Defendant's motion for summary judgment in motor vehicle accident claim denied. Defendant's expert did not provide a sufficient factual basis for her opinion that claimant's injuries were not significant or permanent, and defendant did not argue that claimant had not suffered a permanent consequential limitation as had been asserted in the bill of particulars Also, defendant's expert's affidavit did not demonstrate that her opinion was given with a reasonable degree of medical certainty.
|Claimant short name:||LINDSAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK DEPT. OF CORRECTIONAL/COMMUNITY SERVICES CORRECTION OFFICER, C FRANTZ|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LAW OFFICES OF DEVON M. WILT
By: Devon M. Wilt, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Joan Matalavage, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 12, 2018|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained as a passenger in a van that was involved in an accident at Sullivan Correctional Facility on December 9, 2014. Defendant moves for summary judgment dismissing the claim. Claimant submitted papers in opposition to the motion.
The facts concerning the accident are not at issue on this motion. Defendant seeks summary judgment on the ground that claimant did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d). The claim alleges that claimant suffered pain in his neck and back, and an injury to a previously injured knee as a result of the accident (see Claim number 125638, ¶ 7), and his verified bill of particulars states that he "has suffered permanent consequential limitations in performing his daily social and economic activities, as well as, permanent injury to his neck, lower back, right knee and left knee which has made his daily social and economic activities difficult for the claimant" (Matalavage Affirmation, Exhibit C [Verified Bill of Particulars, ¶ 15]).
The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 ). Thus, when a movant fails in the first instance to demonstrate its entitlement to summary judgment as a matter of law, its motion must be denied (see Winegrad v New York University Med. Ctr, 64 NY2d 851, 853 ; Ayotte v Gervasio, 81 NY2d 1062, 1063 , quoting Alvarez v Prospect Hosp., at 324).
Defendant submits the transcript of claimant's examination before trial (EBT), certified copies of accident and injury reports, claimant's Department of Corrections and Community Supervision (DOCCS) medical records, and the affidavit of Maryann Genovese, MD, the Medical Director at Wallkill CF. Dr. Genovese avers that she reviewed the Inmate Injury Report that was completed following the accident and claimant's medical records, which reveal the following. DOCCS medical records note that claimant had a right knee injury that pre-existed the December 9, 2014 accident, that he was given an elastic knee support on December 5, 2014 after complaining about right knee pain, and that he subsequently received physical therapy (PT) for the right knee. The nursing assessment in the Inmate Injury Report for the December 9, 2014 accident states that no injuries to claimant were observed, and that claimant was not admitted to the infirmary. Claimant was seen at Nursing Sick Call two days after the accident, on December 11, 2014, where he complained of pain in his right shoulder, back and right knee. His right knee was slightly swollen but had full strength and range of motion (ROM), and he was given Tylenol and analgesic balm and told to return as needed. Claimant presented at sick call on January 9, 2015 complaining of pain in his right knee, lower back and heel. Dr. Genovese treated claimant on January 15, 2015, at which time claimant complained of pain in his middle back, neck stiffness, and that his right knee hurt from a pre-accident injury. She noted that he had a history of right knee degenerative joint disease and that he had good ROM in his neck and was able to twist his back and touch his toes. Dr. Genovese ordered x-rays of claimant's cervical area, right knee and back, these revealed muscle spasm in his cervical spine, degenerative disc disease at L3-S1, with mild segmental stenosis at L4-S1, and mild tricompartmental osteoarthritis in the right knee. On February 12, 2015, claimant requested a new elastic knee support, and complained of migraine, right knee and back pain. Claimant was observed to move easily, and he could sit, stand and walk normally, and he was given Tylenol and a new knee sleeve. On March 5, 2015, it was noted in claimant's medical records that he was receiving PT for his right knee for the pre-existing injury. Dr. Genovese restricted him to sedentary work, advised him against bending, crawling, extended standing, sports and weight lifting, and he was prescribed additional PT for his knee. On July 13, 2015, claimant was transferred to Fishkill Special Housing Unit, where it was noted that he had full ROM in all extremities, and on August 21, 2015, upon being received at Greene CF claimant's only chronic medical condition noted was obesity. On December 8, 2015, it was noted that claimant complained of chronic knee pain/discomfort with questionable arthritis. In her affidavit, Dr. Genovese rendered the following opinion:
"The physical therapy prescribed was for Claimant's knee which the medical records document to be a pre-existing injury. The x-ray documented osteoarthritis which did not develop between the date of the accident and the x-ray. I think that any injury to his back or neck could only generously be described as a mild strain or sprain.(1) The alleged injuries to the neck and back were not permanent and neither condition created a significant limitation of use of a body function or system. I do not believe the knee condition was caused by the accident."
(Matalavage Affidavit, Exhibit G [Genovese Affidavit, ¶ 14).
Defendant argues that claimant has not suffered a "serious injury" under Insurance Law § 5102 (d) inasmuch as he did not sustain a significant limitation of use of a body function or system ("significant limitation" category), or that he was prevented from substantially performing all of the material acts which constitute claimant's usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident ("90/180-day" category). Defendant, however, has not established prima facie that claimant did not suffer a serious injury under Insurance Law § 5102 (d).
As noted above, claimant's verified bill of particulars asserts that claimant suffered permanent consequential limitations as a result of the accident, but defendant's arguments in its memo of law focus solely on whether claimant's injuries fall within the significant limitation or 90/180 day categories, and not whether claimant suffered a permanent consequential limitation. Notwithstanding, defendant's reliance on Dr. Genovese's affidavit, in which she opines that claimant's injuries were not permanent or significant, the absence of any argument addressed to whether claimant has a permanent consequential limitation renders defendant's submission lacking. Further, and even assuming that defendant argued that claimant did not suffer a permanent consequential limitation, Dr. Genovese's opinion is insufficient to demonstrate prima facie that claimant's injuries were not permanent consequential limitations, or that his injuries were not caused by the accident because she did not explain the basis of that opinion. While it may be inferred that Dr. Genovese based her opinions upon her review of claimant's medical records and the Inmate Injury Report, her examination of claimant, or a combination thereof, her affidavit is bereft of any explanation for her opinion, which is stated in a conclusory manner, and therefore provides insufficient support for defendant's motion (see Sorriento v Daddario, 282 AD2d 957, 958 [3d Dept 2001]). Further, Dr. Genovese did not express that her opinion that the neck and back injuries were permanent and significant with the requisite degree of medical certainty to be creditable. "Although no particular words need be uttered, an expert's opinion must be expressed in such a way that 'it is "reasonably apparent" that the [physician] intends to signify a probability supported by some rational basis rather than mere supposition or speculation" (Duffen v State of New York, 245 AD2d 653, 654 [3d Dept 1997], lv denied 91 NY2d 810 , quoting Matott v Ward, 48 NY2d 455, 461 , quoting Matter of Miller v National Cabinet Co., 8 NY2d 277, 282 , amended 8 NY2d 1100 ). Examining Dr. Genovese's affidavit "in its entirety and taking into account that [she] was only minimally involved with claimant's medical history and [it appears that she] based [her] opinion largely upon claimant's medical records" (Duffen v State of New York, 245 AD2d at 654), the Court concludes that her statement that "I think that any injury to his back or neck could only generously be described as a mild strain or sprain" (Genovese Affidavit, ¶ 14 [emphasis added]) is insufficient to convey that the opinion was being made with the required degree of medical certainty "to constitute expert proof" of a lack of serious injury (see Duffen v State of New York, 245 AD2d at 654, quoting Gross v Friedman, 138 Ad2D 571 [2d Dept 1988], affd 73 NY2d 721 ; cf. Jones v Davis, 307 AD2d, 494, 497 [3d Dept 2003] [experts' opinions on diagnosis made with reasonable degree of medical certainty where experts testified that it was "strongly" suspected or where he "could not make any other diagnosis"]).
Accordingly, it is
ORDERED, that defendant's motion number M-90925 is DENIED.
January 12, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 125638, filed February 11, 2015;
(2) Verified Answer, filed February 20, 2015;
(3) Notice of Motion, dated August 3, 2017;
(4) Affidavit of Joan Matalavage, AAG, sworn to August 3, 2017, with Exhibits A-G;
(5) Defendant's Memo of Law, dated August 3, 2017;
(6) Affirmation of Devon M. Wilt, Esq., dated October 9, 2017, with Exhibits 1-2;
(7) Reply Affidavit of Joan Matalavage, AAG, sworn to October 13, 2017.
1. In the original copy of the affidavit filed with the Court, the phrase "of a pre-existing condition" is written in pencil at the end of this statement with a "^" underneath it, as if to indicate that the phrase was meant to be an addition at the end of the sentence. However, inasmuch as the phrase was not initialed by Dr. Genovese (see Genovese Affidavit, ¶ 7), and bears no indicia that the additional phrase was intended to be added by Dr. Genovese, the Court will not consider it to be an addition.