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Moat v. Kizale

Supreme Court of New York, Third Department

April 13, 2017

ELIZABETH A. MOAT et al., Respondents,
STEPHEN JAMES KIZALE et al., Appellants.

          Calendar Date: February 22, 2017

          Bond, Schoeneck & King, PLLC, Syracuse (J.P. Wright of counsel), for appellants.

          Levene Gouldin & Thompson, LLP, Binghamton (Margaret J. Fowler of counsel), for respondents.

          Before: Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ.


          Egan Jr., J.P.

         Appeal from an order of the Supreme Court (Lebous, J.), entered February 8, 2016 in Broome County, which partially denied defendants' motion for summary judgment dismissing the complaint.

         At approximately 5:00 p.m. on November 16, 2010, defendant Stephen James Kizale was operating a Ford F-450 bucket truck owned by his employer, defendant Time Warner Entertainment Company, LP, northbound on State Route 201 in the Village of Johnson City, Broome County in the pouring rain when he encountered numerous motor vehicle accidents. According to Kizale, as he attempted to change lanes "to provide... a cushion of safety on the passenger's side of [his] vehicle, " a Dodge Durango operated by plaintiff Elizabeth A. Moat "came alongside [him] at a high rate of speed." As the two vehicles passed one another, "the rear tire of [Moat's] vehicle clipped the lug nuts of the driver's side front wheel of [Kizale's] truck, " causing Moat to sustain a flat tire. Although Moat offered a contrary version of the accident, claiming that Kizale abruptly changed lanes, striking her vehicle and pinning it against the center guardrail, neither Moat nor Kizale were ticketed, and each left the scene without seeking medical attention.

         The day before the accident, Moat, who previously had undergone two surgeries on her lumbar spine and suffered from a variety of medical issues, [1] presented at the office of her treating neurosurgeon, Khalid Sethi, complaining of "severe and bitter back pain." More than two years (and multiple surgeries) later, Moat and her husband, derivatively, commenced this action alleging that she had sustained a serious injury within the meaning of Insurance Law § 5102 (d) as the result of defendants' negligence. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint - contending, among other things, that Moat's various complaints relative to her lumbar and cervical spine predated the November 2010 motor vehicle accident and that the accident neither caused nor exacerbated such ailments. Supreme Court granted defendants' motion as to plaintiffs' claim under the 90/180-day category of serious injury, but denied the balance of the requested relief, finding questions of fact as to whether the subject accident either caused new injuries and/or exacerbated Moat's preexisting spinal conditions. This appeal by defendants ensued.

         Plaintiffs, as set forth in their responses to defendants' various demands for bills of particulars, contend that Moat has sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent loss, permanent consequential limitation and/or significant limitation of use categories. Specifically, plaintiffs rely - in large measure - upon the following injuries/conditions: "a left L4-5 and L5-S1 disc herniation with compression of the L5-S1 nerve roots" and "a large right posterolateral C6-7 disc herniation with C7 nerve root and moderate spinal cord compression" (resulting in permanent or significant loss of range of motion in her lumbar and cervical spine), as well as a permanent or significant left foot drop, antalgic gait, inability to stand/walk/sit upright for more than 15 minutes, climb stairs, handle or finger objects with her upper extremities and/or return to work. According to plaintiffs, each of the aforementioned conditions was either caused or exacerbated by the November 16, 2010 motor vehicle accident.

         As the proponents of the underlying motion for summary judgment, "defendants bore the initial burden of establishing with competent medical evidence that [Moat] did not suffer a serious injury as a result of the accident" (Jones v Marshall, 147 A.D.3d 1279, 1281 [2017] [internal quotation marks and citation omitted]; see Clausi v Hall, 127 A.D.3d 1324, 1325 [2015]; see also Martin v LaValley, 144 A.D.3d 1474, 1475-1476 [2016]). In support of their motion, defendants tendered, among other things, plaintiffs' examination before trial testimony and responses to defendants' demands for bills of particulars, Moat's medical records, hospital admissions and imaging studies and an affidavit and report from their expert, orthopedic surgeon David Hootnick. To that end, the record makes clear that Moat's well-documented complaints of chronic back pain predate the subject motor vehicle accident by more than five years. In August 2005, Moat presented at a local hospital emergency room with "excruciating low back pain... radiating into both legs" and a claimed ability to stand, sit, walk or lie down for only "short periods of time"; Moat attributed the onset of her back and leg symptoms to childbearing. An August 13, 2005 MRI of Moat's lumbar spine revealed a "[m]oderate central L3-4 disc protrusion with significant mass effect on the thecal sac, " characterized by Sethi (who evaluated Moat in the emergency room) as a "a relatively large central disc herniation at the L3-4 level, " and an office note bearing that same date reflects that Moat walked "with a slow antalgic gait." Sethi referred Moat to a pain management center, and the records from a September 2005 evaluation indicate that Moat presented with a "[m]arkedly antalgic gait, " pain so severe that she could not "walk, stand or sit for... more than a few minutes" and a range of motion "restricted to only a few degrees in each direction."

         When Moat failed to respond to conservative treatment, Sethi performed "a lumbar laminectomy at L3-L4 on the left" in December 2005. Although both Moat and Sethi considered the surgery to be successful and a September 2007 MRI showed no evidence of "residual/recurrent disc herniation, " Moat's symptoms "waxed and waned" following this procedure; she continued to experience both pain and a limited range of motion, and

"[m]ulti[-]level small disc protrusions" were noted on the imaging study. Moat's subsequent emergency room visits in January 2009 and March 2010 disclosed complaints of "back of head headache, neck stiffness, shoulder pain and blurred vision, " a history of migraine headaches, "intermittent low back pain, " "[t]enderness around [the] cervical C5-C6" level and an inability to "move her hands." Similar symptoms were reported during April 2010 physical therapy sessions, wherein Moat related a history of "a back ache from her tailbone all the way up to her head as well as a migraine."

         In August 2010, Moat, who was receiving oxygen around the clock for her pulmonary issues, tripped and fell over her oxygen cannula - prompting a trip to the emergency room with a complaint of "significant low back and left leg pain." A CT scan conducted in the emergency room showed "[s]ignificant disc herniation at the L3-L4 and L4-L5 levels, " in addition to a "diffuse disc bulge as well as central disc protrusion causing mild spinal canal stenoses" at the L5-S1 levels. An MRI of Moat's lumbar spine was conducted on August 13, 2010, and the results were compared to a similar study undertaken in September 2007. Although "slightly progressive reactive endplate changes" were noted at several levels - "predominantly at L4-5 to the left which [had] progressed since 2007" - and "disc protrusions at multiple levels" were observed, the final impression indicated that the "[d]isc bulging at L4-5 and L5-S1 [was] unchanged without significant stenoses." Moat failed to respond to treatment, however, and, on August 17, 2010, Sethi performed "[l]eft L4-L5 and L5-S1 hemilaminotomies with microdiscectomy." Moat's pre- and post-operative diagnoses were the same - "[s]evere left L5-S1 radiculopathy with partial foot drop" and "[h]erniated nucleus pulposus at L5-S1, left, with mass effect on the L5 nerve root."

         On November 15, 2010, one day before the motor vehicle accident at issue, Moat was seen by a physician's assistant in Sethi's office, at which time Moat complained of "severe and bitter back pain that [could] come and go at any time and [would] get worse throughout the day." According to the history provided, Moat was "quite miserable because of the back pain and [was] looking for some relief." An MRI was ordered, and Moat was scheduled to return to Sethi's office in four to six weeks; the assessment set forth in the office records stated, in relevant part, "[p]artial foot[]drop improving" with "[i]ncreasing low back pain over the last month." [2] The requested MRI was performed on November 24, 2010, at which time the disc bulges and protrusions at L3-L4 were "reidentified" and the prior surgical procedures at "L4-L5, left" and "L5-S1, left" were noted. According to the MRI report, the final impression was multi-level degenerative disc disease [3]. A subsequent MRI performed on January 3, 2011, however, disclosed "a new large left posterolateral L5-S1 disc herniation... with S1 nerve root compression, " as well as "[a] new moderate left paracentral left L4-5 disc protrusion... with moderate mass effect on the thecal sac." Sethi thereafter performed five additional surgeries upon Moat following the accident - a "redo" of the L4-L5 and L5-S1 hemilaminectomy and microdisectomy (January ...

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