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Supreme Court, Bronx County, New York.

Javier PERILLA, Plaintiff v. Bazlur AKANDA, Defendant.

Decided: August 14, 2006

David Gendelman Esq., New York, for Plaintiff. Colin Morrissey Esq., Baker, McEvoy, Morrissey & Moskovits, P.C., New York, for Defendant.


Plaintiff sues to recover for injuries he sustained September 2, 2003, when a vehicle defendant owned and was operating struck plaintiff, who was riding a bicycle.   Defendant moves for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a “serious injury” entitling him to recover for “non-economic loss.”  N.Y. Ins. Law §§ 5102(d), 5104(a).   For the reasons explained below, the court denies defendants' motion except to the limited extent set forth.  C.P.L.R. § 3212(b) and (e).


A. Defendant's Evidence

Defendant's physician, John Hughes M.D., based on his examination of plaintiff as well as reports of a diagnostic study, found no neurological abnormalities in his lumbar spine.   In a report dated August 22, 2005, Roger A. Berg M.D. found magnetic resonance imaging (MRI) of plaintiff's lumbar spine conducted October 21, 2003, showed the only abnormality to be a small disc bulge at the L5-S1 level, which Dr. Berg concluded was unrelated to the September 2003 collision.

Although Dr. Berg provides no objective evidence or rationale to support his conclusion regarding causation, see Offman v. Singh, 27 A.D.3d 284, 285, 813 N.Y.S.2d 56 (1st Dep't 2006);  Thompson v. Abbasi, 15 A.D.3d 95, 99, 788 N.Y.S.2d 48 (1st Dep't 2005);  Webb v. Johnson, 13 A.D.3d 54, 786 N.Y.S.2d 22 (1st Dep't 2004), Dr. Hughes's findings are enough to demonstrate plaintiff did not sustain a permanent or significant limitation of functioning.   Thompson v. Abbasi, 15 A.D.3d at 96, 788 N.Y.S.2d 48;  Bent v. Jackson, 15 A.D.3d 46, 47, 788 N.Y.S.2d 56 (1st Dep't 2005);  Brown v. Achy, 9 A.D.3d 30, 31, 776 N.Y.S.2d 56 (1st Dep't 2004).   Since Dr. Hughes found a full range of motion in plaintiff's lumbar spine, his failure to comment on MRI reports of plaintiff's spine does not undermine the physician's conclusion that plaintiff did not sustain a serious injury.  Servones v. Toribio, 20 A.D.3d 330, 798 N.Y.S.2d 58 (1st Dep't 2005);  Meely v. 4 G's Truck Renting Co., Inc., 16 A.D.3d 26, 30, 789 N.Y.S.2d 277 (1st Dep't 2005).   Plaintiff's deposition testimony that he missed one week of work after the collision, although no physician advised him to do so, further demonstrates he did not suffer an injury or impairment that prevented him from performing his daily activities for 90 of the 180 days following the collision.  Thompson v. Abbasi, 15 A.D.3d at 101, 788 N.Y.S.2d 48;  Flores v. Singh, 13 A.D.3d 203, 204, 786 N.Y.S.2d 491 (1st Dep't 2004);  Copeland v. Kasalica, 6 A.D.3d 253, 254, 775 N.Y.S.2d 276 (1st Dep't 2004);  Nelson v. Distant, 308 A.D.2d 338, 339, 764 N.Y.S.2d 258 (1st Dep't 2003).

B. Plaintiff's Rebuttal

Lyzette Velazquez M.D. initially examined plaintiff September 16, 2003, and found restrictions on range of motion from 33% to 46% in various planes in his lumbar spine.   Her follow-up examination November 17, 2003, revealed similar restrictions ranging from 31% to 55%.   Upon examining plaintiff April 29, 2005, Dr. Velazquez found restrictions on range of motion in plaintiff's lumbar spine of 44% in flexion, 11% in extension, and 42.8% in lateral bending.

Contrary to Dr. Berg, Dr. Velazquez found that the October 2003 MRI of plaintiff's spine showed a disc herniation at L5-S1. While the record is not clear whether she reviewed the MRI films or a report, the court must construe her affirmation in the light most favorable to plaintiff.  Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 (2002).   Her regurgitation of the MRI report's precise terms suggests she undertook no independent review of the actual films, but does not necessarily contradict a finding that after her own review she simply concurred with the report.   Any determination here as to whether she reviewed the films or only the report would amount to an impermissible credibility determination via a summary judgment motion.  Rosario v. Universal Truck & Trailer Serv., 7 A.D.3d 306, 309, 779 N.Y.S.2d 1 (1st Dep't 2004);  Choudhury v. Hsien Chen, 273 A.D.2d 142, 710 N.Y.S.2d 895 (1st Dep't 2000);  Vargas v. New York City Tr. Auth., 254 A.D.2d 175, 176, 679 N.Y.S.2d 44 (1st Dep't 1998);  Parker v. Defontaine-Stratton, 231 A.D.2d 412, 413, 647 N.Y.S.2d 189 (1st Dep't 1996).

 Although the electromyelogram on which Dr. Velazquez bases her diagnosis of radiculopathy is not in the record, her findings of persistent, quantified restrictions on plaintiff's lumbar range of motion, objectively supported by her diagnosis of a lumbar herniation, McNair v. Lee, 24 A.D.3d 159, 160, 805 N.Y.S.2d 67 (1st Dep't 2005);  Rosario v. Universal Truck & Trailer Serv., 7 A.D.3d at 309, 779 N.Y.S.2d 1;  Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 (1st Dep't 2003), raise factual issues whether plaintiff's impairment constitutes a serious injury.  Ferguson v. Budget Rent-A-Car, 21 A.D.3d 730, 731, 800 N.Y.S.2d 693 (1st Dep't 2005);  Seda v. Khabrane, 16 A.D.3d 118, 792 N.Y.S.2d 19 (1st Dep't 2005).   Dr. Velazquez further attributes plaintiff's limitations and underlying herniation to the September 2003 trauma and concludes these conditions are all permanent, so as to qualify as both a significant limitation of functioning and a permanent consequential limitation caused by the collision.

 Plaintiff's deposition testimony indicating his inability to work 40 non-consecutive days after the initial week still does not demonstrate the inability to function for the required 90 days.   Plaintiff also presents no medical evidence to support his claim of disability from working, as is required to raise a factual issue of an impairment that prevented his functioning for 90 of the 180 days following the collision.  Thompson v. Abbasi, 15 A.D.3d at 101, 788 N.Y.S.2d 48;  Copeland v. Kasalica, 6 A.D.3d at 254, 775 N.Y.S.2d 276;  Nelson v. Distant, 308 A.D.2d at 340, 764 N.Y.S.2d 258.   He thus fails to rebut defendant's evidence establishing the absence of a serious injury in this category.

C. Treatment Gap

Dr. Velazquez's report in opposition to defendant's motion discloses a 15 to 17 months gap in plaintiff's treatment:  from November 2003 or at least January 2004 to April 2005, which if unexplained would be fatal to plaintiff's claim of a significant or permanent consequential limitation.  Baez v. Rahamatali, 24 A.D.3d 256, 808 N.Y.S.2d 171 (1st Dep't 2005), aff'd, 6 N.Y.3d 868, 817 N.Y.S.2d 204, 850 N.E.2d 19 (2006);  Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 (2005);  Agramonte v. Marvin, 22 A.D.3d 322, 802 N.Y.S.2d 420 (1st Dep't 2005);  Colon v. Kempner, 20 A.D.3d 372, 374, 799 N.Y.S.2d 213 (1st Dep't 2005).   Defendant, however, did not raise a treatment gap in his motion.

Ordinarily the court may not consider issues raised for the first time in reply.  McNair v. Lee, 24 A.D.3d at 160, 805 N.Y.S.2d 67;  Morris v. Solow Mgt. Corp., 8 A.D.3d 126, 127, 779 N.Y.S.2d 29 (1st Dep't 2004);  Jackson v. Bronx Lebanon Hosp. Ctr., 7 A.D.3d 356, 357, 775 N.Y.S.2d 859 (1st Dep't 2004);  Leeds v. Lenox Hill Hosp., 6 A.D.3d 232, 775 N.Y.S.2d 260 (1st Dep't 2004).   Consideration of a treatment gap defense first addressed in reply is nonetheless permissible when the defense is first revealed by plaintiff's evidence in opposition to defendant's motion, as long as plaintiff then is permitted to respond further.  Home Ins. Co. v. Leprino Foods Co., 7 A.D.3d 471, 777 N.Y.S.2d 472 (1st Dep't 2004);  Gaud v. Markham, 307 A.D.2d 845, 846, 764 N.Y.S.2d 241 (1st Dep't 2003);  NYCTL 1996-1 Trust v. Railroad Maintenance Corp., 266 A.D.2d 39, 40, 698 N.Y.S.2d 27 (1st Dep't 1999).   In actions claiming a serious injury under Insurance Law § 5102(d), defendant may not always be in a position to discern a treatment gap until plaintiff sets forth his evidence, any more than plaintiff may be expected to address a treatment gap not raised by defendant.   Furthermore, defendant is in no position to determine whether to raise the treatment gap defense until he knows plaintiff will claim a category of serious injury to which a treatment gap is a defense.   It does not pertain, for example, to an impairment that prevents performing customary activities for 90 of the 180 days following the collision, Berete v. Ford Motor Credit Co., 10 Misc.3d 1067(A), 2006 WL 26141 (Sup.Ct. Bronx Co.2006), aff'd, 29 A.D.3d 452, 815 N.Y.S.2d 505 (1st Dep't 2006);  Gomez v. Ford Motor Credit Co., 10 Misc.3d 900, 904, 810 N.Y.S.2d 838 (Sup.Ct. Bronx Co.2005), or to other categories, such as a fracture or significant disfigurement, which also may not be discernible from the initial pleadings.  N.Y. Ins. Law § 5201(d).

 Here, however, defendant did not raise a treatment gap even in his reply.   This omission raises the issue whether the court may, by searching the record, grant summary judgment to defendant on a basis first presented by plaintiff's opposition to defendant's summary judgment motion and not raised by defendant at all.   Unquestionably, the court may search the record to grant summary judgment to a non-moving party entitled to summary judgment, C.P.L.R. § 3212(b);  Maheshwari v. City of New York, 2 N.Y.3d 288, 293 n. 2, 778 N.Y.S.2d 442, 810 N.E.2d 894 (2004);  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 111, 472 N.Y.S.2d 592, 460 N.E.2d 1077 (1984), but may not do so on an issue unrelated to the issues raised in the summary judgment motion.  Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-30, 654 N.Y.S.2d 335, 676 N.E.2d 1178 (1996);  Vinder v. Showbran Leasing & Mgt., 298 A.D.2d 325, 326, 749 N.Y.S.2d 240 (1st Dep't 2002);  Frank v. City of New York, 211 A.D.2d 478, 479, 621 N.Y.S.2d 546 (1st Dep't 1995).   Searching the record to grant summary judgment to a non-moving party affords an expedient resolution of a claim in that party's favor once the court has determined the party is entitled to relief.  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d at 112, 472 N.Y.S.2d 592, 460 N.E.2d 1077.   See Barca v. City of New York, 13 Misc.3d 464, 466-67, 819 N.Y.S.2d 631 (Sup.Ct. Bronx Co.2006);  Quinones v. Caballero, 10 Misc.3d 486, 494, 802 N.Y.S.2d 831 (Sup.Ct. Bronx Co.2005).   Dismissing a serious injury claim against all defendants when one moving defendant has shown the plaintiff lacks a serious injury, for example, fits within this scheme, because that issue is identical for all defendants and applies with equal force to each.  Nelson v. Distant, 308 A.D.2d at 340, 764 N.Y.S.2d 258;  Jason v. Danar, 1 A.D.3d 398, 399, 767 N.Y.S.2d 779 (2d Dep't 2003);  Grell v. MABSTOA, 288 A.D.2d 259, 260, 732 N.Y.S.2d 594 (2d Dep't 2001);  Dinkle v. Lagala, 246 A.D.2d 624, 625, 667 N.Y.S.2d 309 (2d Dep't 1998).

Here, since no party addressed the issue of a gap in plaintiff's treatment, even were defendant a non-moving party, the court could not grant summary judgment to him.   Granting defendant summary judgment based on the treatment gap would convert the motion into a review of every claim and defense in this action and ultimately shift the burden of proof away from the moving party.   See Dunham v. Hilco Constr. Co., 89 N.Y.2d at 430, 654 N.Y.S.2d 335, 676 N.E.2d 1178.   Here, moreover, defendant is the moving party.

Perhaps most importantly, in this posture, there is no certainty that the court, in granting judgment to defendant, would be resolving the action in favor of a party entitled to that relief.   See Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d at 112, 472 N.Y.S.2d 592, 460 N.E.2d 1077.   Defendant, in fact, may have been aware of evidence showing plaintiff's continuous treatment or explaining the gap, but obviously had no reason to present that evidence.   Plaintiff, on the other hand, may have omitted presenting that evidence in admissible form, believing he was presenting all that was necessary to oppose defendant's prima facie defense.   In sum, because defendant, as the moving party, bore the burden to demonstrate plaintiff did not sustain a serious injury under any category, C.P.L.R. § 3212(b) simply does not authorize the court to grant summary judgment to the moving party, on an unaddressed basis, by searching the record.


To recapitulate, although defendant failed to meet his burden of demonstrating a gap in plaintiff's treatment, defendant met his burden of demonstrating plaintiff did not sustain a serious injury from the September 2003 collision.   Plaintiff, however, raised factual issues, but only regarding significant and permanent consequential limitations.   Therefore the court grants defendant's motion for summary judgment only to the extent of dismissing any claim of serious injury under the 90 out of 180 days category, but otherwise denies defendant's motion.  C.P.L.R. § 3212(b) and (e);  Ferguson v. Budget Rent-A-Car, 21 A.D.3d at 731, 800 N.Y.S.2d 693.   See Toussaint v. Claudio, 23 A.D.3d 268, 268-69, 803 N.Y.S.2d 564 (1st Dep't 2005).


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