LAKE III v. CELEN (2009)

I. BACKGROUND

Plaintiffs sue to recover for personal injuries sustained October 22, 2006, when a motor vehicle owned and operated by defendant Celen collided with a motor vehicle plaintiff Rima Lake owned and operated, in which plaintiffs Raymond Lake Sr., Raymond Lake Jr., Raymond Lake III, and Yadira Rodriguez were passengers.   Raymond Lake Jr. has discontinued his action.   Celen moves for summary judgment, C.P.L.R. § 3212(b), dismissing the claims of Raymond Lake Sr., Raymond Lake III, and Rodriguez on the ground that they have not sustained a “serious injury” entitling them to recover for “non-economic loss.”  NY Ins. Law §§ 5102(d), 5104(a).   Defendant's motion, supported by a physician's findings that plaintiffs' spinal conditions are caused by degeneration, not trauma, requires the court to determine what findings plaintiffs' medical evidence must include to defeat the motion.

After oral argument March 18, 2009, and attempts to settle the action, Raymond Lake III and Rodriguez presented supplemental affidavits from treating physicians.   In a telephone conference April 14, 2009, Celen posed no objection to the court considering the supplemental affidavits.   For the reasons explained below, the court grants his motion to the extent set forth, but denies his motion in all other respects.

II. SUMMARY JUDGMENT ON THE ABSENCE OF SERIOUS INJURY

To obtain summary judgment, defendant Celen must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact that he caused plaintiffs Raymond Lake Sr., Raymond Lake III, and Rodriguez to sustain a “serious injury” as defined in Insurance Law § 5102(d).  C.P.L.R. § 3212(b);  Shaw v. Looking Glass Assoc. LP, 8 A.D.3d 100, 102, 779 N.Y.S.2d 7 (1st Dep't.2004);  Chatah v. Iglesias, 5 A.D.3d 160, 772 N.Y.S.2d 522 (1st Dep't.2004);  Shinn v. Catanzaro, 1 A.D.3d 195, 197, 767 N.Y.S.2d 88 (1st Dep't.2003).   Only if defendant satisfies this standard, does the burden shift to plaintiffs to rebut defendant's prima facie showing, by producing admissible evidence sufficient to require a trial of material factual issues as to whether plaintiffs sustained a serious injury.  Knoll v. Seafood Express, 5 N.Y.3d 817, 818, 803 N.Y.S.2d 25, 836 N.E.2d 1148 (2005);  Franchini v. Palmieri, 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282 (2003);  Lamb v. Rajinder, 51 A.D.3d 430, 859 N.Y.S.2d 4 (1st Dep't.2008);  Shaw v. Looking Glass Assoc. LP, 8 A.D.3d at 102, 779 N.Y.S.2d 7.

A. Raymond Lake Sr.

 Defendant's physicians, Kuldip Sachdev M.D. and S.W. Bleifer M.D., examined plaintiff Raymond Lake Sr. April 16, 2008, and reviewed his diagnostic studies and medical records.   Dr. Bleifer found no orthopedic abnormalities.   While Dr. Sachdev found limitations in Raymond Lake Sr.'s spinal range of motion, Dr. Sachdev attributed them to degenerative conditions unrelated to any traumatic impact of the October 2006 collision.  Rose v. Citywide Auto Leasing, Inc., 60 A.D.3d 520, 875 N.Y.S.2d 471, 472 (1st Dep't.2009).   See Delfino v. Luzon, 60 A.D.3d 196, 872 N.Y.S.2d 24, 25 (1st Dep't.2009);  Valentin v. Pomilla, 59 A.D.3d 184, 186, 873 N.Y.S.2d 537 (1st Dep't.2009);  Sky v. Tabs, 57 A.D.3d 235, 236-37, 868 N.Y.S.2d 648 (1st Dep't.2008);  Becerril v. Sol Cab Corp., 50 A.D.3d 261, 262, 854 N.Y.S.2d 695 (1st Dep't.2008).   Melissa Sapan Cohn M.D. reviewed magnetic resonance imagings (MRIs) of Raymond Lake Sr.'s cervical and lumbar spine and left shoulder conducted in November 2006 and found degenerative changes with bulging in his cervical spine, degenerative disc disease and bulging in his lumbar spine, and degenerative changes in his left shoulder, all unrelated to trauma.   This combined evidence demonstrates that the October 2006 collision did not cause Raymond Lake Sr. to sustain a permanent or significant limitation of functioning in his spine or any of his claimed injuries.  Marsh v. City of New York, 61 A.D.3d 552, 877 N.Y.S.2d 65, 66 (1st Dep't.2009);  Rose v. Citywide Auto Leasing, Inc., 875 N.Y.S.2d at 472;  Delfino v. Luzon, 872 N.Y.S.2d at 25;  Russell v. Mitchell, 59 A.D.3d 355, 356, 874 N.Y.S.2d 71 (1st Dep't.2009).

In rebuttal, Samuel Mayfield M.D., who conducted the MRIs of Raymond Lake Sr.'s spine, found they revealed herniation at multiple levels, from C3 to C6, in his cervical spine and disc bulging and disc space narrowing at L3-L5 in his lumbar spine.   John Himelfarb M.D., who conducted the MRI of Raymond Lake Sr.'s left shoulder, found hypertrophic changes of the acromioclavicular joint impinging on the, supra spinatus.

Chiropractor Fokion Avgerinos began treating Raymond Lake Sr. November 1, 2006, and upon examination found specified losses in range of motion in his cervical and lumbar spine.   Dr. Avgerinos diagnosed herniated cervical and lumbar discs and left shoulder derangement resulting from the October 2006 collision and imposing permanent limitations.   Raymond Lake Sr. fails to present evidence of a recent examination, however, as required to demonstrate a serious injury in the category of a significant or permanent consequential limitation of functioning.  Park v. Champagne, 34 A.D.3d 274, 276, 824 N.Y.S.2d 84 (1st Dep't.2006);  Thompson v. Abbasi, 15 A.D.3d 95, 97, 788 N.Y.S.2d 48 (1st Dep't.2005);  Bent v. Jackson, 15 A.D.3d 46, 48, 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).   See McNair v. Lee, 24 A.D.3d 159, 160, 805 N.Y.S.2d 67 (1st Dep't.2005).

B. Raymond Lake III

Defendant's physicians, Naunihal Sachdev Singh M.D. and again Dr. Bleifer, examined plaintiff Raymond Lake III in March and April 2008, respectively, reviewed his diagnostic studies and medical records, and found no orthopedic or neurological abnormalities.   Dr. Cohn reviewed MRIs of Raymond Lake III's cervical and lumbosacral spine conducted November 13, 2006, and found degenerative changes and disc bulging unrelated to trauma.  Delfino v. Luzon, 872 N.Y.S.2d at 25;  Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537;  Lattan v. Gretz Tr. Inc., 55 A.D.3d 449, 865 N.Y.S.2d 599 (1st Dep't.2008);  Rodriguez v. Abdallah, 51 A.D.3d 590, 591, 858 N.Y.S.2d 169 (1st Dep't.2008).   These findings demonstrate that Raymond Lake III did not sustain a permanent or significant limitation of functioning.  Park v. Champagne, 34 A.D.3d at 276, 824 N.Y.S.2d 84;  Thompson v. Abbasi, 15 A.D.3d at 97, 788 N.Y.S.2d 48;  Bent v. Jackson, 15 A.D.3d at 48, 788 N.Y.S.2d 56;  Brown v. Achy, 9 A.D.3d at 31, 776 N.Y.S.2d 56.

In rebuttal, chiropractor Richard Brodsky, who first treated Raymond Lake III October 30, 2006, found lost range of motion from 11% to 37.5% in six planes of his cervical spine and from 11% to 33.3% in three planes of his lumbosacral spine.   Dr. Brodsky found that the MRIs of Raymond Lake III's spine revealed disc herniation at the L5-S1 level, a disc bulge at the C4-C5 level, and straightening of his cervical lordotic curve.   While Dr. Brodsky does not specifically attest that he reviewed the MRI films themselves, the court must view the evidence in the light most favorable to plaintiffs, as opponents of the summary judgment motion. 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).   In any event, John T. Rigney M.D., who conducted the MRIs November 13, 2006, found they revealed herniation at L5-S1 and bulging at C4-C5. Dr. Brodsky diagnosed these conditions and cervical lordotic curve straightening as caused by the October 2006 collision and permanent.

Eric A. Crone D.O. examined this plaintiff January 24, 2008, and found lost lumbar right side bending of 33% to 50%.   Dr. Crone also diagnosed an L5-S1 disc herniation caused by the October 2006 collision and concluded that plaintiff's lumbar limitation in functioning was permanent.   Dr. Crone further concluded that plaintiff could no longer lift more than 10-15 pounds, bend, twist, or climb.

C. Yadira Rodriguez

Defendant's physicians, Dr. Singh and Dr. Bleifer, also examined plaintiff Rodriguez in March and April 2008, reviewed her diagnostic studies and medical records, and found no orthopedic or neurological abnormalities.   Dr. Cohn also reviewed MRIs of Rodriguez's cervical spine conducted November 13, 2006, finding minimal degenerative changes and a disc bulge unrelated to trauma, and MRIs of Rodriguez's lumbosacral spine conducted the same date, finding no abnormalities.   These findings demonstrate that Rodriguez also did not sustain a permanent or significant limitation of functioning.

In rebuttal, Dr. Rigney, who conducted the MRIs of Rodriguez's spine November 13, 2006, found disc bulging at C4-C6 and straightening of the curvature in her cervical spine, but no abnormalities in her lumbosacral spine.   Dr. Brodsky initially examined Rodriguez October 30, 2006, and found lost range of motion from 11% to 44.4% in five planes of her cervical spine, and from 14% to 28.6% in three planes of her lumbosacral spine.   Dr. Brodsky diagnosed Rodriguez with a disc bulge at C4-C5 and straightening of the cervical curvature attributable to the October 2006 collision and causing permanent limitations.

Dr. Crone began treating this plaintiff September 3, 2008, when he found lost range of motion from 12% to 50% in three planes of her cervical spine.   He found her condition, including her cervical pain and limitations, to be post-traumatic, attributed to the October 2006 collision, and permanent.

D. Treatment Cessation

 Raymond Lake III and Yadira Rodriguez ceased medical treatment in August 2008.   This cessation of treatment, if unexplained, is fatal to these two plaintiffs' claims 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);  Brown v. Singh, 52 A.D.3d 367, 858 N.Y.S.2d 885 (1st Dep't.2008);  Gorden v. Tibulcio, 50 A.D.3d 460, 464, 855 N.Y.S.2d 515 (1st Dep't.2008).   See Wadford v. Gruz, 35 A.D.3d 258, 259, 826 N.Y.S.2d 57 (1st Dep't.2006).   Their treating physicians, however, explain that further treatment for Raymond Lake III and Rodriguez would have been merely palliative, which sufficiently explains the treatment cessation.  Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 355, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Turner-Brewster v. Arce, 17 A.D.3d 189, 190, 793 N.Y.S.2d 371 (1st Dep't.2005);  Brown v. Achy, 9 A.D.3d at 34-35, 776 N.Y.S.2d 56.

E. Inability to Perform Daily Activities for 90 Days

 Regarding plaintiffs' remaining claims of an injury or impairment that prevented plaintiffs from performing substantially all their daily activities for 90 of the 180 days following the collision, Raymond Lake Sr. testified that he was not confined to his bed or home at all.   Raymond Lake III testified that he missed only one month of work after the collision and then returned to light duty work.   Rodriguez testified that she missed only one and a half months of work after the collision and then resumed her former duties as a dietary aide.

These admissions demonstrate that these plaintiffs did not sustain an injury or impairment that prevented them from performing substantially all their daily activities for 90 of the 180 days following the collision.   Brantley v. New York City Transit Auth., 48 A.D.3d 313, 852 N.Y.S.2d 81 (1st Dep't.2008);  Alexander v. Garcia, 40 A.D.3d 274, 835 N.Y.S.2d 147 (1st Dep't.2007);  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).   Plaintiffs' medical evidence in rebuttal, including the findings by the osteopath and chiropractor that these plaintiffs sustained significant limitations of the cervical or lumbar spine, does not support the functional disability required to sustain a claim of an impairment that prevented substantially all their daily activities for any period.  Morris v. Cisse, 58 A.D.3d 455, 457, 871 N.Y.S.2d 113 (1st Dep't.2009);  Ayala v. Douglas, 57 A.D.3d 266, 267, 869 N.Y.S.2d 47 (1st Dep't.2008);  Lopez v. Simpson, 39 A.D.3d 420, 421, 835 N.Y.S.2d 98 (1st Dep't.2007);  Uddin v. Cooper, 32 A.D.3d 270, 272, 820 N.Y.S.2d 44 (1st Dep't.2006).

F. Findings of Degeneration by Defendants' Physicians

 Raymond Lake III and Yadira Rodriguez, to support each of their serious injury claims, also must rebut defense physician Cohn's findings that these plaintiffs' injuries were degenerative.  Becerril v. Sol Cab Corp., 50 A.D.3d at 262, 854 N.Y.S.2d 695.   See Rose v. Citywide Auto Leasing, Inc., 60 A.D.3d 520, 875 N.Y.S.2d 471;  Levine v. Deposits Only, Inc., 58 A.D.3d 697, 698, 872 N.Y.S.2d 149 (1st Dep't.2009);  Rivera v. Gelco Corp., 58 A.D.3d 477, 871 N.Y.S.2d 109 (1st Dep't.2009);  Lattan v. Gretz Tr. Inc., 55 A.D.3d at 450, 865 N.Y.S.2d 599.   Failure to address defendant's evidence of degeneration renders any finding that the injuries were caused by trauma purely conclusory or speculative.  Delfino v. Luzon, 872 N.Y.S.2d at 25;  Valentin v. Pomilla, 59 A.D.3d at 186, 873 N.Y.S.2d 537;  Saint-Hilaire v. PV Holding Corp., 56 A.D.3d 541, 867 N.Y.S.2d 494 (1st Dep't.2008);  Rodriguez v. Abdallah, 51 A.D.3d at 591, 858 N.Y.S.2d 169.   See Marsh v. City of New York, 877 N.Y.S.2d at 66;  Rose v. Citywide Auto Leasing, Inc., 875 N.Y.S.2d at 472;  Sky v. Tabs, 57 A.D.3d at 238, 868 N.Y.S.2d 648;  Santana v. Khan, 48 A.D.3d 318, 851 N.Y.S.2d 515 (1st Dep't.2008).

Based on this authority, if defendant's physicians find no disc bulge and no functional limitations, and plaintiffs' physician finds a disc bulge and functional spinal limitations, for example, this conflicting evidence raises a factual issue defeating summary judgment.   If defendant's physicians find a disc bulge, however, but find it is degenerative, whether or not they find limitations, and plaintiffs' physician finds the disc bulge is traumatically induced, causing limitations, this conflicting evidence is not enough to defeat summary judgment.   See Delfino v. Luzon, 872 N.Y.S.2d at 25;  Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537;  Lattan v. Gretz Tr. Inc., 55 A.D.3d 449, 865 N.Y.S.2d 599;  Rodriguez v. Abdallah, 51 A.D.3d at 591, 858 N.Y.S.2d 169.   Thus a finding of no abnormality with no limitation is less of a hurdle for plaintiffs than a finding of an abnormality with limitations caused by degeneration.

Moreover, defense physicians' findings that an impairment is degenerative are considered, without further elucidation, “nonconclusory,” while findings by plaintiffs' experts that the impairment was caused by the traumatic impact of the collision are considered unsupported.   E.g., Marsh v. City of New York, 877 N.Y.S.2d at 66.   Even where defense physicians find disc desiccation as evidence of degeneration predating the collision, but no functional restrictions in any event, and plaintiffs' experts, not disputing the prior degeneration, find that the collision triggered spinal restrictions, this conflict does not raise a factual issue because the evidence of degeneration is unrefuted.   E.g., Delfino v. Luzon, 872 N.Y.S.2d at 25.   See Kasel v. Szczecina, 51 A.D.3d 872, 873, 858 N.Y.S.2d 346 (2d Dep't.2008).

The affidavits and affirmations by plaintiffs' chiropractor and osteopath highlight this anomaly.   Dr. Brodsky's initial affidavit finds nothing in Raymond Lake III's history or Yadira Rodriguez's history, which would include their respective ages of only 30 and 27 years, that would have contributed to their disc herniation or bulging other than the October 2006 collision.   E.g., June v. Akhtar, 62 A.D.3d 427, 878 N.Y.S.2d 59 (1st Dep't.2009).   See Rivera v. Gelco Corp., 58 A.D.3d 477, 871 N.Y.S.2d 109.   Dr. Crone attests that, even if the herniation or bulging were a latent condition before the collision, it caused the condition to become symptomatic, as only after the collision did these two plaintiffs suffer persistent spinal limitations despite a course of therapy.   Yet, because neither Dr. Brodsky nor Dr. Crone specifically addresses Dr. Cohn's findings of degeneration in plaintiffs' initial opposition to defendant's motion, their opposition would fail under the recent controlling authority.

The supplemental affidavits by both Dr. Brodsky and Dr. Crone, however, explain how this authority overlooks accepted diagnostic practice.   When medical practitioners conclude, as Dr. Brodsky and Dr. Crone did in their original reports, that trauma contributed to the abnormalities and limitations in functioning found in Raymond Lake III's lumbar spine and Rodriguez's cervical spine, that diagnosis specifically excludes all other possible causes, including degeneration.  Kasel v. Szczecina, 51 A.D.3d at 873, 858 N.Y.S.2d 346.   See Rose v. Citywide Auto Leasing, Inc., 875 N.Y.S.2d at 472;  Valentin v. Pomilla, 59 A.D.3d at 186, 873 N.Y.S.2d 537.  “[A]ll other possible causes are ruled out when a diagnosis is reached” as to the cause of injuries.   Supplemental Affs. of Richard Brodsky, D.C., ¶ 6. “I ruled out other possible causes, including degeneration, when I reached my diagnosis and opinion as to causation․” Supplemental Affs. of Eric A. Crone, D.O., ¶ 6.

This specific negation of “degeneration” is now enough to defeat summary judgment.   The experts' explanation of their original diagnoses, however, show that reference to this magic word ought not to be so determinative.

III. CONCLUSION

Plaintiffs Raymond Lake III and Rodriguez present evidence explaining their respective gaps in treatment and addressing the findings of degeneration by defendant's physician.   Therefore the findings by plaintiffs' doctors of persistent, quantified restrictions in Raymond Lake III's lumbar range of motion and Rodriguez's cervical range of motion, objectively supported by a diagnoses of lumbar and cervical disc bulges, Wadford v. Gruz, 35 A.D.3d at 259, 826 N.Y.S.2d 57;  McNair v. Lee, 24 A.D.3d at 160, 805 N.Y.S.2d 67;  Rosario v. Universal Truck & Trailer Serv., 7 A.D.3d 306, 309, 779 N.Y.S.2d 1 (1st Dep't.2004);  Shinn v. Catanzaro, 1 A.D.3d at 198, 767 N.Y.S.2d 88, raise factual issues whether these plaintiffs' impairments constitute a significant or permanent consequential limitation.  Ferguson v. Budget Rent-A-Car, 21 A.D.3d 730, 731, 800 N.Y.S.2d 693 (1st Dep't.2005);  Sepulveda v. Reyes, 19 A.D.3d 297, 797 N.Y.S.2d 487 (1st Dep't.2005);  Seda v. Khabrane, 16 A.D.3d 118, 792 N.Y.S.2d 19 (1st Dep't.2005);  Soogrim v. Upgrade Contr. Corp., 8 A.D.3d 57, 777 N.Y.S.2d 647 (1st Dep't.2004).

Consequently, the court grants defendant's motion for summary judgment to the extent of dismissing all claims by plaintiff Raymond Lake Sr. and the claims of a serious injury under the 90 out of 180 days category by plaintiffs Raymond Lake III and Yadira Rodriguez, but otherwise denies defendant's motion.   C.P.L.R. § 3212(b) and (e);  NY Ins. Law § 5102(d);  Alexander v. Garcia, 40 A.D.3d 274, 835 N.Y.S.2d 147;  Ferguson v. Budget Rent-A-Car, 21 A.D.3d at 731, 800 N.Y.S.2d 693.   See Thompson v. Ramnarine, 40 A.D.3d 360, 361, 835 N.Y.S.2d 566 (1st Dep't.2007);  Toussaint v. Claudio, 23 A.D.3d 268, 269, 803 N.Y.S.2d 564 (1st Dep't.2005).   This decision constitutes the court's order.   The court will mail copies to the parties' attorneys.

LUCY BILLINGS, J.