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Page 1: Present: Justicedecisions.courts.state.ny.us/10jd/nassau/decisions/... · few days after the accident, she was treated by Dr. Andrew Marcus, a chiropractor, where she received physical

SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORKNASSAU COUNTY - PART 17

Present: HON. WILLIAM R. LAMARCAJustice

DIMITRIOS ZERVOUDIS and ANGELAZERVOUDIS,

Plaintiff,-against-

TRANSIT CARAVAN, INC. andJOHN DOE"

INDEX NO: 4124/06Action #1

Defendants.

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

STELLA ZERVIOUDIS,

-against-DIMITRIOS ZERVOUDIS, TRANSITCARAVAN, INC. and "JOHN DOE 1" , theoperator of motor vehicle owned by TRANSITCARAVAN, INC.

Defendants

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has been withdrawn, and many of the papers submitted on the instant motions are no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

CARAVAN"

),

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:

Background

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. .

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. "

, 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 reports and found no evidence of causally related neurological injury or disabilty

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and no need for any additional neurological treatment.

The Law

It is well settled that a motion for summary judgment is a drastic remedy that should

not be granted where there is any doubt as the existence of a triable issue offact (Silman

v Twentieth Century Fox 3 NY2d 395 165 NYS2d 498, 144 NE2d 387 (C. A. 1957); Bhatti

v Roche 140 AD2d 660 , 528 NYS2d 1020 (2 Dept 1998)). To obtain summ ry judgment

the moving party must establish its claim or defense by tendering sufficient evidentiary

proof in admissible form sufficient to warrant the Court, as a matter of law, to direct

judgment in the movant's favor. Such evidence may include deposition transcripts as well

as other proof annexed to an attorney s affirmation (CPLR ~3212 (b); Olan v Farrell Lines

64 NY2d 1092 , 489 NYS2d 884 , 479 NE2d 229 (C.A.1985)).

If a sufficient prima facie showing is demonstrated , the burden then shifts to the

non-moving party to come forward with competent evidence to demonstrate the existence

of a material issue of fact, the existence of which necessarily precludes the granting of

summary judgment and necessitates a trial. It is incumbent upon the non-moving part to

lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian v

Donato 141 AD2d 513 , 529 NYS2d 134 (2d Dept 1998)). Conclusory allegations are

insufficient and to defeat the application and the opposing party must provide more than

a mere reiteration of those facts contained in the pleadings (Doran v Mutual Benefit Life

Insurance Co. , 106 AD2d 540 , 483 NYS2d 66 (2 Dept. 1984); Bethlehem Steel Corp. v

Solow 70 AD2d 850 , 418 NYS2d 40 Dept. 1979)). When considering a motion for

summary judgment , the function of the court is not to resolve issues but rather to determine

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if any such material issues offact exist (Barr v County of A/bany, 50 NY2d 247 , 428 NYS2d

665 406 NE2d 481 (C. A. 1980); Daliendo v Johnson 147 AD2d 312 , 543 NYS2d987 (2

Dept. 1989)).

Within the particular context of a threshold motion which seeks dismissal of a

personal injury complaint, the movant bears a specific burden of establishing that the

plaintiff did not ustain a "serious injury" as enumerated in Article 51 of the Insurance Law

~5102(d) (Gaddy v Eyler 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176 (C.A.1992)).

Upon such a showing, it becomes incumbent upon the nonmoving part to come forth with

sufficient evidence in admissible form to raise an issue of fact as to the existence of a

serious injury (Licari v Elliott, 57 NY2d 230 , 455 NYS2d 570, 441 NE2d 1088 (C.A.1982)).

Within the scope of the defendant's burden , a defendant's medical expert must

specify the objective tests upon which the stated medical opinions are based and when

rendering an opinion with respect to the plaintiff's range of motion , must compare any

findings to those ranges of motion considered normal for the particular body part (Qu v

Doshna 12 AD3d 578 , 785 NYS2d 112 (2d Dept 2004); Browdamev Candura 25 AD3d

747 807 NYS2d 658 (2d Dept 2006); Mondi v Keahan 32 AD 3d 506 , 820 NYS2d 625 (2d

Dept 2006)).

Applying the aforesaid criteria to the reports of Dr. Toriello and Dr. Carciente and

the deposition testimony, the Court finds that the defendant has established a prima facie

case that the plaintiff failed to sustain a serious injury (Gaddy v Eyler, supra; see also

Kearse v New York City Transit Authority, 16 AD3d 45 789 NYS2d 281 (2d Dept 2005)).

As stated above , the doctors found the plaintiff to have normal and complete ranges of

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motion with regard to the neck and shoulders , as well as the cervical and lumbar spines

notwithstanding MRI reports which indicated the presence of disc herniations (Diaz v

Turner 306 AD2d 241 , 761 NYS2d 193 (2 Dept. 2003); see also, Meely v 4 G' Truck

Renting Co. 16 AD3d 26 , 789 NYS2d 277 (2d Dept 2005)). Moreover, the doctors stated

the specific tests upon which their medical conclusions were based and compared the

plaintiffs ranges of motion to those ranges of motion con idered normal (Qu v Doshna

supra; Browdame v Candura, supra).

Thus , the burden now shifts to the plaintiffs to demonstrate a triable issue of fact

with respect to the existence of a "serious injury (Licari v Ellott, supra).

In opposition to the defendant's ilJstant application , counsel for the plaintiff submits

the unaffirmed reports of Mark Shapiro , M. , a radiolog!st, who administered MRl's to

plaintiff on December 3 and 13 2004 , and the unaffirmed report of James M. Ligouri , M.

a neurologist , who administered somatosensory and electromyography tests on the

plaintiff, on November 5, 2004 and January 17 , 2005 , respectively, and a copy of a letter

from Dr. Ligouri , dated November 5 2004 , to Dr. Marcus , the referring doctor. Additionally,

plaintiffs counsel submits an "affirmation" from Dr. Shapiro which , essentially, reiterates

the findings of the MRl's administered to plaintiff in December 2004. Neither "affirmation

is dated nor in the form required under CPLR Rule 2106 which directs that the statement

be affirmed under the penalties of perjury; nor are they affidavits sworn before a notary

public. Finally, plaintiffs counsel submits the affirmed report of Dr. Ligouri , dated July 1

2008 , who examined plaintiff on said date , after the instant motion for summary judgment

was interposed. Before that time , Dr. Ligouri had last seen plaintiff in January 2006 as a

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follow up to November 5 , 2004 and April 5, 2005 visits. Based on his report , there are long

gaps between the November 5 , 2004 , April 5 , 2005 and January 17 , 2006 exams , and a

lengthy two and a half year gap between January 17 , 2006 and Ju ne 26 , 2008. Dr. Ugouri

does not provide any reasonable explanation for long intermediate gaps in plaintiffs

medical treatment.

Plaintiff' s submitted evidence lacks probative value. The diagnostic test reports

issued by Dr. Shapiro and the medical records from Dr. Ligouri , annexed to the opposition

papers as Exhibit "B" are not sworn to or affirmed and are , thus inadmissible in their

, entirety. lusmen v. Konopka 38 AD3d 608, 831 NYS2d 530 (2 Dept. 2007); Burgos v.

Vargas 33 AD3d 579 , 822 NYS2d 297 (2 Dept. 2006). Moreover, the submissions from

Dr. Shapiro, annexed to the opposition papers as Exhibit " , are neither dated , in the form

required for an affirmation under CPLR Rule 2106 (Offman v. Singh 27 AD3d 284 813

NYS2d 56 (1 sl Dept.2006)), nor sworn to. Even assuming arguendo that Dr. Shapiro

affirmation" was free from infirmity, his findings in general reflect normal height and signal

to the lumbar and cervical discs , no significant spinal stenosis and recommendation of

further clinical correlation with respect a left foraminal herniation at L4- , which is not

provided. While a herniated or bulging disc or the presence of a radiculopathy may

. constitute a serious injury within the ambit of Insurance Law ~51 02(d), a plaintiff is required

to provide inter alia objective medical evidence contemporaneous with the subject

accident, which demonstrates the extent and degree of the alleged physical limitation

resulting from the disc injury and its duration (/frach v Neiman 306 AD2d 380 , 710 NYS2d

866 (2d Dept 2003); Jason v Danar, 1 AD3d 398 , 767 NYS2d 779 (2d Dept 2003); Felix v

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New York City Tr. Auth. 32 AD 3d 527 , 819 NYS2d 835 (2d Dept 2006); Garcia v Sob/es

41 AD 3d 426 838 NYS2d 146 (2d Dept 2007); Bestman v Seymour 41 AD3d 629, 838

NYS2d 645 (2d Dept 2007); Marrache v Akron Taxi Corp. 50 AD3d 973 856 NYS2d 239

(2d Dept 2008)). Positive magnetic resonance imaging ("MRI") findings must be

accompanied by objective findings of either a specific percentage of the loss of range of

motion or a sufficient description of the .qualitative nature of plaintiff's limitations based

upon the normal function , purpose and use of the body part" BernabeI v PeruI/o , 751

NYS2d 314 (2 Dept. 2002); Bent v Jackson 15 AD3d 46 788 NYS2d 56 (1 Dept. 2005).

When examining medical evidence offered by a plaintiff on a threshold motion , the

court must insure that the evidence is objective in nature and that a plaintiffs subjective

claims as to pain or limitation of motion are sustained by verified objective medical findings

(Grossman v Wright 268 AD2d 79 (2d Dept 2000)). Further, in addition to providing

medical proof contemporaneous with the subject accident , the plaintiff must also provide

competent medical evidence containing verified objective findings based upon a recent

examination , wherein the expert must provide an opinion as to the significance of the injury

(KauderervPenta 261 AD2d 365 , 689 NYS2d 190 (2d Dept 1999)).

Additionally, the only admissible evidence submitted by plaintiff is the affrmed report

of Dr. Ugouri which fails to address the long gaps in plaintiff's medical treatment.

Significant gaps in treatment are strong evidence that a plaintiff has not suffered a serious

injury. Pommels v Perez 4 NY3d 566 , 797 NYS2d 380 , 830 NE2d 278 (C.A. 2005);

Crespo v Kramer 295 AD2d 467 , 744 NYS2d 187 (2 Dept. 2002). Plaintiffs explanation

that she ceased medical treatment because the no-fault company terminated benefits and

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she was reluctant to "personally bear" the expense of continued treatment , is without merit.

It appears that plaintiff had private health insurance from Oxford Health Plus which covered

plaintiffs medical expenses following the October 19 , 2004 accident.

Moreover, Dr. Ligouri's report demonstrates only mild restriction in the cervical and

lumbar spine. A minimal limitation of the use of body part established neither a "significant"

nor "consequential" injury, Licari v Elloit, supra. Dr. Ligouri's affirmation is devoid of

medical evidence that plaintiffs modest decrease in cervical rotation and lower extremity

impairment persisted for any appreciable length of time following the accident. Pat/ow v

Meehan 155 AD2d 647 , 548 NYS2d 239 (2 Dept. 1989). Indeed , he acknowledges that

the EMG/NCV testing of plaintiff's upper and lower extremities were within normal limits

and that SSEP testing of plaintiffs upper and lower extremities were within normal limits.

Plaintiffs affidavit setting forth subjective complaints of pain and restriction of daily

activities is not sufficient to defeat defendant's motion for summary judgment. Olson v

Russel 35 AD3d 684 , 828 NYS2d 417 (2 Dept. 2006); Abbasi v Thompson 15 AD 3d 95

788 NYS2d 48 (1 Dept. 2005); Phillps v Costa 160 AD2d 855 , 554 NYS2d 288 (2 Dept.

1990). Also , in order to qualify under the 90/180 dayrule , a plaintiff must prove that he or

she was curtailed from performing substantially all of his or her customary daily activities

to a great extent for 90 out of 180 days following the accident. Plaintiffs self-serving claims

that her daily activities and routine have not been the same since the accident

insufficient to create a triable issue of fact in the absence of any competent medical

evidence (Rodney v Solntseu, 302 AD2d 442 754 NYS2d 911 (2 Dept. 2003); Hand v

Bonura 283 AD2d 608 , 729 NYS2d 729 (2 Dept. 2001)). Plaintiff acknowledges that she

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only missed a few days of work after the accident and that she was not confined to her

home.

Conclusion

Applying the foregoing principles to the medical evidence proffered by the plaintiff

the Court finds that the plaintiff has failed to raise a triable issue of fact.

Based upon the foregoing, it is hereby

ORDERED, that the defendant's motion for summary judgment dismissing plaintiffs

complaint on the ground that she has not sustained a "serious injury" is granted and the

complaint is dismissed; and it is further

. ORDERED that Motion Sequence # 4 is denied as moot.

All further requested relief not specifically granted is denied.

TO:

This constitutes the decision and order of the

l\ C__. ..

ourl.

Dated: November 18 , 2008

LlAM R. LaMARCA , J.

Andrew C. Laufer,. PC f' Q

~~~~~~~~~

:: f;OUdiS

Malapero & Prisco LLP DUN1'!Attorneys for Defendant Transit Caravan , Inc.

5S"\) S orr\CE.

295 Madison Avenue t' ..\ C\.E.?\New York, NY 10017 CO\Jf'

John P. Humphreys , Esqs.Attorneys for Defendant Dimitrios Zervoudis3 Huntington Quadrangle , Suite 102SMelville , NY 11747

stellazervoudis-dimitrious , transitcaravan&johndoe #03 #04/sumjudg

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