Lindo v. BrettLindo v. Brett
Andy Mark Lindo, Appellant, v Denise Bellamy Brett, Defendant, and Metropolitan Transit Authority et al., Respondents. [52 NYS3d 308]—
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about October 1, 2015, which, inter alia, granted the motion of defendants Metropolitan Transportation Authority (s/h/a as Metropolitan Transit Authority) and MTA Bus Company (together the moving defendants) for summary judgment dismissing the complaint as against all defendants on the threshold issue of serious injury under
Dr. Rothman reviewed MRIs of plaintiff‘s cervical and lumbar spines taken within approximately one and two months of the accident, respectively. Regarding the former, he observed disc desiccation throughout, and osteophyte formations at C4-C5, C5-C6, and C6-C7. There was a minimal disc bulge at C6-C7, but no evidence of acute disc herniation. He concluded that plaintiff suffered from “chronic degenerative disc disease.” As to the lumbar spine, Dr. Rothman noted disc desiccation throughout, especially at L5-S1, as well as disc space narrowing, and a small herniation at L5-S1. He concluded that plaintiff suffered from degenerative disc disease. Dr. Rothman also reviewed an MRI of plaintiff‘s right shoulder taken less than one month after the accident. He noted that there was no evidence of fracture, a minimal hypertrophic change at the AC joint with impingement on the, supraspinatus, an intact glenohumeral joint, and no evidence of tears to the labrum or rotator cuff. Finally, he reviewed an MRI of plaintiff‘s right knee taken less than two weeks after the accident, and stated that all ligaments and menisci appeared intact, and that there was no evidence of any tears.
Based on the foregoing, the moving defendants argued that they had satisfied their prima facie burden of establishing that plaintiff had not sustained a permanent consequential limitation to the parts of his body alleged in his verified bill of particulars. They further posited that plaintiff did not satisfy the 90/180-day category of
The moving defendants cited additional grounds for dismissal. Metropolitan Transportation Authority argued that, aside from being misnamed, it did not own the vehicle that collided with plaintiff‘s car, and submitted an affidavit from an employee of MTA Bus Company stating that MTA Bus Company owned the vehicle and was a separate and distinct entity from Metropolitan Transportation Authority. The moving defendants also argued that the complaint failed to comply with
In opposition to the moving defendants’ motion, plaintiff submitted the affirmed report of Dr. Dmitry Zhukovski, D.O., dated November 14, 2011, 10 days after the accident, the same date that Dr. Zhukovski conducted a physical examination of plaintiff. On that date, Dr. Zhukovski observed restricted ranges of motion in plaintiff‘s cervical spine, lumbar spine, right shoulder, and right knee. He opined that, based on the medical history related to him by plaintiff and the results of his physical examination, “the conditions described above are solely related to and have direct cause relationship [sic] to the accident mentioned above.” While his clinical assessment was of sprains and contusions to the relevant body parts, Dr. Zhukovski did allow for the possibility that “these areas may be permanently weakened for an indefinite period of time resulting in significant and permanent restricted mobility.”
Plaintiff also submitted the affirmation of Dr. Vladimir Gressel, M.D., who conducted a physical examination of plaintiff on December 22, 2014. Dr. Gressel found limited ranges of motion in all of the body parts at issue. He concluded, based on the history provided by plaintiff and a review of available medical records, that plaintiff‘s injuries were causally related to the accident and traumatically induced. He opined that plaintiff was partially permanently disabled and that his impairments would predispose him to future difficulties. Regarding the part of the moving defendants’ motion that was to dismiss as against Metropolitan Transit Authority and MTA Bus Company, plaintiff cross-moved to amend the complaint to include the allegations necessary to comply with
The moving defendants satisfied their prima facie burden on their motion for summary judgment by presenting the affirmed reports of Dr. Merchant and Dr. Rothman. While Dr. Merchant did not address plaintiff‘s right knee or his right shoulder, Dr. Rothman read MRIs taken shortly after the accident, which he interpreted as showing normal conditions in the knee, minimal hypertrophic change in the shoulder, and chronic degenerative disc disease in the lumbar and cervical spines. Accordingly, the burden shifted to plaintiff to rebut the moving defendants’ proof on both causation and permanence (see Rickert v Diaz, 112 AD3d 451, 451-452 [1st Dept 2013]; Paduani v Rodriguez, 101 AD3d 470, 470 [1st Dept 2012]).
The moving defendants argue that plaintiff failed to raise an issue of fact as to causation because Dr. Gressel failed to rebut Dr. Rothman‘s findings of degenerative changes in plaintiff‘s spine. In making this claim, the moving defendants, like the motion court, ignore that Dr. Zhukovski gave a very clear opinion as to causation, having examined plaintiff only 10 days after the accident, observed his injuries, and heard from plaintiff that he had no medical history suggesting that the injuries were due to a cause separate and apart from the motor vehicle accident. This was sufficient to raise an issue of fact (see Williams v Tatham, 92 AD3d 472, 473 [1st Dept 2012]).
The moving defendants further argue that Dr. Zhukovski‘s report was insufficient to raise an issue of fact as to permanency. Again like the motion court, this ignores the findings of permanency in Dr. Gressel‘s report. Indeed, it would have been difficult, only 10 days after the accident, for Dr. Zhukovski to have concluded, within a reasonable degree of medical certainty, that the injuries sustained by plaintiff were permanent. In any event, Dr. Zhukovski expressly stated that he could not rule out that plaintiff‘s condition would ultimately prove to be permanent. As for Dr. Gressel‘s report, it was sufficient to raise an issue of fact as to permanency, insofar as it noted recent restricted ranges of motion in the affected body parts, and was
We reject the moving defendants’ argument regarding a so-called unexplained gap in treatment. The moving defendants failed to shift the burden on this issue, because they submitted no evidence that, at the time plaintiff stopped treatment, his doctor continued to believe that plaintiff would actually benefit from any further treatment (compare Nicholas v Cablevision Sys. Corp., 116 AD3d 567, 568 [1st Dept 2014] [“plaintiff failed to offer a reasonable explanation for ceasing treatment, despite her physicians’ recommendations of further treatment“]). In fact, plaintiff testified at his
Plaintiff‘s deposition testimony that he missed two weeks of work after the accident defeats his 90/180-day claim (see Roldan v Conti, 137 AD3d 507, 508 [1st Dept 2016]).
Although plaintiff raised an issue of fact on the threshold ground discussed above, the moving defendants’ motion was properly granted as to Metropolitan Transportation Authority. The affidavit from the MTA Bus Company employee established that the vehicle involved in the accident was owned by it, and that MTA Bus Company is a separate and distinct entity from Metropolitan Transportation Authority. Accordingly, the latter could not be liable for the accident (see Towbin v City of New York, 309 AD2d 505, 505-506 [1st Dept 2003]).
However, plaintiff is entitled to amend his complaint to include language pleading compliance with the notice of claim requirements of