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Benjamin v Noto 2008 NY Slip Op 30783(U) March 13, 2008 Supreme Court, Suffolk County Docket Number: 0009343/2006 Judge: Elizabeth H. Emerson Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT - STATE OF NEW YORK

INDEX NO.: 9343-06

TRIAL TERM, PART 8 SUFFOLK COUNTY
Pft K S E !YT: lion. E I iza beth Hazlitt Emerson
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,vI IU 13 F N.JAM I N a

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MOTION DATE: 10-29-07 SUBMITTED: 1-17-08 MOTION NO: 001-MD

,JOANBENJAMIN.
Plaintiffs,

SCHOEN & STRASSMAN, LLP Attorneys for Plaintiffs 52 Elm Street Huntington, New York 1 1 743
HAMMILL, O'BRIEN, CROUTIER, DEMPSEY & PENDER, P.C.

Defendant.
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Attorneys for Defendant 6851 Jericho Turnpike, Suite 250 Syosset, New York 11791

I pori thc following papers nitmbered 1 to x r e a d on this motion for summary judgment ; Notice of Motion and wpportiiig p : i p e r  H ; Notice of Cross Motion and supporting papers-; Answering Affidavits and supporting papers-; I<cplj itie ttlidx i t  and supporting papers-; it is,

ORDERED that this motion (001) by defendant, James Noto, pursuant to CPLR ;2 I2 arid Iiisuraiice Law 9.5 102(d) for summary judgment dismissing the complaint on the issue 1 l u t pla 1111IT. Mclvin Benjamin, did not sustain serious injury, unopposed by plaintiffs, is denied.
I his i s 2 i i i action to recover damages for personal injuries allegedly sustained by p l ~ i i i i t ~ l McI in Benjamin, in a motor vehicle accident which occurred on September 24, 2005, on l. rhc \csrbotind tra cl lane of Route 347, at or near its intersection with Gibbs Pond Road, Town of Siiiilhto\ 11, ('oiinty o f Suffolk when his vehicle was struck in the rear by defendant's vehicle. A tlci i  a11 c claim has been asserted by Joan Benjamin, spouse of Melvin Benjamin. Melvin 13uiijaiii 11 clLiiinsto lia~e sustained economic loss in excess of the basic economic loss, and serious iiilui.>. s iletiiicci by Insurance Law $5102.
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hlel i i i Beiijaniiii clainis in his bill of particulars that as a result of this accident he \'is c,iu,i~l10 <ListaiIi;I compression fracture of the TI2 vertebrae, disc herniations at L1-2 through I -3-4. s~i~~i-aspi~i;itiius and subscapularis tendinitis of the right shoulder; an anterior glenoid labral
tcai 01 tlic right

shoulder, tingling and numbness down the right arm, cervical and lumbosacral

spi-aiti, J S ~ I atcd lumbar and thoracic disc disease, limited forward flexion of the lumbar spine, -~ :$iid (11 fliciilt, ambulating, sitting, lying down and lifting.

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Yo `)O-~Ii-l.i

P`lg,, No

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Ikfcndant, James Noto, seeks summary judgment dismissing the complaint arguing i l i a t p l a i t i t i tl`Mel~in Beiisjatnindid not sustain serious injury within the definition set forth in liisuranc~: L ~ I Y 5 102. I n support of this motion, defendant has submitted a copy of the pleadings; 5 oy?tes nl' [lie transcripts of the examinations before trial of Melvin Benjamin and James Noto; a a.>pv oc a11 uticcrtificd hospital record; a report of Dr. Ralph Parisi, plaintiffs treating physician; , i n e l ail a `lii-mcci report of Dr. William Healy, 111, M.D. dated January 3, 2007. Plaintiff has not opposed this motion.
lhc proponent of a summary judgment motion must make a prima facie showing of matter of law, tendering sufficient evidence to eliminate any material I S S U ~ ot I x t from the case. To grant summaryjudgment it must clearly appear that no material S .ind triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 Vj'2cl 305 105 NYS2d 498 [ 19571). The movant has the initial burden of proving entitlement to s i i i i ~ m ~ 1id g i i i c n t (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). i ~ I ~ a i l t ~ iiiahi. such a showing requires denial of the motion, regardless of the sufficiency of the 1 ~ r ~ qqmsiii:: papcis (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been ollcrcci. 1 1 1 ~hutctcii then shifts to the opposing party, who, in order to defeat the motion for siiniiiiai 1 uclgnicnt, must proffer evidence in admissible form and must "show facts sufficient to I ~ L ` C I L I I I C t i t a l of any issiie of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 437 NJ'S2d 595 I 19801). The opposing party must present facts sufficient to require a trial of ,iny issiii' liict by producing evidentiary proof in admissible form (Joseph P. Day Realty Corp. 1 Aerosoti Prods., I48 AD2d 499, 538 NYS2d 843 [2"d Dept 19791) and must assemble, lay bare Lind rcvcLiIh i s proof i n order to establish that the matters set forth in his pleadings are real and calmble ) I Ixing cstabltshed (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2ndDept I OX 11,. SiiiInm3ryjLidgiiieiit shall only be granted when there are no issues of material fact and the C I ic1ciicc. rcqtiircs the court to direct a judgment in favor of the movant as a matter of law (Friends of nimals Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1!979]).
ciititlciiic-iii to judgment as a
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Pursuanl to Insurance Law Q 5102(d), " `[s]erious injury' means a personal injury L Iiich rc s i i l t s i n c-teath;clismembeiment; significant disfigurement; a fracture; loss of a fetus; pcrniancnt loss of use of a body organ, member, function or system:,permanent consequential I i m i t a t i c i n ol`ttsc o f a body organ or member; significant limitation of use of a body function or s) stciii, 11 <I mcclical dcterniined injury or impairment of a non-permanent nature which prevents i c inlut d pcrxon from performing substantially all of the material acts which constitute such person's iisucil and customary daily activities for not less than ninety days during the one hundred ciglirj, ( L I L s ~iiimediately following the occurrence of the injury or impairment."

I'hc tertii "significant," as it appears in the statute, has been defined as "something nitnor Itmilation of use," and the term "substantially all" has been construed to mean "that tlic p m o t i has been curtailed from performing his usual activities to a great extent rather than sonic light curtailment (Licari v Elliot, 57 NY2d 230, 455 NYS2d 570[1982]).
i v r c thaii ;I

On a motion for summary judgment to dismiss a complaint for failure to set forth a prima 1;icic c:tsc` ofscrious injury as defined byhsurance Law 4 5102(d), the initial burden is on

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~ l i c leiitl,int t o "present evidence in competent form, showing that plaintiff has no cause of de x t i o n " (Kodriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [ lstDept 19921). Once dcleridaiit 11`1siiict the burden, the plaintiff must then, by competent proof, establish apvima facie

case thal siich serious injury exists (DeAngelo v Fidel Corp. Services, Inc., 171 AD2d 588, 567 N17S?d 454. 455 [ l " Dept 19911). Such proof, in order to be in competent or admissible form, sli,ill coiisist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 I Dept 1002 1). The proof must be viewed in a light most favorable to the non-moving party, here 1 i p1:tii til't`(C`ammarerev Villanova, 166 AD2d 760, 562 NYS2d 808, 810 [3rdDept 19901). e
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In order to recover under the "permanent loss of use" category, plaintiff must cicmonsti,itc `1 total loss of use of a body organ, member, function or system (Oberly v Bangs .rnbulanc.c Inc., 06 NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of pIivsic,II Iiriiitalion with respect to the "permanent consequential limitation of use of a body organ iiieiiil~c1" i "significant limitation of use of a body function or system" categories, either a o 'rpcci llc pci ccntage of the loss of range of motion must be ascribed or there must be a sufficient c c w 111 011 01` the "qualrtative nature" of plaintiffs limitations, with an objective basis, correlating p l , i i n t i f l 'r Iimilations to the normal function, purpose and use of the body part (Toure v Avis Rent  C a r S>tcms, Inc., (IS NY2d 345, 746 NYS2d 865 [2002]). A minor, mild or slight limitation of iiw is c( nL,idercd insignificant within the meaning of the statute (Licari v Elliott, 57 NY2d 230, - 5 5 NI 57d 570 [l982])
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for ihe court to determine in the first instance whether a prima facie showing of ` scrioiis iiiluiy" has been made out (see, Tipping-Cestari v Kilhenny, 174 AD2d 663, 571 NYS2d 5 2 5 13~1 k p t 190 1 1) The initial burden is on the defendant "to present evidence, in competent l t o i - i i i . slioviiig that the plaintiff has no cause of action" (Rodriguez v Goldstein, 182 AD2d 396, is? N I S7d 3 0 5 . 306 [ I " Dept 19921). Once defendant has met the burden, plaintiff must then, by coinpetcnt pi'oo :t establish a prima facie case that such serious injury exists (Gaddy v Eyler, 79 NJ'X O i S . is:! NJ'S2d 990 119921). Such proof, in order to be in a competent or admissible form, x l i a l l consist ol'affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [ clcl Dcpl 1002 I). The proof must be viewed in a light most favorable to the non-moving party, Iiure, t h c plaiiitiff(Cammarere v Villanova, 166 AD2d 760, 562 N Y S 2 d 808 [3d Dept 19901).

It

IS

hlelvin Ejenjaniin testified at his examination before trial that he was driving his chicle $ 1 licii i t was stnick in the rear by defendant's vehicle. He thereafter sought medical care at Nor111 Sliorc P l a i n  ~ e w Hospital where he was x-rayed and referred to an orthopedic surgeon for conipl,iiiits of'pain in 111sback, shoulder and neck. He followed up with Dr. Parisi on or about Octohci- 12, 2005, and was prescribed Naprosyn and physical therapy. He continued the physical thcrapv ilirougli March, 2006. Prior to this accident, he stated he did not sustain injury to his right slioiildct neck. low back or to the middle or thoracic area of his back. About three or four years

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xcideiit, he woke up one morning with low back pain and was treated with pain

incdicnt on lor a weeh. He testified that since the accident he still continues to have pain in his iicch ancl 1 izlit shoulder and is to have surgery to his right shoulder. He missed about two weeks froni voi-h and states hc cannot work as quickly with the scissor cutting lace as he could before the xcicicnl P l L i i i i t iff` is self-employed as a lace cutter.

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Llcfendants have submitted a report prepared by Dr. Ralph Parisi who treated Mr.
alict the accident. Dr. Parisi indicated in his report that Mr. Benjamin developed neck ,ind hiicli p a i n ,iftcr thc accident, and x-rays taken of his back showed degenerative disc disease at I 5-S 1 , I > \ ell .is a compression deformity of T12, which, he states, was probably chronic. Limited intation ol`tlie cervical spine was found on flexion and extension ofthe neck upon examination, aiid t r q x / i tis spasm wiis noted.
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I>r. Healy set forth in his report of January 3,2007 that he performed an independent c)i.thopcclic caminatioll o f Mr. Benjamin relating to complaints of injuries to his neck, back and I ight sliouldcr alleged to have arisen out of the motor vehicle accident of September 5 , 2005. Dr. I lcaly sc't:, h i t 1 1 that he reviewed the report dated February 9, 2006 of the MRI of Mr. Benjamin's I iglir shoci I c h - I hich impression was: hypertrophic changes of the acromioclavicular joint  c.tciicliiig to impress the supraspinatuus; anteriorly and laterally down sloping acromion extending to abut t hc supraspinatuus; supcrolateral humeral marginal spurs underlying the supraspinatus; sul~raspi iiatiius suggestive of calcific tendinitis in the supraspinatuus, tendinosis and tendinopathy of`the stil~i'~is1~inatus subscapularis, anterior glenoid labral tear and anterior glenoid spurring and `Illd p0s:;Iblc cyst. t h . Healy states that the impression on the MRI report of the thoracic spine dated hlarch 2 . -'006 is a compression fracture identified superior to the 1'12 vertebral body with anterior 1 crtchr,iI \ edging, and 1,l-2 through L3-4 posterior disc herniations extending to narrow the Ioraiiicii DI Ilealy states the radiographic report of the lumbar spine from September 24,2005 slin\ s iio `icutc findings; three views of the cervical and lumbosacral spine demonstrate no fracture (11- si'"ii(lylolis1liesis, mild to moderate degenerative disc disease at L5-S1, and sclerotic (oiiiprc: sion del`ormtty at the superior end plate of T12, chronic.
Dr. Hcaly also states that he reviewed reports from Dr. Parisi, which set forth, inter
alia. thCi -r:iys o f Mr t3enjaniin's right shoulder showed large calcific deposits which were

probabl: there prior t o the accident, or could have been aggravated by the accident which may have irlso c a i i w J ;I partial tear o f the cuff because he has limited motion, pain and weakness in :ihtiuct i c l i i 1)r I lealy also reviewed the medical note of Dr. Dines who also saw Mr. Benjaniiii for

concerning his right shoulder and who opined that the MRI shows a full-thickness i o l a t o i c ( I l'f tear and some degenerative changes, and that he has failed conservative treatment, iiijcctioii m c i Pl. Di-. Dines rcconiinended arthroscopic rotator cuff repair, decompression and possihlc 1,ibral repair. Dr. Healy also states that a radiograph included with the MRI of the right ihoiildci docs i i o t indicate a rotator cuff tear, but there is a question of an anterior labral tear. Dr. ileal) st:iics t h t an M R I o f the thoracic spine dated March 2, 2006 reveals a question of some disc I~Lllglny`li I I -;!and 2-3.
1lpon examination of Mr. Benjamin's right shoulder, Dr. Healy states he found full `IciiI c ; i i d p;isstve range of motion, tenderness at the extremes of full extension and internal i alation 0 1 ' thc right shoulder versus the left, there was no active impingement findings, but there iici-c miltllv positirc O'Rrien's test, crank test. and cross arm test.
13ascd upon the foregoing, it is determined that defendant has failed to demonstrate

c ompl,ii tits

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~JCIC ciititlement
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to summary judgment on the issue of whether plaintiff sustained a serious tlic meaning of Insurance Law (j5102(d).

Dr Healy's report does not eliminate factual issues with regard to the herniations ciisclosc,l iii the MKI ol Mr. Benjamin's lumbar spine, the fracture at T12, and the right shoulder inluiy, , i i i r + n hether i t IS a rotator cuff tear or an anterior glenoid labral tear. Dr. Healy sets forth coiiclusi LI). vithout setting forth a basis, that Mr. Benjamin's compression fracture at T12 is a chionic iiilury that preceded the accident. Dr. Healy states that there were findings on Mr. E3cnlamr 11'5 MKI consistent with acromioclavicular degenerative changes as well as a possible I h i a l t c ~ and tendinopathy of the supraspinatuus tendon, but then states that there were no i findings on his IT ieib of the MRI and/or in the formal reports consistent with a rotator cuff tear as k i i g i p t L ti 17) t)i Dines He states that the only findings are consistent with mild degenerative L Ii,iiiscs ti11 Id labral findings, and mild impingement findings, and he cannot fully relate this injury d thcsc linding:s to the accident. However, Dr. Healy does not set forth that these injuries were i i o t caiiscd hy the accident. I n that Dr. Healy's findings upon examination reveal objective findings rll`the niiIdl> positive O'Brien's test, mildly positive crank test, and mildly positive cross arm test in M I I-ciilmiin's right shoulder, without conclusively ruling out either a labral tear or rotator cuff tcar. ; i i i ~\ ithout dctcrmining that this injury is not causally related to the accident, defendant has i r o t denioiisti ated prima facie entitlement to summary judgment on the issue of whether plaintiff k i i  t c i i i i t t 5 1 ,I ~ ~ I - I O L I S inlury with the meaning of Insurance Law

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