HON. THOMAS P. PHELAN. Plaintiff( s. Defendant( s). * Norton v. Abbruzzese. et al. (Action #3), Index #011598/07

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1 .. SHORT FORM ORDER Present: SUPREME COURT HON. THOMAS P. PHELAN. GLENDA CHIN and KAMlKA CHIN, -against ).,....., ,......, Plaintiff( s MTA-LONG ISLAND BUS, METROPOLITAN SUBURBAN BUS AUTHORITY, LORENZO ABBRUZZESE and CINQUETTA FRAZIER Defendant( s). * STATE OF NEW YORK Justice SCAN TRIAL/IAS PART 4 NASSAU COUNTY ORIGINAL RETURN DATE:08/28/08 SUBMISSION DATE: 11/19/08 INDEX No. : 10037/07 ACTION No. MOTION SEQUENCE #1 * Joint Trial With: Frazier v. MT A-Long Island Bus. et al. (Action #1), Index #001693/07 Norton v. Abbruzzese. et al. (Action #3), Index #011598/07 The following papers read on this motion: Notice of Motion......, Cross-Motion.... Answering Papers.. Reply.. Defendants, MTA-Long Island Bus, Metropolitan Suburban Bus Authority and Lorenzo Abbruzzese (collectively the " Bus Company ), motion and defendant's, Cinquetta Frazier Frazier ), cross-motion for an order, pursuant to CPLR 3212, granting sumary judgment dismissing plaintiffs' complaint in Action 2 based upon the ground that plaintiffs have failed to 5102(d) is granted. sustain a serious injury as required under New York Insurance Law Section in support Frazier acquiesces in all that is related in the affirmation of Candace M. Bartone, Esq. of the Bus Company s motion for sumary judgment and joins in on behalf of Frazier. Plaintiffs oppose the motions.

2 CHIN v. MTA-LONG ISLAN BUS, et al. Page 2. This is an action to recover damages for personal injuries allegedly sustained as a result of the on or about July 3, negligence of the defendants in the ownership and operation oftheir vehicles Plaintiff, Glenda Chin, testified at her deposition that she was involved in two prior accidents in June 2002 and August D., J. Serge Parisien Defendants allege that the affirmed reports of Maria Audrie DeJesus, M. D. and A. Robert Tantleff, M.D. do not disclose the presence of a serious injury. It is submitted that any injuries suffered by plaintiffs were minor, mild or slight limitations and that plaintiffs do not suffer from permanent consequential limitations or significant limtations. " or meet the theshold "significant limitation of use of a body function or system "permanent consequential limitation of a body organ or member categories, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition (Gaddy v. Eyler 79 NY2d 955 (1992); Licari v. Elliot, 57 NY2d 230 (1982)). Plaintiffs, Glenda Chin s, complaints, as alleged in her Bil of Particulars, consist of herniated discs of the cervical spine, cervicalgia, lumbago, cervicocranial syndrome, cervical intervertebral, right lumbar and cervical disc disorder with myelopathy, right lumbar and cervical radiculitis sprain, right toe contusion and post traumatic headaches (Movant's Ex. A). In her report dated May 22, 2008, Dr. DeJesus, a neurologist, notes that examination reveals that Dr. DeJesus there is full range of motion of the lumbar and cervical spine with normal flexion. No evidence diagnoses was resolved post-traumatic headaches and cervical and lumbar sprains. of disabilty was found. Dr. DeJesus concluded that the patient was able to perform all activities of daily living without restriction. (Movant' s Ex. D. Dr. Parisien, an orthopedic surgeon, also performed a physical examination on Glenda Chin on May , and found full range of motion. His diagnosis was a resolved strain/sprain of the cervical and lumbosacral spine and right big toe contusion, resolved. No evidence of disabilty was found. Dr. Parisien concluded that the patient may continue to work without restrictions. (Movant' s Ex. E. According to the report of Dr. Tantleff, a radiologist, dated July 21, 2008, he reviewed Glenda Chin s lumbar and cervical spine films. It was Dr. Tantleffs impression from the MRI that it revealed longstanding chronic degenerative discogenic disc disease and lumbar spondylosis that are consistent with wear-and-tear and not causally related to the incident two months prior to the MRI (Movant' s Ex. H). Plaintiff's, Kamika Chin s, complaints, as alleged in her Bil of Particulars, consist of right shoulder rotator cuff tendonitis, cervical sprain strain with bulging discs, right cervical radiculitis, right shoulder sprain, thoracic spine strain, cervicocranial syndrome, cervicalgia and tenonopathy of the supraspinatus tendon (Movant's Ex. A).

3 CIDN v. MTA-LONG ISLAND BUS, et al. Page 3. In her report dated May 22, 2008, Dr. DeJesus, notes that examination reveals that there is full range of motion of the lumbar and cervical spine with normal flexion. Dr. DeJesus ' diagnoses was resolved cervical, thoracic and lumbar sprains. No evidence of disabilty was found. Dr. able to perform all occupational duties without any DeJesus concluded that the patient was limitation or restriction. (Movant's Ex. F. Dr. Parisien also performed a physical examination on Kamika Chin on May 22, 2008, and found full range of motion. His diagnosis was a resolved strain/sprain of the cervical, thoracic and disabilty was found. Dr. lumbosacral spine and resolved sprain of right shoulder. No evidence of (Movant's Ex. G. Parisien concluded that the patient may continue to work without restrictions. According to the report of Dr. Tantleff, a radiologist, dated July 21, 2008, he reviewed Kamika Chin s MRI of the right shoulder. It was Dr. Tantleff's impression from the MRI that there was no evidence of acute or recent injury (Movant's Ex. I). Based upon the testimony of plaintiffs at their respective depositions, defendants conclude that they were not prevented from performng all of their usual and customary activities for 90 out of the first 180 days following the accident. Moreover, defendants submit that there was no objective medical evidence supporting the requisite disabilty for the required period of time. Where, as here, defendants have provided evidence demonstrating the lack of serious injury, the (see, Gaddy v. Eyler burden shifts to plaintiffs to present sufficient evidence to defeat the motion 79 NY2d 955 (1992); Tabacco v. Kaster 229 AD2d 526 (2d Dept. 1996)). " To defeat a motion for summary judgment, the opposing par must show facts sufficient to require a trial and must (Seyfeid make his showing by producing evidentiary proof in admissible form (citation omitted)" v. Greenspan 92 AD2d 563, 564 (2d Dept. 1983); see, Alvarez v. Prospect Hosp., 68 NY2d 320 (1986))., In opposition, plaintiffs submit the affrmed reports of Joseph Gregorace D.O. Dr. Gregorace At that time Ms. first examined Glenda Chin on August 3, 2006, one month after the accident. Upon examination of Ms. Chin s cervical and Chin denied any previous motor vehicle accidents. His diagnosis was post lumbar spines, Dr. Gregorace noted limitations in range of motion. traumatic headaches, cervical and lumbar strain/sprain and radiculitis and right third toe contusion. Dr. Gregorace noted that if the history was correct, there was a causal relationship to the accident. On examination on August 28, 2006, the patient was referred for an MRI of her cervical and lumbar spine. On September 11, 2006, Dr. Gregorace noted that the MRI reports revealed "Disc herniation at the C2/3, C3/4, C4/5 and L5/S 1 levels respectively. " Examination On September 19, 2006, revealed limited ranges of motion in the lumbar and cervical spines. 1 radiculopathy. The upper and lower EMG/NCV tests were performed that revealed a right S s chief complaints on patient was referred to a pain management interventionalist. Glenda Chin October 24, 2006, were neck and low back pain. Range of motion testing was not reported at that, at time. The patient was seen again on December 5, 2006, and finally on February 13, 2007 which time limited ranges of motion in the lumbar and cervical spines were reported.

4 CHIN v. MTA-LONG ISLAND BUS, et al. Page 4. July 13 Kamika Chin first presented herself to Dr. Gregorace on, Examination revealed limited ranges of motion in the lumbar and cervical spines. Dr. Gregorace s diagnosis was radiculitis and right shoulder sprain. Ms. Chin was cervical/thoracic spine sprainstrain, cervical referred for x-rays of the cervical and thoracic spine and right shoulder. Dr. Gregorace noted that if the history was correct, there was a causal relationship to the accident. Dr. Gregorace recommended that patient continue workig light-duty. On August 3, 2006, Ms. Chin presented with complaints of right shoulder pain. Physical examination revealed good range of motion of The left shoulder the cervical spine but limitations in the range of motion of the right shoulder. had full range of motion. Dr. Gregorace recommended an MRI of the right shoulder. On September 7, 2006, Dr. Gregorace recommended an MRI of the cervical spine. On September, 2006, Dr. Gregorace reported that the MRI report of September 14, 2006, of the cervical spine revealed "bulging disc at the C2/3 level" and that the MRI report of August 10, 2006, of the right shoulder revealed" supraspinatus tendinopathy, " It was recommended that the patient continue physical therapy treatments. Ms. Chin again presented on November 2, 2006, and finally on January 15, 2007, at which time the patient reported that her right shoulder pain was that her range of motion was showing signs of improvement. improving. Dr. Gregorace noted Defendants argue that the above reports show that plaintiffs had limited treatment for their alleged injuries. Defendants submit that Dr. Gregorace s reports were not based on recent examinations of the plaintiffs, noting that Glenda Chin last presented in February 2007 and that Kamika Chin last presented in January 2007, and that no explanation has been proffered for the termination of treatment. Moreover, defendants note that Dr. Gregorace did not review the actual MRI films submitted. Defendants furter argue that Dr. but relied upon reports, copies of which were not Gregorace s fmding of causal relationship to the accident was mere speculation. Plaintiffs' submissions failed to raise a triable issue of fact. Dr. Gregorace did not acknowledge longstanding chronic degenerative that he was aware that Glenda Chin was suffering from disco genic disc disease or that the MRI of the right shoulder of Kamika Chin showed no evidence of acute or recent injury (see, Ginty v. MacNamara, 300 AD2d 624 (2d Dept. 2002)). Moreover, the affirmed reports of plaintiffs ' treating physician were " based upon examinations that were (Boyle v. Gundogan, made more than a year before the motions for summary (citation omitted)" (T)here was no competent medical evidence which 796 NYS2d 157, 158 (2d Dept. 2005)). " would support a claim that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident (citation omitted)" (Id. Dr. Gregorace s reliance on the reports of others renders his reports without probative value (see Endzweig- MV teransportation, Inc. 50 AD3d 946 (2d Dept. Morov v. 2008)). "The mere existence of a herniated or bulging disc is not evidence of a serious injury in limitations resulting from the absence of objective evidence of the extent of the alleged physical (Id. the disc injury and its duration (citations omitted)"

5 /- CIDN v. MTA-LONG ISLAND BUS, et ale Page 5. Accordingly, plaintiffs' complaint is dismissed, without costs. This decision constitutes the order and judgment of the court. Dated: /L/ P. PtB. ""7 OMAS P. PHELAN, J. HON THOM Law Offices of Paul Ajlouny & Associates, P. Attorneys for Plaintiffs Chin (Action #2) 320 Old Country Road, Suite 205 Garden City, NY Zaklukiewicz, Puzo & Morrissey, LLP Attn: Candace M. Bartone, Esq. Attorneys for Defendant MT A-Long Island Bus Metropolitan Suburban Bus Authority and Lorenzo Abbruzzese 2701 Sunrise Highway, Suite 2 P. O. Box 389 Islip Terrace, NY ENTERED JAN NASSAU COUNTY COUNTY CLERK' S OFFICE Cartiglia, Connolly & Russo Attorneys for Defendant Cinquetta Frazier 100 East Old Country Road Mineola, NY Siben & Siben, LLP Attorneys for Plaintiff Frazier (Action #1) 90 East Main Street P. O. Box 5149 Bay Shore, NY Edelman, Krazin & Jaye Attorneys for Plaintiff Norton (Action #3) 100 East Old Country Road Mineola, NY 11501