[*1]
Khaimovich v Defossett
2009 NY Slip Op 51971(U) [25 Misc 3d 1204(A)]
Decided on September 11, 2009
Civil Court Of The City Of New York, Kings County
Edwards, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2009
Civil Court of the City of New York, Kings County


Samir Khaimovich, Plaintiff,

against

Michelle A. Defossett, Defendant.




62748/06

Genine D. Edwards, J.



In this action, plaintiff, Samir Khaimovich, seeks damages for personal injuries allegedly sustained as a result of a motor vehicle accident on May 12, 2003. Defendant, Michelle A. Defossett, moves for summary judgment on the ground that plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102(d).

FACTS


On May 12, 2003, plaintiff was allegedly injured in a motor vehicle accident [FN1] that occurred at the intersection of Centre and Reade Streets, in Manhattan. See Affirmation in Opposition to Motion for Summary Judgment, p. 1-2. He asserted that he was traveling on Centre Street. See id. at 2. As he approached Reade Street, defendant's vehicle, without any warning, moved from a double-parked position and struck plaintiff's vehicle on the front passenger side, with medium impact. See id. Because of the impact, plaintiff alleged that he felt a sharp pain in his body, including his knee, shoulder, head and back. See id. A day later,he sought medical treatment from Dr. Lyudmila M. Slupsky, an internist. See id.

Dr. Slupsky's unaffirmed medical report noted that plaintiff sustained significant injuries from the accident. See id. at Exhibit B. Accordingly, plaintiff could not work, and required treatment. See id. She referred plaintiff to physical therapy three to four times a week. See id. Plaintiff received therapy for approximately three to four months. See Notice of Motion for Summary Judgment, Exhibit D, p. 33. Plaintiff also underwent testing. He saw a radiologist, Dr. Robert Solomon, who ordered a Magnetic Resonance Imaging (MRI) of plaintiff's lumbosacral spine. Dr. Solomon's unaffirmed medical report, dated July 18, 2003, noted a L5-S1 annual disc with thecal sac effacement and slightly narrowed nerve canals. See Affirmation in Opposition to Motion for Summary Judgment, Exhibit A. In addition, to the unaffirmed medical reports from Drs. Slupsky and Solomon, plaintiff submitted an unaffirmed report, dated May 16, 2003, from psychiatrist, Dr. Valentin Bragin, who recommended further psychotherapy treatment for plaintiff's anxiety following the accident. See id. at Exhibit D. [*2]

Plaintiff submitted affirmed reports from licensed acupuncturist James Leoparti, Dr. Raymond Bartoli, a chiropractor, and Dr. Michael P. Risman, an internist. Dr. Bartoli's report, dated August 25, 2003, stated that plaintiff had cervical and lumbosacral strain/sprain. See id. at Exhibit E. He also stated "claimant is able to work without restrictions. Claimant is able to continue with all activities of daily living without restrictions." Id. The acupuncturist's report, dated August 25, 2003, noted "cervical, lumbosacral, right shoulder and knee sprain and strain, resolved post MVA; Associated acute myofascial pain syndromes, resolved, Associated acute post-traumatic Painful Obstruction (""Bi") Syndrome, resolved." Id. Mr. Leoparti also stated "[f]rom anacupuncture perspective, the patient's prognosis is good, no permanent impairment is suggested and he should be able to return to all previous activity levels." Id. Dr. Risman's report, dated September 5, 2003, noted "trauma to the cervical and lumbar spine with sprain resolved . . . claimant may resume his normal daily living activities." Id.

On May 10, 2006, plaintiff commenced this action, alleging in his bill of particulars the following injuries: annual disc bulge at L5/S1, right knee internal derangement, right shoulder internal derangement, spasms, anxiety, multiple tender trigger points in right trapezius muscles, multiple tender trigger points in right rhomboid muscles, cervical radiculopathy, lumbosacral radiculopathy, post-traumatic headaches, post-traumatic stress disorder, dizziness, fatigue, concentration problems, insomnia, cervicalgia, acute thoracic sprain/strain, and lumbar sprain/strain. See Notice of Motion for Summary Judgment, Exhibit C. He alleged that "all of the above injuries were permanent and continuing in nature." Id.

Plaintiff was deposed on June 19, 2008. At the deposition, plaintiff stated that following the accident he was unable to work for a couple of weeks and was confined to his home for one week. See id. at Exhibit D, pp. 44, 49. Thereafter, he returned to work, but had lesser and lighter duties.[FN2] See id. at Exhibit D, pp. 46. Plaintiff also stated that, presently, he was unable to lift heavy objects. See id. at 45. However, plaintiff admitted that he had not seen a doctor about the alleged injuries since 2003, and he had no present complaints of pain to the parts of the body that were allegedly injured in the accident. See id. at pp. 35, 44. In addition, plaintiff was unable to list any other activities that he did before the accident that he had difficulty doing after the accident. See id. at Exhibit D, pp. 47.

Defendant moved for summary judgment, arguing that plaintiff did not meet the threshold requirement of "serious injury" as defined in Insurance Law § 5102(d). To support her motion, defendant submitted, inter alia, an affirmed medical report from Dr.Anthony Spataro,an orthopedist, who examined plaintiff on October 28, 2008. See id. at Exhibit E. Dr. Spataro reported that plaintiff's injuries from May 12, 2003 "resolved without any permanency." Id. Plaintiff had full range of motion in the cervical spine, lumbar spine, and knees. See id. Defendant also submitted an affirmed medical report from Dr. C. M. Sharma, a neurologist, who examined plaintiff on October 28, 2008. Dr. Sharma reported that plaintiff had a normal neurological examination and that "subjective cervical and lumbar pains [were] resolved." Id. at Exhibit F. Both doctors listed the medical reports they reviewed in connection with the [*3]examination of plaintiff, but they did not comment on the findings contained in the MRI reports of plaintiff's cervical [FN3] and lumbar spines.

DISCUSSION


THE SUMMARY JUDGMENT STANDARD

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986); St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). The motion shall be supported byan affidavit from a person with knowledge of the facts. See CPLR § 3212 (b). "If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposingpapers." De Santis v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991). "Once the movant provides sufficient proof, the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact." D & R Medical Supply, Inc. v. Clarendon Nat. Ins., 22 Misc 3d 1127(A), 881 NYS2d 362 (Civ. Ct. Kings County 2009).

INSURANCE LAW § 5102(d)

Plaintiff cannot bring suit for personal injuries arising out of a motor vehicle accident

except in the case of a "serious injury." See Insurance Law § 5104.

"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Insurance Law § 5102(d). The law is intended to "weed out frivolous claims and limit recovery to significant injuries." Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 746 NYS2d 865 (2002) (quoting Dufel v. Green, 84 NY2d 795, 622 NYS2d 900 (1995)). See also Pinkhasov v. Olivieri, 12 Misc 3d 1166(A), 820 NYS2d 845 (Sup. Ct. Kings County 2006); Vidal v. Maldonado, 23 Misc 3d 186, 873 NYS2d 842 (Sup. Ct. Bronx County 2008). Thus, objective proof of plaintiff's injury is required in order to satisfy the statutory serious injury threshold; subjective complaints alone are insufficient. See Toure, 98 NY2d at 350; Licari v. Elliott, 57 NY2d 230, 455 NYS2d 570 (1982); Kivlan v. Acevedo, 17 AD3d 321, 792 NYS2d 573 (2d Dept. [*4]2005) ("[I]t is well settled that even medical opinions based upon subjective complaints of pain or headaches are insufficient to establish "serious injury."); Cortez v. Manhattan Bible Church, 14 AD3d 466, 789 NYS2d 117 (1st Dept. 2005); Grasso v. Raymond, 8 Misc 3d 1003(A), 801 NYS2d 777 (Sup. Ct. Suffolk County 2005) ("[M]ere subjective complaints of pain alone, as well as medical opinions clearly based upon such complaints, are insufficient to raise a triable issue of fact."); Moreno v. Elrac, Inc., 6 Misc 3d 1039(A), 800 NYS2d 350 (Civ. Ct. Kings County 2005).

Defendant has the initial burden to establish that plaintiff's injuries are not serious. See Alvarez,68 NY2d at 324. Here, the affirmations from its medical experts are sufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). See Dufel v. Green, 84 NY2d 795, 622 NYS2d 900 (1995) ("[w]hether a limitation of use or function is significant' or consequential' . . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part."); Toure, 98 NY2d at 350-1 ("In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury . . . . An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system."); Kearse v. NYC Tr. Auth., 16 AD3d 45, 789 NYS2d 281 (2d Dept. 2005); Benak v. Ahmed, 23 Misc 3d 1107(A); 2009 NY Slip Op 50615(U) (Civ. Ct. Kings County 2009).

Plaintiff, however, contends that defendant did not meet its burden. "[H]e relies primarily on the fact that the defendant's examining physicians both noted that they reviewed the reports of the MRIs of h[is] cervical and lumbar spines, yet neither addressed the findings contained in [those] reports, that is, the disc herniation and disc bulge." Kearse, 16 AD3d at 48-9. Plaintiff also relies upon the Court's decision in Chaplin v. Taylor, 273 AD2d 188, 708 NYS2d 465 (2d Dept. 2000).

Th[is] case[] impl[ies] that the mere existence of a disc bulge or herniation is sufficient to establish that the plaintiff may have sustained a serious injury. This is not a correct statement of the law because it eliminates the requirement that, to constitute a serious injury, a disc bulge or herniation must be accompanied by objective evidence of the extent of alleged physical limitations resulting from the disc injury.

Kearse, 16 AD3d at 49. See also Sutton v. Yener, 2009 NY Slip Op. 6247 (2d Dept. 2009). Considering that defendant's medical experts [FN4] determined that plaintiff had full range of motion [*5]and a lack of disabilities causally related to the accident, it is of no consequence that defendant failed to address the findings in the MRI reports. See Kearse, 16 AD3d at 50.

Furthermore, while a disc herniation or disc bulge may constitute a serious injury within the meaning of the Insurance Law, plaintiff failed to provide objective evidence of the extent, degree, or duration of the alleged physical limitations resulting from his disc injuries. The medical reports that allegedly substantiate these injuries were not considered by this Court because they are not in admissible form. See Maffei v. Santiago, 63 AD3d 1011, __ NYS2d __ (2d Dept. 2009); Caraballo v. Kim, 63 AD3d 976, 882 NYS2d 211 (2d Dept. 2009); Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 (2d Dept. 1992). The affirmed reports that are before the Court state that plaintiff's cervical, lumbar, right shoulder, and knee sprain and strain were resolved. They also state that plaintiff may perform all daily activities, including work.

Finally, plaintiff had an unexplained gap in, or termination of, treatment —- he has not seen a doctor about the injuries he allegedly sustained since 2003. An absence of competent evidence of the claimed course of treatment or a valid explanation for its termination is insufficient to raise an issue as to whether plaintiff sustained a "serious injury." See Gamble v. Triboro Servs. Inc., 14 Misc 3d 138(A), 836 NYS2d 499 (App. Term, 1st Dept. 2007). Likewise, gaps in treatment may require dismissal of the complaint. See Pommells v. Perez, 4 NY3d 566, 797 NYS2d 380 (2005); Vidal v. Maldonado, 23 Misc 3d 186, 873 NYS2d 842 (Sup. Ct. Bronx County 2008) ("When the Court evaluates whether the plaintiff has sustained a serious injury under the categories of "permanent consequential limitation," or "significant limitation," it is appropriate for the court to look at any gaps in plaintiff's treatment, even if there is objective medical proof of the injury."); Delgado v. Bernard, 2009 NY Slip Op. 51041(U)

(Sup. Ct. Bronx County 2009). As plaintiff has not seen a doctor about his injuries since 2003 and there is no objective medical evidence which establishes that he suffered a permanent or significant injury within the meaning of Insurance Law § 5102(d), plaintiff failed to raise a triable issue of fact. Moreover, plaintiff's own testimony declared that he did not meet the 90/180 day category of the statute. See Toure, 98 NY2d at 357; Kivlan, 17 AD3d at 322.

Accordingly, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff has failed to demonstrate that he suffered a "serious injury" as defined in section 5102(d) of the Insurance Law is hereby granted.

This constitutes the decision/order of the Court.

Dated: September 11, 2009_________________________

Genine D. Edwards

J.C.C.

Footnotes


Footnote 1: Plaintiff was involved in two prior car accidents in 1999 and 2002.

Footnote 2: Plaintiff also stated that before the accident he worked twelve to fourteen hours a day but after the accident he worked eight, sometimes ten hours. See id. at Exhibit D, pp. 46-7. The Court notes that the acupuncturist's report states that plaintiff was unemployed at the time of the accident. See Affirmation in Opposition to Motion for Summary Judgment, Exhibit E.

Footnote 3: Though both of the medical reports from the defendant's doctors listed that they reviewed the MRI report of the cervical spine, neither plaintiff or defendant annexed the report to their respective motions.

Footnote 4: Plaintiff also claims that defendant's medical expert, Dr. Spataro, did not compare his results to the correct normalrange of motion for the cervical and lumbar spines. He relies upon the Court's decision in Joseph v. Hummel, 21 Misc 3d 1105(A), 873 NYS2d 234 (Sup. Ct. Queens County 2008) to establish the correct normal range of motion for these spines. That case, however, does not support plaintiff's argument. In Joseph v. Hummel, the defendants' two medical experts stated different normal range of motion for the cervical spine and for the lumbar spine. The Court found that the "disparate opinions offered by the defendants' physicians as to what constitutes normal range of motion is fatal to the defendants' attempt to establish, prima facie, that the plaintiff's injuries were not "serious" within the meaning of the Insurance Law." Id. Since the Court in Joseph v. Hummel did not accept the medical experts' opinions as to what normal range of motion is, this Court declines to accept them.