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Transcript of Present: · PDF file few days after the accident, she was treated by Dr. Andrew Marcus, a...



    Present: HON. WILLIAM R. LAMARCA Justice


    Plaintiff, -against-


    INDEX NO: 4124/06 Action #1


    Plaintiff Motion Sequence #003, #004 Submitted August 27 2008 INDEX NO: 16493/07 Action #2


    -against- DIMITRIOS ZERVOUDIS, TRANSIT CARAVAN, INC. and "JOHN DOE 1" , the operator of motor vehicle owned by TRANSIT CARAVAN, INC.


    The following papers were read on these motions:

    TRANSIT CARAVAN Notice of Cross-Motion (Action #2, Sequence #3)..............................................................

    DIMITRIOS ZERVOUDIS (Action #1) Affi rmation in Opposition (N/A).................... ...... .......................

    DIMITRIOS ZERVOUDIS (Action #2, Sequence #4) Notice of Cross-Motion (N/A).......................... ....

    ..... ................ .....

    TRANSIT CARAVAN Reply to DIMITRIOS ZERVOUDIS (N/A)............ STELLA ZERVOUDIS (Action #2) Affrmation and

    Affi davit in 0 p position................................................................... TRANSIT CARAVAN Reply to STELLA ZERVOUDIS.......................

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  • The Court notes that, after some initial confusion , it appears that Action #1 has been

    completely settled and that Action # 2 has been settled with respect to defendant

    DIMITRIOS ZERVOUDIS. Accordingly, Motion Sequence #1 in the consolidated actions

    has been withdrawn, and many of the papers submitted on the instant motions are no

    longer applicable , as marked above. The only remaining issue concerns TRANSIT

    CARAVAN' s threshold motion with respect to plaintiff, STELLA ZERVOU DIS , in Action #2.

    Relief Reauested

    Defendant, TRANSIT CARAVAN, INC. (hereinafter referred to as " TRANSIT



    moves for an order , pursuant to CPLR 3212 , seeking summary judgment

    dismissing the plaintiff's complaint on the basis that she has not sustained a serious injury

    within the ambit of Insurance Law 51 02(d). Plaintiff opposes the motion (Sequence #003).

    which is determined as follows:


    The cause of action results from an automobile accident which occurred , on October

    2004 at approximately 10:00 A.M. , at or near the intersection of Community Drive and

    Northern Boulevard , Manhasset, New York. The plaintiff, STELLA ZERVOUDIS, age 27

    at the time , was a front seat passenger in the vehicle driven by her father, DIMITRIOS

    ZERVOUDIS, and alleged that the vehicle in which she was riding was struck by a yellow

    school bus operated by an employee of the defendant , TRANSIT CARAVAN. The plaintiff

    alleged that , as a consequence thereof, she has sustained "serious injuries" as defined in

    Article 51 of the New York State Insurance Law.

    In her bill of particulars, the plaintiff alleged that the following injuries were

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    proximately caused by the subject accident: left foraminal herniation at L4-L5, broad based

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  • disc bulge at L5- , focal disc bulges at C5-C6 and C6- , straightening of the cervical

    lordosis , lumbar radiculopathy, cervical radicuilopathy, neck pain , numbness and tingling

    in both hands and numbness and tingling in both feet.

    In support of the instant application , the defendant argues that none of the injuries

    the plaintiffs alleged to have sustained are permanent in nature and are mild , minor or

    slight limitations , all of which are insufficient to s pport a claim of "serious injury . The

    defendant further argues that plaintiff's deposition testimony reflects that she did not

    sustain a "serious injury . Notwithstanding her testimony that, upon impact , the plaintiffs

    back struck the chair in the car, her knee hit the dashboard and was slightly bleeding and

    bruised and her neck hit the back of the seat , the record reveals that plaintiff did not lose

    consciousness , that no ambulance or hospitalization was required , that she made no

    complaint of pain and was not listed on the police accident report as an injured party.

    Moreover, after the accident, plaintiff went straight to work at Macys for five (5) hours and

    at most , missed "a couple" of days from work. Further, plaintiff claimed that she reduced

    her work hours for a three (3) week period but then returned to her normal schedule but

    no proof is provided as to a change in her duties. It appears that plaintiff left her job at

    Macys in 2006 and went to work at Nordstroms until September 2006 , when she voluntarily

    quit to look for a new position. Although plaintiff acknowledged that she was stil

    unemployed at the time of the deposition , on May 31 , 2007 , she stated that her lack of

    employment had nothing to do with the alleged injuries sustained in the accident.

    Although there is some confusion with the dates in that counsel for plaintiff states

    that she was "suffering from pain and severe discomfort until July 2 , 2003 at which time

    she began receiving treatment, including physical therapy from Dr. Andrew S. Marcus. .

    . ._- '--'--" --- --"---- -_. -'" --', --' ---- -'----- _"-- -""'--- '_._- ._-

  • . "

    , a time frame that is before the subject accident , it appears that plaintiff claimed that , a

    few days after the accident , she was treated by Dr. Andrew Marcus , a chiropractor, where

    she received physical therapy, four (4) to five (5) times a week for a period of three (3)

    months, and then two (2) to three (3) times a week for a period of five (5) months , for a

    total of eight (8) months. Contrary to counsel for plaintiff' s representation , no medical

    records (or affirmation) from Dr. Marcus are provided to the Court. Plaintiff stated that she

    was referred to James Liguori M. , a neurologist, who treated her one (1) time every two

    (2) weeks for a period of eight (8) months , for complaints of pain in both fingers and hands

    and that she received nerve testing, MRI's for her back and therapy at Island

    Muscoskeletal for her right knee. Counsel for defendant points out that there is no

    objective evidence for this claim and , moreover, all treatment to plaintiff ended in 2006

    without any surgery.

    Plaintiff contended that she stil has pain in her neck, back and knee, which limits

    her ability to go to the gym and to participate in sports. Counsel for defendant points out

    that plaintiffs bill of particulars makes no reference to pain in her right knee or any injury

    to the knee.

    Defendant' s Medical Submissions

    As evidentiary support for the within application , the defendant provides two (2)

    affirmed independent med ical reports of Edward T oriello , M. , a board certified orthoped ic

    surgeon , and Michael J. Carciente , M. D. a board certified neurologist. (Exhibits "Q" and

    , respectively.

    Dr. Toriello conducted an examination of the plaintiff and a review of her medical

    records, on June 26, 2007 , and noted that plaintiff continues to complain of low back pain

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  • radiating into her parascapular region. Dr. Toriello examined plaintiff's cervical and lumbar

    spine , her right and left shoulder, elbow, wrists and hands , as well as her right and left

    knees , and found no motor or sensory deficits , no muscle atrophy or instability, no

    sweliling, sensistivity or tenderness, and no loss in plaintiff's range of motion when

    compared to normal ranges of motion. He found the Tinel' , Phalen s and Finkelstein

    tests to be within normal limits , straight leg raising test to be bilaterally full and pain free

    and the McMurray s and Lachman tests to be within normal limits. Dr. Toriello stated that

    plaintiff reveals evidence ofa resolved cervical hyperextension injury, resolved low back

    strain and resolved right knee 'contusion. He concluded that no further orthopedic

    treatment was indicated.

    Dr. Carciente conducted an examination ofthe plaintiff and a review of her medical

    records , on July 10 , 2007 , and noted that plaintiff continues to complain that she feels

    worse since her alleged injury and that she stil experiences pain in the neck, lower back

    and numbness in all ten fingertips , pain in her knee and headaches. Dr. Carciente

    administered a full neurological exam to plaintiff and found her mental status to be alert

    her cranial nerves to be normal , and her motor, reflexes and muscle responses to be

    normal. Despite complaints of diminished sensation to cold temperature. Dr. Carciente

    found no objective evidence of 'sensory deficits and Tinel's and Phalen s signs were

    negative. Plaintiff's gait was normal and her cervical and thoracic/lumbosacral spine

    showed no evidence of spasm or tenderness. Dr. Carciente concluded that , despite some

    subjective complaints , plaintiff has a normal neurologic examination. He found no

    correlation between the finding of disc bulges and herniations as mentioned in the

    radiologic repo