The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 28-43, 46-47 Answering Papers 53-57 Reply 58 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Defendant Cutrone moves for summary judgment dismissal of the plaintiff’s bodily injury claims pursuant to CPLR 3212, maintaining that the alleged injuries sustained do not rise to the level of “serious injury” under any of the categories claimed by plaintiff.1 After review and consideration of the submitted papers, defendant’s summary judgment motion concerning plaintiffs bodily injury claims is granted. Plaintiff claims to have suffered injuries to her right hip, bilateral shoulders, cervical spine, and lumbar spine as the result of a motor vehicle accident that occurred on May 1, 2017. Plaintiff’s vehicle was struck in the rear by Gropper-Hau’s vehicle, only after it was propelled into plaintiff’s vehicle by defendant Cutrone’s vehicle. Plaintiff alleges that she suffered various bulging and herniated discs, pain, cervical radiculopathy, lumbago, headaches, nausea, and dizziness. Plaintiff specifically claims that she sustained a serious injury as defined in Insurance Law 5102 (d), under the following statutory categories of injury: 1) permanent loss of use of a body organ, member, function or system; 2) permanent consequential limitation of a body organ or member; 3) significant limitation of use of a body function or system, and 4) a medically determined injury or impairment of a non-permanent nature which prevented plaintiff from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (90/180 claim). As a proponent of the summary judgment motion, the defendant herein has the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the categories of injury claimed in the Bill of Particulars (see Toure v. Avis Rent a Car Sys., 98 NY2d 345, 352 [2002]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). A defendant can satisfy the initial burden by relying on the sworn statements of defendant’s examining physician and plaintiff’s sworn testimony, or by the affirmed reports of plaintiff’s own examining physicians (Pagano v. Kingsbury, 182 AD2d 268, 270 [2d Dept 1992]). A defendant can demonstrate that plaintiff’s own medical evidence does not indicate that plaintiff suffered a serious injury and that the alleged injuries were not, in any event, causally related to the accident (Franchini v. Palmieri, 1 NY3d 536, 537 [2003]). Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part (Browdame v. Candura, 25 AD3d 747, 748 [2d Dept 2006]). The Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (Little v. Locoh, 71 AD3d 837 [2d Dept 2010]; Furrs v. Griffith, 43 AD3d 389 [2d Dept 2007]; Mejia v. DeRose, 35 AD3d 407 [2d Dept 2006]). Thus, regardless of an interpretation of an MRI study, plaintiff must still exhibit physical limitations to sustain a claim of serious injury within the meaning of the Insurance Law. Furthermore, to qualify as a serious injury within the meaning of the statute, “permanent loss of use” must be total (Oberly v. Bangs Ambulance Inc., 96 NY2d 295, 299 [2001]). Here, defendant has made a prima facie showing that plaintiff did not sustain any injuries under any of the categories claimed in her Bill/Supplemental Bills of Particulars by submitting for the Court’s consideration the pleadings, the affirmed reports of Craig B. Ordway, M.D. and Jonathan Lerner, M.D., and plaintiff’s own deposition transcript. The Court notes that plaintiff’s original Bill of Particulars dated March 2, 2018 states that plaintiff was not confined to bed or to her home, and that she was not either totally or partially disabled. In a Supplemental Bill dated April 24, 2019, plaintiff claims that she was confined to bed for one week. Dr. Ordway, defendant’s examining orthopedic surgeon, examined the plaintiff on June 5, 2019. At that time, the plaintiff was forty-seven (47) years old. Based upon his affirmed report, he reviewed various records, including chiropractic records, hospital records and radiological imaging reports concerning plaintiff’s cervical and lumbosacral spine areas. Range of motion was measured with a goniometer, and the values obtained were compared to normal values as per the American Medical Association’s “Guides to the Evaluation of Permanent Impairment, 5th Edition.” All of the areas of plaintiffs cervical and mid and lower back areas, as well as plaintiff’s shoulders and hips, yielded normal ranges of motion, without spasm. Dr. Ordway also observed that plaintiff’s deep tendon reflexes in the upper and lower extremities were normal; there was no sensory loss, and no weakness or atrophy of any muscle group. Dr. Ordway’s diagnosis and evaluation is that “there is no evidence of any permanent impairment of function secondary to a traumatic injury to the cervical or lumbar levels of the spine, both shoulders, or the right hip. Any possible sequelae to such an injury have fully resolved. There is no evidence of any impairment having existed over an extended period of time in the past. The claimant has concluded her need for any further treatment with regards to the 05/01/17 incident.” Since plaintiff did not exhibit any physical limitations during the independent orthopedic examination, there is no evidence of a serious injury in the categories of permanent loss of use, permanent consequential limitation of use, or significant limitation of use provided for by Insurance Law §5102 (d) regardless of any alleged bulging or herniated discs (Little, supra). Moreover, Dr. Lerner’s radiological review demonstrates that the plaintiff suffers from degenerative disc disease rather than from any acute injury. Dr. Lerner reviewed x-rays and the MRI study of plaintiff’s cervical spine, as well as an MRI study of plaintiff’s lumbar spine. The lumbar spine study was performed on September 13, 2017 and the cervical spine radiological studies were performed on October 19, 2017. Concerning the x-rays of the cervical spine, Dr. Lerner saw no evidence of fracture, subluxation or prevertebral soft tissue swelling, and nothing in those x-rays revealed a causal relationship between the subject motor vehicle accident and the findings upon x-ray. Dr. Lerner did note that the reversal of the normal cervical lordosis seen upon x-ray is not attributable to the subject accident, but to a number of factors including poor neck posture and working on a computer for long periods. Dr. Lerner also noted loss of intervertebral disc space at C4-C5, with associated endplate sclerosis consistent with degenerative disc disease, According to Dr. Lerner, the cervical spine MRI likewise produced results consistent with degenerative disc disease, and suggestive of a chronic degenerative process as opposed to an acute traumatic event. Dr. Lerner states in his report that the MRI examination “reveals no causal relationship between the claimant’s alleged accident and the findings on this MRI examination.” Dr. Lerner interpreted the lumbar spine MRI as demonstrating “mild diffuse disc bulge and bilateral facet osteoarthritis” at L5-S1, and “desiccation of the L5-S1 intervertebral disc space level, which is consistent with degenerative disc disease and suggestive of a chronic degenerative process as opposed to an acute traumatic event.” Dr. Lerner concluded that there was no causal relationship between the subject accident and the lumbar spine MRI findings. Defendant has also established his prima facie entitlement to summary judgment as to plaintiffs 90/180 claim by submitting plaintiff’s deposition testimony (Kuperberg v. Montalbano, 72 AD3d 903 [2d Dept 2010]; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept 2008]). Immediately after the accident, plaintiff was able to get out of her car and then move it to the right side of the roadway. When police arrived on the scene, plaintiff requested an ambulance since she was experiencing neck and back pain. She was transported to a local hospital where she was treated and released after a few hours. Plaintiff thought that hospital personnel may have x-rayed her, but she was not sure, nor did she know/remember if she was given a prescription for any type of medication. Plaintiff testified that she was not bleeding, nor did she experience bruising or a loss of consciousness as a result of the accident, and the airbags in her vehicle did not deploy. Plaintiff had her car repaired, and she still had the car as of the date of her 2019 deposition. Plaintiff did not know if she took any pain medication, including over-the-counter medication, on the evening of the accident, after she arrived home from the hospital. At the time of the accident, plaintiff was not employed, and she testified that she could not recall when she called a doctor in relation to the occurrence of the subject accident.2 She testified that she followed up with her primary care physician in the days following the accident, seeing that doctor once. Plaintiff did not remember telling the primary care physician that she was involved in an accident, and she did not recall what the doctor may have done for her during that visit. After seeing her primary care physician once, plaintiff sought treatment for neck and back pain from a chiropractor, Dr. Nazar, “within weeks” of the subject accident. Plaintiff had never previously sought treatment from Dr. Nazar. Plaintiff stated that her primary care physician did not recommend Dr. Nazar to her, but that she may have “Googled” and found Dr. Nazar. When asked how long she treated with Dr. Nazar, plaintiff testified, “several months,” with that treatment ending in December 2017. Plaintiff stated that she stopped treating with Dr. Nazar because “I was feeling better, a little better. And then it didn’t, you know, help. But I just didn’t like — I didn’t go back to the chiropractor.” While she treated with Dr. Nazar, plaintiff testified that she saw him twice a week. Dr. Nazar did not recommend any injections, surgery, or physical therapy for plaintiff; however, he did send her for MRI studies of her neck and back. One of the other chiropractors in Dr. Nazar’s practice reviewed the results of the MRIs with plaintiff in 2017, and plaintiff testified that the terms “degeneration” or “degenerative” “sound[ed] familiar.” Plaintiff attended physical therapy of her own volition beginning in March 2018. She testified that she was not referred to physical therapy by Dr. Nazar; rather, she wanted to go, so she again “Googled” and found physical therapy near her home. When asked when she last treated with a physical therapist, the plaintiff testified that it may have been approximately three months after she started. When she attended physical therapy, plaintiff stated that she went once or twice per week for the three months. According to plaintiffs own testimony, she did not seek any medical treatment for the injuries that she allegedly sustained as a result of the subject accident from the time that she stopped treating with Dr. Nazar in December 2017 until she attended physical therapy of her own volition commencing in March 2018. Further according to her testimony, the physical therapy was paid for by the medical insurance that she had at the time. Plaintiff stated that she presented to Brookhaven Hospital in the fall of 2018 because she had neck pain. There, she was treated and released several hours later with a prescription for pain medication. Other than that, plaintiff did not recall if any diagnostic testing was performed upon this visit. This was the only time that she presented to an emergency room for pain, and after this hospital visit, the plaintiff did not seek any further medical attention from either her primary care physician, or from Dr. Nazar. The plaintiff also testified about an injury to her neck that she suffered in 2004 when she worked for Southampton Care Center as a recreational aide. As a result of that injury, plaintiff filed a workers’ compensation claim and she missed two to three weeks of work. As of the date of her deposition on January 28, 2019, plaintiff testified that she had no future appointments to sec any doctors related to injuries that she claims to have sustained as a result of the subject accident. Plaintiff testified that she does physical therapy exercises when she experiences pain, and that she became employed as a program manager for the Head Injuries Association approximately one month before her deposition. According to her testimony, her job is administrative/”a desk job.” Plaintiff has not missed any time from work at her new job as a result of the subject accident, nor has she had any limitations in her new job. Plaintiff testified that she was confined to bed for one week immediately after the subject accident, which stands in contrast to her original Bill of Particulars staling that she was not confined to bed. Plaintiff further testified that she was not confined to home at any time after the subject accident, and there is nothing that she was able to do before the accident that she can no longer do. In terms of activities that she could do without difficulty prior to the accident, but now has difficulty doing, plaintiff testified that she has difficulty exercising, particularly Zumba (dance exercise class) and spin, lifting anything over twenty-five (25) pounds, and she has difficulty in sleeping in certain positions. Plaintiff acknowledged that no doctor told her that she could not exercise, and no medical provider advised her to buy an orthopedic pillow to help her to sleep, nor was she ever provided with a neck collar, brace, crutches, cane, or topical pain creams/ointments. In terms of her gym membership, plaintiff testified that she did not know if she used the gym after the subject accident, but that the membership stopped some time after the accident. In August 2017, approximately three months after the subject accident, plaintiff flew by airplane to South Carolina to visit relatives, without the need for any special accommodations by the airport/airline. Plaintiff visited there for one week, and in August 2018 plaintiff flew to West Palm Beach for vacation with her son, again without any special accommodations. Plaintiff took her son to theme parks, and although she testified that she did not go on any rides, she stated that she relaxed and did some sightseeing while accompanying her son to the theme parks. Plaintiff’s own deposition testimony is insufficient to demonstrate that she was prevented from performing substantially all of her customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (Omar v. Goodman, 295 AD2d 413 [2d Dept 2002]; Lauretta v. County of Suffolk, 273 AD2d 204 [2d Dept 2000]). Plaintiff is now required to come forward with viable, valid objective evidence to verify her complaints of pain, permanent injury, and incapacity (Farozes v. Kamran, 22 AD3d 458 [2d Dept 2005]). In opposition, plaintiff submits, inter alia, a final narrative report from Dr. Nazar, some medical records from Dr. Nazar, and MRI reports concerning plaintiffs cervical and lumbar spine; however, these submissions fail to raise a triable issue of fact warranting a trial of this matter. The cervical spine MRI report utterly fails to attribute any of the findings stated therein to the subject accident. Moreover, the report states that there “is no acute compression fracture, marrow edema, bone bruise,” but there is desiccation at C4-5. As with the cervical spine MRI report, the lumbar spine MRI report states that there is no evidence of fracture, bone bruise, marrow edema, or contusion; however, at 5 S1, “[t]here is disc desiccation and normal disc height. There is mild bulge and endplate spur. There are degenerative changes of the facet joints. There is no significant canal or foraminal stenosis. The visualized sacrum and presacral fat are within normal limits. The visualized paraspinal soft tissues are unremarkable. IMPRESSION: Mild noncompressive disc bulge and endplate hypertrophy without significant stenosis or impingement L5-S1.” Dr. Nazar’s sworn statement/final narrative report is dated January 6, 2021, apparently reflecting an examination conducted on December 4, 2020. Although the medical records contained in plaintiffs Exhibit 4 include the radiological reports noting the aforementioned degenerative changes and desiccation, Dr. Nazar completely fails to address these findings, let alone distinguish these findings of a pre-existing condition from the injuries allegedly sustained as a result of the subject accident. Thus, plaintiff has failed to sustain her burden to come forward with evidence addressing the defendant’s claimed lack of causation (Pommels, supra at 580). Accordingly, plaintiff has failed to establish any causal connection of the claimed injuries to the subject accident. Dr. Nazar’s narrative report also fails to set forth the source of his “normal values” for range of motion contained therein; therefore, his range of motion findings lack an objective basis and will not be considered by this Court (Toure, supra). Dr. Nazar’s report also states that, “patient has been in treatment with chiropractic care since 05/05/2017 at three times a week and the patient has progressively been reduced to 1-2 a month.” This statement implying that plaintiff has continuously treated with Dr. Nazar is in stark contrast to plaintiff’s own testimony that she stopped treating with Dr. Nazar’s office in December 2017, and that at the time of her deposition, she had no future doctor appointments related to the subject accident. Moreover, the last treatment report submitted as part of the treatment records (Plaintiffs Exhibit 4) is dated October 20, 2017. Glaringly absent from Dr. Nazar’s narrative report is any explanation for plaintiff’s first gap in treatment from on or about December 2017 to March 2018, when she determined of her own volition to attend physical therapy, or for her second gap in treatment from December 2017 until December 4,2020, when she was re-examined by Dr. Nazar. This second gap in treatment of three years is, on its own, fatal to plaintiffs opposition (Pommels v. Perez, 4 NY3d 566, 574 [2005]; Ayala v. Katsionis, 67 AD3d 836 [2d Dept 2009]; Caracci v. Miller, 34 AD3d 515 [2d Dept 2006]; Marshall v. Albano, 182 AD2d 614 [2d Dept 1992]). Dr. Nazar’s belated statement in his December 4, 2020 report that “a point of maximum medical improvement has been established” is just that, belated, unsupported by the treatment records, and therefore, designed to create a feigned issue of fact. Since plaintiff did not seek treatment from Dr. Nazar or any other medical professional for three years or more after she last saw Dr. Nazar, other than her own self-prescribed physical therapy regimen, Dr. Nazar’s claim that “[s]he will need future treatment on a once a month basis for the remainder of her life” is completely undermined and rendered speculative. His estimate for the cost of such treatment is also utterly irrelevant to the instant motion. Furthermore, Dr. Nazar’s report states that, “Tashara was a supervisor at United Cerebral Palsy at time of accident. Job description included lifting of patients, and since the accident she is unable to lift patients, so she had to resign. At present is working as a realtor.” The Court credits plaintiffs own deposition testimony concerning employment, since plaintiff presumably was well aware of her employment situation at the time of the accident; therefore, it appears that Dr. Nazar’s report is completely mistaken in this regard. This error is significant because it ostensibly bears upon Dr. Nazar’s impression in terms of how the subject accident allegedly affected the plaintiff’s physical/working abilities. The fact of the matter, according to the plaintiff herself, is that she was not employed at the time of the accident due to a pulmonary embolism, and she did not have to resign from any job because she could not lift patients; plaintiff obtained employment at the Head Injuries Association performing administrative duties after the subject accident. Furthermore, there is no evidence that the plaintiff is working as a realtor. The totality of these errors also call into question the reliability of Dr. Nazar’s report, in that he may mistakenly be referring to a different patient. There are no notations in the compiled records contained in plaintiffs Exhibit 4 restricting plaintiffs daily activities; therefore, Dr. Nazar’s current statement that “Ms. Henderson has been advised to avoid or restrict any and all heavy lifting above 5 pounds, to avoid prolonged over-head extension of her arms…” is completely unsupported by the treatment records. The plaintiff herself testified that she is unable to lift anything more than 25 pounds, five times more than Dr. Nazar states in his report. Finally, the Court notes that the plaintiff does not specifically oppose dismissal of her 90/180 claim by discussing any particular evidence tending to demonstrate that she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the subject accident. Based upon the foregoing, this Court determines that plaintiff’s opposition has failed to raise a triable issue of fact sufficient to defeat defendant’s summary judgment motion. Accordingly, defendant’s motion is granted, and the complaint is dismissed. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION IX] NON.FINAL DISPOSITION [ ] Dated: April 9, 2021
