RAHMAN v. ROINT TAXI CORP (2022)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:

Papers NYSCEF Document No.

Motion Sequence No. 7

Notice of Motion, Affirmation in Support 104 - 115

Opposition 116 - 123

Reply 124 - 125

Upon review of the foregoing papers defendant's motion for summary judgment is decided as follows.

Plaintiff, 19 at the time of the incident, submits an affidavit in opposition to the motion stating he was Involved in motor vehicle incident on October 28 2018 while riding his bike. As a result, he sustained injuries to his neck, back and right leg and ankle. Following the incident, he was treated and released at a Hospital, ambulated with crutches, and instructed to follow up with his doctor. On November 2, 2018, plaintiff presented for treatment at New York Complete Care where he was treated under the care of Dr. Ikezi and Dr. Hannanian until January 2020. He stopped treatment because the no fault carrier terminated his benefits and plaitniff's treating physicians informed him that he had at the time reached maximum benefit.

Plaintiff contends during first six months immediately after the incident, he had curtailed his daily activities including bending, sitting without pain, taking care of household, outside chores, carrying grocery, doing laundry, exercising, playing sports. Also, prior to the incident, plaintiff worked for Uber Eats 60 hours per week and also attended school. After the incident, plaintiff contends he was unable to work for 2 1/2 months and when he returned to work, he could only work three days per week initially, and later five days and around 40 hours per week.

To date, plaintiff contennds he has difficulty bending, kneeling to pray, sitting for more than 15 minutes and cannot play sports. He lives on the second floor and has to climb stairs every day which aggravates the pain in his back and ankle. Plaintiff states he uses over-the-counter medications, muscle relaxers and a body pillow to alleviate the pain.

In opposition to the motion, plaintiff further submits affirmations from his treating physicians Dr. Ikezi and Dr. Hannanian. Dr. Ikezi states that on November 2, 2018., Dr. Ikezi based on plaintiff's complaints of pain to the neck, back and right ankle, performed plaintiffs physical finding inter alia significant restriction of range of motion of the lumbar and the cervical spine at various levels. As a result, he recommended physical therapy, electrical stimulation, messages therapy, pain medication and MRIs of the cervical and lumbar spine and the right ankle. Plaintiff was treated until January 2020 when he reached maximum benefit.

Based on plaintiff's MRIs, clinical presentations and his examinations of the plaintiff, Dr. Ikezi states that plaintiff sustained L4-L5 left lateral disc herniation or neural foraminal narrowing; L5-S1 right lateral disc herniation with neural foraminal narrowing; lumbar and cervical radiculopathy; right ankle sprain and asymmetry, mortise with fluid and widening medially injury to the deltoid ligamentous complex. Dr. Ikezi, opines that said injuries are causally related to the motor vehicle accident of October 28, 2018.

Dr. Ikezi states the above injuries are significant in nature as they inhibit plaintiff's ability to carry out normal activities of daily living consistent with sitting, standing, bending, walking, exercising, and other strenuous physical activities. He further states that the injuries, including those involving plaintiff's discs that engendered significant loss of range of motion are permanent and not subject to resolution without surgical intervention. Moreover, Dr. Ikezi found that during subsequent visits in his office on various dates, plaintiff did not significantly improve.

Dr. Ikezi last examined plaintiff on February 22, 2022. Plaintiff continued to complain about persistent low back pain radiating to his legs with weakness and right ankle pain. Plaintiff's physical examination indicated significant restriction of last or range of motion of the lumbar spine at various levels including 50% loss upon extension.

Plaintiff further submitted an affirmation from Dr. Hannanian who is also at the same facility plaintiff obtained treatment. Dr. Hannanian first saw plaintiff who complained of neck pain, persistent lower back pain, and pain in the right foot and right ankle on May 6, 2019. Dr. Hannanian performed plaintiff's physical examination which indicated significant loss of range of motion of the lumbar and cervical spines. He further reviewed MRIs of the cervical lumbar spine and right Ankle, which Dr. contends revealed inter alia: L4/L5 and L5-S1 herniation traumatic cervical and lumbar myofascitis; and right foot sprain.

After his examination of the plaintiff and review of the MRIs, Dr. Hannanian opined plaintiff sustained traumatic cervical myofascitis; traumatic lumbar myofascitis; right ankle sprain, right foot sprain; straightening of the physiologic lordosis consistent with pain and/or spasm; L4-5 lateral disc herniation or neural foraminal narrowing; L5-S1 lateral disc herniation with neural foraminal narrowing; asymmetry at the right ankle mortise. He states he found the patient to be partially disabled and he had limitations of activities of daily living and his prognosis was guarded.

Dr. Hannanian states he continued to monitor plaintiff's treatment at his office until January 2020 when the insurance carrier stopped paying and the plaintiff was advised his condition had reached maximum improvement as his condition had not significantly improved on subsequent visits with him.

Plaintiff returned to Dr. Hannanian for a follow-up examination on February 28, 2022, with continued complaint of constant right ankle pain, worse with movements, and low back pain with tingling in the right foot. Dr. Hannanian performed a lumbar range of motion testing with significant limitation of loss of range of motion including 50% loss at left lateral bending. On said date the doctor also performed an NCV/EMG of the plaintiff which revealed: bilateral denervation in the muscles supplied by L4, L5 nerve root consistent with radiculopathy.

Dr. Hannanian’ s current diagnosis of the plaintiff is traumatic cervical myofascitis; traumatic lumbar myofascitis; right ankle sprain, right foot sprain; straightening of the physiologic lordosis consistent with pain and/or spasm; L4-5 lateral disc herniation or neural foraminal narrowing; L5-S1 lateral disc herniation with neural foraminal narrowing; asymmetry at the right ankle mortise; bilateral denervation in the muscles supplied by L4, L5 nerve root consistent with radiculopathy.

Based on his review of the MRIs, examinations of the plaintiff, diagnostic testing plaintiff whose medical history revealed no prior occasion of similar symptoms, Dr. Hannanian states the above injuries are caused by the subject incident and are significant and permanent in nature as they are consistent with the clinical presentation in his office. He further opines the injuries hinder plaintiff's ability to carry out normal activities of daily living such as standing, bending, kneeling, lifting and other strenuous activities with ease and free of pain

To assess the significance of plaintiff's injuries, a 20% decrease in certain aspects of plaintiff's range of motion in the cervical a Further it is put forth those discrepancies in the various doctors’ reports is an issue of credibility which is for a jury to determine. Francis v. Basic Metal, 144 AD2d 634, 534 N.Y.S.2d 697. Also, in Lombardi v. Columbo, 259 AD2d 524, 684 N.Y.S.2d 896 (2nd Dept. 1999), a physician's finding that the right lateral flexion of plaintiff's cervical spine was 19 degrees less than its left lateral flexion was sufficient to create a question of fact as to whether plaintiff had sustained a “serious injury.”

Here, the findings of Defendant's experts and plaintiff's physicians Dr. Ikezi and Dr. Hannanian materially differ as to the causation, nature, extent, significance of plaintiff's alleged injuries and the resulting restrictions of the cervical and lumbar spine and the right ankle. These conflicting findings and opinions raise material factual issues that must be resolved by a jury.

This constitutes the Order of the Court.

Odessa Kennedy, J.