[*1]
Rajan v Chance
2011 NY Slip Op 51402(U) [32 Misc 3d 1224(A)]
Decided on July 28, 2011
Supreme Court, Richmond County
Maltese, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2011
Supreme Court, Richmond County


Jijo M. Rajan, Plaintiff

against

Grace A. Chance, and JACQUELINE M. CHANCE, Defendants




104899/08



Plaintiff is represented by the Law Offices of William Pager. Defendants are represented by Kay & Gray.

Joseph J. Maltese, J.



The defendants, Grace A. Chance and Jacqueline M. Chance, move for an order granting summary judgment pursuant to CPLR § 3212 and Insurance Law § 5102(d), alleging that the plaintiff did not sustain a "serious injury" as that term is defined in the statute. The defendants' motion is denied.



Facts

This is an action for damages for injuries allegedly sustained by the plaintiff in a motor vehicle accident on May 26, 2011. The plaintiff's vehicle collided with a vehicle owned by defendant Grace A. Chance and operated by co-defendant Jacqueline M. Chance. In his bill of particulars, the plaintiff claims that he sustained the following injuries: "[d]isc bulge at C4-C5 impressing on the anterior thecal sac; acute sprain of the left ankle; acute trapezius muscle/paraspinal muscle strain; acute cervical, thoracic, and lumbosacral musculo-ligamentous strain; acute traumatic ridiculous; acute posttraumatic lumbar myofacitis; bruise of the anterior chest wall, lumbar, thoracic and cervical joint dysfunction; right shoulder sprain; acute lumbar muscle spasm; posttraumatic cervical, thoracic and lumbar radiculopathy."

In support of the motion for summary judgment, the defendants have submitted: the affirmed reports of Alan Zimmerman, M..D. and the transcripts of the examination before trial of plaintiff Jijo M. Rajan. Dr. Zimmerman states in his report that the plaintiff's range of motion is normal, as compared with the norms used in the independent medical examination ("IME"). Dr. Zimmerman's report also states that the disc bulges in the plaintiff's cervical spine are the result of a degenerative condition, and therefore is not causally related to the accident. [*2]

In opposition to the motion for summary judgment, the plaintiff has submitted: the affirmed report of Conrad Williams, M.D, the affidavit of the plaintiff Jijo M. Rajan and the plaintiff's hospital and medical records. Dr. Williams states in his report that the plaintiff's MRI report indicates that he had a bulging disc at C4-C5 as of August 11, 2008. The report also states that the plaintiff was examined by Alexander Y. Mostovoy, DC, a chiropractor, who observed that the plaintiff had a limited range of motion in the plaintiff's cervical and lumbar spine. Dr. Williams' report states that the plaintiff's final evaluation on June 3, 2011 revealed a limited range of motion of the lumbar spine. The plaintiff's final diagnoses were "chronic/recurrent lumbar strain, cervical strain, and strain of the left ankle." Dr. Williams's report also states that, to a reasonable degree of medical certainty, the injuries were from the accident.

The plaintiff notes in his affirmation in opposition that Dr. Zimmerman's IME compared the plaintiff's range of motion to a range of norms rather than to one normal value. For example, Dr. Zimmerman considered normal flexion of the cervical spine to include all values from forty-five to sixty degrees, while Dr. Williams applied sixty degrees as the norm. The plaintiff also asserts that the IME did not properly report the results of the straight leg raising test or compare the results to a settled norm.



Discussion

"Only in the event of serious injury' as defined in the statute, can a person initiate suit against the car owner or driver for damages caused by the accident."[FN1] Under Insurance Law § 5102(d), a "serious injury" is 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."[FN2]

The determination of whether an injury involves significant limitation "can itself be a complex, fact-laden determination."[FN3] Specific numeric measurements of range of motion may be [*3]used to prove significant limitation.[FN4] However, an expert's measurements of the plaintiff's loss of range of motion must be compared to norms.[FN5] The straight leg raise test has been accepted as objective evidence of significant limitation.[FN6] Qualitative findings are also admissible when they are based on objective measurements such as X-rays or MRIs,[FN7] and the expert "compares the plaintiff"s limitations to the normal function, purpose and use of the affected body organ, member, function or system." [FN8] The expert's opinion may not be "based solely on the plaintiff's subjective complaints."[FN9]

Once a defendant submits evidence that the plaintiff's injury does not qualify as a "serious injury," the burden shifts to the plaintiff to produce evidence of a serious injury causally related to the accident.[FN10] If the plaintiff meets this burden and demonstrates that a genuine issue of fact exists, summary judgment is not appropriate.[FN11]

Here, the defendants have produced evidence that the plaintiff's injuries did not cause significant limitation. Dr. Zimmerman based his report upon objective measures such as range of motion tests and an MRI report. However, the IME compared the loss of range of motion to a range of norms, rather than to one norm, for the range of motion in the cervical spine. Additionally, the IME report asserts that the plaintiff's bulging discs are due to a degenerative condition, but he does not state the basis for this determination.

Regardless of whether the defendants met their burden, the plaintiff has successfully rebutted the defendants' evidence. In opposition to the motion for summary judgment, the plaintiff has submitted an affirmed report of Conrad Williams, M.D. which states that, to a reasonable degree of medical certainty, the injuries are causally related "from the accident." Dr. Williams' evaluation was based upon MRIs and range of motion tests that compared the [*4]plaintiff's range of motion to norms. Thus, issues of fact exist as to the extent of the plaintiff's injuries.

Conclusion

Under CPLR § 3212 (b), a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."[FN12] However, "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."[FN13] Evidence must be considered in the light most favorable to the non-moving party.[FN14] Summary judgment is only warranted in a personal injury claim when a plaintiff's injuries are so "minor, mild, or slight as to be considered insignificant under Insurance Law § 5102(d)."[FN15]

Here, when we consider the evidence in the light most favorable to the plaintiff, issues of fact exist as to whether the plaintiff's injuries were serious injuries within the meaning of the statute. Consequently, summary judgment is not appropriate.

Accordingly, it is hereby:

ORDERED, that Defendants Grace A. Chance and Jacqueline M. Chance's motion for summary judgment is denied; and it is further

ORDERED, that the parties shall return to DCM Part 3 for a pre-trial conference on August 30, 2011.

ENTER,



DATED: July 28, 2011__________________________________

Joseph J. Maltese

Justice of the Supreme Court

Footnotes


Footnote 1:Pommells v Perez, 4 NY3d 566, 571 [2005].

Footnote 2:Insurance Law § 5102(d).

Footnote 3:Id.

Footnote 4:Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002]; Dufel v. Green, 84 NY2d 795, 798 [1995].



Footnote 5:Kennedy v Brown, 23 AD3d 625, 626 [2d Dept 2005]; Paulino v Dedios, 24 AD3d 741, 741 [2d Dept 2005].

Footnote 6:Kim v Cohen, 208 Ad2d 807, 807 [1994].

Footnote 7:Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000].

Footnote 8:Toure, 98 NY2d at 350 [2002].

Footnote 9:Grant v Fofana, 10 AD3d 446, 447 [2d Dept 2004]; Kinchler v Cruz, 22 AD3d 808 [2d Dept 2005].

Footnote 10:Pommells, 4 NY3d at 579 [2005].

Footnote 11:Id.

Footnote 12:CPLR § 3212 (b).

Footnote 13:Id.

Footnote 14: Ocasio v Zorbas, 14 AD3d 499, 500 [2d Dept 2005].

Footnote 15:Toure, 98 NY2d at 353.