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
SELENA CALDERON ORTEGA,
Plaintiff, AFFIRMATION IN OPPOSITION
TO DEFENDANTS’ MOTION
–against– FOR SUMMARY JUDGMENT
RILEY BAUMES and
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 of perjury:
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.
Defendants 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. Mann, 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. Mann 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. Mann found to be fully recovered, while she was on prescription medication to relieve her ailments.
For Dr. Mann 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. Mann 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. Mann 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. (Emphasis added).
Similar to Refuse, supra, in the present matter, defendants’ examining medical expert, Ronald L. Mann, 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.
SIGNIFICANT 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.
* * *
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