Ramos v. Jahar

The following numbered papers were read on this (these) motion(s): NYSCEF Document Numbers 83-88. DECISION AND ORDER Upon the foregoing papers, and the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), §6 (Personal appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.”), and due deliberation having been had thereon, this Court determines the within motion as follows. Plaintiff moves to reargue this Court’s decision and order dated June 23, 2023, entered June 26, 2023, and reported at 79 Misc 3d 1214(A), 2023 NY Slip Op 50616(U)¹ (Sup Ct, Kings County 2023). In said decision and order, this Court granted Defendants’ motion for summary judgment regarding the serious injury threshold requirement of Insurance Law §§5102 (d) and 5104 (a) in order to recover noneconomic loss in connection with motor vehicle accidents. Among other things, this Court held that Plaintiff failed to adequately rebut Defendants’ prima facie case with respect to the permanent consequential limitation and significant limitation categories of serious injury²; Defendants’ radiologist, Dr. Audrey Eisenstadt had opined that MRI films of Plaintiff’s right shoulder, right knee, and lumbar spine revealed pre-existing degenerative conditions which had no traumatic etiology (see NYSCEF Doc No. 85 at 2-5). “A motion for leave to reargue must be ‘based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion’ (CPLR 2221[d][2])” (Central Mtge. Co. v. McClelland, 119 AD3d 885 [2d Dept 2014]). Such a motion is addressed to the sound discretion of the motion court (see A.R. Conelly, Inc. v. New York City Charter High Sch. for Architecture, Eng’g & the Constr. Indus., 206 AD3d 787 [2d Dept 2022]). This Court finds that it did not overlook or misapprehend any matters of fact or law. Preliminarily, this Court notes that Plaintiff failed to comply with IAS Part 2 Rules which require that “All motions for reargument or renewal shall include a transcript of the previously held oral argument…” (Part I [Motions & Special Proceedings], Subpart B [Papers], §17 [Reargument or renewal], New York State Unified Court System, 2nd JD — Civil Term, Kings Supreme Court, Hon. Aaron D. Maslow: Part 2 Rules, https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Nov. 12, 2023]). Moreover, Plaintiff referred to previously efiled documents which were not attached as exhibits to this motion. This is in contravention of IAS Part 2 Rules providing, “Where reference is made to a previously electronically-filed document, said document must be submitted as an exhibit on the motion” (id. Part I [Motions & Special Proceedings], Subpart B [Papers], §13 [Previously electronically-filed documents]). For these reasons alone, the motion should be denied (see Brick&Mortar LLC v. Momo Sushi Inc., 79 Misc 3d 1239[A], 2023 NY Slip Op 50838[U] [Sup Ct, Kings County 2023]). Nonetheless this Court exercises its discretion and grants the motion to reargue.3 This Court adheres to its previous determination which granted summary judgment to Defendants on the issue of the serious injury threshold requirement. This Court will address certain arguments advanced by Plaintiff in counsel’s affirmation submitted as NYSCEF Doc No. 84. Plaintiff points out that it was not present in court when the motion was argued on June 23, 2023, and claims, “This resulted in the motion being granted due to your affirmant’s office’s non-appearance” (NYSCEF Doc No. 84 9). This is inaccurate. Plaintiff’s papers were considered fully even though there was no appearance on her behalf at oral argument on June 23, 2023. References to Plaintiff’s papers are contained within this Court’s decision and order (see NYSCEF Doc No. 85 at 6 & n 2, 7 & n 3, 8 & n 4, 9 & n 6). Contrary to Plaintiff’s statement that “this Honorable Court misapplied, misapprehended or ignored critical case law in granting defendants’ summary judgment motion” (NYSCEF Doc No. 84 12), this Court applied the body of case law governing serious injury threshold motions, adhering especially to that pertaining to the sufficiency of evidence submitted with respect to proximate causation. In particular, this Court noted that Dr. Eisenstadt’s conclusions regarding pre-existing degenerative conditions were not adequately rebutted by Plaintiff’s evidence. This Court liberally quoted from her reports due to their detail, which comported with the standard of “detailed findings of preexisting degenerative conditions by defendants’ expert[ ]” (Alvarez v. NYLL Mgt. Ltd., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015] [emphasis added]). By contrast, Plaintiff’s radiologists’ reports lacked detailed findings concerning the etiology of the conditions revealed in the MRI films, as discussed in the original decision and order (see NYSCEF Doc No. 85 at 7 n 3).⁴ Dr. Bradley Wasserman’s examination reports’ statements that the accident was causally related to Plaintiff’s right knee injury were conclusory and based on incomplete or deficient examinations according to case law (see NYSCEF Doc No. 85 at 7). Dr. Stella Mansukhani’s statements regarding causation were tailored and conclusory, and relied on legally insufficient predicates (see id. at 8). In any event, neither they nor Plaintiff’s radiologists discussed Dr. Eisenstadt’s findings. Plaintiff points to case law regarding degrees to argue again that certain limitations in range of motion are significant (see NYSCEF Doc No. 84 13-15), but the case law regarding range of motion limitations must be understood in the context of the norms. Ultimately it is the percentage of reduction which determines whether a reduction is significant (see NYSCEF Doc No. 85 at 7). In any event, since Dr. Eisenstadt’s findings regarding degeneration were not rebutted, the issue of degrees of limitations is really academic. Plaintiff cites to Frias v. Son Tien Liu, 107 AD3d 589 [1st Dept 2013], for the proposition that a doctor’s examination is sufficient even if he did not use an instrument to measure range of motion (see NYSCEF Doc No. 84). This Court noted that Dr. Mansukhani’s examination report of July 12, 2018, wherein she opined on causality, did not reflect use of a goniometer. The Frias decision emanates from the First Department. This stands in contrast to Second Department case law referring to a plaintiff’s evidence in opposition creating a material issue of fact when a goniometer is used (e.g. Chichester v. Chichester, 174 AD3d 846 [2d Dept 2019]; Lee v. McQueens, 60 AD3d 914 [2d Dept 2009]; Kerzhner v. N.Y. Ubu Taxi Corp., 17 AD3d 410 [2d Dept 2005]; Desulme v. Stanya, 12 AD3d 557 [2d Dept 2004]). In fact, in Gersbeck v. Cheema (176 AD3d 684, 685 [2d Dept 2019]), the court held that Plaintiff’s “chiropractor did not state the objective method he used to measure the plaintiff’s range of motion, such as by using a goniometer.” In Dinc v. Shalesi (208 AD3d 558, 559 [2d Dept 2022]), the court held, “In opposition, the plaintiff failed to raise a triable issue of fact. The report of the plaintiff’s expert, Peter Wohl, a chiropractor, was insufficient to raise a triable issue of fact, as he failed to identify the method utilized to measure range of motion (see Nicholson v. Kwarteng, 180 AD3d at 696)….” This Court cited to Gersbeck (see NYSCEF Doc No. 85 at 8). As with the degrees on range of motion testing (see supra), the issue of the goniometer is academic in light of the unrebutted degeneration findings of Dr. Eisenstadt. In Plaintiff’s counsel’s affirmation, it is stated that “This Honorable Court decided that plaintiff’s injuries were caused by pre-existing degenerative conditions and cited one case: Lemieux v. Horn” (NYSCEF Doc No. 84 21). This Court did not decide that there were degenerative conditions. On summary judgment motions a court does not decide issues of fact or make credibility findings. Rather, it identifies material issues of fact or points to a lack thereof. (See Vega v. Restani Constr. Corp., 18 NY3d 499, 505 [2012]; Mapfre Ins. Co. of N.Y. v. Ferrall, 214 AD3d 635 [2d Dept 2023].) The reference to Lemieux v. Horn (39 NY3d 1108 [2023], affg 209 AD3d 1100 [3d Dept 2022]) appeared in this Court’s decision at page 8 (NYSCEF Doc No. 85) within the discussion concerning a plaintiff’s need to submit expert medical evidence addressing or contesting the defendants’ expert’s detailed findings of preexisting conditions. “The Appellate Division correctly concluded that defendant established prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact whether he suffered a serious injury within the meaning of Insurance Law §5102 (d) as a result of the accident (see Pommells v. Perez, 4 NY3d 566, 573-575 [2005]; Franchini v. Palmieri, 1 NY3d 536, 537 [2003])” (Lemieux v. Horn, 39 NY3d 1108, 1108 [2023]). This Court found that this requirement of law — more recently at the Court of Appeals level — was not met by Plaintiff herein. This Court cited to other cases besides Lemieux: Franklin v. Gareyua, 29 NY3d 925 [2017], affg 136 AD3d 464 [1st Dept 2016]; Rivera v. Fernandez & Ulloa Auto Group, 25 NY3d 1222 [2015], affg 123 AD3d 509 [1st Dept. 2014]; Alvarez v. NYLL Mgt. Ltd., 24 NY3d 1191); see also Rosa v. Delacruz, 32 NY3d 1060 [2018] ["Plaintiff's responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident."] (NYSCEF Doc No. 85 at 8.) Recent Second Department decisions have hewed to this line of case law at the Court of Appeals (e.g. Merone v. Five Towns Review, Corp., 215 AD3d 951 [2d Dept 2023] ["The plaintiff's experts failed to address the findings of the defendants' radiologist that the alleged injuries to the lumbar region of the plaintiff's spine and her right shoulder were degenerative in nature…."]; Mnatcakanova v. Elliot, 174 AD3d 798 [2d Dept 2019] ["In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted, inter alia, an affirmed medical report in which her expert opined that her injuries were causally connected to the accident, the evidence submitted by the plaintiff failed to address the findings of the moving defendants' expert that the injuries to her spine and knee were degenerative in nature…."]; Zavala v. Zizzo, 172 AD3d 793 [2d Dept 2019] ["[T]he affirmations of the plaintiff’s treating physicians failed to address the findings of the defendant’s radiologist that the alleged injuries to these body parts were degenerative in nature. Thus, the conclusions by the plaintiff’s treating physicians as to causation were speculative and insufficient to raise a triable issue of fact….”]; Cavitolo v. Broser, 163 A.D.3d 913 [2d Dept 2018] ["The affirmation of the plaintiff's expert failed to address the findings of the defendant's examining radiologist that the magnetic resonance imaging of the plaintiff's left shoulder, taken shortly after the accident, revealed only preexisting degenerative conditions…."]).⁵ Further Second Department case law reinforces this mandate of a plaintiff bearing the burden of addressing the defendants’ radiologists’ findings that conditions were degenerative in nature (e.g. Barnes v. Paukar, 215 AD3d 615 [2d Dept 2023] ["The plaintiff's experts failed to address the findings of the defendants' radiologist that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and the plaintiff's left shoulder were degenerative in nature…."]; Devito v. Anatra, 189 AD3d 1175 [2d Dept 2020] ["The plaintiff's expert failed to address the findings of the defendant's radiologist that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were degenerative in nature…."]. McMahon v. Negron (186 AD3d 593 [2d Dept 2020]) is instructive for its description of the evidentiary posture of the parties akin to that in the case at bar: “Although the plaintiff submitted an affirmed medical report in which her expert opined that the alleged injuries were causally connected to the subject accident, the expert failed to address the findings of the defendants’ expert that these injuries were degenerative in nature (see Zavala v. Zizzo, 172 AD3d 793, 794 [2019]; Cavitolo v. Broser, 163 AD3d 913, 914 [2018]; Franklin v. Gareyua, 136 AD3d 464, 465, 467 [2016], affd 29 NY3d 925 [2017])” (id. at 593). While Plaintiff claims that her doctors’ attributions of her injuries to the accident sufficed — this Court finding them conclusory and without sufficient predicate — no doctor whose opinion was tendered by Plaintiff addressed Dr. Eisenstadt’s detailed findings of degeneration. Second Department case law decided subsequent to the original decision of this Court held: “On the plaintiff’s motion, inter alia, to vacate the order dated August 20, 2019, the plaintiff failed to raise a triable issue of fact as to causation, since the affirmed reports of the plaintiff’s doctors failed to address, in a nonconclusory manner, the defendants’ expert’s conclusion that the plaintiff’s injuries were degenerative in nature and not caused by the subject accident (see Henry v. Hartley, 119 AD3d 528, 529 [2014]). Thus, the plaintiff failed to raise a potentially meritorious opposition to the defendants’ motion for summary judgment (see Narvaez v. City of New York, 171 AD3d 764, 765 [2019]).” (Angulo v. Yogi Trans Corp., 218 AD3d 721, 722 [2d Dept July 26, 2023].) “Contrary to the plaintiff’s contention, she failed to raise a triable issue of fact in opposition as to whether the injuries to her spine, left shoulder, and left knee were degenerative in nature and not caused by the accident. The plaintiff’s experts failed to address, in a nonconclusory fashion, the defendants’ medical evidence demonstrating that the injuries to these body parts were degenerative in nature and not caused by the accident (see Henry v. Hartley, 119 AD3d 528, 529 [2014]; see also Amirova v. JND Trans, Inc., 206 AD3d 601, 602 [2022]; Mnatcakanova v. Elliot, 174 AD3d 798, 800 [2019]; Zavala v. Zizzo, 172 AD3d 793, 794 [2019]).” (Tamar v. Allstate Dismantling Corp., 218 AD3d 515 [2d Dept July 5, 2023].) Moreover, “the radiologists who reviewed the MRI scans taken at the behest of Plaintiff’s doctors did not note traumatic injuries” (NYSCEF Doc No. 85 at 7). “Dr. Narayan B. Paruchuri, the radiologist who issued the December 21, 2018 MRI report regarding Plaintiff’s right shoulder and sent it to Dr. Mansukhani, did not attribute any finding to trauma (see NYSCEF Doc No. 75, records of New York Heights Medical PC at 83-84). The same is true of Dr. David Milbauer’s August 8, 2018 MRI reports regarding the right knee (see id. at 87-88) and the lumbar spine (see id. at 85-86).” (Id. n 3.) It is not enough for the opponent of a motion for summary judgment on the issue of the serious injury threshold to merely come to an opposite conclusion than the one offered by the movant’s doctor regarding proximate causation. There has to be a sufficient predicate for the opinion, and the opinion must specifically address the movants’ doctor’s findings. The lack of such was the point this Court was conveying in its analysis on pages 7-9 which reviewed Plaintiff’s medical evidence from Drs. Wasserman, Mansukhani, Paruchari, and Milbauer with regard to proximate causation. Accordingly, it is hereby ORDERED that (1) Plaintiff’s motion for reargument is GRANTED. (2) Upon such reargument, Defendants’ motion for summary judgment, based on the serious injury threshold requirement for motor vehicle accidents remains GRANTED as per the decision and order dated June 23, 2023 and entered June 26, 2023. (3) The Clerk is again directed to enter judgment dismissing the complaint. Dated: November 17, 2023