Diaz v Charlot2013 NY Slip Op 32998(U)

November 18, 2013Supreme Court, Suffolk County

Docket Number: 09-36585Judge: Joseph C. Pastoressa

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SI IO I~ I FORl'vl ORDER INDEX No. 09-36585 CAL. No. l 3-00677MV

SUPREME COURT- STATE OF NEW YORK I.A.S. PART 34 - SUFFOLK COUNTY

PRESENT:

Hon. JOSEPH C. PASTORESSA Justice of the Supreme Court

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NELSON DIAZ, PAMELA DIAZ and EVELYN DIAZ,

Plaintiffs,

- against -

MARIE CHARLOT and DONALD CHARLOT,

Defendants.

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Mot. Seq.# 001 - MD # 002-XMD

GRUNDF AST & HIGHAM, ESQS. Attorney for Plaintiffs 207 Hallock Road, Suite 207 Stony Brook, New York 11790

SHAYNE, DACHS, CORKER, SAUER & DACHS, LLP Attorney for Defendants 114 Old Country Road, Suite 410 Mineola, New York 11501

DODGE & MONROY, P.C. Attorney for Plaintiff on the Counterclaim 175 Pinelawn Road, Suite 105 Melville, New York 11747

Upon the following papers numbered I to..fi. read on the motion and cross motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (00 I )I - 14; Notice of Cross Motion and supporting papers (002) 15-20 ; Answering Affidavits and suppo11ing papers 21-22 ; Replying Affidavits and supporting papers 23-24; Other_; (and atte1 hea1 i11g rottft3el i11 suppo1 t and opposed to the 111otio11) it is,

ORDERED that motion (00 l) by defendants, Marie Charlot and Donald Charlot, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiffs Nelson Diaz and Pamela Diaz did not sustain a serious injury as defined by Insurance Law § 5102 ( d), is denied; and it is further

ORDERED that cross motion (002) by plaintiff on the counterclaim, Nelson Diaz, pursuant to CPL.R 3212 for summary judgment dismissing the first counterclaim for judgment over for indemnification asserted by the defendants on the basis that the plaintiff Pamela Diaz did not sustain a serious injury as defined by Insurance Law § 5102 ( d), is denied.

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In this negligence action, Nelson Diaz and Pamela Diaz seek recovery for damages for personal injuries they allegedly sustained on October 12, 2006, on Mount Avenue at or near its intersection with Genoa Street, in Suffolk County, New York, when the vehicle owned by plaintiff Evelyn Diaz and operated by Nelson Diaz, was struck by the vehicle operated by defendant Marie Charlot and owned by defendant Donald Charlot. Pamela Diaz was a passenger in the Diaz vehicle at the time of the accident. Evelyn Diaz seeks to recover for property damage to her vehicle relating to the accident, and, as the spouse of Nelson Diaz, also asserted a derivative claim. The Charlot defendants have asserted first and second counterclaims for judgment over against plaintiff Nelson Diaz wherein they seek indemnification/contribution as to plaintiff Pamela Diaz relating to her cause of action for damages for personal injury, and as to plaintiff Evelyn Diaz relating to her derivative cause of action as to her husband's injuries.

Pursuant to Insurance Law § 5102 ( d), "' [ s ]erious 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 or 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."

The term "significant," as it appears in the statute, has been defined as "something more than a minor limitation of use," and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment (Licari v Elliot, 57 NY2d 230 [1982]).

On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law § 5102 ( d), the initial burden is on the defendant to "'present evidence in competent form, showing that plaintiff has no cause of action" (Rodriquez v Goldstein, 182 AD2d 396 [1'1 Dept 1992]). Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists (DeAngelo v Fidel Corp. Services, Inc., 171AD2d588 [1 '1 Dept 1991]). Such proof, in order to be in competent or admissible form, shall consist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268 [2nd Dept 1992]). The proof must be viewed in a light most favorable to the non-moving party, here the plaintiff (Cammarere v Villanova, 166 AD2d 760 [3'ct Dept 1990]).

In order to recover under the "permanent loss of use" category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential 1 imitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the

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body part (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, supra).

In support of this application, the defendants have submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, answer with counterclaims, verified answer to the counterclaims, and plaintiffs' verified bill of particulars; the reports dated May 25, 2012 by Chandra M. Sharma, M.D. concerning his independent neurological examinations of Nelson Diaz and Pamela Diaz; and three pages of the transcript of the examination before trial of Nelson Diaz, and six pages of the transcript of Pamela Diaz, each dated April 26, 2012. The transcripts provided are incomplete and raise factual issues concerning the remainder of the plaintiffs' respective testimonies.

By way of the verified bill of particulars, Nelson Diaz alleges that he sustained injuries consisting of an annular bulge at C5-6 which flattens the ventral thecal sac; right uncovertebral spurring at C5-6 with right foramina encroachment; central disc herniation at C6-7 indenting the ventral thecal sac; loss of normal cervical lordosis and cervical scoliosis related to muscle spasm and pain; intraosseous fiscal herniation at Tl 2-L 1; right C5-6 cervical radiculopathy as per positive EMG/NCV study; reversal of cervical lordosis; cervical, thoracic and lumbar strains/sprains; right shoulder contusion, antalgic gait; and persistent and constant back pain and neck pain.

By way of the verified bill of particulars, Pamela Diaz alleges that she sustained injuries consisting of loss of normal cervical lordosis; cervical sciolosis related to muscle spasm; spinal stenosis; decreased TI marrow signal; straightening of the cervical lordosis, cervical, thoracic, and lumbar strains/sprains; post-traumatic cervical facet joint syndrome; myofascitis; right shoulder contusion; muscle strain; persistent and constant back and neck pain.

Upon careful review and consideration of the evidentiary submissions, it is determined as a matter of law that the defendants have not established prima facie entitlement to summary judgm1;:nt dismissing the complaint on the basis that the plaintiffs, Nelson Diaz and Pamela Dias, did not each sustain a serious injury as defined by Insurance Law § 5102 ( d).

The defendants failed to support their motion with the medical records and copies of the reports of the MRI studies and diagnostic testing performed, including EMG/NCV testing on the plaintiffs, which Dr. Sharma set forth in his reports as having been reviewed by him. The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which were not in evidence, and that expert testimony is limited to facts in evidence (see, Allen v Uh, 82 AD3d I 025 [2°d Dept 2011]; Marzuillo v Isom, 277 AD2d 362 [2"d Dept 2000]; Stringile v Rothman, 142 AD2d 637 [2 11

c1 Dept 1988]; O'Shea v Sarro, 106 AD2d 435 [2nd Dept 1984]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273 [Sup Ct, Tomkins County 2002]). Such records and reports are not in evidence.

Additionally, as a neurologist, Dr. Sharma's curriculum vitae does not qualify him to render orthopedic opinions with regard to plaintiffs' claimed orthopedic injuries involving their respective right shoulders, and no report by an examining orthopedist has been submitted by the defendants as to either plaintiff. leaving this court to speculate as to the opinion of an orthopedist with regard to the plaintiffs' shoulder injuries and allegations of myofascitis (Browdame v Candura, 25 AD3d 747 [2nd Dept 2006]),

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creating factual issues which precludes summary judgment as to both Nelson Diaz or Pamela Diaz. It is further noted that Dr. Sharma set forth in his report that neither plaintiff was sure if he or she was treated by a neurologist for these alleged injuries.

Dr. Sharma performed range of motion testing on Nelson Diaz's cervical and lumbar spines, and reported no deficits. He diagnosed Nelson Diaz with cervical and lumbar sprain/strain-resolved, and normal neurological examination. However, Dr. Shanna's report leaves factual issues to be resolved. Dr. Sharma does not comment upon Nelson's Diaz's injury to his shoulders, and does not comment upon the findings of the EMG/NCV testing which the plaintiff alleges reveals cervical radiculopathy. Dr. Sharma does not rule out that Nelson Diaz's claims of herniated and bulging cervical discs, or cervical radiculopathy are causally related to the accident. Such injuries are not addressed except in a conclusory and unsupported statement that there are no neurological manifestations of disc bulges or herniations, and Dr. Sharma does not state what such manifestations would be.

Dr. Sharma also examined Pamela Diaz's cervical and lumbar ranges of motion and compared his findings to the normal ranges of motion and reported no deficits. However, Dr. Sharma does not comment upon Pamela Diaz's orthopedic injury to her shoulder and does not indicate that he examined it either, leaving this court to speculate as to that injury, precluding summary judgment. Dr. Sharma diagnosed Pamela Diaz with cervical and lumbar sprain/strain-resolved, and found a normal neurological examination. Dr. Sharma indicated in a conclusory and unsupported statement that there are no neurological manifestations of disc bulges or disc herniations, but does not indicate what those manifestations would be. Dr. Sharma does not address the findings of the EMG/NCV testing and does not rule out radiculopathy. Dr. Sharma noted that Pamela Diaz still reported numbness and tingling in the hands, particularly towards the morning hours, thus, raising factual issues with regard to this injury. Dr. Shanna additionally does not address the stenosis claimed by Pamela Diaz.

It is noted that insofar as the category of serious injury that an individual is unable to substantially perform all of the material acts which constituted his or her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident the expert offers no opinion with regard to this category of serious injury.

Dr. Sharma reported that Pamela Diaz was under the care of Dr. Trimba, but does not indicate Dr. Trimba's specialty. He indicated that she received physical therapy three days a week for three months. The incomplete transcript of the testimony of Pamela Diaz precludes this court from ascertaining her treatment and what complaints, if any, she may still have, as most answers are not provided.

Nelson Diaz testified to the extent that he received physical therapy for two to three months, about three days a week, or everyday. He works in construction. Dr. Sharma indicated in his report that Nelson Diaz develops lower back pain with prolonged sitting or with strenuous activities. Dr. Sharma also indicated that Nelson Diaz was out of work for four months following the accident.

Based upon the foregoing, the defendants have not demonstrated prima facie entitlement to summary judgment dismissing the complaint as to either category of injury defined by Insurance Law

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§5102 (d), as to either plaintiff, and the factual issues raised in defendant's moving papers preclude summary judgment (see, Agathe v Tun Chen Wang, 98 NY2d 345 [2006]); see also, Walters v Papanastassiou, 31 AD3d 439 [2nd Dept 2006]). Inasmuch as the moving party failed to establish prima facie entitlement to judgment as a matter of law in the first instance on the issue of "serious injury", it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see, Yong Deok Lee v Singh, 56 AD3d 662 [2nd Dept 2008]); Krayn v Torella, 40 AD3d 588 [2nd Dept 2007]; Walker v Village of Ossining, 18 AD3d 867 [2nd Dept 2005]), as the burden has not shifted to the plaintiffs.

Accordingly, motion (001) by the defendants for summary judgment dismissing the complaint on the basis that neither Nelson Diaz nor Pamela Diaz suffered a serious injury as defined by Insurance Law §5 102 (d) is denied.

Turning to the cross motion (002), the plaintiff on the counterclaim seeks summary judgment dismissing the counterclaim asserted by the defendants on the bases that Pamela Diaz did not sustain a serious injury as defined by Insurance Law §5102 (d).

In support of this application, plaintiff on the counterclaim Nelson Diaz has submitted an attorney's affirmation, copies of the summons and complaint and the verified answer with the counterclaims, and plaintiff's answer to the counterclaim. Nelson Diaz, by counsel, incorporates by reference, the motion for summary judgment filed by the defendants in motion (001 ), and proffers the arguments, evidence, and exhibits included therein, to verify the lack of a serious injury as to plaintiff Pamela Diaz.

It is determined, however, in that the defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint as to Pamela Diaz in motion (001), that plaintiff on the counterclaim's application must also fail, as it is supported by the same evidentiary proof and arguments which did not yield a determination in favor of the defendants in motion (001) .

Accordingly, the cross motion (002) by plaintiff on the counterclaim, Nelson Diaz, for summary judgment dismissing the first counterclaim for judgment over for indemnification is denied. //' . . . __ _

// -------Dated: November 18, 2013 ·.~:::~L--------------~""'-

HoN. JOSEPH C. P ASTORESSA, J.S.C..

FINAL DISPOSITION _X_ NON-FINAL DISPOSITION

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