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
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MANUEL FABARA,
Plaintiff,
- against -
LUIS A. ILLESCAS and KATT CORPORATION,
Defendants.
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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 collision 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 collision, 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 collision 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 collision 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 collision 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
collision. 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 collision. 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 collision. 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 collision.
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 collision.
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 collision 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 collision 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 collision. 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
collision 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 collision 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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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 collision (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
collision and in a recent examination, and concluding that the
plaintiff's limitations were significant and permanent and
resulted from trauma causally related to the collision (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 collision (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 collision 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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