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Court Denies Summary Judgement dismissing Cyclists Claim

Fabara v Illescas

2013 NY Slip Op 30016(U)

January 7, 2013,Supreme Court, Queens County, Docket Number: 15407/2010

Judge: Robert J. McDonald

P R E S E N T : HON. ROBERT J. MCDONALD

Justice

- - - - - - - - - - - - - - - - - - - x

MANUEL FABARA,

Plaintiff,

- against -

LUIS A. ILLESCAS and KATT CORPORATION,

Defendants.

- - - - - - - - - - - - - - - - - - - x

The following papers numbered 1 to 12 were read on this motion by

defendants, LUIS A. ILLESCAS and KATT CORPORATION, for an order

pursuant to CPLR 3212 granting defendants summary judgment and

dismissing the complaint of MANUEL FABARA on the ground that said

plaintiff did not sustain a serious injury within the meaning of

Insurance Law §§ 5102 and 5104:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits-Memorandum of Law...1 - 5

Affirmation in Opposition-Affidavits-Exhibits............6 - 10

Reply Affirmation.......................................11 - 12

This is a personal injury action in which plaintiff, Manuel

Fabara, seeks to recover damages for injuries he sustained as a

result of a motor vehicle accident that occurred on November 6,

2009 on Broadway at or about its intersection with 47 Street, th

Queens County, New York. At the time of the accident, the

plaintiff was riding his bicycle on Broadway, approximately 75

yards east of the intersection with 47 Street when he was th

struck by the defendants’ taxicab trying to pull into a parking

space owned by Katt Corporation and operated by the defendant

Luis A. Illescas. At the time of the accident defendant Illescas

was driving his vehicle in the scope of his employment with

defendant Katt Corporation.

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The plaintiff commenced this action by filing a summons and

complaint on June 16, 2010. Issue was joined by service of

defendants’ verified answer dated September 28, 2010. Plaintiff

filed a Note of issue and certificate of Readiness on May 17,

2012. Defendants now move for an order pursuant to CPLR 3212(b),

granting summary judgment dismissing the plaintiff’s complaint on

the ground that plaintiff did not suffer a serious injury as

defined by Insurance Law § 5102.

In support of the motion, defendant submits an affirmation

from counsel, Matthew Lyons, Esq; a copy of the pleadings;

plaintiff’s verified bill of particulars; the affirmed medical

report of radiologist, Dr. Mark J Decker; the affirmed medical

report of orthopedist, Dr. Christopher J. Cassels, and a copy of

the transcript of the examination before trial of Manuel Fabara.

In his verified Bill of Particulars, plaintiff, age 27,

states that as a result of the accident he sustained, inter alia,

a tear of the supraspinatus tendon, tear of the labrum and tear

of the subscapularis tendon of the left shoulder, herniation of

the lumbar spine at L4-5 and L5-S1, bulging disc of the cervical

spine at C6-7, tear of the anterior cruciate ligament and tear of

the collateral ligament of the left knee; tear of the medial

meniscus of the right knee. Plaintiff states that he was confined

to bed at home for two weeks and confined to his home for three

months as a result of his injuries.

Plaintiff contends that he sustained a serious injury as

defined in Insurance Law § 5102(d)in that he sustained a

permanent loss of use of a body organ, member function or system;

a permanent consequential limitation or use of a body organ or

member; a significant limitation of use of a body function or

system; and a medically determined injury or impairment of a

nonpermanent nature which prevented the plaintiff from performing

substantially all of the material acts which constitute his 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.

Dr. Mark J. Decker, a spine radiologist, reviewed the MRI of

the plaintiff’s cervical spine taken on December 5, 2009. In his

affirmed report Dr. Decker states that he found no abnormality at

C2-3, no herniation at C5-6 and C6-7 and broad bulges at C3-4 and

C4-5. He states that the findings are all longstanding and not

causally related to the date of the accident of 11/06/2009. He

also reviewed the MRI of the plaintiff’s lumbar spine taken on

December 5, 2009 and found degenerative disc disease at L4-5 and

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L5-S1. He found broad bulges at L5-S1, L4-L5, L3-L4 and no

evidence of herniation at L4-L5. He states that the findings are

degenerative in nature and not causally related to the subject

accident. In his report regarding his review of the MRI of the

plaintiff’s left knee, taken on December 6, 2009, Dr. Decker

states that the posterior cruciate ligament is intact, the

anterior cruciate ligament demonstrates degeneration and no tear

and there were no tears of the lateral or medial meniscus. He

states that any findings are longstanding and not related to the

subject accident. With respect to the MRI of the right knee, he

states that there were no tears or fractures and only diffuse

anterior cruciate ligament degeneration not related to the

subject accident. As to the MRI of the plaintiff’s left shoulder,

Dr. Decker found AC joint arthropathy and fraying of the

infraspinatus with tendinopathy of the supraspinatus. He states

that there were no tears or fractures and that the findings are

long-standing and degenerative in nature and not related to the

subject accident.

Dr. Christopher J. Cassels, a board certified orthopedic

surgeon retained by the defendants, examined Mr. Fabara on

October 12, 2011. The plaintiff presented with pain in his neck,

right shoulder, left shoulder, low back, left knee and right

knee. He noted that the plaintiff did not return to work and was

confined to his home for three months following the accident.

Dr. Cassels performed objective and quantified range of motion

tests and found that there were no significant limitations of

range of motion of the cervical spine, right shoulder, lumbar

spine and right knee. During the left knee examination, the

plaintiff complained severely of back discomfort and knee

discomfort. With respect to the left knee and left shoulder, Dr.

Cassels states that he could not obtain reliable results because

the plaintiff refused to cooperate, and intentionally attempted

to influence the test results. He states that the plaintiff

exhibited findings consistent with symptom magnification.

In his analysis, Dr. Cassels states that based upon his

review of the plaintiff’s medical records and his clinical

examination, the plaintiff did not sustain any significant or

permanent injury to any of the parts of his body complained of.

Based on his review of the records he states that the plaintiff

did not complain of pain to his knees or shoulders at any time

until two months following the accident when he saw Dr.

Hausknecht. Dr. Cassels states that there were no significant

abnormal objective findings only findings consistent with system

magnification and no objective findings to substantiate the

plaintiff’s subjective complaints. He states that in his opinion,

the plaintiff has no functional disability, no permanency, and is

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fully functional to perform all normal daily activities including

working without restrictions.

In his examination before trial, held on August 23, 2011,

the plaintiff stated that while he was riding his bicycle on

Broadway, between 47th and 48 Streets, he was struck by the th

taxicab operated by the defendant. At the moment of contact the

bicycle flew and he landed on the ground. He left the scene in an

ambulance and was transported to the emergency room at Elmhurst

Hospital where he had complaints of pain to his neck and back.

After x-rays were taken he was treated and discharged the same

day. A few days later he saw his primary physician, Dr. Chasky,

at which time he had additional complaints of pain to his left

knee and left shoulder. He was then referred by his attorney to

Dr. Lambert at HealthMakers who sent him for MRIs and also

commenced physical therapy, chiropractic and acupuncture

treatment sessions. He went for treatments at a rate of three or

four times per week for five months. He stated that he also was

seen by a specialist for injuries to his shoulder and knee but he

never underwent any surgical procedures. He stated that he was

not employed at the time of the accident but he went back to work

in February 2010 and at the time of the deposition was employed

as a doorman. He stated that he still had pain in his knees, left

shoulder, back, and neck.

Defendant’s counsel contends that the medical reports of

Drs. Decker and Cassels together with the copies of plaintiff’s

medical records from his treating physicians are sufficient to

establish, prima facie, that the plaintiff has not sustained a

permanent consequential limitation or use of a body organ or

member; a significant limitation of use of a body function or

system; or a medically determined injury or impairment of a

nonpermanent nature which prevented the plaintiff from performing

substantially all of the material acts which constitute his 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.

In opposition, plaintiff’s attorney Richard Gutierrez,

Esq., submits his own affirmation as well as the affirmed

medical report of Dr. James from HealthMakers, the affirmed

report of Dr. Tyorkin, the affirmed report of Dr. Hausknecht,

and the plaintiff’s affidavit dated November 16, 2012.

The plaintiff was initially examined by Dr. Harold

James at HealthMakers on November 23, 2009, two weeks after

his accident. In his affirmed report Dr. James states that

plaintiff’s had complaints of pain in his neck, left

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shoulder, lower back, left hip and left knee. At that time an

examination revealed restricted range of motion of the neck

and back. Dr. James sated that there was a causal

relationship between the plaintiff’s symptoms and the

accident of November 6, 2009. The plaintiff was referred for

MRIs and physical therapy. He subsequently received physical

therapy and acupuncture treatments with Dr. James and

chiropractic treatments with Dr. Lambert.

The plaintiff was examined by neurologist, Dr.

Hausknecht, who states in his affirmed report that he

examined the plaintiff on January 4, 2010. On that date the

plaintiff exhibited loss of range of motion of the cervical

spine and thoracolumbar spine. After reviewing the MRIs he

found that the plaintiff had cervical disc bulge and disc

herniations at L4-5 and L5-S1, as well as tears of the ACL

and LCL of the left knee and tears in the left shoulder. Dr

Hausknecht examined the plaintiff again on September 27,

2012. His objective and quantified range of motion testing

revealed significant limitations of range of motion of the

cervical spine, thoracic and lumbar spine. Dr. Hausknecht

stated that in his opinion the plaintiff’s injuries were

related to the subject accident and, based upon the duration

of his symptoms, he sustained a permanent partial limitation

and a permanent consequential limitation of use of his

cervical and lumbosacral spine.

Dr. Tyorkin a board certified orthopedist examined the

plaintiff on November 7, 2012. His objective range of motion

testing showed restricted range of motion of the cervical

spine, left shoulder, lumbar spine, left hip, left knee and

right knee. He states that the plaintiff sustained a

permanent partial impairment of the cervical spine, lumbar

spine, left shoulder, right knee and left knee. He states

that the nature of his injuries are permanent.

In his affidavit, the plaintiff states that although his

chief complaint at the hospital was pain in his lower back,

the pain in his neck, shoulder, hip and knees developed over

the following days. He states that he underwent a course of

physical therapy from November 2009 through April 4, 2012

when he had to stop attending because his no-fault benefits

were terminated and he could not afford to pay out of pocket.

He states that he continues to have pain in his neck, lower

back, left shoulder, left hip and left knee which interferes

with his ability to perform his daily activities.

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[* 5]

Initially, it is defendant's obligation to demonstrate

that the plaintiff has not sustained a "serious injury" by

submitting affidavits or affirmations of its medical experts

who have examined the litigant and have found no objective

medical findings which support the plaintiff's claim (see

Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v

Eyler, 79 NY2d 955 [1992]). Where defendants' motion for

summary judgment properly raises an issue as to whether a

serious injury has been sustained, it is incumbent upon the

plaintiff to produce evidentiary proof in admissible form in

support of his or her allegations. The burden, in other

words, shifts to the plaintiff to come forward with

sufficient evidence to demonstrate the existence of an issue

of fact as to whether he or she suffered a serious injury

(see Gaddy v. Eyler, 79 NY2d 955 [1992]; Zuckerman v. City of

New York, 49 NY2d 557[1980]; Grossman v. Wright, 268 AD2d 79

[2d Dept 2000]).

Here, the proof submitted by the defendants, including

the affirmed medical reports of Drs. Decker and Cassels were

sufficient for defendants to meet their prima facie burden by

demonstrating that the plaintiff did not sustain a serious

injury within the meaning of Insurance Law § 5102(d) as a

result of the subject accident (see Toure v Avis Rent A Car

Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]).

Although Dr. Cassels stated that the limitations to the

plaintiff’s left shoulder and left knee may be due to

"symptom magnification" he sufficiently explained the basis

for his conclusion that the limitations that were noted were,

in fact, self-limited (cf. Reitz v Seagate Trucking, Inc., 71

AD3d 975 [2d Dept. 2010]).

However, this Court finds that the plaintiff raised

triable issues of fact by submitting the affidavits of Drs.

James, Hausknecht, and Tyorkin attesting to the fact that the

plaintiff had sustained significant limitations in range of

motion of the cervical spine, lumbar spine, left shoulder,

right knee and left knee, both contemporaneous to the

accident and in a recent examination, and concluding that the

plaintiff's limitations were significant and permanent and

resulted from trauma causally related to the accident (see

Ortiz v. Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v

Torado,59 ADd 367 [2d Dept. 2009]). As such, the plaintiff

raised a triable issue of fact as to whether he sustained a

serious injury under the permanent consequential and/or the

significant limitation of use categories of Insurance Law §

5102(d) as a result of the subject accident (see Khavosov v

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Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 ADd

606[2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d

1091[2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept.

2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d

Dept. 2010]).

Further, plaintiff's treating doctors' findings that

his injuries were traumatic and causally related to the

subject accident are sufficient to implicitly address the

defendants' contention that the injuries were degenerative

(see Khaimov v Armanious, 85 AD3d 978 [2d Dept. 2011];

Fraser-Baptiste v New York City Tr. Auth., 81 AD3d 878 [2d

Dept 2011]; Harris v Boudart, 70 AD3d 643[2d Dept 2010]).

In addition, the plaintiff adequately explained the gap

in his treatment by submitting his own affidavit stating that

no-fault had stopped his benefits and he could no longer

afford to pay for treatment out of pocket Abdelaziz v Fazel,

78 AD3d 1086 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74

AD3d 1328 [2d Dept. 2010]; Domanas v Delgado Travel Agency,

Inc., 56 AD3d 717 [2d Dept. 2008]).

Accordingly, for the reasons set forth above, it is

hereby,

ORDERED, that the defendants’ motion for an order

granting summary judgment dismissing plaintiff’s complaint is

denied.

Dated: January 7, 2013

Long Island City, N.Y.

______________________________

ROBERT J. MCDONALD

J.S.C.

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