Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 26, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff John Linton did not sustain a serious injury within the meaning of Insurance Law § 5102(d), modified, on the law, to grant the motion to the extent of dismissing plaintiff's claim that he sustained a medically determined injury of a non-permanent nature that prevented him from performing substantially all of his usual and customary activities for 90 of the 180 days immediately following the accident, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Catterson, McGuire, Acosta, Renwick, JJ.
This action arises out of a motor vehicle accident which occurred on August 29, 2002. Plaintiff, a pedestrian, was struck by a taxicab owned by defendant Chire Taxi, Inc. and operated by defendant Muhammad Nawaz. After striking plaintiff, the cab jumped the curb and, in the process, pushed plaintiff's body into a mailbox. Bleeding from his right knee and right ankle, plaintiff was transported by ambulance to Mt. Sinai Hospital, where he was examined and prescribed pain medication before being released. Plaintiff was unable to stand or walk in the days immediately following the accident, and experienced radiating neck and back pain.
Eight days after the accident, plaintiff consulted with Noel Fleischer, M.D., a neurologist, who examined him and made an initial diagnosis of traumatic cervical and lumbar radiculopathy and internal derangements of the left knee and right shoulder. MRIs prescribed by Dr. Fleischer revealed a tear of the right rotator cuff, a tear of the left medial meniscus, and multiple cervical disc herniations. Plaintiff continued to treat with Dr. Fleischer and to receive physical therapy. However, as of four years after the accident, Dr. Fleischer considered plaintiff's prognosis for full recovery to be "guarded" and found him to be "functionally impaired." Plaintiff missed three and one-half months of work immediately after the accident.
Plaintiff alleged in his bill of particulars that as a result of the accident he sustained permanent injuries to his lumbosacral and cervical spines, his left knee and his right shoulder. He claimed that his injuries met the definition of "serious injury" in Insurance Law § 5102 because he suffered a permanent consequential limitation of use of a body organ or member and/or a significant limitation of a body function or system. He also stated that he had medically determined injuries of a non-permanent nature that prevented him from performing his usual and daily activities for more than 90 of the first 180 days following the accident.
Defendants moved for summary judgment on the basis that plaintiff did not sustain a serious injury. Their motion relied on the affirmed reports of Audrey Eisenstadt, M.D., a radiologist, and Nicholas Stratigakis, M.D., an orthopedist who had performed an examination of plaintiff. In her report, Dr. Eisenstadt stated that she had reviewed MRI films taken within five weeks of the accident of plaintiff's right shoulder, left knee and cervical spine. She said that the MRI of the left knee revealed:
"a small area of a bone contusion. The bone contusion should heal without sequela. The grade II mucoid degenerative signal change is as the name implies, an intrasubstance, degenerative process without traumatic basis of causal relationship to the accident. Not even a joint effusion to suggest any significant trauma to this knee is noted. I agree...as to the presence of a contusion of the medial femoral condyle and medial tibial plateau. I agree with the presence of grade II linear signal change in the medial meniscus. However, no abnormality is seen in the medial collateral ligament. No joint effusion is noted. No post-traumatic changes are seen."
As to the cervical spine, Dr. Eisenstadt interpreted the MRI as containing "evidence of longstanding, pre-existing, degenerative disc disease." She stated that bony changes along the spine were "greater than six months in development and due to [the] extent are more likely years in origin. These changes could not have occurred in the time interval between examination and injury and clearly predate the accident." She acknowledged the presence of disc bulges but opined that they were chronic and degenerative in nature, and that they pre-dated the accident.
Finally, Dr. Eisenstadt wrote that the MRI revealed a partial tear of the distal supraspinatus tendon in the right shoulder but that the shoulder was otherwise normal. Although she stated that "[t]he etiology is uncertain based on this single study," she found that the "absence of a joint effusion is clearly indicative of the lack of significant recent trauma."
In his report, Dr. Stratigakis stated that plaintiff denied a history of injury to, or pain in, the spine, right shoulder or left knee. Dr. Stratigakis wrote that he examined plaintiff's neck, back, right shoulder and left knee. He compared the ranges of motion in the neck, back and shoulder to the normal ranges of motion and concluded that plaintiff had full range of motion in all planes. His examination of the knees revealed "flexion to 130 degrees, extension to 0 degrees and internal and external [sic] to 10 degrees." However, he did not state the normal ranges of motion for the knees. Moreover, Dr. Stratigakis failed to identify what objective tests he performed on plaintiff which led him to conclude that he had full ranges of motion in the spine, right shoulder and left knee. Dr. Stratigakis concluded that plaintiff had sustained sprains and strains to the injured body parts, all of which had resolved. He further found there to be no objective evidence of disability and no residual effects or permanency.
In opposition to the motion, plaintiff submitted his own affidavit, as well as the affirmation of Dr. Fleischer. Dr. Fleischer explained in his affirmation that plaintiff first came to see him on September 6, 2002, 8 days after the accident. He related that plaintiff complained to him during that initial consultation of injuries to his left knee and right shoulder, of neck pain radiating into his right shoulder and right arm with numbness. He also said he had lower back pain radiating to his left leg, and difficulty walking and sleeping. All of the complaints plaintiff made to Dr. Fleischer were related to the accident.
Dr. Fleischer stated that he examined plaintiff and found cervical and dorsal spasm and tenderness with impaired range of motion, especially on extension, lateral flexion and rotation. He also noted lumbosacral spasm and tenderness with impaired range of motion on all planes, as well as tenderness and swelling of the left knee, right shoulder and right ankle. Dr. Fleischer performed the straight leg raising test, which was positive bilaterally at 45 degrees. He found that plaintiff's gait and station were antalgic and that his heel/toe walk demonstrated weakness.
Dr. Fleischer further recounted that he prescribed physical therapy, MRI scans and an EMG test. The MRIs of plaintiff's right shoulder, left knee and cervical spine were taken in September 2002 and October 2002. He explained that the MRI of plaintiff's right shoulder revealed a tear of the rotator cuff, that the MRI of the left knee revealed a tear of the medial meniscus, and that the MRI of plaintiff's cervical spine showed multiple disc herniations at C3 through C7. The EMG, he noted, confirmed evidence of a right C6-C7 radiculopathy and bilateral carpal tunnel syndrome.
The affirmation detailed the subsequent history of plaintiff's treatment and recovery. In that regard, Dr. Fleischer stated that plaintiff continued to receive physical therapy, although the frequency of his sessions had decreased over time. He further stated that plaintiff continued to complain to him of intermittent headaches, dizziness and neck pain radiating towards his right shoulder and arm. He also complained that his lower back pain was becoming progressively worse. Indeed, Dr. Fleischer asserted that he had examined plaintiff at a recent office visit and that there was tenderness in the cervical and lumbar spines and an impaired range of motion. He also found tenderness in the right shoulder and left knee. The straight leg raising test was again positive.
Dr. Fleischer concluded by stating that plaintiff's prognosis for a full recovery is poor, and that his injuries are permanent. He further stated that "It is my professional opinion, with a reasonable degree of medical certainty that given the findings of my exam, plaintiff, John Linton's, injuries were causally related to his motor vehicle accident of August 29, 2002 and consistent with the type of injury that he sustained. Plaintiff, John Linton, requires further treatment, including additional physical therapy for pain management, and surgical debridement and/or other intervention. Further, it is very likely that plaintiff, John Linton, will develop arthritis as a result of his injuries.
"Based upon my examination of Mr. Linton, my review of his medical records, and the long duration of his pain and injuries, I can state with a reasonable degree of medical certainty that the foregoing injuries which were proximately and directly caused by the motor vehicle accident of August 29, 2002 are of a permanent nature. Mr. Linton has sustained a significant, consequential, permanent limitation and permanent impairment of his neck, back, left knee and right shoulder."
The motion court denied defendants' motion*fn1. It held that defendants failed to meet their initial burden of submitting proof in admissible form demonstrating the absence of any material issues of fact and their entitlement to judgment as a matter of law. This, the court stated, was because Dr. Stratigakis failed to address the MRIs or to describe any of the objective medical tests that led him to conclude that plaintiff had full range of motion in each of the body parts at issue. While the court allowed that Dr. Eisenstadt's affirmed report may have cured Dr. Stratigakis's failure to address the MRIs, it held that her report did not cure his failure to identify the objective tests he utilized. The court further stated that while defendants' failure to meet their initial burden rendered any consideration of plaintiff's papers unnecessary, Dr. Fleischer's affirmation created a genuine issue of fact by stating that "[h]e found impaired range of motion in the spine and other deficits and permanent conditions arising from the injuries sustained by the plaintiff in the subject accident."
In a motor vehicle case, a defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury has the initial burden of presenting competent evidence establishing that the injuries do not meet the threshold (see Wadford v Gruz, 35 AD3d 258 ). The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion (see Lamb v Rajinder, 51 AD3d 430 ). Here, Dr. Stratigakis failed to state what, if any, objective tests he utilized when examining plaintiff which led him to conclude that plaintiff had full ranges of motion in his cervical and lumbar spines, right shoulder and left knee and that the alleged injuries to those body parts had fully resolved. Accordingly, defendants failed to shift the burden to plaintiff to demonstrate that an issue of fact existed as to whether any of plaintiff's alleged injuries constituted a permanent consequential limitation of use a body organ or member and/or a significant limitation of a body function or system.
Defendants did shift the burden, however, on the question of whether the injuries to plaintiff's cervical spine and left knee were caused by the accident. This they accomplished by submitting the affirmation of Dr. Eisenstadt, to the extent that it asserted that the abnormalities appearing on the MRIs of the cervical spine and left knee of those body parts were degenerative in nature and pre-existed the accident. However, they did not shift the burden on the question of whether the partial tear in plaintiff's right shoulder was precipitated by the accident. Her acknowledgment that the "etiology is uncertain" and her inability to attribute a reason for the tear rendered her opinion that it was not caused by the accident "too equivocal to satisfy defendant's prima facie burden to show that [the tear] was not caused by a traumatic event." (Glynn v Hopkins, 55 AD3d 498 ).
Nevertheless, the motion court properly denied summary judgment to defendants because plaintiff raised an issue of fact regarding causation. Specifically, Dr. Fleischer concluded that plaintiff's symptoms were related to the accident. This was not a speculative or conclusory opinion (compare Diaz v New York Downtown Hosp., 99 NY2d 542, 544 ). To the contrary, it was based on a full physical examination of plaintiff made within days of the onset of plaintiff's complaints of pain and other symptoms, which plaintiff told him ensued after he was involved in a traumatic accident. Clearly, this was sufficient to raise a triable issue as to whose medical opinion was worthy of greater weight - Dr. Fleischer's or Dr. Eisenstadt's (see Etminan v Sasson, 51 AD3d 623 ; Harper v St. Luke's Hosp., 224 AD2d 350, 351 ).
Defendants argue that Dr. Fleischer's affirmation failed to create an issue of fact because it did not expressly address Dr. Eisenstadt's opinion that the left meniscal tear and cervical bulges and herniations were degenerative in nature. However, Dr. Fleischer's affirmation did reject Dr. Eisenstadt's opinion by attributing the injuries to a different, yet altogether equally plausible, cause, that is, the accident. Moreover, Dr. Fleischer's affirmation is entitled to considerable weight here. Because Dr. Stratigakis's affirmation lacked any probative value, Dr. Fleischer's affirmation is the only competent evidence before us of plaintiff's injuries that is based on an actual physical examination.
The trilogy of cases decided in Pommells v Perez (4 NY3d 566 ) governs this area of the law. An examination of those cases clearly shows that Dr. Fleischer's affidavit was sufficient to create an issue of fact as to causation.
In the second of the three Pommells cases, Brown v Dunlop, MRIs taken of the plaintiff's lumbar spine revealed disc herniations. The plaintiff's treating doctor diagnosed the plaintiff with a permanent spinal injury sustained as a direct result of a motor vehicle accident. However, in support of a motion for summary judgment, the defendants submitted the affirmation of a radiologist which stated that the spinal abnormalities were "chronic and degenerative in origin" (4 NY3d at 576). In opposition to the motion, the plaintiff provided the affirmation of his treating physician, which opined, "with a reasonable degree of medical certainty, that plaintiff's inability to move ...