HON. ARLENE P. BLUTH, JSC
As there are questions of fact which require trail defendants' motion for summary judgment is denied.
Plaintiff Tomoe Jacobs, a pedestrian, alleges personal injuries when, on July 1, 2010, she was hit by a taxi while crossing the intersection of Seventh Avenue and West 42nd Street in Manhattan. Defendants, the driver Amandeep Singh and owner Gutman & Sons Cab Corp., move to dismiss all claims against them. Defendants contend that plaintiff has not met the serious injury threshold as defined by section 5102 (d) of New York State's Insurance Law.
When plaintiff was hit by the taxi, she was knocked to the ground; she did not lose consciousness but her right knee was cut open. Although an ambulance arrived at the scene, plaintiff was not treated by the crew and did not go to the hospital.
Instead, five days after the accident, on July 6, 2010, plaintiff sought treatment with Dr. Aric Hausknecht, M.D. Dr. Hausknecht referred plaintiff to get x-rays of her right knee and recommended that she begin a course of physical therapy and chiropractic treatments. Plaintiff testified that she saw Dr. Hausknecht once every few months, that she treated with a physical therapist two to three times a week for about eight to nine months following the accident, and that she did not take any prescribed medications as a result of the accident.
On February 3, 2011 plaintiff initiated this action in which she alleges personal injuries as a result of the accident. In her verified bill of particulars dated March 9, 2011, plaintiffs alleged injuries include lumbosacral derangement with LI-2 disc bulges, L5-S1 disc herniation, lumbar radiculopathy, lumbar lordotic curvature, cervical spine derangement, C3/4 and C4/5 posterior disc herniations, cervical radiculopathy extensions, a right knee sprain/strain with internal derangement, a torn ligament, contusion, and a left ankle sprain/strain.
On October 11, 2011, Dr. R. C. Krishna, M.D., performed a neurological medical examination of plaintiff at defendant's request (IME) (exhibit E to moving papers). After reviewing plaintiffs accident report and bill of particulars, he performed his own examination. Dr. Krishna found no neurological deficits which would constitute a disability or a permanent injury and noted that plaintiff has "no objective evidence of a disability from a neurological standpoint concerning the activities of daily living." His examination found plaintiffs sensory thresholds were within normal limits as were the range of motion of the lumbar and cervical spine. Dr. Krishna concluded that plaintiffs cervical strain injury is resolved, that the lumbar strain injury is resolved, and that the right knee complaints should be deferred to a specialist.
Defendants also submit the orthopedic medical evaluation (IME) of plaintiff which was conducted by Dr. S.W. Bleifer, M.D the same day (exhibit F to moving papers). Dr. Bleifer reviewed plaintiffs accident report, bill of particulars and response to discovery and inspection and he performed his own examination. Dr. Bleifer diagnosed plaintiff with a resolved post- traumatic lumboscarcal sprain, a resolved contusion of the right knee, and a resolved right ankle strain. Dr. Bleifer observed that the plaintiffs range of motion of the lumbrosacral spine/back, the knees, and the ankle were normal. Dr. Bleifer concluded that all strains were resolved, no further treatment was necessary, that plaintiff did not suffer a disability, and that plaintiff may continue with her daily activities.
Defendants also submit a radiology report of Dr. Sheldon P. Feit, M.D., which is dated October 1, 2011 (exhibit G to moving papers). Dr. Feit conducted a review of plaintiff s lumbosacral and thoracic spine MRIs, both of which were taken less than two months after the date of the accident. With regard to the lumbosacral MRI, he found that it "reveals pre-existing degenerative change ... [n]o post traumatic changes are identified and there are no abnormalities casually related to the injury of 7/1/10." With regard to the thoracic spine, he found "no discernible abnormalities" at all.
In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v City of New York, 49 N.Y.2d 557 at 562, 427 N.Y.S.2d 595 (1980).
In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues. (Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204, 562 N.Y.S.2d 89 [1st Dept 1990], Iv. denied 77 N.Y.2d 939, 569 N.Y.S.2d 612 ). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v West 95th Street Development Corp., 161 A.D.2d 218, 554 ...