DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION NICELY DEFEATED BY ACCIDENT VICTIM

Court: Supreme Court, Queens County, New York

Case: Razzaq v. Magnotta

Date: Oct. 24, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

Comment: This lower court decision nicely explains the workings of New York's No-Fault "serious injury" threshold in car or auto accident cases. Defendant moves the court for summary judgment to dismiss this accident case and the court finds that the motion met the initial burden of showing a lack of a serious injury. Plaintiff counters with evidence from a chiropractor and radiologist (and an affidavit from the plaintiff himself) and counters the defense showing. The defense summary judgment motion is defeated; plaintiff still has to prove and win his claim before a jury. But he lives to fight another day.

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RELATED POSTS:

CHIROPRACTOR AFFIDAVIT HELPS AUTOMOBILE ACCIDENT VICTIM DEFEAT DEFENSE "SERIOUS INJURY" SUMMARY JUDGMENT THRESHOLD MOTION (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 3, 2011)

DEFENSE LOSES NO-FAULT "SERIOUS INJURY" SUMMARY JUDGMENT MOTION; ITS DOCTOR FOUND CAR ACCIDENT VICTIM HAD LIMITED MOTION OF NECK, BACK & SHOULDER (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Oct 27, 2011)

DEFENSE "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; ACCIDENT VICTIM'S DOCTOR'S AFFIDAVIT RAISE ISSUE OF FACT AS TO BACK AND SHOULDER INJURIES (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Dec 11, 2011)

"SERIOUS INJURY" THRESHOLD MOTION NICELY DEFEATED IN CAR ACCIDENT CASE (Posted by Brooklyn injury lawyer Gary E. Rosenberg on April 28, 2011)

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This is a personal injury action in which plaintiff, QAISAR RAZZAQ, seeks to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred on March 22, 2009, on Van Dam Street at or near the intersection with Queens Boulevard, Queens County, New York.

At the time of the accident, plaintiff's vehicle was stopped at a red traffic signal on Van Street for approximately 30 seconds when it was struck by the vehicle being operated by the defendant. As a result of the accident, the plaintiff sustained injuries to his left knee, left shoulder, left leg, left arm and cervical spine.

The plaintiff commenced this action by the filing of a summons and complaint on April 9, 2009. Issue was joined by service of the defendant's verified answer on June 7, 2010. The defendant now moves for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint on the ground that the injuries claimed by the plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

In support of the motion, the defendant submits an affidavit from counsel, Andrea E. Ferrucci, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; and the affirmed medical reports of Dr. Jay Nathan, a board certified orthopedic surgeon and Dr. Alan B. Greenfield, a board certified radiologist.

In his verified Bill of Particulars, the plaintiff, age 31, states that as a result of the accident he sustained a small midline bulge at L5-S1 and C6-C7; a left knee contusion and decreased range of motion of the left knee. The plaintiff contends that he sustained a serious injury as defined in Insurance Law Sec. 5102(d).

The plaintiff, was examined by Dr. Jay Nathan on April 2, 2011, approximately 11 months following the accident. Mr. Razzaq presented with pain in his neck, back, left knee, and left shoulder. He reported to Dr. Nathan that he had difficulty with walking, bending, sleeping and lifting. He also told Dr. Nathan that as a result of the accident he was out of work for one month. Dr. Nathan performed quantified and comparative range of motion tests. Using a goniometer, Dr. Nathan set forth his specific measurements, and compared them to the norm and determined that plaintiff's range of motion was within normal limits in all areas (see Staff v. Yshua, 59 AD3d 614 [2nd Dept 2009]). Specifically, he found that the plaintiff had no limitations of range of motion in the right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, right hand, left hand, right hip, left hip, right knee, left knee, cervical spine or thoracolumbar spine. Dr Nathan's diagnosis was cervical sprain resolved, lumbar sprain resolved, and left knee sprain resolved. He states that Mr. Rassaq has no disability and is able to work and perform activities of daily living without restriction.

Dr. Greenfield examined the MRI studies of the plaintiff's cervical spine. In his affirmed report dated May 3, 2011, he states that the plaintiff suffers from multilevel degenerative disc disease from C2 through C7 and associated with mild degenerative disc bulging at C5-C6 and C6-C7 where degenerative bony osteophytes were also seen. He stated that the above findings are longstanding and degenerative in origin and entirely unrelated to the accident of March 22, 2009. He states that there are no findings on this examination which can be attributed to the accident.

In his examination before trial taken on March 7, 2011 the plaintiff testified that the impact caused him to hit his knees, left shoulder and neck. He stated that for a moment he was rendered unconscious. He stated that when the ambulance arrived at the scene he was examined inside the ambulance by EMT workers but he called a friend to pick him up and take him home. Plaintiff testified that two days after the accident he went for treatment to Dr. Heyligers at Uptown Chiropractic. He stated that he had physical therapy there for about one year. The plaintiff also testified that he had previously been treated by the same chiropractor in 2007 for a prior car accident in which he injured his lower back. He also stated that as a result of the 2009 accident he was bedridden for two months and missed two months of work.

Defendant's counsel contends that the affirmed medical report of Drs. Nathan and Greenfield, as well as plaintiff's deposition testimony to the effect that he returned to work after 60 days are sufficient to establish, prima facie, that the defendant has not sustained a permanent loss of a body organ, member, function or system; that he has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff, who was not confined to bed or home for more than a few days after the accident, did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff, for not less than ninety days during the immediate one hundred eighty days following the occurrence, from performing substantially all of his usual daily activities.

In opposition, plaintiff's attorney, James Yoo, Esq., submits an affidavit from the plaintiff; an affidavit from chiropractor, Dr. Mark Heyligers; and an affirmation from radiologist Dr. Jacob Lichy.

In his affidavit dated August 19, 2011, the plaintiff states that on March 22, 2009 after he was examined by the EMT workers he believed that the pain would be temporary so he contacted a friend to drive him home from the scene. He states that during the first month after the accident he took over‑the‑counter pain medication. He first sought care from Dr. Heyligers at Uptown Chiropractic on May 1, 2009 approximately five weeks after the accident. He states that Dr Heyligers referred him for a course of physical therapy and for an MRI. He states that he was treated by Dr. Heyligers for 10 days from May 1, 2009 through May 11, 2009. He states that he could not continue his treatments as he did not receive no‑fault benefits and he could not afford to pay for treatment. Plaintiff states that as a result of the accident he missed two months from work. He states that for six months after the accident he was unable to carry out most of the things that constituted his normal and customary activities. He had trouble standing, lifting heavy objects and walking long distances. On August 10, 2011 he returned to see Dr. Heyligers and informed him that he still had severe pain to his neck, lower back and left knee. Plaintiff states that he had a prior automobile accident on June 16, 2007 in which he injured his head and back. He stated that immediately prior to the March 22, 2009 he experienced no symptoms that were related to his prior accident and was able to perform his daily activities without limitation or pain.

The plaintiff also submits the affidavit of Dr. Mark Heyligers, a chiropractor who first saw the plaintiff on May 1, 2009. He states that he also treated plaintiff for his injuries sustained in the 2007 accident, the symptoms from which had abated by September 2007. Dr. Heyligers performed quantified objective range of motion testing on the plaintiff on May 1, 2009 and found that the plaintiff had significant limitations of range of motion of the cervical and lumbar spine. He states that the injuries to the cervical spine were causally related to the motor vehicle accident of March 22, 2009. Dr. Heyligers treated the plaintiff for 10 days through May 11, 2009. The MRI indicated midline bulge at C6-C7 and L5-S1 which the chiropractor found to be causally related to the accident and consistent with his clinical findings. Plaintiff was re‑examined by Dr. Heyligers on August 10, 2011 at which time he found significant limitations of range of motion of the cervical and lumbar spine. He stated that in his opinion the injuries sustained in the March 2009 accident were permanent in nature in that bulging discs do not lend themselves to resolution without surgical intervention.

Dr. Lichy states in his affirmation that the MRI studies show a small midline bulge of the L5-S1 interveterbral disc. He stated that the remainder of the levels are normal.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no‑fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept.2006]). "[A] defendant can establish that [a] plaintiff's injuries are not serious within the meaning of Insurance Law Sec. 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v. Wright, 268 A.D.2d 79 [1st Dept.2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v. Elliott, 57 N.Y.2d 230 [1982]).

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 N.Y.2d 345 [2002]; Gaddy v. Eyler, 79 N.Y.2d 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 N.Y.2d 955 [1992]; Zuckerman v. City of New York, 49 N.Y.2d 557[1980]; Grossman v. Wright, 268 A.D.2d 79 [2d Dept 2000]).

Here, the proof submitted by the defendant, including the affirmed medical report of Drs. Nathan and Greenfield were sufficient to meet its prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v. Eyler, 79 N.Y.2d 955 [1992]). Dr. Greenfield found that the disc bulge was caused by a degenerative condition and that there were no objective orthopedic findings which would provide the basis for the displayed limitations or which would indicate any disability, impairment, or limitation resulting from the accident (see Perl v. Meher, 74 AD3d 930 [2d Dept.2010]; Gonzales v. Fiallo, 47 AD3d 760 [2d Dept.2008]; cf. Burns v. Stranger, 31 AD3d 360 [2d Dept.2006]).

However, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical report of Dr. Heyliger attesting to the fact that the plaintiff had significant limitations in range of motion of his cervical and lumbar spine both contemporaneous to the accident and in a recent examination, in which Dr. Heyligers concluded, based upon the findings, 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 A.D.2d 367 [2d Dept.2009]). Dr. Heyligers also ruled out pre‑existing conditions from the prior accident as a cause of plaintiff's injuries. 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 Sec. 5102(d) as a result of the subject accident (see Khavosov v. Castillo, 81 AD3d 903[2d Dept.2011]; Mahmood v. Vicks, 81 AD3d 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]).

Although Dr. Greenfield opined that the plaintiff's spinal injuries were caused by degeneration, the Appellate Division, Second Department has recently held that even if the plaintiff's doctor does not specifically address the findings in the reports submitted by the defendant that the abnormalities in the tested areas were degenerative rather than traumatic, the findings of the plaintiff's doctor that plaintiff's injuries were indeed traumatic and were causally related to the collision is sufficient as it implicitly addressed the defendant's contentions that the injuries were degenerative (see Fraser-Baptiste v. New York City Transit Authority, 81 AD3d [2d Dept.2011]; Harris v. Boudart, 70 AD3d 643 [2d Dept.2010]).

With respect to the issue of a gap in treatment, it appears that the plaintiff was not treated from May, 2009 until he next saw Dr. Heyligers in August 2011. In this regard the Court of Appeals held in Pommells v. Perez, 4 NY3d 566 [2005] that while "the law surely does not require a record for needless treatment in order to survive summary judgment, where there has been a gap in treatment or cessation of treatment, a plaintiff must offer some reasonable explanation for the gap in treatment or cessation of treatment" (also see Neugebauer v. Gill, 19 AD3d 567 [2d Dept 2005]). Here, the plaintiff satisfactorily explained the gap in treatment by submitting his own affidavit stating that he did not receive no‑fault benefits and he could not afford to pay for his medical bills (see Abdelaziz v. Fazel, 78 AD3d 1086 [2d Dept.2010]; Tai Ho Kang v. Young Sun Cho, 74 AD3d 1328 [2d Dept.2010]; Garza v. Taravella, 74 AD3d 18 [4th Dept.2010]; Domanas v. Delgado Travel Agency, Inc., 56 AD3d 717[2d Dept.2008]; Jules v.. Barbecho, 55 AD3d 548 [2d Dept.2008]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the defendant's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.

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