For the last few weeks, we have been posting about our efforts to get money for a young lady who was stopped in traffic when she was rear ended by a bread truck. Our three prior posts are here, here, here and here. While the motion to dismiss was pending, the parties tried to resolve the case through mediation.
In preparation for the mediation session, we prepared a persuasive document containing the most important evidence. In our prepared materials, we described our case in the most favorable terms possible, so that the mediator would be impressed with the relative strength of our case and would push the bread truck’s insurance company to make a fair settlement offer.
We also prepared our injured client to tell her story to the mediator in the most persuasive manner possible. Having a prepared and persuasive client also served another purpose: to show the insurance company that, if it did not settle our case, our client would make an excellent witness on her own behalf in front of a jury. On this day, our strategy was successful. The mediation resulted in a settlement.
Following that mediation, Martin + Colin, P.C. announced the settlement of this personal injury car accident case. This time, the bodily injury car crash victim had been injured in a car accident on Route 9A in the Village of Briarcliff Manor, County of Westchester.
Our client, Ms. Calderon Ortega, who had suffered two disc herniations, straightening of the lumbar curvature/lordosis and an annular tear of L4-L5, was left with a permanent partial disability. But now, as a result of the settlement through mediation, Ms. Calderon Ortega had some funds to move on with her life. What did she do? She packed her bags and headed to Cali, Colombia to continue her studies. She enrolled in college and will return to Westchester, sometime in the future, with a college degree.
And, as is often the case, our client preferred the certainty of settlement rather than the risk of trial.
For this client, whose life was turned upside down the day she was involved in a rear-end collision with a Bimbo Bakeries truck, the injury lawyers at Martin + Colin, P.C. were able to apply their expertise handling similar auto accident cases to resolve her case successfully.
We are experienced car accident and personal injury lawyers. Call us now at (914) 771 7711 and let us apply our expertise to your case.
CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.
For the last few weeks, we have been posting about our efforts to get money for a young lady who was stopped in traffic when she was rear ended by a bread truck. Our three prior posts are here, here, and here.
While the motion to dismiss was pending, the parties tried to resolve the case through mediation. In preparation for our day with the mediator, we prepared a mediation packet containing the most important evidence. In our prepared materials, we tried to describe our case in the most favorable terms possible, so that the mediator would be impressed with the relative strength of our case and would push the bread truck’s insurance company to make a fair settlement offer.
Here is the mediation submission, without exhibits, in its entirety. I hope it helps you in your effort to understand your own case.
MARTIN + COLIN, P.C.
(914) 771 7711
44 Church Street
White Plains, NY 10601
TO BE USED FOR ANY OTHER PURPOSE
Luke Voit, Esq.
NAM (National Arbitration and Mediation)
990 Stewart Avenue, First Floor
Garden City, New York 11530
Client: Selena Calderon Ortega, Plaintiff
Calderon Ortega v. Riley Baumes et ano
Westchester County, Index No.: 52648/2015
D/Accid: September 16, 2017
Dear Mediator Voit:
The following serves as our review
and analysis of this case and includes documentation to support our reasonable
demand for settlement in the amount of $100,000. The facts and data in this letter, together
with the attached exhibits and documents, are intended to be utilized and
discussed in the mediation conference.
This letter is intended to be used solely for purposes of mediation and
settlement of this claim, and is therefore not admissible in any subsequent
trial or proceedings.
On September 16, 2014 at approximately 11:11 am, the plaintiff, then 19-year-old Selena Calderon Ortega was stopped in traffic when her vehicle was struck from behind by the defendant. Selena had been traveling southbound on Route 9A in the Village of Briarcliff Manor, County of Westchester, when the defendant, Riley Baumes, driving a delivery truck, rear ended the plaintiff’s vehicle (see Police Report annexed hereto as Exhibit “1”).
The impact caused extensive damage to Ms. Calderon Ortega’s vehicle, smashing the rear body and bending the bumper and breaking it off the car (see damage photos annexed hereto as Exhibit “2”). The impact was so severe that Ms. Calderon Ortega’s vehicle, which had been stopped at the moment of impact, was shoved forward into the car directly in front of her car. Ms. Calderon Ortega remained at home in pain for several days until, on September 23, 2014, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain. After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.
Liability in this case clearly lies with the defendants. At the time of the accident, defendant was operating his vehicle southbound on Route 9A at a speed not reasonable and prudent and did not allow for enough stopping distance, causing his vehicle to strike the plaintiff’s car in the rear. Thus, since Ms. Calderon Ortega’s vehicle was rear ended by the defendant, liability rests with the defendant. See Plummer v. Nourddine, 82 A.D.3d 1069, 1069-1070, 919 N.Y.S.2d 187 (2d Dept. 2011) ( “[A] rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.”).
VTL 1129(a) states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” The failure of a driver to do so constitutes negligence as a matter of law, entitling the plaintiff lead driver whose vehicle was rear-ended to summary judgment on the issue of liability in the absence of an adequate non-negligent explanation (see Inzano v Brucculeri, 257 AD2d 605 [2nd Dept 1999]; Aromando v City of New York, 202 AD2d 617 [2nd Dept 1994]). VTL 1129 imposes upon drivers the duty to be aware of traffic conditions, including vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269 (1st Dept. 1999).
The defendant did not provide a non-negligent explanation for the collision. An assertion that the lead vehicle “stopped suddenly” is insufficient to rebut the presumption of negligence on the part of the offending vehicle. Francisco v. Schoepfer, 2006 NY Slip Op 04966 (Sup Ct, NY Couny 2006), citing Woodley v. Ramirez, 25 AD3d 451, 452 (2006); Malone v. Morillo, 6 AD3d 324 (2004). While the defendant claims that Ms. Calderon Ortega’s vehicle “stopped suddenly”, the defendant also testified at his Examination Before Trial that prior to the collision he saw plaintiff’s brake lights, that he applied his brakes before the moment of impact and that he moved his vehicle to the right to try to avoid the impact. See EBT of Riley Baumes annexed hereto as Exhibit “3”, pg. 23-24.
As stated above, due to the accident, Ms. Calderon Ortega’s vehicle sustained substantial damage to the rear end and had to be repaired. Due to the fact that the parties were traveling on a limited access road, and the speed limit was 45 mph, the cars were traveling at a fairly high speed at the time of the impact, causing serious damage to Ms. Calderon Ortega’s vehicle. The extent of the vehicle damage is evidence of the violent and substantial nature of the impact.
Ms. Calderon Ortega’s injuries clearly meet the serious injury threshold. It Is well settled that the defendant in a personal injury case involving a motor vehicle accident is entitled to summary judgment if the defendant can show that “the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)”. Gutierrez v. Yonkers Construction Co., 2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009). However, after the defendant establishes the initial burden of showing that the plaintiff did not suffer serious injuries, the burden shifts to the plaintiff to show that a triable issue of genuine fact exists by submitting admissible medical evidence of plaintiff’s serious injury. Shinn v. Catanzaro, 1 A.D.3d 195, 107, 767 N.Y.S.2d 88 (1st Dept. 2003).
After the accident, Ms. Calderon Ortega went home and remained there. Her back began to hurt and, after failing to recover after several days, Ms. Calderon Ortega sought treatment at Phelps Hospital Emergency Department (see Hospital Records annexed hereto as Exhibit “4”). During this visit, Ms. Calderon Ortega complained of increasing back pain.
Shortly after the accident, on October 16, 2014, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan. (Exhibit “5”). Plaintiff presented complaining of middle and lower back pain with muscle spasms. (Exhibit “5”). Ms. Calderon Ortega treated regularly and consistently with Dr. Dolan following the accident. Ms. Calderon Ortega also began physical therapy treatments in attempts to relieve the pain.
Ms. Calderon Ortega had an MRI of her lumbar spine performed on November 12, 2014. Recently, the MRI images were reviewed by a board certified radiologist, Dr. Charles J. Burns, M.D. Dr. Burns states in his affirmed report dated April 7, 2016 regarding Ms. Calderon Ortega’s lumbar spine:
The MRI of the lumbar spine was performed on
11/12/2014 following the injury of 9/16/2014.
It was performed on a mid-field strength unit with excellent resolution
and technique. It demonstrated the loss
of the normal lumbar curvature as seen on T2 weighted sagittal images. This latter structural change is due to traumatic
soft tissue injury, muscle spasm, or pain that caused straightening to the
lumbar alignment. They are accompanied
by chronic disk herniations at L3-L4 and L4-L5 noted on the axial and sagittal
T2 weighted images. These changes
resulted in bilateral neural foramina narrowing at L4-L5 and L5-S1 which were
precipitated by the loss of the lumbar curvature/lordosis. Accompanying the prior change is the annular
tear of L4-L5, which is a definite cause for back pain. These myriad of findings all contribute to
the patient clinical symptoms. There
were no accompanying fractures, dislocation, or metastatic changes detected.
Thus, the above findings confirm traumatic soft tissue injury as indicated by annulus tear and loss of lumbar curvature. The above findings are superimposed on chronic disk herniations of the lumbar spine as confirmed by the MRI performed after injury on 11/14/2014. The findings are directly and causally related to the date of loss of 9/16/2014 in my professional opinion. The clinical outcome depends on the natural evolution of her clinical symptoms and if surgery will be necessary. (Exhibit “7”).
Ms. Calderon Ortega followed up with Dr. Dolan on November 13, 2014, following the MRI of her lumbar spine. As noted in the attached reports, Dr. Dolan diagnosed thoracic muscle spasms; lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; L4-L5 & L5-S1 disc herniation. Dr. Dolan observed Ms. Calderon Ortega’s limitation with bending and lifting, and determined that Ms. Calderon Ortega was totally disabled as a result of the accident. Dr. Dolan prescribed continued physical therapy treatments, Flexeril 10 mg for pain and stiffness caused by the muscle spasms, and Mobic 7.5 mg for pain relief. (Exhibit “5”).
At Ms. Calderon Ortega’s January 22, 2015 office visit with Dr. Dolan, four months after the accident, Ms. Calderon Ortega was still complaining to her treating physician that the pain hurt her so much that although she was going to physical therapy, she could not do the exercises. In addition, Ms. Calderon Ortega complained to Dr. Dolan that her back hurt her so much that her sleep was interrupted from the pain. Ms. Calderon Ortega also complained to Dr. Dolan that the pain so severely affected her daily life, causing her to feel angry. Also, Dr. Dolan observed that the Ms. Calderon Ortega was walking with an antalgic gait due to the pain in her back. Based on all of these observations, Dr. Dolan found Ms. Calderon Ortega to be totally disabled, with her limitations and functional disabilities causally related to the accident. (Exhibit “5”).
Ms. Calderon Ortega continued treating continuously with Dr. Dolan until she left the country to study abroad, over a year after the date of the accident. At her last appointment with Dr. Dolan in October 2015, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep. Ms. Calderon Ortega reported feeling anxious as a result of her injury. Once again, Dr. Dolan personally observed limitations in Ms. Calderon Ortega’s range of motion, lumbar spine injury with signs of radiculopathy, as well as spasm and tenderness of the paraspinal muscles. Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident. (Exhibit “5”).
Ms. Calderon Ortega has been diagnosed with disc herniations at L3-4 and L4-5, bilateral neural foramina narrowing at L4-L5 and L5-S1, loss of the lumbar curvature/lordosis, and annular tear of L4-L5. See Report of the MRI of the Lumbrosacral Spine annexed hereto as Exhibit “6”. These findings, by a duly licensed neurologist and duly licensed radiologist, standing alone, are sufficient to defeat a motion for summary judgment based on the serious injury threshold. For example, in Gutierrez v. Yonkers Construction Co., the appellate court held that the defendant was not entitled to summary judgment based on the serious injury requirement of Insurance Law § 5102(d) where plaintiff submitted a medical report stating plaintiff suffered from a single disc herniation and lumbar spine range of motion limitations. 2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009).
However, due to this accident, Ms. Calderon Ortega suffered from two disc herniations, straightening of the lumbar curvature/lordosis, annular tear of L4-L5, and has a permanent partial disability. Ms. Calderon Ortega is experiencing muscle spasms in her cervical, thoracic and lumbar spine, and has decreased range of motion in the cervical and lumbar regions. See Narrative Report of Dr. Dolan annexed hereto as Exhibit “5”. Ms. Calderon Ortega was found to be totally disabled from the date of the accident to the date of the August 2015 exam by her neurologist Dr. Dolan, and permanently partially disabled by Dr. Dolan at his October 2015 exam. These findings, and Ms. Calderon Ortega’s deposition testimony, establish that Ms. Calderon Ortega was prevented from performing her usual and customary daily activities for not less than 90 during the 180 days immediately following the accident. Since Ms. Calderon Ortega has suffered more serious injuries than the plaintiff in the Gutierrez case, and such injuries have been document and diagnosed by Ms. Calderon Ortega’s physician, it is clear that the Defendants would not prevail on a motion for summary judgment and that Ms. Calderon Ortega’s injuries are substantial, permanent, and life-altering.
Plaintiff makes a mediation settlement demand of $100,000.00. Our legal research suggests that if we
proceed to trial, we would likely get a verdict in excess of $300,000.00, even
in a more conservative county.
Therefore, our pre-trial value of this case would more nearly
based on similar physical injuries:
- Jury verdict in excess of $350,000 affirmed on appeal from Orange County where plaintiff suffered “‘flexion extension’ injuries, a herniated disc at the C5-C6 level of the cervical spine, and a bulging disc at the L-5/S-1 vertebra of the lumbar spine” due to a car accident. Orris v. West, 189 A.D.2d 866, 593 N.Y.S.2d 58 (2d Dept. 1993);
- On appeal from Queens County, after jury awarded $426,000 for four bulging discs of the cervical spine and two bulging discs of the lumbosacral spine, appellate court ordered new trial unless parties stipulated to reduce damages to $175,000. The reduced award consisted of $100,000 for past pain and suffering and $75,000 for future pain and suffering. Maisonaves v. Friedman, 255 A.D.2d 494, 680 N.Y.S.2d 619 (2d Dept. 1998);
- On appeal from Kings County, after jury awarded $400,000.00 for bulging disc in the lower back with attendant pain in the lower back, neck, and legs (no herniation), appellate court ordered new trial unless parties stipulated to reduce damages to $150,000.00, representing past pain and suffering of $60,000 and future pain and suffering $90,000. Tariq v. Miller, 240 A.D.2d 395, 657 N.Y.S.2d 769 (2d Dept. 1997).
At the time of the accident, Ms. Calderon Ortega was 19-years-old. She had never treated for back pain prior to the date of the accident. However, after the accident, she continued to complain of pain to her treating physician for over a year. The pain Ms. Calderon Ortega experiences interrupts her sleep and causes her to feel angry. Ms. Calderon Ortega continues to feel the pain in her back every day.
Based on the above cases, it is clear that Ms. Calderon Ortega would be awarded much more than $100,000.00 at trial. For all the foregoing reasons, our mediation settlement demand is $100,000.00.
MARTIN + COLIN, P.C.
Recently, we found ourselves sitting with a client discussing the defendant’s summary judgment motion. You see, the defendant had already slammed his bread truck into the rear of our client’s automobile, causing physical injuries to our client and lots of property damage to her car. We had filed a lawsuit on her behalf and now, after all her medical records were exchanged and reviewed, the bread truck driver had filed a written motion requesting the court dismiss my client’s lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury. What nonsense.
We filed papers opposing the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one our our attorneys; a sworn affidavit from a radiologist; and a sworn affidavit from a treating physician.
All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part one of three. Printed below is the sworn affidavit from one of our attorneys, in its entirety:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
Plaintiff, AFFIRMATION IN OPPOSITION
TO DEFENDANTS’ MOTION
–against– FOR SUMMARY JUDGMENT
WOLFGANG LINE HAUL LP, Index No.: 09648/2017
WILLIAM MARTIN, an attorney admitted
to practice in the State of New York, affirms the following under the penalties
I am an attorney with the law firm of MARTIN + COLIN, P.C., the attorneys of record for the plaintiff. I am thoroughly conversant with the facts and circumstances herein based upon my review of the contents of the plaintiff’s file maintained by this office.
I make this affirmation in opposition to the summary judgment motion of the defendants brought pursuant to CPLR 3212 and Insurance Law 5102. The following exhibits are attached hereto:
Exhibit “1” May 6, 2016 affirmation of Maxwell Dolan, M.D.
Exhibit “2” April
7, 2016 affirmed report of Charles J. Burns, M.D.
For all the reasons that follow, I ask that this motion be denied in all respects.
This action arises from a rear-end collision that occurred on September 16, 2016 at approximately 11:11 a.m. on Route 9A at or near the intersection of Chappaqua Road in the village of Briarcliff Manor, County of Westchester, State of New York, wherein defendant, Riley Baumes, drove his vehicle, a delivery truck, into the rear-end of plaintiff’s vehicle.
On September 23, 2016, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain. After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.
Subsequently, on October 16, 2016, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan. (Exhibit “1”). Plaintiff presented complaining of middle and lower back pain with muscle spasms. (Exhibit “1”).
As set forth above, as recently as October 2015, which was the last time Ms. Calderon Ortega saw Dr. Dolan, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep. Ms. Calderon Ortega reported feeling anxious as a result of her injury. Dr. Dolan continued to observe limitations in Ms. Calderon Ortega’s range of motion, spasm and tenderness of the paraspinal muscles. Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident.
Ms. Calderon was required to be examined by the defendant’s doctor on December 4, 2015. Days later, after Ms. Calderon Ortega’s October 2015 visit to Dr. Dolan, she left the country to study abroad in Colombia. The plaintiff continues to attend school in Colombia. It is for this reason and this reason alone that Plaintiff has not continued to treat with Dr. Dolan. There is nothing in Dr. Dolan’s medical records to suggest that plaintiff has fully recovered from the accident. While it is clear that she has made some improvement, her recovery is far from complete.
Ms. Calderon Ortega treated with Dr. Dolan for over a year from her initial appointment in October 2016, as discussed in Dr. Dolan’s attached affirmation, until she left the country to study abroad (Exhibit “1”).
While it is true that plaintiff Selena Calderon Ortega testified at her deposition on November 20, 2017 that she was not employed at the time of the accident and was not a student, that does not mean that she was not injured. (Exhibit “D”, p. 48-49).
While it is true that plaintiff Selena Calderon Ortega testified at her deposition that she was not involved in athletic activities prior to the accident, was not a member of an exercise facility, and did not play sports prior to the accident, that does not mean that she was not injured. (Exhibit “D”, p. 52-53). Those facts do not support defendants’ contention that she was not injured as a result of this accident.
Although plaintiff may not have been leading the most active and energetic lifestyle prior to the accident, it is conclusively established by these papers that, within days of the accident until the time that she left for Colombia, Ms. Calderon Ortega was continuously treating with Dr. Dolan. (Exhibit “D”, p. 40). Plaintiff further testified that she was regularly attending physical therapy two days per week (Exhibit “D”, p 43).
In other words, it is not fair to say that because plaintiff was not doing much prior to the accident, the accident could not have possibly altered her life that much. Defendants seem to be arguing that because she was not doing much prior to the accident, not much has changed as a result of the accident, and therefore, she doesn’t meet the serious injury threshold.
The real issue is how much pain and injury does plaintiff have as a result of the accident, and how much does it affect her daily life. Here, plaintiff Selena Calderon Ortega testified that she continues to have lower back pain every day and that she tries to relax and take it easy to relieve the pain. (Exhibit “D”, p. 51). Plaintiff testified that she still takes the strong prescription medication prescribed by Dr. Dolan for her continued pain. (Exhibit “D”, p. 52).
While the defendants try to make much of the fact that plaintiff was not that active prior to the accident, they were also very selective about the questions they asked during Plaintiff’s deposition. For example, defendants did not ask her at her deposition about the ways that her daily life has changed. Defendants did not ask her at her deposition about activities that she now has difficulties with. Defendants did not ask her at her deposition about activities that she can no longer do at all.
Presented No Prima Facie Case for Summary Judgment
As a preliminary matter, in order to prevail on a motion for summary judgment, the defendants must make a prima facie substantive showing. The New York State Court of Appeals has held that summary judgment must be denied if the moving party fails to make a prima facie showing of entitlement to judgment as a matter of law, regardless of the sufficiency of the opposing papers. Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985).
Where the record contains objective diagnostic proof, in admissible form establishing a disc injury, causally related to the subject accident, along with objectively measured quantified range of motion limitations, and qualified limitations, clinically correlated to the disc injury, the motion must be denied. Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011); Toure v. Avis, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002).
When the proof submitted by defendants “in support” of the motion by defendants demonstrates questions of fact, the motion must be denied. E.g., Astudillo v. MV Transportation, 84 A.D.3d 1289, 923 N.Y.S.2d 722 (Second Dept. 2011).
The defendant as the party seeking summary judgment must demonstrate absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses. Aimatop Restaurant Inc. v Liberty Mut. Fire Ins. Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (First Dept. 1980). Since the records submitted with the motion raise questions of fact, the motion must be denied.
In the present matter, defendants’ expert Ronald L. Munn, M.D., acknowledged that, when he met the plaintiff fifteen months after the accident, the plaintiff was still taking prescription pain medication in order to cope with the pain. Defendants’ expert then went on to state that the plaintiff had no disability and had fully recovered from her injuries as a result of the accident. However, defendants’ expert had to concede that Ms. Calderon Ortega’s demonstration of a full recovery was made while she was on prescription medication. Had Dr. Munn claimed that she was fully recovered without the continued need for prescription medication, one could argue that defendants’ met their prima facie burden. However, they did not. Ms. Calderon Ortega could only demonstrate her physical condition, which Dr. Munn found to be fully recovered, while she was on prescription medication to relieve her ailments.
For Dr. Munn to acknowledge that Ms. Calderon Ortega continues to require prescription medication in order to function normally, then he must also implicitly acknowledge that there is a licensed medical doctor that is writing the prescriptions for her. He must also implicitly acknowledge that the doctor prescribing the medication would only do so after physical observation, and a finding that the remedial effect of the medication outweighs the side effects. Therefore, by definition, the defendants have not met their prima facie burden.
Stated differently, defendants’ expert is essentially saying the following: A full fifteen months after the accident, Selena Calderon Ortega continues to seek medical treatment from a physician. Said licensed medical provider is examining her and determining that, a) she has the complaints; and b) that she requires prescription medication to address the complaints. The doctor has further determined that he will write her the prescription because he has determined that the plaintiff is suffering so much pain that the benefits of the prescription will outweigh the side effects. Therefore, Dr. Munn must acknowledge that the prescribed medication has been prescribed out of medical necessity, and that there must be a continued medical necessity as Ms. Calderon Ortega continues to require the medication. Thus, when Dr. Munn says that the patient is fine (while on prescription medication), he is implicitly acknowledging that she continues to suffer, seek medical treatment, receive medical treatment, and require a powerful prescription drug to address her ailments.
As such, the affidavit of defendants’ own expert witness fails to make out a prima facie case for summary judgment in favor of the defendant. On that ground alone, the defendants’ motion must be denied in all respects.
QUESTIONS OF FACT
Insurance Law 5102(d) defines the term “serious injury” in relevant part:
(d) “Serious 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 of 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.
Insurance Law 5102(d). (Emphasis added).
In Refuse v. Magloire, 83 A.D.3d 685, 919 N.Y.S.2d 886 (Second Dept. 2011), the Appellate Division held:
The plaintiffs demonstrated their entitlement to judgment as a matter of law by establishing, prima facie, that they each sustained a serious injury within the 90/180-day category of serious injury under Insurance Law 5102(d) (citations omitted.) In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiffs, who both alleged that they sustained serious injuries to, inter alia, the cervical and lumbar regions of their spines, each had a medically-determined injury that prevented them from performing substantially all of the material acts constituting their usual and customary daily activities during not less than 90 days during the first 180 days immediately following the subject accident (see Insurance Law 5102[d]). In his reports detailing his medical findings from his recent examinations of the plaintiff, the defendant’s expert orthopedic surgeon, Alan J. Zimmerman, failed to relate those findings to the plaintiff’s 90/180-day serious injury claims, which were clearly set forth in the bill of particulars. Thus, the reports were not sufficient to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (citations omitted). Accordingly, the Supreme Court properly granted the plaintiffs’ motion for summary judgment on the issue of serious injury.
83 A.D.3d 685, 919 N.Y.S.2d 886.
Similar to Refuse, supra, in the present matter, defendants’ examining medical expert, Ronald L. Munn, M.D. (Defendants’ Exhibit “E”) did not comment on the 90/180 category, which was clearly set forth in plaintiff’s bill of particulars. (Defendants’ Exhibit “C”). See, also, Hoisington v. Santos, 48 A.D.3d 333, 851 N.Y.S.2d 528 (First Dept. 2008); Thompson v. Ramnarine, 40 A.D.3d 360, 835 N.Y.S.2d 566 (First Dept. 2007); Toussant v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 (First Dept. 2005); Burford v. Fabrizio, 8 A.D.3d 784, 777 N.Y.S.2d 810 (First Dept. 2004); Loesburg v. Jovanovic, 264 A.D.2d 301, 694 N.Y.S.2d 362 (First Dept. 1999).
It is worth noting that CPLR Rule 3212 states “If it shall appear that any party other than the moving party is entitled to summary judgment, the Court may grant such judgment without the necessity of a cross-motion.” CPLR Rule 3212(b).
Based on the preceding, plaintiff has established a prima facie case for “serious injury” under the 90/180 category. Defendants have utterly failed to address this category. Therefore, the defendants’ motion should be denied in all respects.
LIMITATION and PERMANENT CONSEQUENTIAL LIMITATION
Whether a limitation of use qualifies as “significant” or “consequential” relates to medical significance and involves a qualitative or quantitative assessment based on the normal function of the body part or system. In Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 756 N.Y.S.2d 865 (2002), the Court of Appeals stated:
In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury (citations omitted). An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.
Toure, supra, 98 N.Y.2d 350, 746 N.Y.S.2d 868.
In the Manzano v. O’Neil decision within Toure, supra, the Court of Appeals held that expert testimony that the plaintiff suffered a herniated disc as a result of an automobile accident, based upon his interpretation of MRI films and correlating the herniated discs with her inability to perform certain normal tasks was sufficient to establish that plaintiff had sustained a serious injury.
In this case, plaintiff presented the testimony of her treating physician, Dr. Dolan, who opined that plaintiff suffered two herniated cervical discs as a result of the automobile accident. His conclusion was supported by objective evidence introduced at trial, namely, the MRI films that he interpreted. Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff’s neck or back, he described the qualitative nature of plaintiff’s limitations based on the normal function, purpose and use of her body parts. In particular, Dr. Dolan correlated plaintiff’s herniated discs with her inability to perform certain normal, daily tasks. These limitations are not so insignificant as to bar plaintiff’s recovery under the No-Fault Law.
Toure, supra, 98 N.Y.2d 355, 746 N.Y.S.2d 871.
In Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011) the Court of Appeals clarified the rule espoused by that Court in Toure, supra, regarding quantitative assessment of injury:
Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it.
There is nothing obviously wrong or illogical about following the practice that Bleicher followed here- observing and recording a patient’s symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation.
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We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.
Toure, supra, 18 N.Y.3d 217-218.
Where the defendant’s physician disputes the veracity of plaintiff’s examination, implying that he or she is malingering, the question of credibility must go to the jury. Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655 (2011).
In the case of plaintiff herein, the medical interpretations made by Dr. Dolan included objective testing, including MRIs, the actual observation of muscle spasms in her back at 7 office visits, and the observed limitations in plaintiff’s range of motion, revealed disc injuries and radiculopathies causally related to the car crash of September 16, 2016. Dr. Dolan has correlated the plaintiff’s limitations and losses to these injuries, and opined that they are significant, consequential, and permanent.
Summary judgment may only be granted where it has been clearly ascertained that there is no triable issue of fact. Issue finding, rather than issue determination, is the function of the Court in determining a summary judgment motion. Suffolk County Dept. of Social Services v. James M., 83 N.Y.2d 178, 608 N.Y.S.2d 940 (1994). It must be clear that no material triable issue of fact is presented. Kornfeld v. NRX Technologies, Inc., 62 N.Y.2d 686, 476 N.Y.S.2d 523 (1984).
“Even the color of a triable issue forecloses the remedy” of summary judgment. Rudnitsky v. Robbins, 191 A.D.2d 488, 489, 594 N.Y.S.2d 354 (2nd Dept. 1993); see Matter of Cuttitto Family Trust, 10 A.D.3d 656, 657, 781 N.Y.S.2d 696 (2nd Dept. 2004). Moreover, in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion. See, Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 N.Y.S.2d 53 (2nd Dept. 2009); Mosheyev v. Pilevsky, 283 A.D.2d 469, 725 N.Y.S.2d 206 (2nd Dept. 2001).
The proof herein establishes that plaintiff has met the serious injury requirement for three categories. The defendants’ proof, at best, raises questions of fact. Therefore, this Court cannot grant dismissal as a matter of law. Thus, the motion should be denied and the matter scheduled for trial.
WHEREFORE, it is respectfully requested that the defendants’ motion be denied in its entirety, and that such other and further relief be granted as this Court deems just and proper.
Dated: White Plains, New York
May 27, 2018