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Bicyclist Fails to Raise Triable Issues of Fact He Sustained 'Serious Injury' Under §5102(d)

Crush Boone, Plaintiff v. Elizabeth Taxi, Inc. and Kamrul H. Sheikh, Defendants, 101509/11

Supreme Court, New York County, Part 22

Insurance Law

New York Law Journal

March 19, 2013

Cite as: Boone v. Taxi, 101509/11, NYLJ 1202592265690, at *1 (Sup., NY, Decided February 27, 2013)

Justice Arlene P. Bluth

Decided: February 27, 2013

DECISION/ORDER

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Defendants' motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §5012(d) is granted, and the action is dismissed.

In this action, plaintiff alleges that on May 22, 2010 he sustained personal injuries while riding his bicycle at the intersection of East 14th Street and Broadway when he was struck by a vehicle owned by defendant Elizabeth Taxi, Inc. and driven by defendant Sheikh. In support of their motion, defendants claim that plaintiff did not sustain a permanent loss of use of a body organ, member, function or system as alleged in his bill of particulars, or alternatively, that even if his injury was serious, it resulted from a pre-existing degenerative condition and not from the subject accident.

To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a "serious injury" (see Rodriguez v. Goldstein, 182 AD2d 396 [1992]). Such evidence includes "affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Shinn v. Catanzaro, 1 AD3d 195, 197 [1st Dept 2003], quoting Grossman v. Wright, 268 AD2d 79, 84 [1st Dept 2000]). Where there is objective

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proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiff's injury was caused by a pre-existing condition and not the accident (Farrington v. Go On Time Car Serv., 76 AD3d 818 [1st Dept 2010], citing Pommells v. Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v. Mahlah, 2009 NY Slip Op 43 [1st Dept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiff's own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id.).

Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 AD3d at 197). A plaintiff's expert may provide a qualitative assessment that has an objective basis and compares plaintiff's limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiff's loss of range of motion (Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiff's expert must address causation (see Valentin v. Pomilla, 59 AD3d 184 [1st Dept 2009]; Style v. Joseph, 32 AD3d 212, 214 [1st Dept 2006]).

In the verified bill of particulars it is alleged that plaintiff sustained the following personal injuries: central disc protrusion C2-C3; broad-based disc protrusion deforming the

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ventral thecal sac at C3-C4; broad-based bulge at C4-C5; central and left paracentral disc protrusion measuring 3-4mm at C5-C6 with ventral cord deformity and compression (para. 11). The cervical spine injuries are the only injuries specifically identified by plaintiff in the bill.1

In support of their motion, defendants submit the affirmed report of Dr. Ravi Tikoo (exh D to moving papers), a neurologist, who examined plaintiff on December 23, 2011 and found that plaintiff had normal range of motion of his cervical and lumbar spine. Dr. Tikoo noted that despite plaintiff's subjective complaints, he found no objective findings to substantiate those complaints. Dr. Tikoo concluded that plaintiff's history of cervical sprain, lumbosacral sprain and soft tissue injury of the right wrist had all resolved, that he was not disabled from a neurological basis and he had no permanent injury.

In further support, defendants submit the affirmed report of an orthopedist, Dr. Israel (exh E to moving papers) who examined plaintiff on January 25, 2012 and found normal range of motion in the cervical and lumbar spine, and in both plaintiff's wrists. Additionally, he noted that all other tests he administered yielded negative results, and that there was no permanency.

Additionally, defendants submit the report of Dr. Mark Decker, the radiologist who reviewed various films that plaintiff had taken at IDF Medical Diagnostic Imaging in the weeks following the accident. Specifically, Dr. Decker reviewed plaintiff's June 8, 2010 cervical spine MRI, plaintiff's June 28, 2010 lumbar spine MRI films and plaintiff's July 1, 2010 left wrist MRI film. In his reports (exh F collectively), Dr. Decker noted degenerative disc disease at C3-4 through C5-6, and central disc osteophyte complex at C2-3 and C4-5 consistent with longstanding process and not causally related to the subject accident. He also noted degenerative

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disease in several locations of plaintiff's lumbar spine, and found that this was associated with chronic disc disease and not causally related to the subject accident. In his review of plaintiff's left wrist MRI film, Dr. Decker stated as his impression "(m)arkedly limited study demonstrating marrow edema throughout the waist of the scaphoid. This can be seen with contusion or subtle nondisplaced fracture."

Finally, defendants indicate that plaintiff stated that he was confined to his home for less than two months (verified bill of particulars, para. 13, exh C) and testified at his deposition that he was confined to his bed/home for one month after the accident (T at 77-78, exh G). As such, defendants contend that plaintiff has not demonstrated that he was unable to perform his usual and customary activities for a minimum of 90 days out of the 180 days after the accident.

This Court finds that defendants have made a prima facie showing of entitlement to summary judgment as to plaintiff's claims of permanent injury to his lumbar spine, cervical spine and left wrist, and his 90/180 claim; the burden shifted to plaintiff to rebut defendants' showing.

In opposition, plaintiff did not submit any medical evidence disputing Dr. Decker's findings of degenerative disc disease in plaintiff's cervical and lumbar spine which were not causally related to the accident; as such, plaintiff failed to raise any issue of fact on either of these claims.

Plaintiff's counsel tries to raise an issue of fact by asserting that plaintiff sustained a left wrist fracture. First, he refers to a certified copy of Bellevue Emergency Department report from the day of the accident (exh A to opp). In the findings section of the x-ray of plaintiff's left wrist, Dr. Kim concurred with the resident's preliminary report noting "(t)here are two tiny ossific fragments adjacent to the dorsal aspect of the triquetrum which may represent fracture fragments". While the Bellevue doctors speculated that plaintiff might have a fracture, neither

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definitively stated that there was a fracture in the left wrist. In fact, in the verified bill of particulars, it was admitted that those x-rays were "apparently negative" (para. 11). In the reply, defendants submit plaintiff's own radiologists's left wrist MRI report wherein Dr. Boyle, the doctor from IDF Medical Diagnostic Imaging, found "(t)he visualized osseous structures demonstrate normal signal characteristics" and he failed to diagnose any fracture (reply, exh A). Accordingly, plaintiff's reliance on the Bellevue x-rays to demonstrate an issue of fact is misplaced as the Bellevue doctors never found a fracture.

Plaintiff's counsel also refers to Dr. Decker's report (aff. in opp., paras. 8-11) submitted by defendants (exh F to moving papers) to show that plaintiff sustained a left wrist fracture. In his July 18, 2011 radiological review, Dr. Decker noted that the IDF MRI was of "significant poor quality" and stated that edema he observed "can be seen with contusion or a subtle nondisplaced fracture". Plaintiff's counsel argues that by using this phrasing, Dr. Decker implied that he saw a fracture. The Court disagrees; Dr. Decker's equivocal observation based on a film that he found to be of poor quality is insufficient to establish an issue of fact as to whether plaintiff sustained a fracture. See Brackenbury v. Franklin, 939 NYS2d 63, 64 (1st Dept 2012) ("no fracture was diagnosed by his doctor contemporaneous with the accident, and the doctor's equivocal observation of a "[p]robable healed fracture" in an X ray taken a year and a half after the accident is insufficient" [citations omitted]). In fact, no doctor ever concluded that plaintiff sustained a left wrist fracture.

Additionally, plaintiff submits the August 28, 2012 report of Dr. Steve Sharon, a radiologist, who reviewed the 5/22/10 Bellevue x-rays and the 7/1/10 IDF MRI of plaintiff's left wrist to rebut defendants' showing. However, Dr. Sharon's report (exh B to opp), made two weeks after defendants served the instant motion, is not in proper form, and cannot be considered

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by the Court. On pages 1 and 2, Dr. Sharon "affirms under the penalties of perjury"; nowhere does he state that he affirms his findings to be true under the penalties of perjury, or to be true pursuant to CPLR 2106. Accordingly, his report cannot be considered here. See Magro v. He Yin Huang, 8 AD3d 245, 777 NYS2d 318 (2d Dept 2004) (doctor's statement which was not sworn to nor affirmed to be true under penalties of perjury is not in admissible form). Even if this Court were to consider Dr. Sharon's report, he did not affirmatively state that plaintiff sustained a fractured wrist, only that "fracture to the left scaphoid suspected". This suspicion is not sufficient to rebut defendants' prima facie showing.

Finally, plaintiff submits the affirmed report of Dr. Joseph Cole, a neurosurgeon, who examined plaintiff on behalf of the no-fault carrier on September 14, 2010, less than four months after the accident (exh C to opp). Dr. Cole found that plaintiff had full range of motion in his cervical spine, only a slight decrease in lumbar flexion, a full range of motion in his left wrist, and that the results of the objective tests were negative There is nothing in Dr. Cole's report to refute defendants' prima facie showing that plaintiff failed to meet the serious injury threshold2.

As noted in defendants' reply, plaintiff's opposition papers failed to raise a triable issue of fact. Specifically, plaintiff failed to address defendants' doctor's findings of degenerative changes in the lumbar and cervical spine (see Rose v. Mejia, 95 AD3d 402, 404, 943 NYS2d 470 (1st Dept 2012). Plaintiff failed to offer any evidence in his opposition papers to rebut defendants' prima facie showing (based on the bill of particulars and plaintiff's deposition testimony) with respect to his 90/180 claim. Plaintiff failed to submit any admissible proof that

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he sustained a left wrist fracture. Indeed, plaintiff submitted only his emergency room records and a no-fault examination report dated September 14, 2010, and failed to offer any report of a recent examination, or any treatment whatsoever, after the emergency room on the day of the accident. Accordingly, it is

ORDERED that defendants' motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §5012(d) is granted and the complaint is dismissed in its entirety; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that defendants are directed to serve a copy of the order with notice of entry on the Trial Support Office and on plaintiff within 20 days.

This is the Decision and Order of the Court.

1. In paragraph 20 of the bill of particulars, plaintiff merely recited the language of Insurance Law §5102(d), without specifying his injuries.

2. To the extent that plaintiff claims that Dr. Cole found a disability related to plaintiff's left shoulder, such injury was not alleged in the bill of particulars. Nor can a doctor's gratuitous recommendation to "take it easy" four months after the accident constitute a finding of permanency

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