Thillet v Lindy's Limo, Inc.2011 NY Slip Op 30442(U)

February 1, 2011Sup Ct, Suffolk County

Docket Number: 40684/2008Judge: William B. Rebolini

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Short Form Order

SUPREME COURT - STATE OF NEW YORK

LA.S. PART 7 SUFFOLK COUNTY

PRESENT:WILLIAM B. REBOLINI

Justice

Danielle Thillet,

Plaintiff,

-against-

Lindy's Limo, Inc. and Carmine Napoli,

Defendants.

Clerk of the Court

Motion Sequence No.: 001; MGCDISPO

Motion Date: 11/9/10Submitted:

Index No.: 40684/2008

Attorney for Plaintiff:

Suris & Associates, P.c.999 Walt Whitman Road, Suite 201Melville, New York 11747

Attorney for Defendants:

Baker, McEvoy, Morrissey& Moskovitz, P.c.330 West 34th Street, 7th FloorNew York, New York 1000 I

Upon th following papers numbered 1 to 10 read on this unopposed motion by defendantsfor summary judgment: Notice of Motionl Order to Show Cause and supporting papers, ] - 10.

The instant action arises from a rear-end motor vehicle accident which occulTed on .July 28,2006 on Expressway Drive North, at or near its intersection with Ocean Avenue, in the Town ofIslip, New York. The accident allegedly occurred when a vehicle owned by defendant Lindy's Limo,Inc. and operated by defendant Carmine Napoli collided with a vehicle owned and operated by theplaintiff. The plaintiff alleges that she sustained serious and permanent injuries as a result of thedefendants' negligence in causing the accident. Specifically, in her bill of particulars, plaintiffasserts that she sustained, illter alia, focal disc bulges at C3/4 and C4/5; straightening of the cervicallordosis; varying degrees of cervical vertebral body malpositions; painful and restricted ranges ofmotion of the cervical spine; post-traumatic cervical radiculitis; cervicalgia; cervical myofascitis;

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Thillet v Lindy's and NapoliIndex No.: 4068412008Page 2

cervical spine sprain/strain; cervical myalgia; thoracic spine dextroscoliosis; varying degrees ofthoracic vertebral body malpositions; painful and restlicted ranges of motion of the thoracic spine;post-traumatic thoracic radiculitis; thoracic spine sprain/strain; thoracic myalgia; broad based discbulges at L4/5 and L5/S1; varying degrees of lumbar vertebral body malpositions; right lumbarscoliotic curvature; painful and restricted ranges of motion of the lumbar spine; post-traumaticlumbar radiculitis; lumbar myofascitis; lumbar spine sprain/strain; lumbar myalgia; lumbago; leftshoulder pain; bilateral wrist pain; left knee pain; left ankle pain; abdominal pain; post-traumaticheadaches; and TMJ dysfunction. She alleges that she was confined to her bed and home for severaldays immediately following the accident and for intermittent days thereafter. She alleges that shewas totally incapacitated from her usual household duties for several days immediately followingthe accident and for intermittent days thereafter. She alleges that she missed one day of workfollowing the accident.

The defendants now move for summary judgment dismissing the complaint on the groundsthat the plaintiff did not sustain a "serious injury" as defined by Insurance Law Section §5102 (d).The plaintiff has not opposed the motion.

A "serious injury" is defined as a personal injury which "results in death; dismemberment;significant disfigurement; a hacture; 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 ormember; significant limitation of use of a body function or system; or a medically determinedinjury or impairment of a non-permanent nature which prevents the injured person fromperforming substantially all of the material acts which constitutes such person's usual andcustomary daily activities for not less than ninety days during the one hundred eighty daysimmediately following the occurrence of the injury or impairment" (Insurance Law §5102[d]).The Court of Appeals has held that the issue of whether a claimed injury falls within the statutorydefinition of a "serious injury" is a question of law for the courts in the first instance, which mayproperly be decided on a motion for summmy judgment (see, Licari v. Elliott, 57 NY2d 230[1982]; Charlev v. Goss, 54 AD3d 569 [1st Dept 2008] arid 12 NY3d 750 [2009]).

A defendant moving for summary judgment on the issue of whether the plaintiff sustaineda serious injury has the initial burden of making aprillwfacie showing that the injured plaintiff didnot sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see, Alvarez v.Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Dniv. Med. Ctr., 64 NY2d851 [1985];Zuckerman v. Otv of New York, 49 NY2d557 [1980]; Pagano v. Kingsbury, 182 AD2d268 [2Jld

Dept.: 19921). Fai lure to make such pril1wj(lcie showing requires a denial of the motion, regardless.of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hosp., 68 NY2d 320 ["1986J;Winegrad v. New York lJniv. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been madethe burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to

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overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injurywas sustained within the meaning of thc Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [19921;Grossman v. Wright, 268 AD2d 79 [2'll1 Dept., 2000]; Pagano v. Kingsbury, 182 AD2d 268 [2"J

Dept., 1992]; see also, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of NewYork, 49 NY2d 557 [1980]).

In support of their motion for summary judgment, the defendants submit, inter alia, theaffirmed neurological examination report of Lourdes P. Esteban, M.D., the affirmed dentalexamination report of John G. Esposito, Jr., D.D.S., F.A.C.D., the affirmed MRI reports of AudreyEisenstadt, M.D., and the plaintiff's deposition testimony. As is relevant to this motion, Dr. Estebanperformed a neurological examination on the plaintiff on May 10,2010. She performed range ofmotion testing on the plaintiff's cervical spine, thoracic spine and lumbar spine, compared herfindings to normal values and found the plaintiff's range of motion to be normal in all respects. Sheperformed objecti ve medical testing on the plaintiff and obtained negative results. Tnthis regard, shedetermined Lasegue' s sign was negati ve, Babinski sign was negati ve, cervical compression test wasnegative, Clonus was absent, Hoffman's sign was absent, Spurling test was negative, Lewin's testwas negative, Minor's test was negative and Neri's bowing sign was negative. She concluded thatthe plaintiff had a normal neurological examination and that there was no neurological disability.She noted that the plaintiff was cUITently working and found that she was capable of engaging innormal activities of daily life.

Dr. Esposito performed a dental examination of the plaintiff on March 5,20 lO. He concludedthat the TMJ soft tissue examination was negative for any abnomlalities and that the plaintiff did notsustain a significant maxillofacial injury. He opined that the plaintiff sustained no disability.

Dr. Eisenstadt reviewed MRTs taken of the plaintiff's cervical spine on September 16,2006and lumbar spine on September 18, 2006. She concluded that the cervical spine MRT depictedcervical straightening, which was a nonspecific finding which was frequently related to the patient'sposition and comfort during the examination. She concluded that the cervical spine MRI showed norecent or post-traumatic changes to the osseous, ligamentous or intervertebral disc structures. Uponexamination of the lumbar spine MRI, Dr. Eisenstadt found it to be entirely normal. She concludedthat the lumbar spine MRI showed no changes to the osseous, ligamentous or intervertebral discstructures and no post-traumatic abnormalities.

During her deposition, the plaintiff testified that she first felt pain in her neck, shoulders andupper back the morning following the accident. She went to the emergency room at St. CharlesHospital and complained about the pain in her neck and shoulders. The emergency room doctorsconcluded that she had sustained a sprained neck and she was discharged. The following week shewent to a chiropractor. She treated with the chiropractor for approxi mately nine months. During thatlime the chiropractor treated her shoulders, neck, upper back and lower back. For the first month

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she recci ved treatment five days a week; thereafter, and up until the termination of her treatment, shereceived treatment three times a week. She received acupuncture twice a week for the entire ninemonths. After nine months, she was released from treatment and was told that there was not muchelse they could do for her despite the fact that she was still having some pain. She had MRIs takenof her spine and the chiropractor informed her that they depicted a reverse curvature of her spine andneck and inflamed discs in her upper and lower back. She testified that she was also told by achiropractor that she had some nerve damage on her left side in her arm and her leg. However, shereceived no specific treatment for this condition. She admitted that no health care provider everindicated that she may need surgery to conect any of her conditions. The plaintiff has not seen anyother health care providers that she recalls to treat the injUlies she sustained in the subject accident;nor has she received any additional pain management from another facility. She took Ibuprofenregularly but was never given any prescriptions. She testified that she has no plans to see any othermedical providers in the future but that this is because she does not have medical insurance.

The plaintiff testi fied that she was not confined to her bed or her home for any period of timeas a result of the injuries she sustained in the accident. She missed one day from her employmentas a teacher's aide. According to the plaintiff, six months after the accident she continued to havepain in her upper back and shoulders. She had pain in her shoulders and neck when she attemptedto sit and draw and she had pain in her lower back when she attempted to stand for a long period oftime to paint on an easel. She did not have any problem with her jaw popping or difficulty openingand closing her jaw. The plaintiff testifies that she continues to have difficulty sitting or standingfor long periods of time and that she has pain when sitting or walking a couple of times a day andthat this pain is severe a few times a month.

The evidence submitted by the defendants established their prima facie entitlement tosumm~u'yjudgment dismissing the complaint by demonstrating that the plaintiff did not sustain aserious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident(see, Toure v. Avis Rent A Cm Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992];Saetia v. VIP Renovations Corp., 68 AD3d 1092 [2nd Dept., 2009]; Dietrich v. PutICab Corp., 63AD3d 778 [2nd Dept., 2009]; DiFilippo v. Jones, 22 AD3d 788 [2nd Dept., 2005]; Casella v. N.Y.City Transit !\uth., 14 AD3d585 [2nd Dept., 2005]). In opposition to the defendants' primaf({cieshowing, it was incumbent upon the plaintiff to demonstrate, by the submission of objective proofof the nature and degree of the injury, that she did sustain a "serious" injury as a result of theinstant accident, or that there are questions of fact as to whether she sustained such an injury asa result of the subject accident (see, Toure v. Avis Rent A Cm Svs., 98 NY2d 345 [20021 at 350).The plaintiff has not submitted any opposition to this motion and, thus, has failed to meet thisburden.

Based on the foregoing, it is

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ORDERED that this motion by the defendants for summary judgment dismissing thecomplaint is granted; submit judgment (see, 22 NYCRR §202.48).

!Dateel: February ' 2011 ./ " / /,'r I;. I " • /.!,' (.' ,',' :_/, ,

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BON. WILLIAM B. REBOLINI, ].S.C.

X FINAL DISPOSITION NON-FINAL DISPOSITION

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