination by plaintiff's own neurologist dated December 30, 2003, two months after the subject accident, did not find any focal deficits to support a diagnosis of radiculopathy.

Command also submits the orthopedic report of Dr. Andrew Miller dated May 22, 2007. Dr. Miller found plaintiff complained of pain but on examination demonstrated normal ranges of motion in her cervical and lumbar spine. Dr. Miller also examined plaintiff's right and left knee and found normal extension and flexion. . [*3]

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Finally, Command offers the report of radiologist Dr. Andrew Litt who reviewed the four magnetic resonance images in this case; a December 10, 2003 film of plaintiff's cervical spine; a December 10, 2003 film of plaintiff's lumbar spine; a November 13, 2003 film of plaintiff's right knee; and a November 13, 2003 film of plaintiff's right shoulder. Dr. Litt read all films as normal with the exception of what he describes as a "tiny (2mm) disc herniation at C4-C5", that was not identified by the radiologist who originally read the film. Dr. Litt did not find a 2mm disc bulge at L5-S1 that was found by the radiologist who originally read the lumbar MRI.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.(Gaddy v Eyler, 79 NY2d 955 [1992]). The defendant may establish that the plaintiff's injuries are not serious within the meaning of Insurance Law §5102 by submitting affidavits or affirmations of medical experts who examine the plaintiff and make no objective medical findings to support the claim of serious injury. (Grossman v Wright, 268 AD2d 79, [Dept 2000].)The court finds that the affirmed reports of Drs. Feuer, Miller and Litt establish that the plaintiff did not sustain a serious injury. The MRI showing a 2mm disc bulge does not establish a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the disc injury and its duration. (Meely v 4 G's Truck Renting Co., Inc., 16 AD3d 26 [2d Dept. 2005], Pommells v Perez, 4 NY3d 566 [2005]).

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In its motion papers, Command has established a prima facie case of entitlement to summary judgment. Once the defendant has established a prima facia case that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff to come forward with admissible proof to show triable issues of fact. (Gaddy v Eyler, 79 NY2d 955 [1992]).

To meet her burden, plaintiff has offered the affirmation of physiatrist Dr. Leo Batash dated May 5, 2008 which incorporate his unsworn November 6, 2003 initial consultation report. The initial consultation which occurred ten days after plaintiff's accident, found cervical flexion, "hyper-extension" and bilateral lateral flexion limited to 20� to 25�. Dr. Batash found plaintiff's lumbar flexion limited to 20� to 25�, lumbar extension limited to 15�. A defendant is permitted to rely on the plaintiff's physician's report even though the report is unsworn. (Pagano v Kingsbury, 182 AD2d 268 [2d Dept. 1992].) Where an unsworn report is relied on by the defendant, it is "properly before the court," and the plaintiff is permitted to rely on it as well. (Perry v Pagano, 267 AD2d [2d Dept. 1999].)

On December 12, 2003, Dr. Batash conducted electromyography (EMG) studies of plaintiff's cervical and lumbar spine. The cervical study found right C5-C6 radiculopathy and the lumbar study found "borderline, right L5/S1 lumbo/sacral radiculopathy". Notably, physical examinations were conducted as part of the EMG studies. The cervical examination found plaintiff's cervical flexion to 35�, cervical

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flexion limited to 35� and cervical extension limited to 40�. The lumbar examinations found lumbar flexion limited to 70� and extension limited to 25�.

Eight days later, MRIs were conducted of plaintiff's cervical and lumbar spine. The cervical film found no bulges or herniations and the lumbar film was found to demonstrate a 2mm bulge at L5-S1.

Thus the cervical findings on physical examination ten days after the accident do not correlate with any findings on the MRI and the findings on EMG do not correlate with any findings on the MRI. Even Dr. Litt's finding of a 2MM herniation with no impingement at C4-C5 does not correlate with the EMG finding of radiculopathy at C5-C6. In addition, Dr. Batash's physical examination findings on the occasion of the December 12, 2003 EMG were markedly improved from his own findings four weeks earlier on November 6, 2003.

The lumbar findings are even more dramatic. Dr. Batash's December 12, 2003 physical examination revealed 25� range of motion on extension, which according to Dr. Batash is normal and a 70� range of motion on flexion where normal is 85�. The EMG impression is "borderline, right L5-S1 lumbo/sacral radiculopathy", although the December 12, 2003 report does not find impingement. A limitation of range of motion of 15% is not a significant injury. (Ibragimov v Hutchins, 8 AD3d 235, [2d Dept. 2004].)

The foregoing inconsistent findings are clarified somewhat by the reports of

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plaintiff's own treating physicians. On December 30, 2003, plaintiff was seen by a neurologist, Dr. Mehrdad Golzad to whom she was referred by Dr. Batash. Dr. Golzad's reports were referenced by the defendants' doctors and therefore are "properly before the court" (Perry v Pagano, 267 AD2d [2d Dept. 1999].) Dr. Golzad performed a neurologic exam and made no mention of any diminution in range of motion. Thereafter,

on January 19, 2004, plaintiff was seen by her orthopedist, Dr. Jonathan Lewin, who submits an affirmed report, finding that plaintiff presented on examination with "full strength and reasonable range of motion with no real true objective findings".

On January 27, 2004, plaintiff was seen by another of her orthopedists, Dr. Raz Winiarsky whose affirmed report recites that "patient says she is getting better" and that the "patient on physical examination has full range of motion with rotation. She lacks about 10 degrees of flexion and 10 degrees of extension. Lumbar flexion, she lacks about 20 degrees of sagittal motion, normal twisting motion." Dr. Winiarsky's assessment is that plaintiff has a healing L-spine and c-spine sprain and that she will do fine with therapy. Neither plaintiff nor Dr. Batash has explained the absence of findings by plaintiff's neurologist and two orthopedists. Nor has any explanation been offered for the discrepancy between Dr. Batash's findings on November 6, 2003 and December 12, 2003. The failure to explain such discrepancies constitutes plaintiff's failure to raise a triable issue of fact. (Brown v Tairi Hacking Corp., 23 AD3d 325, [2d Dept. 2005].) [*4]

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Plaintiff treated with Dr. Batash from November 6, 2003 through March 26, 2004. Thereafter plaintiff received no treatment until May 1, 2008 whereupon she appears to have been examined by Dr. Batash who found her limitations worse than at any point in the past. There are no objective tests to support this finding. If her condition had so deteriorated, this makes the unexplained four year gap in treatment even more inexplicable.

Plaintiff's gap in treatment is entirely unexplained in any of the motion papers. At deposition, plaintiff testified she maintained private health insurance and that she stopped treating when she became pregnant. The failure to explain five months of treatment and inconsistent findings followed by a four-year gap in treatment and a purported worsening of her condition renders plaintiff's medical proof insufficient. (Mendoza v Whitmire 6 AD3d 673, [2d Dept. 2004].)

Simply put plaintiff has totally failed to rebut the findings of defendants' doctors that she sustained no serious injury as defined in the Insurance Law.

For the foregoing reasons Defendant Command's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment dismissing the complaint

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with prejudice. Since the complaint is dismissed, the third party complaint against the City is also dismissed.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

July 21, 2008

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