Hernandez v Perkulator Cesspool SVS2013 NY Slip Op 31867(U)

July 23, 2013Sup Ct, Suffolk County

Docket Number: 09-46144Judge: Denise F. Molia

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copy INDEX No. 09-46144 - CAL No. 12-01530

SlJPREME COURT - STATE OF NEW YORK I.A.S. PART 39 - SUFFOLK COUNTY

P R E S E N T :

I Ion. DENISE F. MOLIA ,\cting Justice of the Supreme Court

LUIS RIMMER IIERNANDEZ. an infant under the age of fourteen (14) years by his mother and natural guardian ERICA M. RIMMER and ERICA M. KIMMER, Individually,

Plaintiffs,

- against -

PERKUIATOR CESSPOOL SVS and 0. MU I, LER.

Defendants.

MOTION DATE 1-3 - 1 3 ADJ. DATE 6-21 -1 3 Mot. Seq. # 001 - MD

GOLDS’TEIN & GARBAR, P.C. Attorney for Plaintiffs 1800 Bellmore Avenue Bellmore, New York 1 17 10

ZAKLUKIEWICZ, PUZO & MORRISSEY, LLP Attorney for Defendants 2701 Sunrise Highway, P.O. Box 2 Islip Terrace, New York 1 1752

X

Upon the following papers numbered 1 t o 2 7 read on this motion for summary iudgnient; Notice of MotioniOrderto Show Cause and supporting papers (00 1 ) 1 - 1 1 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting

tnotim) it is, papers 12-35; fieplying Affidavits and supportingpapers 26-27; Other -; (i b

ORDERED that motion (001) by defendants, Perkulator Cesspool SVS and 0. Muller, pursuant to CPLR 32 12 for an order granting summary judgment dismissing the complaint on the basis that plaintiff Ikica M. Rininier, and the infant plaintiff Luis Rimnier Hernandez, have failed to meet the serious injury threshold as defined by Insurance Law 8 5 102 (d), is denied.

In this negligence action, the plaintiff, Erica M. Rimmer, seeks damages derivatively and personally md l o r iniurics LL hich she alleges were sustained by her and the infant plaintiff, Luis Rinimer Hernandez, in ‘I motor vehicle accident on May 18, 2008, on Manor Road N. at or near its intersection with Clay Pitts Road. in the I o \ ~ n of Huntington. New York, when the defendants’ vehicle. operated by 0. Muller and omned bq I’erhulator Cesspool SVS, canie into contact with the l~ehicle owned and operated by Erica M. Kim ni er .

I’lie proponent of a suniniary judgment motion must make a prima facie showing of entitlement to 1 iidgment as a matter of law. tendering sufficient evidence to eliminate any material issues of fact from the

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case (Friends of ,411ir.zlals v Associated Fur Mfrs.. 46 NY2d 1065. 41 6 NYS2d 790 119791). To grant sum mar^ judgment it must clearly appear that no material and triable issue of fact is presented (Sillmari v Twentietlr Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Wirzegrad v N. Y. U. Medical Center, 64 NY2d 85 1. 487 NYS2d 3 16 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Wiiiegrad v N. Y . U. Medical Center, stqra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment. must profi’er evidence in admissible form ... and must “show facts sufficient to require a trial of any issue offact” (CPLR 3212[b]; Zisckerman v City ofNew York. 49 NY2d 557, 427 NYS2d 595 [ 19801). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 19811).

Pursuant to Insurance Law 5 5 102 (d). ‘“ [slerious injury’ means a personal injury which results in death: dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s 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.”

The term ”significant,” as it appears in the statute, has been defined as “something more than a minor limitation of use.” and the term “substantially all” has been construed to mean “that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment (Licari v Elliot. 57 NY2d 230, 455 NYS2d 570 [1982]).

On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of serious iii-jury as defined by Insurance Law 5 5 102 (d), the initial burden is on the defendant to “present evidence in competent form, showing that plaintiff has no cause of action” (Rotlriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [lst Dept 19921). Once the defendant has met the burden, the plaintiff must then, by competent proof, establish aprirnn fircie case that such serious injury exists (DeAngelo v Fidel Corp. Services, Itic., 171 AD2d 588, 567 NYS2d 454, 455 [lst Dept 19911). Such proof, in order to bc i n competent or admissible form, shall consist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268. 587 NYS2d 692 [2d Dept 19921). The proof must be viewed in a light most favorable to the non-moving party. here the plaintiff (Cammnrere v Villanova. 166 AD2d 760, 562 NYS2d 808, 8 10 [3d Ikpt 1990 I ) .

In ordcr to recover under the “permanent loss of use” category. a plaintiff must demonstrate a total loss ol’use of’a bod!/ organ, mcmbcr. function or system (Uber/v v Bangs Ambulcrnce Itic., 96 NY2d 295, 737 N Y S N 378 [2001]). To prove the extent or degrce of physical limitation with respect to the ”pcrmanent consequential limitation of use of a body organ or member‘’ or “significant limitation of use of ;i bod! function or system“ categories. either a specific pcrcentage of the loss of range of motion must be ascribed or there must be a sufficient description of the “qualitative nature” of plaintiff-s limitations, with an objective basis. correlating plaintiffs limitations to the normal function, purpose and use of the body

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part (Torrre v.4vis Refit A Crrr S’stenzs, Inc., 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered iiisigniiicant within the meaning of the statute (Licari v Elliott, s~q7ru) .

I n support 01‘ this application, the defendants have submitted, inter alia, an attorney’s affirmation; copies of the pleadings; plaintiff-s verified bill of particulars; the reports of Peter Chiu, MD. concerning his independent physiatric examination of the plaintiffs dated February 1. 20 12; and the transcripts of the esaminatioiis betore trial of Erica M Rimmer dated October 6, 20 1 1 and Cameron Rimmer Hernandez (a/k/a 1,uis Rimmer I-lernandez) dated November 8, 20 1 1 .

By way of the verified bill ofparticulars. Erica Rimmer alleges that as a result of this accident she sustained injuries consisting of: post traumatic cervical spine disc herniations at C4-5, C5-6, and C6-7, each with ventral CFS impression; T5 vertebral anterior wedging; pain in the neck, mid back, left elbow; upper extremity weakness; cervical herniated nucleus pulposus including radiculopathy; cervical sprain; injuries to the head and face; acute cervical spine sprain with radiculitis involving ruptured and/or torn ligaments, including but not limited to involvement of surrounding muscles, blood vessels, intervertebral discs, spinal cord. nerve roots and peripheral nerves; mental disorder consisting of DSM IV-300 anxiety disorder NOS, DSM IV-309 - adjustment disorder with depressed mood; adjustment disorder with mixed emotional features; generalized anxiety disorders DSM 300.02, post traumatic stress features, and adjustment disorder with anxious mood.

By way of the verified bill of particulars, it is alleged that the infant plaintiff, Luis Rimmer Idernandez, sustained injuries consisting of: post traumatic syndrome consisting of cephalalgia and vertigo; cervical and lumbar spraiidstrain; post traumatic syndrome consisting of myofascitis and radiculopathy ; acute cervical and thoracic sprain; paraspinal muscle spasms; acute cervical spine sprain and thoracic sprain with radiculitis involving rupture and/or torn ligaments, including but not limited to involvement of surrounding muscles, blood vessels, intervertebral discs, spinal cord, nerve roots, and peripheral nerves; and mental disorders consisting of: post traumatic stress disorder DMS 309.8 1 ; general anxiety disorder 300.02; post traumatic stress features; adjustment disorder with mixed emotional features; which disorders are characterized by anxiety. difficulty sleeping, facial ticks, and inability to eat due to fear of choking.

r l 1 he dcf’cndants havc !‘ailed to support this motion with any of either plaintiffs’ medical reports, diagnostic studies, and psychiatric/psychology records. The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which were not in evidence, and that expert testimony is limited to facts in evidence. (.see Alleri v Ulr, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 201 11: Mrrrzrrillo v I s o ~ i , 277 AD2d 362, 716 NYS2d 98 [2d Dept 20001; Stringile v Rotliman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 19881: O’Sliea v Srrrro. 106 AD2d 435, 482 NYS2d 529 [2d Dept 19841; Horrihrook LJ P m k Resorts, Inc. 194 Misc2d 273. 754 NYS2d 132 [Sup Ct. Tomkins County 20021). Such records and reports are not in evidence.

While dcfcndants’ expert. Peter Chiu. M.D.. has provided his curriculum vitae as a physiatrist N i th certi tication as an independent medical examiner and medical acupuncturer. and as a diploniat in physical medicine and rehabilitation. he has not established himself as an expert to render testimony with regard to the plaintif’fs‘ claims of cervical and/or thoracic radiculopathy, and with regard to the neurological and ncurosurgicd consultations obtained by the plaintiffs. No reports by a neurologist who examined the plainti tfs for such radicular/iieurological insjuries have been submitted on behalf of the moving defendants

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to rule out these claimed injuries (see Broivdmze v Catzdura. 25 AD3d 747, 807 NYS2d 658 [2d Dept 20061). thus. raising factual issues precluding summary judgment. Additionally, although the plaintiffs have alleged various psychiatric and mental disorders resulting from the subject accident, Dr. Chiu has not demonstrated his qualifications to render opinion as to psychological/psychiatric disorders, and no report from a pyschologist/psychiatrist who examined the plaintiffs on behalf of the defendants has been submitted. fiirther precluding summary judgment.

While Dr. Chiu has established that Erica Rimmer has herniated discs with CSF impression C4-5 through C6-7, he has not ruled out that these herniations were caused by the subject accident. Erica Riminer was treated by an orthopedist, and Dr. Chiu renders his opinions from a physiatric perspective, as set forth in his reports. He does indicate that if the history is correct, and based upon his physical cxamination. there is a causal relationship between the accident and the alleged injuries sustained in the accident. further precluding summary judgment

I t is noted that the defendants’ examining physician did not examine either plaintiff during the statutory period of 1 80 days following the accident, thus rendering the defendants’ physician’s affidavits insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiffs were unable to substantially perform all of the material acts which constituted her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident (Blancliarcl v Wilcox, 283 AD2d 821,725 NYS2d 433 [3d Dept 20011; see Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 [ 1 st Dept 20061; Toussnint v Clnudio, 23 AD3d 268, 803 NYS2d 564 [ 1 st Dept 2005]), and the expert offers no opinion with regard to this category of serious injury (see Delnylzaye v Caledonia Limo & Cur Service, I m . . 61 AD3d 8 14, 877 NYS2d 438 [2d Dept 20091).

Erica Rimmer testified that she suffered a cut over her eye and was given a Tetanus injection at Huntington Hospital following the accident. She followed up treatment with Dr. Perry, an internist/physiatrist, several days after the accident for complaints relating to pain in her neck and upper and middle back. He started her with physical therapy which she had for one year, five times a week. gradually decreasing to two times a week. She also followed up with her primary doctor, Dr. Tokar. She had MRIs lor which she had to take Valium to enable her to do so. Thereafter, Dr. Tokar placed her on Paxil every day for anxiety, but later, she suffered a bad reaction to the Paxil which required medical care at a hospital. Dr. Perry advised her that she had a few herniated discs in her neck and sent her to a spine specialist, Dr. 1,attuga. who wanted to give her injections. She did not have the injections, however, because she was afi-aid She also received care and treatment from Dr. Hirsch, a psychiatrist, due to anxiety. inability to sleep. fkartiilness. and not feeling normal any longer. For the first year following the accident, she could o n l y dri\e locally. and for months she was afraid to get into her car. She followed up with psychological treatment ivith .fill Ralh. LCSW. She cannot lift heavy things anymore. She cannot watch a movie without getting pain in her neck.

171 t ca Rimmer testified that her son Luis complained of pain in his back inimediately following the accident and \{anted to know if he was going to die. IIe was taken to the emergency room at Huntington I lospital and fbllo\ved up with his pediatrician, Dr. Gerberg. and was referred to Dr. Perry for back pain and headaches accompanied by dizziness. I IC was given physical therapy for six months, five days a week, decreasing to t \ \o days a Lveek. He was referred to a neurologist. Dr. Marton, for a brain scan, and was ad\ ised that he had post concussion syndrome. I Ie was also seen by a pediatric neurologist, Dr. Schneider.

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I le had an MRI o f his back and brain. He was also seen by Dr. ‘Trepeta. an orthopedist. and was told he had a cur\ atiire of’the spine. ’The nest winter, Luis’ pain b a s decreasing. Luis was treated by Julie Bakalor, a social worker, weekly fbr a few months for post traumatic stress and mild anxiety disorder, because he became f’earfiil about school. and about failing, and cried that he did not want to go to school. He was afraid that the woman who hit them was in their house. Luis was restricted from playing gym for the remaindcr of’the schooI year following the accident, and had restricted play activities at summer camp, and could not jump off the diving board. His mother stated that he seems nervous and anxious to her.

Luis testified that after the accident, his back hurt from the neck down, and he experienced headaches. He had three MRIs. After the accident, he was afraid that his teacher would be upset with him. I Ie worried and did not want to drive in the dark. He does not like driving in the car in May. He saw the psychologist i n school once every two weeks for about three months. He met with Julie Bakalor for about a year and a month, and discussed the accident and his fear of the lady coming to his house. He stated his grades are good in school and he now plays Lacrosse. His back still hurts, but not as often as did. His headaches come and go, he has to lay down for relief, and sometimes he uses an ice pack on his neck.

Upon review and consideration of the defendants’ evidentiary submissions, it is determined that the defendants have not established prima facie entitlement to summary judgment dismissing the complaint as to either Erica M. Rimmer or Luis Rimmer Hernandez on the basis that neither plaintiff sustained a serious injury as defined by Insurance Law Q 5 102 (d) as to either category of injury.

’The factual issues raised in defendants’ moving papers preclude summary judgment, as they failed to establish that plaintiffs did not sustain a “serious injury” within the meaning of Insurance Law 5 102 (d) (see Agafhe v Tun Clietz Wmg, 98 NY2d 345, 746 NYS2d 865 [2006]); see also Walters v Papanrisfassiou, 3 1 AD3d 439, 8 19 NYS2d 48 [2d Dept 20061). Inasmuch as the moving party has failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of “serious in-jury” it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (.see Yorig Deok Lee v Si@, 56 AD3d 662, 867 NYS2d 339 [2d Dept 20081); K r a y v Torella. 40 AD3d 588, 833 NYS2d 406 12d Dept 20071; Walker v Vilkrge of Ossinitzg, I8 AD3d 867, 796 NYS2d 658 [2d Dcpt 2005]), as the burden has not shifted to the plaintiffs.

Accordingly, motion (00 1 ) by the defendants for summary judgment dismissing the complaint on the basis that the plaintiffs did not suffer a serious injury as defined by Insurance Law $5 102 (d) is denied.

FINAL DISPOSITION X NON-FINAL DISPOSITION

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