SUPREME COURT -STATE OF NEW YORK

Transcription

1 SHORT FORM ORDER SUPREME COURT -STATE OF NEW YORK Present: HON. ROY S. MAHON Justice MARY FONDA and WILLIAM FONDA, - against TRIAL/IAS PART 20 INDEX NO Plaintiff(s), MOTION SEQUENCE - NO. 3 METROPOLITAN TRANSPORTATION AUTHORITY and MTA-LONG ISLAND BUS, > MOTION SUBMISSION DATE: November 26,2001 Defendant(s). The following papers read on this motion: Notice of Motion Affirmation in Opposition X X Upon the foregoing papers, the motion by the defendants for an Order granting the defendants, Metropolitan Transportation Authority and MTA-Long Island Bus, summary judgment and dismissing the plaintiffs complaint and any and all cross-claims pursuant to CPLR 93212, and for such other and further relief as this Court may deem just and proper is determined as hereinafter provided: This personal injury action arises out of the plaintiff Mary Fonda s fall on a bus due to an alleged increase in speed as the bus approached a bus stop located on Henry Street at or near the intersection with Merrick Road, Freeport. The Court observes that by prior motion submitted on July 23, 2001, the defendants herein moved for summary judgment on the grounds of liability. By Order dated September 25, 2001, the Court denied the requested relief finding an issue of fact as to the speed and/or operation of the bus. The instant application by the defendants is addressed to the issue of whether the plaintiff Mary Fonda suffered a serious injury pursuant to 5102 of the Insurance Law. In light of the fact that such a determination is for the Court in the first instance (see, Licaro v Elliot, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088) the defendants application is properly considered herein. -I- The plaintiffs.verified Bill of Particulars amongst other things sets forth that: As a result of the incident involved herein, plaintiff, Mary Fonda, sustained

2 the following personal injuries: Torn medial meniscus left knee, partial anterior cruciate ligament tear left knee which necessitated surgical arthroscopy of left knee with subtotal medial meniscectomy; resection of partial anterior cruiciate ligament tear, chondroplasty of patellar, medial femoral condyle and lateral femoral condyle under intravenous neuroleptic sedation. Plaintiff experiences constant intense pain and difficulty especially upon ambulating, standing, or sitting for prolonged periods. She encounters pain and difficulty upon bending and walking. Upon information and belief, plaintiff suffers ad will continue to suffer, pain in the lower extremity. Pain in the left lower extremity increasing in damp and cold weather and after standing or walking for any prolonged period of time; weakness of the left leg; pain and difficulty standing or walking; stiffness and lack of mobility; loss of enjoyment of life; limited ability to ambulate causing plaintiff great and extensive restrictions of her normal everyday activities. Arthritic and osteo-arthritic changes in and about the aforementioned affected areas. Pain and swelling and tenderness to the surrounding and involved nerves, blood vessels, soft tissues and other anatomical structures in and about the aforementioned injured areas. In support of the instant application, the defendants amongst other things submit the affirmed letter report dated June 22, 2001 of A. Robert Tantleff, M.D., a radiologist of a review of an MRI of the plaintiff Mary Fonda s Left Knee; the transcript of the Examination Before Trial of the plaintiffs conducted on January 4, 2001; the affirmed letter report dated April 18, 2001 of David G. Steiner, M.D., a neurologist of a neurological examination of the plaintiff Mary Fonda conducted on that date; and an affirmed letter report dated April 20, 2001 of Regional Medical Evaluations, P.C. by Francis Lanzone, M.D., an orthopedist of an orthopedic examination of Mary Fonda conducted on April 12,200l. The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (Second Dept., 1994): It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851,853,487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State BankofAlbany v. McAulife, 97 A.D.2d 607, 467 N.Y.S.2d 944) but once a prima facie showing has been made, the -2-

3 burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, supra, 49 N.Y.2d at 562, 427 N.Y.S.2d 595,404 N.E.2d 718). It is noted that the question of whether the plaintiff has made a prima facie showing of a serious injury should be decided by the Court in the first instance as a matter of law (see Licaro v. Elliot, 57 NY2d 230,455 NYS2d 570,441 NE2d 1088; Palmer v. Amaker, 141 AD2d 622,529 NYS2d 536, Second Dept., 1988; Tipping-Cestari v. Kilhenny, 174 AD2d 663, 571 NS2d 525, Second Dept., 1991). In making such a determination, summary judgment is an appropriate vehicle for determining whether a plaintiff can establish prima facie a serious injury within the meaning of Insurance Law Section 5102(d) (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 381, 489 NYS2d 468, First Dept., 1985; Wright v. Melendez, 140 AD2d 337, 528 NYS2d 84;Second Dept., 1988). Serious injury is defined, in Section 5102(d) of the Insurance Law, wherein it is stated as follows: (d) Serious injury means a personal injury which results in death: dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, ember, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. In pertinent part, the affirmed letter report of Dr. Tantlef of the review of the MRI of the plaintiff Mary Fonda s left knee sets forth: The osseous structures are demonstrated without fracture or signal abnormality. The medical and lateral collateral ligaments are intact. The anterior and posterior cruciate ligaments as visualized appear normal. The patella, and patellar and quadriceps tendons are normal. The menisci are demonstrated without evidence of tear or signal change. There is no joint effusion. IMPRESSION: NO MENISCAL OR LIGAMENTOUS ABNORMALITY IS DEMONSTRATED. THE MRI E~MINATION OF THE LEFT KNEE IS NORMAL. Amongst other things the affirmed letter report of Dr. Steiner states as to that physician s neurological examination of the plaintiff that: Cranial Nerves: Visual fields full, discs are sharp with normal color, -3-

4 vascularity. Pupils equal reactive to light and accommodation. Extraocular movements intact. No nystagmus. Normal sensation on bilateral face. No facial asymmetry. Normal gag reflex. Normal hearing. Palate normally elevates symmetrically and tongue is midline. Motor: 5/5 strength bilaterally with normal tone and bulk. Coordination: Normal finger to nose and heal to shin. Gait: Normal base, normal tip toe, normal heel walk and normal tandem. MUSCULOSKELETAL EXAM: Cervical Spine - No tenderness to the cervical spine. Normal tone to cervical paraspinals with range of motion to full flexion to 45 degrees, full rotation right and left to 45 degrees and full lateral flexion right and left to 45 degrees. Bilateral Shoulders, Elbows and Wrists - Bilateral shoulders are non-tender with full abduction to both the right and left shoulders to 150 degrees, full adduction right and left to 40 degrees, full forward elevation right and left to 15.0 degrees, full internal rotation right and left to 40 degrees and full external rotation right and left to 90 degrees. Full external flexion of the elbow right and left to 90 degrees, full lateral flexion of the elbow right and left to 30 degrees. Full wrist extension right and left to 60 degrees bilaterally and full wrist flexion right and left to 60 degrees. Lumbosacral Spine - No tenderness to palpation in the lumbosacral spine with range of motion to full forward flexion right and left to 90 degrees and full extension to 30 degrees and lateral rotation. No guarding. No loss of lumbar lordosis. Negative straight leg raise bilaterally to 90 degrees. Bilateral Hips, Knees and Ankles - Full hip flexion right and left to 100 degrees, full hip extension right and left to 30 degrees. Full knee flexion right and left and full knee extension. Full dorsiflexion of the ankle to 20 degrees on both sides and full plantar flexion of the ankle to 40 degrees. Dr. Lanzone states in his affirmed letter report regarding the plaintiff Mary Fonda s orthopedic examination: PHYSICAL EXAMINATION: Claimant is 5 0 tall and weighs approximately 150 pounds. She is alert and oriented to time and place. On examination, she has full range of motion of the left knee. She is able to walk. She is able to squat without difficulty. There is no swelling noted. There is no joint line tenderness. The wounds are well healed. Circulatory examination is normal. Naurologic examination is normal. -4-

5 The Court finds that the defendants have submitted evidence in admissible form to make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v. New YorkUniversity Medical Center, 64 NY2d 851, 853; Pagan0 v. Kingsbury, supra at 694) and is sufficient to establish that the plaintiff did not sustain a serious injury. Accordingly, the burden has shifted to the plaintiff to establish such an injury and a triable issue of fact (see Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176; Jean-Meku v. Berbec, 215 AD2d 440, 626 NYS2d 274, Second Dept., 1995; Horan v. Mirando, 221 AD2d 506,633 NYS2d 402, Second Dept., 1995). In opposition to the defendants application, the plaintiffs amongst other things, submit the affirmation of Peter Ajemian, M.D., an orthopedist. In pertinent part, said affirmation sets forth: 4. At the time of Ms. Fonda s initial visit to my office on or about 10/15/99, she advised me that she had injured her left knee while a passenger in a bus accident on 10/6/99. Ms. Fonda further stated that the back of the bus seat came into contact with the back of her left knee, after which she had immediate onset of discomfort, wobbling and a giving way sensation in her left knee. 5. On 10/15/99, my office took x-rays of Ms. Fonda s left knee. I personally reviewed the x-ray films and made the following impression: Tear of the medial meniscus of left knee. Probable MCL strain. Probable old ACL injury. At that time, your deponent prescribed a knee brace, an MRI, and physical therapy and made a follow-up appointment approximately four weeks later. 6. On November 3, 1999, Ms. Fonda returned to my office for a follow-up appointment, at which time we discussed the results of her MRI. At that time, I personally reviewed the both the MRI report of Karl Hussman, M.D. (a true and accurate copy of which is annexed as Exhibit A ) and the MRI films and made the following diagnosis: Torn medial meniscus left knee and Partial anterior cruciate ligament tear of the left knee. As a result the above diagnosis and the continuing pain she was experiencing, she elected to undergo surgery to repair the damage to her left knee. 7. On November 26, 1999, at Nassau Communities Hospital, I performed surgical arthroscopy of Ms. Fonda s left knee with subtotal medial meniscotomy, resection of partial anterior cruciate ligament tear and chondoplasty of patellar, medial femoral and lateral femoral condyle. A true and accurate copy of the Hospital Record detailing the surgical procedure is annexed hereto as Exhibit C. During the course of the surgery, after the introduction of the arthroscope into Ms. Fonda s left knee, I visualized an anterior horn medial meniscus tear and a bucket posterior tear of the medial meniscus and a partial tear of the anterior cruciate ligament which displaced into the weight bearing portion of the knee joint, thus objectively confirming and enhancing my pre-operative diagnoses. 10. Based on my review of the MRI report of Dr. Hussman (Exhibit A ), my -5-

6 independent review of the MRI Films, my physical observations in the course the surgical procedure described above and in the surgical report (Exhibit C ) and my examinations of the plaintiff during the course of her treatment, that is my professional medical opinion based on a reasonable degree of medical certainty, that the accident of October 6, 1999 was a competent producing cause of Plaintiffs injuries and although the surgical procedure provided Ms. Fonda s with greater range of motion and alleviated much of her left knee pain, she is left with certain residuals, including, but not limited to diminished strength, periodic pain and discomfort, which all of which are permanent in nature and effect. Based upon the foregoing there is an issue of fact as to whether the plaintiff Mary Fonda suffered a serious injury pursuant to of the Insurance Law. As such the defendants application for an Order granting the defendants, Metropolitan Transportation Authority and MTA-Long Island Bus, summary judgment and dismissing the plaintiffs complaint and any and all cross-claims pursuant to CPLR $3212 is denied. SO ORDERED L!!tig!:..ktf&?&!..... J.S.C... FEB i