HOWELL v. MERCED NYC LC (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, the motion is decided as follows:

In this action for personal injuries resulting from a motor vehicle accident that occurred on November 12, 2017,¹ defendants Jabborah Clarke (Clarke) and Boomf Management Corp. (Boomf) (collectively, defendants), move for summary judgment dismissing the amended complaint as against them pursuant to CPLR 3212, arguing that plaintiff did not sustain a serious injury as defined under Insurance Law § 5102 (d). Plaintiff, a passenger in the motor vehicle operated by defendant Reinaldo Merced (Merced),² opposes and defendants reply.

Moving Papers

In support of their motion, defendants submit with their counsel affirmation a number of documents including: plaintiff's bill of particulars (bill of particulars) dated February 15, 2019 NYSCEF Doc No [Doc] 37); the transcript of plaintiff's June 25, 2020 deposition testimony (deposition transcript) (Doc 42); the affirmed medical report of Pierce J. Ferriter, M.D., a board certified orthopedic surgeon (Ferriter report), dated February 24, 2020 (Doc 46); and the March 28, 2019 affirmed medical reports of defendants’ radiologist, Jessica F. Berkowitz, M.D. These medical reports address the March 28, 2018 magnetic resonance imaging (MRI) taken of plaintiff's right and left knees (Doc 48). Defendants contend that, with respect to lack of causation and serious injury, they have shown that there are no remaining issues of disputed fact and they are entitled to judgment dismissing the amended complaint against them as a matter of law.

Bill of Particulars and Plaintiff's Deposition Testimony

In her bill of particulars dated February 15, 2019, plaintiff sets forth her alleged serious injuries as to her left knee, right knee, left shoulder and right shoulder proximately caused by the November 12, 2017 accident or pre-existing injuries exacerbated or aggravated by the accident (Doc 37, ¶ 10 at 3-4). In response to the demand calling for plaintiff to state the serious injury sustained as defined under Insurance Law § 5101 (d) (Docs 39 & 40, ¶ 20), plaintiff asserts: permanent loss of a body organ, member, function or system (permanent loss); permanent consequential limitation of use of a body organ or member (permanent consequential limitation); and, significant limitation of use of a body function or system which prevented her from performing substantially all of the material acts which constituted her 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 (90/180). The court notes that while plaintiff in her bill of particulars did not specify the category of significant limitation of use of a body function or system (significant limitation), defendants move for summary judgment on this category as well, and, accordingly, the court will consider this category in its determination.

In response to the demand calling for the specific dates for the length of time that plaintiff was confined to bed and home as a result of the alleged injuries, plaintiff responded that she was confined “for the most part, for a period of ninety days out of one hundred eighty days” following the accident, and intermittently thereafter, except for the trips to her treating physicians” (Doc 37, ¶ 12 at 5). In response to the demand calling for the length of time she was incapacitated from employment, with specific dates, and the amount of earnings or wages lost, plaintiff stated the demand was nonapplicable, as she is not filing a lost wages claim. When asked for her occupation and her employer's name and address at the time of the accident, plaintiff responded that her occupation was at “Target at 40 W 225th Street, No.50, Bronx, New York, 10463-7016” (Doc 37, ¶ 17 at 6). Citing page 9 of plaintiff's deposition testimony, defendants assert that “immediately following the subject accident, the plaintiff missed one week from work,”

Orthopedic Report

Dr. Ferriter performed plaintiff's orthopedic examination on February 24, 2020. The Ferriter report includes the following. The “medical records” made available for Dr. Ferriter consisted of the bill of particulars and the police accident report dated November 12, 2017 (Ferriter report at 2). He observed that plaintiff walked into the examination room with a normal gait and posture, that there was no limp or foot drop, and that she did not use a brace or assistive device.

Plaintiff reported that: she was involved in a November 12, 2017 motor vehicle accident; she lost consciousness following the accident; she went to Lenox Hill Hospital that day on her own for evaluation; x-rays and a CT scan were taken of her head, neck and back; she was prescribed Valium and Flexeril; she came under the care of various physicians; she was initiated on a course of conservative management including physical therapy, chiropractic care, acupuncture treatment, massage therapy and heat treatment; she reported that the treatment she received was not helpful. Plaintiff reported to Dr. Ferriter that at that present time she did not continue to receive treatment.

She further reported that: she had additional MRI's of the neck, back and bilateral knee; she required the use of a cane as a result of the accident; she underwent left knee surgery on June 14, 2018. Additionally, plaintiff complained of pain in her neck, mid back, low back, bilateral shoulders, and bilateral knees. She was involved in a prior accident on July 19, 2015, sustained a shoulder injury, and denied any subsequent accidents or injuries; she did “not disclose if she underwent any surgery in the past” (Ferriter report at 2). Plaintiff was taking Motrin and Advil. She reported that: “she was employed on a part-time basis as a customer service [sic] at the time of the accident” (id.); she currently was “working on a full-time basis at the same job performing duties with limitations” (id.) with “no bending or kneeling and no prolonged standing or sitting” (id.).

Dr. Ferriter's findings of plaintiff's physical exam and values of range of motion include the following. He measured plaintiff's subjective maneuvers of the examined body parts by his use of a hand-held goniometer, asserting that “[t]he measurement itself is, therefore, an objective measurement of the claimant's subjective efforts” (Ferriter report at 3). As to his orthopedic examination of plaintiff's cervical, thoracic and lumbar spines, he did not find swelling, discoloration, deformity, or muscle spasm, and he found normal range of motion. The orthopedic tests he performed were negative. He did not find any deficit or abnormality in his neurological examination of plaintiff's bilateral lower extremities. The orthopedic tests he performed on plaintiff's right and left shoulders were negative and the active ranges of motion were normal to the full measure except as to internal rotation, which for both shoulders measured to 70 degrees with 80 degrees normal.

As to the right and left knees, there was no heat, swelling, effusion, erythema or crepitus appreciated, and the orthopedic tests he performed were negative. The active range of motion revealed flexion to 140 degrees, with 150 degrees normal, and quadriceps and hamstring strength testing revealed 5/5 strength. He noted no atrophy in the quadriceps and hamstring muscles and chondromalacia was not present on palpation of the patella. Additionally, as to the left knee, his examination revealed well healed incisions and there was no complaint of tenderness upon palpation.

His impression was as follows: “1. Bilateral shoulders sprain/strain - resolved. 2. Right knee internal derangement - resolved. 3. Status post left knee arthroscopic surgery on 6/14/2018-healed by examination” (Ferriter report at 6). He opined, to a reasonable degree of medical certainty, that plaintiff presented with “a normal orthopedic examination on all objective testing” (id.), and the examination indicated “no findings which would result in orthopedic limitations in use of the body parts examined” (id.). He found plaintiff “capable of functional use of the examined body parts for normal activities of daily living as well as usual daily activities including regular work duties” (id.).

The MRIs

As to Dr. Berkowitz's review of the March 28, 2018 radiological examinations of plaintiff's right and left knees, which images were submitted on digital media, she found the following with respect to both knees. Joint effusion was not present; she noted no areas of abnormal bone marrow signal intensity; the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments and quadriceps and patellar tendons were intact. Dr. Berkowitz also reported that the menisci were intact as visualized.

As to the left knee, the Berkowitz report stated that the examination was unremarkable, and that “[t]here is no evidence of acute traumatic injury to the knee such as fracture, traumatic bone marrow edema, meniscal or ligamentous tear” (id. at 2). Further, it stated that “[e]valuation of this MRI examination reveals no causal relationship between the claimant's alleged accident and the findings on the MRI examination” (id.).

As to the right knee, there was “a miniscule popliteal cyst” (Berkowitz reports at 1). The impression section of this Berkowitz report stated “Miniscule popliteal cyst. This fluid collection is nonspecific in etiology. There is no evidence of traumatic injury to the knee such as fracture, traumatic bone marrow edema, meniscal or ligamentous tear” (id. at 2). As to causal relationship, the Berkowitz report stated that “[e]valuation of this MRI examination reveals no causal relationship between the claimant's alleged accident and the findings of the MRI examination” (id.).

Opposing Papers

Contention that Defendants did not Meet Prima Facie Burden

In her opposing papers, plaintiff first argues that defendants failed to meet their prima facie burden for a number of reasons, including the following. With respect to the Ferriter report, plaintiff contends that the report did not state that plaintiff's left knee injuries were resolved and did not deny the necessity of surgical intervention at the left knee due to injuries plaintiff sustained from the motor vehicle accident. Additionally, plaintiff contends that the Ferriter report “does not rule out the possibility that Plaintiff's injuries may be significant and/or permanent from an orthopedic perspective” (underlining omitted) (Doc 60, Affirmation in Opposition of Emily K. Lavelle, Esq. [opp aff], ¶ numbered 3 [1] [a] at 2).

Plaintiff also argues that the Ferriter report noted a restricted range of motion in plaintiff's right and left shoulders and right and left knees, thereby refuting defendants’ argument that plaintiff's injuries do not meet the serious injury threshold. Additionally, plaintiff argues that as Dr. Ferriter's examination was taken nearly two and a half years post-accident, he cannot comment on the injuries’ severity and cannot make a prima facie showing of lack of a significant limitation of use of a body function for the period prior to the examination. Further, plaintiff stated at that examination that she was still experiencing pain and taking medications.

Additionally, plaintiff argues that defendants fail to meet their prima facie burden by the Berkowitz reports, as the reports reflect only Dr. Berkowitz's subjective opinion without objective evidence. Plaintiff contends that as defendants failed to present competent proof refuting plaintiff's allegations in her bill of particulars and the moving papers are insufficient to shift the burden to plaintiff, the motion should be denied.

Contentions of Existence of Issues of Fact

Plaintiff next argues that assuming defendants did meet their prima facie burden, their motion should be denied as material issues of fact remain and defendants have not shown entitlement to judgment as a matter of law. Plaintiff contends that based upon the admissible objective evidence she submits, including the medical records she attaches as exhibits, plaintiff has sufficiently raised a triable issue of fact as to causation and serious injury. She asserts that the motion should be denied because plaintiff submitted “admissible objective evidence reflecting the existence of an injury (herniated/bulging discs, traumatic medical meniscus tear, tendon insertional tear, Labral tear, Joint effusion, and Left Knee Arthroscopy) that can constitute a ‘serious injury’ within the meaning of the Insurance Law” (opp aff at 17, ¶ 24).

The Opposing Exhibits

She submits as one of her exhibits documents identified as Lenox Hill Hospital/Northwell Health Hospital records (Doc 61); a number of the pages appear to be multiple copies of the same document and all pertain to plaintiff's visit on November 12, 2017 following the accident. An affirmation or certification, however, does not accompany these records, and the following appears at the bottom of each of the 82-pages attached as the exhibit: “This is not an official part of the medical record.” It appears, therefore, that these records submitted with plaintiff's opposing papers are not admissible as they are not in proper evidentiary form. Other than noting that the various copies of the document entitled “Excuse from Work, School, or Physical Activity,” state that plaintiff needs to be excused from work beginning that day through November 15, 2017, the court considers such records only to the extent they are relied upon or referenced in her other medical records that are in admissible form.

Plaintiff also submits the following: an affidavit with affirmed medical records from Mark Heyligers, D. C. (Heyligers’ report) (Doc 62); plaintiff's medical records of, and affirmed by, Dr. Kenneth McCulloch, a board certified orthopaedic surgeon, and his affirmed updated narrative examination (McCulloch report) (Docs 63 and 64 respectively); affirmation by Siddharth Prakash, M.D., a board certified radiologist, regarding the March 28, 2018 MRIs of plaintiff's left and right knees and Dr. Prakash's March 29, 2018 letter reports, which referenced that the CD[s] were enclosed, to Dr. McCulloch (Doc 65) (the Prakash knee MRI reports); Dr. Prakash's affirmation regarding the May 27, 2018 MRIs of plaintiff's right and left shoulders and his May 28, 2018 letter reports, which referenced that the CD[s] were enclosed, to Dr. McCulloch (the Prakash shoulder MRI reports) (Doc 66). Plaintiff also relies upon her deposition testimony and references her bill of particulars attached as exhibits to movant's papers.

Chiropractor

In his affidavit, Dr. Heyligers, a licensed chiropractor, first attests that the records and reports he attaches to his affidavit were written based on his treatment at his office, the records were made in the regular course of business, and the contents are true. Dr. Heyligers opines with a reasonable degree of medical certainty that, based upon his treatment of plaintiff and the reports of all conducted tests, the injuries plaintiff sustained “were as a result of the accident dated 11/12/17, are permanent in nature and have caused a permanent partial disability” (Doc 62, Doctor's Affidavit at 2). The court notes that the records included within this exhibit contain not only Dr. Heyligers’ evaluation and treatment reports or records of plaintiff's visits to him from December 14, 2017 to and including March 28, 2018 that he certifies to, but also those of other medical professionals. Those other documents include: initial evaluations and treatment reports or records from: North Coast Physical Therapy, P.C., for visits from December 15, 2017 to and including April 12, 2018; Oriental Soothing Acupuncture, P.C., for visits from December 18, 2017 through and including April 12, 2018; and the initial consultation report dated March 28, 2018 from Letitia Short, M.D. of JMSK Medical Diagnostics, P.C.³

He reports that plaintiff's first visit of December 14, 2017 was for “examination and treatment of her headaches, neck, upper back, mid back, lower back, shoulder, elbow and knee pain” (Doc 67 at first page of notes of December 14, 2017 visit). Plaintiff self-reported about her accident, her emergency room visit, the nature and extent of injuries she sustained and her pain level. She complained of various symptoms and injuries; with respect to each symptom and condition, she responded that she believes them to be severe or severe at times and rated the pain as 10/10 or 9/10 depending on the body part. As to each condition or symptom, she stated that what worried her the most was that the pain was not going away.

Dr. Heyligers performed and reported on various tests, including range of motion in various body parts. In her cervical spine, he found range of motion as follows: cervical flexion at 20 degrees with pain, with normal flexion considered to be at least 50 degrees; cervical extension of 10 degrees with pain, with normal extension considered to be at least 60 degrees; cervical rotation at 40 degrees with pain in her left and 50 degrees with right rotation, with normal considered to be 80 degrees or higher; cervical lateral flexion of 5 degrees with pain with left and 5 with right, with normal lateral flexion considered to be 45 degrees. He also conducted and reported on plaintiff's range of motion in her lumbar spine.

The notes for each visit included plaintiff's self-reported pain ratings and Dr. Heyligers’ observations, testing, adjustments, and trigger point therapies. When leaving each visit, plaintiff informed Dr. Heyligers that she felt about the same; he ended each report by noting that at that time there was no need to deviate from the treatment plan and that plaintiff's prognosis was guarded.

Orthopedist

Dr. McCulloch's affirmation, dated April 5, 2021, attests that based on his examination of plaintiff, the test reports, and his review of the medical records in relation to the accident, it is his opinion, within a reasonable degree of medical certainty, that plaintiff's injuries were sustained as a result of the November 12, 2017 motor vehicle accident “and have caused a permanent partial disability” (Doc 63 at first page). The medical records he certifies include the examination reports of January 3, 2018, April 25, 2018, May 21, 2018 and May 30, 2018; the operative report of June 14, 2018 with images; the disability evaluations dated May 1, 2018 and June 27, 2018; the post-up visit notes of June 27, 2018 and August 6, 2018.

The January 3, 2018 initial evaluation of plaintiff, which appears to have been conducted by Russell Higley, PA (PA Higley), provides that it was electronically signed by him and Dr. McCulloch. The subjective portion noted: plaintiff's reported injuries of her left shoulder, bilateral knees, neck and back resulting from a November 12, 2017 motor vehicle accident; her previous July 19, 2015 motor vehicle injury with injuries to her neck, back and left shoulder; her April 14, 2016 left shoulder arthroscopic subacromial decompression and debridement; that she was functioning normally prior to the instant accident; and she has no previous history of injuries to her right shoulder and bilateral knees. Her chief complaints were bilateral shoulder pain she rated as 7/10, which increased with lifting, pushing, pulling and overhead movement, and bilateral knee pain which increased on stairs and an inability to squat or kneel with painful popping and clicking. He noted that she “works as a cashier at Target” (Doc 63).

The results of the examination of plaintiff's right and left shoulders and bilateral knees reported painful and restricted movements, rotations and measurements, and other tests and results of those tests. The assessment reported traumatic intrasubstance rotator cuff injuries, possible SLAP tears, of the right and left shoulders, noting the previous arthroscopic intervention of the left shoulder, and bilateral knee traumatic internal derangements, intrasubstance meniscus injury. Plaintiff's treatment plan included MRIs of the bilateral shoulders and knees; follow-up with Dr. McCulloch; referral to a pain management specialist for neck and back injuries and radicular signs and symptoms; continuation of physical therapy three times a week; continued modifications of activities of daily living consisting of limited lifting, pushing and pulling with her shoulders, within pain tolerance, no squatting or kneeling, and caution on stairs (Doc 63).

The report of plaintiff's follow-up examination of April 25, 2018 included the results of Dr. McCulloch's orthopedic examination. Using a hand-held goniometer, he reported that the measurements were unchanged from plaintiff's initial visit; he also noted other results of his examination. He reported the range of motion of the bilateral knees as 0 to 130 degrees, normal 0 to 150 degrees. Dr. McCulloch reviewed the films as well as the radiologist reports of the March 28, 2018 MRIs of the bilateral knees. His assessment consisted of right knee traumatic type-2 meniscus tear, suprapatellar pica, and, as to the left knee, left knee traumatic type-2 meniscus tear with retropatellar pain, suprapatellar plica. As to the treatment plan, he recommended continued conservative measures including physical therapy three times a week and that plaintiff “continue to modify her activities of daily living avoiding squatting, kneeling, and caution on stairs” (Doc 63). Plaintiff elected and Dr. McCulloch administered a corticosteroid injection for the left knee.

Dr. McCulloch's disability evaluation dated May 1, 2018, gave a diagnosis of internal derangement bilateral knees and bilateral shoulder pain and classified plaintiff as partially disabled, with the period of disability until the next visit of May 21, 2018. He noted that plaintiff is able to perform limited work only with light duty activities, consisting of no pushing or pulling within tolerance of pain, no prolonged standing, no repetitive or sustained kneeling, bending, squatting and crawling and caution on stairs.

Plaintiff's May 21, 2018 follow-up examination appears to have been conducted by PA Higley; the report notes that it was electronically signed by him and Dr. McCulloch. The sections containing plaintiff's subjective report and her chief complaints included the following. Plaintiff complained “of severe left knee pain on a visual analog scale of 9/10 intermittently with aggressive activities of painful popping and clicking, instability on stairs, inability to squat or kneel, not improved with conservative measures” since her motor vehicle accident (doc 63 at first page). She rated her right knee pain level at 7/10. She reported that the corticosteroid injection given to her left knee “provided only a few days of temporary pain relief, her pain returning to levels of up to 9/10” (id.). She “is frustrated and can no longer live with her knee pain which is interfering and negatively impacting all of her activities of daily living including work and she would like arthroscopic surgery” as Dr. McCulloch previously discussed with her (id.). She continues the physical therapy. He also reported that plaintiff “also has herniated disc in the lumbar spine with EMG positive for radiculopathy into the left extremity” (id.) His examination of the left knee “revealed plaintiff ambulating with a left antalgic pattern without a gait aid,” a “[r]ange of motion of 0 to 130 degrees (normal 0 to 150 degrees)” retropatellar and patellar tenderness, 1% swelling, and painful nodule palpable in the synovium (id.). The treatment plan included proceeding with diagnostic arthroscopy to evaluate the left knee's pathology. The report stated that the arthroscopy “is a medically-necessary surgery given the patient's positive history, findings on physical exam, failure to improve with conservative measures, confirmation of findings on MRI and acute change in function following the motor vehicle accident” (id. at second page).

The subjective section of Dr. McCulloch's follow-up examination report of plaintiff's May 30, 2018 visit provides that: plaintiff was in her “usual state of health” until she was involved the November 12, 2017 motor vehicle accident “sustaining multiple injuries including both shoulders and both knees;” she “is having some improvement in her shoulders, but both knees especially the left continue to cause her symptoms” (Doc 63). The orthopedic examination noted “minimal change” (id.). Dr. McCulloch stated that he personally reviewed the MRI[s] and radiology report[s], both shoulders “demonstrate some degree of rotator cuff tendinosis and labral pathology;” she has type II meniscus tearing bilaterally “however” the left is symptomatic as well as joint effusion” (id.). The assessment plan included left knee arthroscopic intervention because her left knee “type II tear continues to cause her significant pain and is not improving” (id.)

The June 14, 2018 operative report notes the preoperative diagnosis of left knee meniscus tear and the postoperative diagnoses of “[l]eft knee meniscus tear as well as synovitis and adhesions” (Doc 63 at first page). The report notes the procedure performed as left knee: arthroscopic partial lateral meniscectomy; arthroscopic synvectomy; arthroscopic lysis of adhesions. The procedure notes include that: the “patellofemoral joint was free of any degenerative changes as were the medial and lateral compartments (id.); there “was no articular damage or arthritis” (id.); hypertrophic synovial was removed from all three compartments (id.). Additionally, the procedure notes included that “[i]n the lateral compartment, there was tearing of the root attachment of the posterior horn of the lateral meniscus, which was debrided back using the ArthroCare wand via the medial portal site completing a partial lateral meniscectomy” (Doc 63 at first and second pages).

The disability evaluation of June 27, 2018 states that plaintiff is under Dr. McCulloch's care and is undergoing treatment and evaluation for left knee arthroscopic partial lateral meniscectomy” and gives a guarded diagnosis. The checked boxes provided that plaintiff's level of impairment was “Totally disabled - Unable to work at this time,” and “Temporarily;” the box for “Permanently” was not checked. The period of disability was June 27, 2018 until the next visit of August 8, 2018. The post-op visit report noted that plaintiff was using a cane, expected swelling, and the range of motion of the left knee using the goniometer was 0-115 degrees, with 0-150 normal.

The post-op visit report of August 6, 2018 noted that plaintiff was complaining of pain in the left knee of 4/10 intermittently and painful kneeling and squatting, she self-reports a 60% improvement post-operatively, and states that physical therapy helps. He noted an improved gait and quad strength of 4/5, found no immobility, and noted “RTW” [return to work] (Doc 63). The range of motion of the left knee, using a goniometer, was 0-125 degrees, with 0-150 degrees normal. He prescribed physical therapy at three times a week for six to eight weeks.

Dr. McCulloch's affirmed four page updated narrative report, dated July 1, 2021, includes certain of the information set forth above regarding plaintiff's orthopedic evaluation and treatment for the period of January 3, 2018 through August 6, 2018. The updated report states that on plaintiff's next visit of July 22, 2019, plaintiff reported that she was involved in a second motor vehicle accident that occurred on June 2019, “in which she felt acute onset of left knee pain” (Doc 64 at 3). She reported that her “left knee had been improving postoperatively with an acute onset of symptoms related to the June 2nd accident with painful popping, clicking, and cracking, inability to squat or kneel with random sharp pain in the knee” (id.). She “was utilizing anti-inflammatories and pain medication” (id.).

On physical examination, Dr. McCulloch found: plaintiff “ambulated with a mildly left antalgic gait pattern” (id.); her range of motion in the left knee was 0-125 degrees; she “had medial and lateral joint line tenderness to palpation and retropatellar tenderness to palpation” (id.). He recommended continued physical therapy, anti-inflammatories, activity modifications, and an MRI.

At the next visit of May 14, 2021, plaintiff “noted little to no benefit” to the June 14, 2018 arthroscopic procedure and “continued to have pain in the left knee with prolonged standing and walking” (id.); she “complained of clicking in the front of the knee and pain with stairs” (id.). She “had mild joint tenderness and positive retropatellar tenderness to palpation. Dr. McCulloch recommended “symptomatic management with activity modification, local modalities, medical management, and periodic physical therapy” (id.). He “discussed with her that her residual symptoms are permanent” (id.).

In the impression section, Dr. McCulloch stated that plaintiff “continues to reveal evidence of unresolved injury to her left knee” and that she “has a moderate impairment due to the injury sustained to her left knee” (Doc 64 at 4). He recommended she “work in a sedentary capacity only” and that she “avoid activities such as prolonged standing, walking, heavy lifting, kneeling, squatting, climbing and exertion” (id.) He opined “within a reasonable degree of medical certainty that, based on the history as has been provided to [him] by the patient, a review of the medical records, physical examination findings, radiographic findings, and intraoperative findings, the injuries in question are directly causally related to the accident in which Ms. Howell was involved on November 12, 2017” (id.). He further opined, “within a reasonable degree of medical certainty, that Ms. Howell has sustained a permanent disability” (id.). He reported that she “continued to have ongoing pain and loss of range of motion in the left knee” (id.). Dr. McCulloch's “prognosis for Ms. Howell is guarded as she remains still substantially symptomatic and will have permanent restrictions on activities and will continue ongoing and future treatment for her left knee” (id.).

MRIs

In Dr. Prakash's March 29, 2018 letter report to Dr. McCulloch regarding the MRI of the left knee, Dr. Prakash noted the patient history as “[s]tatus-post trauma, left knee pain” (Doc 65). The findings include “a moderate sized suprapatellar joint effusion with suprapatellar plica” and “linear oblique signal extending to the inferior articular surface involving the posterior horn and body of the medial meniscus, for example, on series 4 image 10 [images are not included with this exhibit] (id.). The impression section reads: “Oblique tear of the body and posterior horn of the medial meniscus. Suprapatellar joint effusion with suprapatellar plica” [line breaks omitted] (id.).

Dr. Prakash's letter report of the MRI of the right knee similarly noted the patient history as “[s]tatus-post trauma, right knee pain” (id.). The findings include: “moderate sized suprapatellar joint effusion with suprapatellar plica” (id.) “linear oblique signal in the body of the medial meniscus extending to the inferior articular surface, for example, on series 4 image 10” [images were not included with this exhibit] (id.); and “[a] small medial popliteal fossa cyst is noted” (id.). The impression section reads: “Oblique tear of the body of the medial meniscus. Small medial popliteal fossa cyst; Moderate suprapatellar joint effusion with suprapatellar plica” [line breaks omitted] (id.).

With respect to the May 27, 2018 MRI of the right shoulder, Dr. Prakash's May 28, 2018 letter report to Dr. McCulloch noted the patient history as “[s]tatus-post trauma, right shoulder pain” (Doc 66). The findings included “mild glenohumeral joint effusion (id.);” “mild long head biceps tenosynovitis” (id.); “[m]oderate diffuse rotator cuff tendinosis” (id.); “T2 hypersensitivity along the undersurface of the infraspinatus tendon fibers at the insertion site upon the humeral head measuring approximately 5 mm wide” (id.). The following is the impression: “Partial-thickness undersurface infraspinatus tendon insertional tear with rotator tendinosis. Long head biceps tenosynovitis and glenohumeral joint effusion” [line breaks omitted] (id.).

Dr. Prakash's May 28, 2018 letter report to Dr. McCulloch of the May 27, 2018 MRI of the left shoulder stated, as patient history, “[p]ost-op” (Doc 66). The findings included: “widening and remodeling of the acromioclavicular joint space inferiorly, consistent with the patient's surgical history” (id.); “mild subacromial bursitis and glenohumeral joint effusion” (id.); “hypersensitivity in the posterior superior labrum is noted on series 3 image 14” [ images were not included with this exhibit] (id.); “[m]ild diffuse rotator cuff tendinosis” (id.). The following are noted as the impression: “Posterior superior labral tear. Rotator cuff tendinosis. Subacromial bursitis and glenohumeral joint effusion. Remodeling of the acromioclavicular joint space, consistent with surgical history” [line breaks omitted] (id.).

Plaintiff's Deposition Testimony

Relying on her deposition testimony, plaintiff asserts that at the time of the accident she “worked as a bakery barista” (opp aff ¶ 12 at 8) (relying on plaintiff's deposition testimony transcript at page 9, line 11) and that “[i]immediately after this accident, she missed her work about a week from Target and about two and [a] half months from Whole Foods due to the injuries she sustained as a result of this subject accident” (underlining omitted) (id.) (relying on her deposition testimony transcript at page 9, lines 21-22). Plaintiff also asserts that she “was unable to perform many of her daily activities from the accident to present as outlined” in her opposing papers (opp aff ¶ 32 at 21). She further asserts that she “testified to shortening her hours of employment due to the injuries and pain [s]he sustained as a result of the subject accident” (underlining omitted) (opp aff ¶ 32 at 21); plaintiff does not reference a page and line reference of the deposition transcript to support this assertion.

Reply Papers

In reply, defendants contend that they did meet their prima facie burden, and that plaintiff failed to defeat that showing in her opposing papers. With respect to causation, defendants assert that plaintiff failed to address the injuries she sustained to both shoulders, neck and back as a result of her prior motor vehicle accident and her surgery on her left shoulder and therefore her medical proof is deficient. Defendants also argue that Dr. Berkowitz affirms that the MRIs taken of plaintiff's right and left knees do not provide “evidence to suggest that an acute traumatic injury was sustained by plaintiff as a result of the subject accident” (Doc 71, Affirmation in Reply of Stephen Schioppi (reply aff) at ¶ 12 at 5). Additionally, defendants argue that plaintiff's subjective reports of pain and history are insufficient to demonstrate serious injury and plaintiff's medical reports are tailored and conclusory.

Defendants further contend in their reply papers an issue apparently raised for the first time. Plaintiff failed to offer a reasonable explanation for cessation of treatment and did not offer a reasonable explanation for an 11 month gap in medical examinations and the approximate 3 year gap in her treatment. They argue that without a reasonable explanation, her experts’ conclusions as to permanency and causation are speculative and her showing is insufficient.

Discussion

Summary Judgment

The “proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez, 68 NY2d at 324, citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

“Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]). “On a summary judgment motion, facts must be viewed in the light most favorable to the non-moving party” (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The role of the court in determining the “drastic remedy” of summary judgment is “issue-finding,” not “issue-determination” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [internal quotation marks and citation omitted]).

Prima Facie Showing and Certain Preliminary Matters

The court finds that defendants met their prima facie burden on this summary judgment motion by submitting their expert affirmations, and plaintiff's bill of particulars and deposition testimony. The Ferriter report is based, among other things, upon objective medical testing including the use of a hand-held goniomotor and his findings that plaintiff had normal to near-normal range of motion. He opined that plaintiff presented with a normal orthopedic examination on all objective testing, the examined body parts were capable of functional use for normal daily living activities and regular work duties, and the alleged injuries to the shoulders and knees were resolved or healed (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Kante v Diarrassouba, 61 AD3d 517 [1st Dept 2009]). The Berkowitz reports found that the MRIs taken of plaintiff's bilateral knees were unremarkable, there was no evidence of traumatic injury such as a meniscal tear, and there was no causal relationship between plaintiff's accident and the findings on the MRI examinations. In this case, “it was unnecessary, for defendants to meet their prima facie burden, for their experts to specifically address the positive diagnostic findings within plaintiff's medical records” (Robinson v Joseph, 99 AD3d 568, 568 [1st Dept 2012] [internal citations omitted]).

As to plaintiff's 90/180 claim, defendants made a prima facie showing by pointing to plaintiff's deposition testimony that she “returned to work within the first 90 days following [her] accident” (Byong Yol Yi v Canela, 70 AD3d 584, 584 [1st Dept 2010] [internal citation omitted]). “[T]he ability to return to work may be said to support a legitimate inference that the plaintiff must have been able to perform at least most of [her] usual and customary daily activities” (Correa v Saifuddin, 95 AD3d 407, 409 [1st Dept 2012]).

To the extent plaintiff seeks to oppose this motion based upon her assertions that she sustained injuries to her back and neck as a result of the instant November 12, 2017 motor vehicle accident, the court does not consider such alleged injuries in determining this motion, as she did not allege injuries to these body parts in her bill of particulars.

Permanent Loss

On the issue of whether plaintiff sustained a permanent loss, defendants met their prima facie burden and demonstrated that there are no remaining issues of fact and that they are entitled to dismissal of this claim as a matter of law. Plaintiff's opposing papers failed to defeat that showing. To constitute a permanent loss, “[s]uch loss must be total” (Byong Yol Yi, 70 AD3d at 585, citing Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). Plaintiff's expert reports and other medical submissions do not show a total loss and fail to demonstrate the existence of a genuine issue of fact on this issue (See Byong Yol Yi, 70 AD3d at 585). For example, plaintiff's assertions that as a result of the accident she sustained certain permanent injuries, including injury to her left knee, limitations of range of movement, continued pain, and limitations at work, do not demonstrate a genuine issue of fact regarding permanent loss.

Accordingly, that part of defendants’ motion seeking to dismiss plaintiff's claim for permanent loss is granted.

Permanent Consequential Limitation and Significant Limitation

The Left Knee

The court first addresses whether, with respect to plaintiff's alleged injury to her left knee, plaintiff has defeated defendants’ prima facie showing as to the categories of permanent consequential limitation and significant limitation. As to the left knee, while defendants’ radiologist opined that plaintiff's MRI films did not include evidence of traumatic injury, she did not affirm that they showed a pre-existing degenerative condition or prior injury. Based on the record plaintiff presented, the court finds that she has met her burden and demonstrated that issues of fact remain as to whether, as a result of the instant motor vehicle accident, she sustained a serious injury to her left knee within the criteria of a permanent consequential limitation of use and/or significant limitation of a body function or system. Defendants did not sufficiently rebut plaintiff's showing in their reply papers.

Plaintiff's opposing papers included: objective medical evidence of limited range of motion by the use of a hand-held goniometer; radiographic findings of a left knee traumatic type-2 meniscus tear of the medial meniscus; expert medical opinions based on contemporaneous and subsequent physical examination findings, radiographic findings, a review of the medical records, and intraoperative findings, opining that a causal connection exists between the left knee injuries and the November 12, 2017 accident; findings that plaintiff required and underwent surgery to repair the injury to her left knee as conservative treatments were not sufficient. Additionally, plaintiff presented the opinion of her treating orthopedist that plaintiff remains substantially symptomatic, continues to have ongoing pain and loss of motion in her left knee, will have permanent restrictions on activity and work, will require future and ongoing treatment, and sustained a permanent disability. These submissions and other record evidence raise triable issues of fact sufficient to withstand this summary judgment motion (see Marcelo v Fabius, 195 AD3d 472, 472-473 [1st Dept 2021]; Gordon v Hernandez, 181 AD3d 424, 425 [1st Dept 2020]; Reyes v Se Park, 127 AD3d 459, 460-461 [1st Dept 2015]).

As to defendants’ argument that plaintiff's gap in or cessation of medical examinations or treatment demonstrates that she did not sustain a “serious injury,” it does not appear that defendants raised this argument in their moving papers or addressed why they did not do so in their reply. Generally, courts do not consider matters that do not respond to an argument made in the opposing papers and are first raised by movant in a reply. It is unclear, however, if defendants were aware of this issue until plaintiff attached the report(s) in her opposing papers. Accordingly, the court, in the exercise of its discretion, will consider this argument and also consider plaintiff's relevant record evidence that appears to address the issue, with all inferences in favor of plaintiff who opposes the motion.

“While a cessation of treatment is not dispositive - the law surely does not require a record of needless treatment in order to survive summary judgment - a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so” (Pommells v Perez, 4 NY3d 566, 574 [2005]). Once a determination is made that further treatments would be only palliative in nature, “[a] plaintiff need not incur the additional expense of consultation, treatment or therapy, merely to establish the seriousness or causal relation of [her] injury]” (id. at 577). Here, plaintiff established that there is evidence in the record that plaintiff's left knee pain was continuous and that mobility and use did not improve with conservative treatments or surgery. On this record, therefore, the court finds that plaintiff has provided some reasonable explanation for the gap in treatment. To the extent other portions of her medical treatment at various times included or recommended physical therapy, or that she stated that physical therapy was helpful at certain periods, does not resolve this factual issue.

As plaintiff raised a triable issue of fact with respect to her left knee, it is unnecessary for this court to address herein whether her proof with respect to the injuries she allegedly sustained to her right knee and bilateral shoulders would have been sufficient to defeat the summary judgment motion (see Linton v Nawaz, 14 NY3d 821, 822 [2010]).

Accordingly, the court denies that part of defendants’ motion for summary judgment on the categories of permanent consequential loss and significant limitation.

90/180

As to plaintiff's claim that she sustained serious injury under the category of 90/180, plaintiff failed to defeat defendants’ prima facie showing that there are no remaining genuine issues of fact and they are entitled to summary judgment as a matter of law. Defendants presented plaintiff's deposition testimony that she missed approximately seven days of work from Target following the accident, thereby making a prima facie showing that plaintiff did not sustain serious injury under the criteria of 90/180 (See Correa v Saifuddin, 95 AD3d 407, 408 [1st Dept 2012]; Byong Yol Yi, 70 AD3d at 584). Plaintiff's reliance on her deposition testimony to support her 90/180 claim is misplaced and the other record evidence similarly also does not support the existence of a genuine factual issue.

At her deposition plaintiff testified that she was employed by Target at the time of the accident and missed approximately one week (Doc 42, at 9, lines 12-21). Her job was “customer service/cashier” (id. lines 15-16). She also testified that she later was employed at Whole Foods Market for approximately 2 1/212 years and her job title was bakery barista/production (id. lines 3-11); she was not working at Whole Foods at the time of the accident. She testified that she missed approximately 2 1/212 months when she was employed at Whole Foods “when [she] had to have further procedures done based from [sic] the accident” (id. at 10, lines 2-4). Contrary to plaintiff's reference or restatement of her deposition testimony, she did not testify that immediately after the accident she missed two and a half months of work at Whole Foods.

So too other record evidence plaintiff herself submits does not provide a factual basis for the assertion that immediately after the accident plaintiff missed two and a half months of work from Whole Foods or that this period with the alleged seven days she missed from Target constituted 90 of the first 180 days. The hospital records reflect that plaintiff was excused from work from the day of the accident only through November 15, 2017. Plaintiff does not reference Dr. Heyligers’ affirmation or records to support a claim that she was excused from work or unable to work and a review of such records does not support such an assertion. Plaintiff similarly does not reference Dr. McCulloch's records to support the claim in Plaintiff's Attorney Affirmation in Opposition (opp aff) that she missed two and a half months of work at Whole Foods immediately after the accident. For example, on January 8, 2018, plaintiff was still employed at Target, as reflected in the initial examination report from New York Sports & Joints Orthopaedic Specialists, which states that plaintiff “works as a cashier at Target” (Doc 63). The medical record from that date does not include or reference that plaintiff was excused from work, that she was unable to work, or that she reported she did not work due to injuries from the accident. These records also do not demonstrate that she was excused from work due to injuries resulting from the accident, and do not state that plaintiff reported she was unable to work and missed work in this period.

The first disability evaluation, dated May 1, 2018, stated that for the period from May 1 through May 21, 2018, plaintiff was partially disabled and able to perform limited work only, specifically, no pushing or pulling within tolerance of pain, no prolonged standing, no repetitive or sustained kneeling, bending, squatting, or crawling and caution in stairs. Plaintiff has not shown that these limitations prevented her from working. These medical records do provide that beginning with her left knee surgery of June 14, 2018, she was medically excused from work through August 6, 2018, but this period is beyond the 180-day period.

Nor has plaintiff otherwise demonstrated that an issue of fact remains as to whether she otherwise can meet the criteria for the 90/180 category of serious injury. See Valentin v Pomilla, 59 AD3d 184 (1st Dept 2009) (despite plaintiff's claim that he was confined to bed and home, the examining physician's conclusion that plaintiff was totally disabled and the physician's advising plaintiff to restrict activities, plaintiff failed to offer competent medical proof that he could not perform substantially all of his daily activities and the statements were too general in nature to raise an issue of fact that plaintiff's confinement was medically required); Colon v Tavares, 60 AD3d 419 (1st Dept 2009) (evidence of a reduced or changed work schedule is insufficient to support a claim that plaintiff was unable to perform his usual and customary daily activities); Ronda v Friendly Baptist Church, 52 AD3d 440 (1st Dept 2008) (minor curtailment of activities and need to be placed on light duty upon return to work do not raise inference that plaintiff was unable to perform his usual and customary activities for 90 of the first 180 days following the accident).

Accordingly, the court grants that part of defendants’ summary judgment motion as to plaintiff's claim of serious injury under the 90/180 category and dismisses that part of the amended complaint.

Conclusion

The court grants defendants’ summary judgment motion to the extent of dismissing those portions of plaintiff's amended complaint as to the claims of serious injury under the categories of permanent loss and 90/180 and denies that part of the motion as to permanent consequential loss and significant limitation.

Accordingly, it is

ORDERED that the summary judgment motion of defendants Jabborah Clarke and Boomf Management Corp. is granted and denied to the extent indicated in the decision; and it is further

ORDERED that the moving defendants shall serve notice of entry upon plaintiff, defendant Reinaldo Merced, and the Clerk of the Court within twenty days of the posting of this decision and order on NYSCEF.

This constitutes the decision and order of the court.

FOOTNOTES

1.   The caption reflects the court's September 3, 2019 order which granted plaintiff's unopposed motion to amend the caption to add Boomf Management Corp. as an additional defendant and to remove NYC T & LC as a defendant.

2.   Defendant Merced did not file papers with respect to this motion. While not addressed by the moving defendants or plaintiff, it appears that Merced failed to answer the complaint and amended complaint in this action. The court notes that by way of a separate motion dated November 4, 2021 with supporting affirmation with exhibits (NYSCEF Doc Nos. 22-88), which is not yet submitted, defendants Clarke and Boomf moved for consolidation of the instant action with a separate action instituted by plaintiff against Merced in Supreme Court, New York County, bearing Index No. 156396/2020 (case 2). In case 2, Merced filed a verified answer dated July 22, 2021, and, by summons and verified third-party complaint dated July 26, 2021, instituted a third-party action against Clarke and NYC T & LC; Clarke filed her September 15, 2021 verified answer with demands for bill of particulars and certain discovery.

3.   The court does not reach the issue of whether the certification provided by Dr. Heyligers is intended to or does render the records from these other medical professionals in proper and admissible evidentiary form.

James G. Clynes, J.