FILED: QUEENS COUNTY CLERK 07/10/ :33 PM INDEX NO /2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 07/10/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS â â â â â X Index No.: /2016 KASI SURAIYA BEGUM MANIK and SUMAIYA SUMI, -against- Plaintiffs, AFFIRMATION IN OPPOSITION PTM MANAGEMENT CORP., PASCAL MALGARES Hon. Joseph Risi, J.S.C. NEW YORK CITY TRANSIT AUTHORITY and HECTOR MADERO, Mot. Seq. 4 Defendants. X JUSTIN S. CURTIS, an attorney duly admitted to practice law in the Courts of the State of New York, hereby makes the following statements and affirms the truth thereof, under penalty of perjury pursuant to CPLR 2106 and upon information and belief: Your affirmant is an associate with the firm of PAUL AJLOUNY & ASSOCIATES, P.C., the attorneys for the Plaintiffs, KASI SURAIYA BEGUM MANIK and SUMAIYA SUMI, herein and is fully familiar with the facts and circumstances of the within action through a review of the file maintained by this office. This affirmation is respectfully submitted in opposition to the motion of the Defendants, PTM MANAGEMENT CORP., PASCAL MALGARES, and NEW YORK CITY TRANSIT AUTHORITY for an Order pursuant to CPLR 3212, seeking summary judgment on the alleged grounds that: a) the Plaintiffs have failed to meet the serious injury threshold as required by Section 5104(a) and Section 5102(d) of the Insurance Law of the State of New York, and; b) together with such other and further relief as this Court deems just and proper. The Defendants' motion should be denied in its entirety. In the interest of judicial economy, plaintiffs hereby incorporate for reference all of the exhibits attached to Defendants' Notice of Motion into this instant affirmation in opposition. 1 of 31

2 This Affirmation in Opposition, along with the Affirmed Reports of Dr. Thomas Pobre, M.D., the Affirmed Reports of Dr. Anuradha Anand, M.D., the Affirmed Reports of Dr. Oliver Masaba, M.D., the Affirmed Reports of Dr. Steve Ross, M.D., Affirmation of David R. Payne, M.D., the Affirmation of Steven Ham, M.D., the Affirmation of John Himelfarb, M.D., the Certified Reports of Dr. Demetrios Mikelis, M.D., and Plaintiffs' sworn Affidavits of Merit, are respectfully submitted in opposition to the motion of the Defendants, which seeks Summary Judgment on the grounds that Plaintiffs did not sustain a "Serious Injury" within the meaning of Section 5102(d) of the Insurance Law. Plaintiffs, Kasi Suriya Begum Manik's and Sumaiya Sumi's submissions are, however, sufficient to create an issue of fact as to whether they sustained a "Serious Injury", and therefore, Summary Judgment must be denied. FACTUAL STATEMENT This is an action for personal injuries sustained by Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi on October 28, 2015, as a result of a motor vehicle accident. On that date, Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi, were passengers in a 2013 Toyota bearing New York State license plate number 59581LA (or similar number), owned by Defendant PTM Management Corp. and operated by Defendant Pascal Malgares, traveling on Woodhaven Boulevard, at or near its intersection with 62nd Road, County of Queens, State of New York. Said 2013 Toyota bearing New York State license plate number 59581LA (or similar number) struck a vehicle in the rear bearing license plate number ERB2346 (or similar number), owned by Defendant, New York City Transit Authority and operated by Defendant, Hector Madero. (A certified copy of the Police Report is annexed hereto as Exhibit "A"). This resulted in Plaintiffs sustaining severe and permanent injuries from which they have not fully recovered to this day. (See plaintiffs' attached Affidavits of Merit, collectively annexed hereto as Exhibit "B"). 2 2 of 31

3 Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi, commenced this action by filing a Summons and Complaint on May 20, (See Defendants' motion at Exhibit "A"). Defendants, PTM Management Corp., Pascal Malgares, and New York City Transit Authority interposed their Verified Answer on June 9, Defendant, Hector Madera interposed his Verified Answer on August 25, (See Defendants' motion at Exhibits "B" and "C"). Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi exchanged their Verified Bill of Particulars on October 25, (See Defendants' motion at Exhibit "D"). Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi, alleged the following serious and permanent injuries with significant restricted range of motions in their Bill of Particulars: Kasi Suraiya Begum Manik: As to the cervical spine: - Left paracentral herniation at C3-4 with thecal sac indentation; - Bulging disc at C4-5 without stenosis; - Right paracentral herniation at C5-6 with thecal sac indentation; - Left C6 radiculopathy; As to the lumbar spine: - Bulging disc at L3-4; - Bulging disc at L4-5 with mild bilateral biforaminal stenosis; - Central herniation at L5-S1 with thecal sac indentation; - L5 Lumbosacral radiculopathy; - There is subligamentous disc bulging at T12/L1, L1/2 and L2/3; - Left foraminal herniation component impinging upon the exiting L5 root; As to the Right Knee: - Tear of the posterior horn of the medical meniscus; 3 3 of 31

4 - Sprain of the medial collateral ligament; - Joint effusion, baker's cyst; - Deep infrapatellar bursitis; As to the Left Knee: - Tear of the posterior horn of the medial meniscus; Sumaiya Sumi: As to the Cervical Spine: - Straightening of the curvature of the cervical spi9ne with some loss of the normal lordosis; - Posterior disc bulge at the C3-4 level; - Posterior disc bulge at the C4-5 level coming in close proximity to the ventral aspect of the cord; - Posterior annular tear and disc bulge at C5-6 level; - Posterior disc herniation at the C6-7 level favoring the right side; As to the Right Shoulder: - 5-MM oval lucent lesion overlying the humeral head. Based upon these facts, which will be established below, Plaintiffs, Kasi Suriya Begum Manik and Sumaiya Sumi, respectfully submit that there are issues of fact as to whether they sustained a "Serious Injury" as required by the Insurance Law. Accordingly, Defendants' motion for Summary Judgment must be denied. Regardless of Plaintiffs' submissions, the instant motion must be denied as the defendants have failed to meet their burden of proof on a motion for Summary Judgement. As will be discussed below, the defendants never addressed whether plaintiffs sustained injuries that 4 4 of 31

5 prevented them from performing substantially all oftheir usual and customary daily activities for at least 90 of the first 180 days immediately following the accident. PLAINTIFFS TREATED AT NORTHWELL HEALTH LONG ISLAND JEWISH FOREST HILLS AFTER THE ACCIDENT Plaintiff Kazi Suraiya Begum Treated at Northwell Health Island Jewish Forest Hills After the Subject Motor Vehicle Accident Copies of the Certified Records of the Hospital relating to "C" Kazi Suraiya Begum are annexed hereto as Exhibit On October 28, 2015, plaintiff, Kazi Suraiya Begum was transported to Northwell Health Long Island Jewish Forest Hills via ambulance. While at Northwell Health Long Island Jewish Forest Hills, plaintiff made complaints of neck pain, back pain, shoulder pain, and, headache. Plaintiff Sumaiya Sumi Treated at Northwell Health Island Jewish Forest Hills After the Subject Motor Vehicle Accident Copies of the Certified Records of the Hospital relating to "D" Sumaiya Sumi are annexed hereto as Exhibit On October 28, 2015, plaintiff, Sumaiya Sumi was transported to Northwell Health Long Island Jewish Forest Hills via ambulance. While at Northwell Health Long Island Jewish Forest Hills, plaintiff made complaints of chest and neck pain. PLAINTIFFS PRESENTED TO PHYSICAL MEDICINE AND REHABILITATION OF NEW YORK FOR PHYSICAL THERAPY AFTER THE ACCIDENT Plaintiff Kazi Suraiya Begum Treated with Physical Medicine and Rehabilitation of New York After the Subject Motor Vehicle Accident Copies of the Affirmed Reports of PMR relating to Kazi Suraiya Begum are annexed hereto as Exhibit "E" - On October 28, 2015, plaintiff, Kazi Suraiya Begum presented to Physical Medicine and Rehabilitation of New York ("PMR") for an initial pysiatric examination with complaints of constant neck pain with pain radiating down the back of both shoulders, upper back pain, pain in her head causing headaches, and pain radiating down the left upper extremity with numbness and 5 5 of 31

6 paresthia. Plaintiff, Kazi Suraiya Begum also complained of pain radiating down both lower extremities and bilateral thigh and knee pain. Plaintiff reported that her mobility was limited and she was not able to perform her normal activities. Examination of the cervical spine revealed painful, decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Thomas Pobre, M.D. with a Flexion: 50 degrees 30 degrees 40% Extension: 60 degrees 20 degrees 66.67% Right rotation: 80 degrees 30 degrees 62.5% Left rotation: 80 degrees 25 degrees 68.75% Lat. Bend. Right: 50 degrees 10 degrees 80% Lat. Bend. Left:- 50 degrees 5 degrees 90% Examination of the lumbar spine revealed painful, decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Thomas Pobre, M.D. with a Flexion: 90 degrees 50 degrees 44.44% Extension: 30 degrees 0 degrees 100% Lat. Bend. Right: 25 degrees 10 degrees 60% Lat. Bend. Left: 25 degrees 10 degrees 60% Examination of the bilateral thigh and knee revealed painful, decreased range of motion. Range of motion testing of the bilateral thigh and knee performed by Dr. Thomas Pobre, M.D. with a 6 6 of 31

7 Knee: degrees degrees 21.43% It was Dr. Thomas Pobre, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Thomas Pobre, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled. Dr. Thomas Pobre, M.D. recommended that Plaintiff attend physical therapy five (5) times per week for two (2) weeks followed by three (3) days per week for four (4) weeks. Dr. Thomas Pobre, M.D. further recommended that Plaintiff and get MRIs of both the cervical and lumbar spine. - On December 18, 2015, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination with complaints of neck pain with pain radiating down the back of both shoulders, upper back pain, pain in her head causing headaches, and pain radiating down the left upper extremity with numbness and paresthia. Plaintiff, Kazi Suraiya Begum also complained of pain radiating down both lower extremities and bilateral thigh and knee pain. Plaintiff reported that her mobility was limited and she was not able to perform her normal activities. Examination of the cervical spine revealed painful, decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Thomas Pobre, M.D. with a Flexion: 50 degrees 35 degrees 30% Extension: 60 degrees 25 degrees 58.33% Right rotation: 80 degrees 30 degrees 62.5% Left rotation: 80 degrees 25 degrees 68.75% 7 7 of 31

8 Lat. Bend. Right: 50 degrees 15 degrees 70'/o Lat. Bend. Left: 50 degrees 10 degrees 80'/o Examination of the lumbar spine revealed painful, decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Thomas Pobre, M.D. with a Flexion: 90 degrees 60 degrees 33.33'/o Extension: 30 degrees 10 degrees 66.66'/o Lat. Bend. Right: 25 degrees 15 degrees 40 lo Lat. Bend. Left: 25 degrees 15 degrees 40'/o Examination of the bilateral thigh and knee revealed painful, decreased range of motion. Range of motion testing of the bilateral thigh and knee performed by Dr. Thomas Pobre, M.D. with a Knee: degrees degrees 14.29'/o It was Dr. Thomas Pobre, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff s injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Thomas Pobre, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar herniations and bulges. Dr. Thomas Pobre, M.D. recommended that Plaintiff continue attending physical therapy three (3) days per week. Dr. Thomas Pobre, M.D. further recommended that Plaintiff and get electrodiagnostic studies of the cervical spine. Dr. Thomas Pobre, M.D. 8 8 of 31

9 further recommended that Plaintiff see a pain management specialist for possible epidural steroid injections. ' - On January 7, 2016, Dr. Thomas Pobre, M.D.. noted that plaintiff, Kazi Suraiya Begum underwent electrodiagnostic studies at his office on which revealed C6 radiculopathy. - On February 2, 2016, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the upper extremity. Plaintiff, Kazi Suraiya Begum also complained of low back pain radiating into the right leg and bilateral knee pain. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 50 degrees 40 degrees 20% Extension: 60 degrees 35 degrees 41.67% Right rotation: 80 degrees 60 degrees 25% Left rotation: 80 degrees 55 degrees 31.25% Right Side Bend: 50 degrees 35 degrees 30% Left Side Bend: 50 degrees 30 degrees 30% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 90 degrees 85 degrees 5.56% Extension: 30 degrees 20 degrees 33.33% 9 9 of 31

10 Examination of the bilateral thigh and knee revealed decreased range of motion. Range of motion testing of the bilateral thigh and knee performed by Dr. Anuradha Anand, M.D. with a Knee: degrees degrees 14.29% It was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar herniations and bulges. Dr. Anuradha Anand, M.D. recommended that Plaintiff continue attending physical therapy two (2) to three (3) days per week. - On March 21, 2016, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination. Dr. Anuradha Anand, M.D. noted that plaintiff had MRIs of her left and right knees which each revealed torn menisci. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 50 degrees 45 degrees 10% Extension: 60 degrees 40 degrees 33.33% Right rotation: 80 degrees 65 degrees 18.75% Left rotation: 80 degrees 65 degrees 18.75% Right Side Bend: 50 degrees 40 degrees 20% of 31

11 Left Side Bend: 50 degrees 40 degrees 20% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a Extension: 30 degrees 25 degrees 16.67% Examination of the bilateral thigh and knee revealed decreased range of motion. Range of motion testing of the bilateral thigh and knee performed by Dr. Anuradha Anand, M.D. with a Bilateral Knees: degrees degrees 10.71% It was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar herniations and bulges, left C6 radiculopathy, bilateral knee medial meniscus tears and bursitis, and posttraumatic headaches, dizziness, and nervousness. Dr. Anuradha Anand, M.D. recommended that Plaintiff continue attending physical therapy two (2) days per week. - On June 21, 2016, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination. Dr. Oliver Masaba, M.D. noted that plaintiff continued to have difficulty sleeping due to the pain, and was still reluctant to pursue surgery and/or injections of 31

12 Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Oliver Masaba, M.D. with a Flexion: 50 degrees 40 degrees 20% Extension: 60 degrees 45 degrees 25% Right rotation: 80 degrees 60 degrees 25% Left rotation: 80 degrees 60 degrees 25% Right Side Bend: 50 degrees 45 degrees 10% Left Side Bend: 50 degrees 40 degrees 20% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Oliver Masaba, M.D. with a Extension: 30 degrees 25 degrees 16.67% Left rotation: 45 degrees 25 degrees 44.44% Right rotation: 45 degrees 25 degrees 44.44% Examination of the bilateral thigh and knee revealed decreased range of motion. Range of motion testing of the bilateral thigh and knee performed by Dr. Oliver Masaba, M.D. with a Bilateral Knees: degrees degrees 10.71% It was Dr. Oliver Masaba, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October of 31

13 28, 2015 motor vehicle accident. Additionally, it was Dr. Oliver Masaba, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar herniations and bulges, left C6 radiculopathy, bilateral knee medial meniscus tears and bursitis, and posttraumatic headaches, dizziness, and nervousness. Dr. Oliver Masaba, M.D. recommended that Plaintiff continue attending physical therapy two (2) to three (3) days per week. ' - On August 2, 2016, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination. Dr. Steve Ross, M.D. noted that plaintiff continued to have difficulty sleeping due to the pain (rated at an 8-9/10), and was still reluctant to pursue surgery and/or injections. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Steve Ross, M.D. with a Flexion: 50 degrees 45 degrees 10% Extension: 60 degrees 40 degrees 33.33% Right rotation: 80 degrees 65 degrees 18.75% Left rotation: 80 degrees 65 degrees 18.75% Right Side Bend: 50 degrees 45 degrees 10% Left Side Bend: 50 degrees 45 degrees 10% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Steve Ross, M.D. with a of 31

14 Extension: 30 degrees 25 degrees 16.67% Left rotation: 45 degrees 30 degrees 33.33% Right rotation: 45 degrees 30 degrees 33.33% Examination of the bilateral thigh and knee revealed decreased range of motion. Range of motion testing of the bilateral knee performed by Dr. Steve Ross, M.D. with a Right Knee: degrees degrees 10.71% Left Knee: degrees degrees 7.14% It was Dr. Steve Ross M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar herniations and bulges, left C6 radiculopathy, bilateral knee medial meniscus tears and bursitis, and posttraumatic headaches, dizziness, and nervousness. Dr. Steve Ross, M.D. recommended that Plaintiff continue attending physical therapy one (1) to two (2) to three (3) days per week. - On August 25, 2016, Dr. Steven Ross, M.D. noted that plaintiff, Kazi Suraiya Begum underwent electrodiagnostic studies at his office on which revealed L5 lumbosacral radiculopathy. - On September 27, 2016, plaintiff, Kazi Suraiya Begum presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating into the shoulders, low back pain, and bilateral knee pain. Dr. Steve Ross, M.D. noted that plaintiff continued to have difficulty sleeping due to the pain (rated at an 7-9/10), and was still reluctant to pursue surgery and/or injections of 31

15 Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Steve Ross, M.D. with a Extension: 60 degrees 45 degrees 25% Right rotation: 80 degrees 70 degrees 12.5% Left rotation: 80 degrees 70 degrees 12.5% Right Side Bend: 50 degrees 45 degrees 10% Left Side Bend: 50 degrees 45 degrees 10% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Steve Ross, M.D. with a Extension: 30 degrees 25 degrees 16.67% Left rotation: 45 degrees 35 degrees 22.22% Right rotation: 45 degrees 35 degrees 22.22% Examination of the bilateral thigh and knee revealed decreased range of motion. Range of motion testing of the bilateral knee performed by Dr. Steve Ross, M.D. with a Right Knee: degrees degrees 7.14% It was Dr. Steve Ross M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and was suffering from multiple cervical and lumbar of 31

16 herniations and bulges, left C6 radiculopathy, bilateral knee medial meniscus tears and bursitis, and posttraumatic headaches, dizziness, and nervousness. Dr. Steve Ross, M.D. recommended that Plaintiff continue attending physical therapy one (1) to two (2) to three (3) days per week. Plaintiff Sumaiya Sumi Treated with Physical Medicine and Rehabilitation of New York After the Subject Motor Vehicle Accident Copies of the Affirmed Reports of PMR relating to "F" Sumaiya Sumi are annexed hereto as Exhibit - On November 11, 2015, plaintiff, Sumaiya Sumi presented to PMR for an initial pysiatric examination with complaints of neck pain radiating down the right shoulder, low back pain, and shoulder pain. Plaintiff, Sumaiya Sumi reported pain as an 8-9/10. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 50 degrees 30 degrees 40% Extension: 60 degrees 37 degrees 38.33% Right rotation: 80 degrees 45 degrees 43.75% Left rotation: 80 degrees 35 degrees 56.25% Left side bend: 50 degrees 30 degrees 40% Right side bend: 50 degrees 27 degrees 46% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a of 31

17 Flexion: 90 degrees 60 degrees 33.33% Extension: 30 degrees 10 degrees 66.66% Left side bend: 25 degrees 15 degrees 40% Right side bend: 25 degrees 15 degrees 40% Left rotation: 45 degrees 30 degrees 33.33% Right rotation: 45 degrees 30 degrees 33.33% Examination of the right shoulder revealed decreased range of motion. Range of motion testing of the right shoulder performed by Dr. Anuradha Anand, M.D. with a Flexion: 180 degrees 170 degrees 5.56% It was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled. Dr. Anuradha Anand, M.D. recommended that Plaintiff attend physical therapy three (3) days per week. - On December 9, 2015, plaintiff, Sumaiya Sumi presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the left shoulder, low back pain, and shoulder pain. Plaintiff, Sumaiya Sumi reported pain as an 6/10. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a of 31

18 Flexion: 50 degrees 40 degrees 20% Extension: 60 degrees 40 degrees 33.33% Right rotation: 80 degrees 60 degrees 25% Left rotation: 80 degrees 50 degrees 37.5% Left side bend: 50 degrees 35 degrees 30% Right side bend: 50 degrees 40 degrees 20% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 90 degrees 80 degrees 11.11% Extension: 30 degrees 15 degrees 50% Left side bend: 25 degrees 20 degrees 20% Right side bend: 25 degrees 20 degrees 20% Left rotation: 45 degrees 35 degrees 22.22% Right rotation: 45 degrees 35 degrees 22.22% It was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that there was a causal relationship between plaintiff's injuries and the October 28, 2015 motor vehicle accident. Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled. Dr. Anuradha Anand, M.D. recommended that Plaintiff attend physical therapy three (3) days per week and obtain MRIs of her cervical spine of 31

19 - On February 2, 2016, plaintiff, Sumaiya Sumi presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the right shoulder and low back pain. Plaintiff, Sumaiya Sumi reported pain as an 5/10. Dr. Anuradha Anand, M.D. noted that since her last visit, plaintiff received an MRI of her cervical spine, which revealed bulges, herniations and an annular tear. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 50 degrees 40 degrees 20% Extension: 60 degrees 45 degrees 25% Right rotation: 80 degrees 60 degrees 25% Left rotation: 80 degrees 60 degrees 25% Left side bend: 50 degrees 40 degrees 20% Right side bend: 50 degrees 45 degrees 10% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a Extension: 30 degrees 25 degrees 16.67% Left rotation: 45 degrees 40 degrees 11.11% Right rotation: 45 degrees 40 degrees 11.11% Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled of 31

20 Dr. Anuradha Anand, M.D. recommended that Plaintiff continue attending physical therapy two (2) to three (3) days per week. - On March 21, 2016, plaintiff, Sumaiya Sumi presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the right shoulder and low back pain. Plaintiff, Sumaiya Sumi reported pain as an 4-5/10. Dr. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Anuradha Anand, M.D. with a Flexion: 50 degrees 45 degrees 10% Extension: 60 degrees 50 degrees 16.67% Right rotation: 80 degrees 65 degrees 18.75% Left rotation: 80 degrees 70 degrees 12.5% Left side bend: 50 degrees 45 degrees 10% Right side bend: 50 degrees 45 degrees 10% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Anuradha Anand, M.D. with a Left rotation: 45 degrees 40 degrees 11.11% Right rotation: 45 degrees 40 degrees 11.11% Additionally, it was Dr. Anuradha Anand, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and had cervical and lumbar of 31

21 myofascial derangement, cervical disc bulges and herniation with pain radiating into both shoulders. Dr. Anuradha Anand, M.D. recommended that Plaintiff continue attending physical therapy two (2) days per week. - On June 14, 2016, plaintiff, Sumaiya Sumi presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the right shoulder and low back pain. Plaintiff, Sumaiya Sumi reported pain as worsening and at an 8/10. Dr. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Oliver Masaba, M.D. with a Flexion: 50 degrees 45 degrees 10% Extension: 60 degrees 50 degrees 16.67% Right rotation: 80 degrees 65 degrees 18.75% Left rotation: 80 degrees 65 degrees 18.75% Left side bend: 50 degrees 45 degrees 10% Right side bend: 50 degrees 45 degrees 10% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Oliver Masaba, M.D. with a Left rotation: 45 degrees 40 degrees 11.11% Right rotation: 45 degrees 40 degrees 11.11% of 31

22 Additionally, it was Dr. Oliver Masaba, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and had cervical and lumbar myofascial derangement, cervical disc bulges and herniation with pain radiating into both shoulders. Dr. Oliver Masaba, M.D. recommended that Plaintiff continue attending physical therapy two (2) days per week. ' O'4' ' ' - On August 2, 2016, plaintiff, Sumaiya Sumi presented to PMR for a follow-up pysiatric examination with complaints of neck pain radiating down the right shoulder and low back pain. Plaintiff, Sumaiya Sumi reported pain as worsening and at an 8/10. Dr. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Steve Ross, M.D. with a Extension: 60 degrees 50 degrees 16.67% Right rotation: 80 degrees 65 degrees 18.75% Left rotation: 80 degrees 70 degrees 12.5% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Steve Ross, M.D. with a Left rotation: 45 degrees 40 degrees 11.11% Right rotation: 45 degrees 40 degrees 11.11% Additionally, it was Dr. Steve Ross, M.D.'s belief within a reasonable degree of medical certainty, that plaintiff was partially disabled and had cervical and lumbar of 31

23 myofascial derangement, cervical disc bulges and herniation with pain radiating into both shoulders. Dr. Steve Ross, M.D. recommended that Plaintiff continue attending physical therapy one (1) to two (2) days per week. PLAINTIFFS' MRIS SUPPORT THE SERIOUSNESS OF THE INJURIES THAT THEY SUFFERED AS A RESULT OF THEIR MOTOR VEHICLE ACCIDENT Plaintiff Kazi Suraiya Begum Manik Presented to All County Diagnostic, LLC for MRIS A Copy of the Affirmation of David R. Payne, M D. "G" is annexed hereto as Exhibit On November 13, 2015, plaintiff, Kazi Suraiya Begum Manik presented to All County Diagnostic Radiology, LLC for MRIs of her Cervical Spine and Lumbar Spine. The MRI of the Cervical Spine revealed the following: Left paracentral herniation at C3-4 with thecal sac indentation; Bulging disc at C4-5 without stenosis; and, Right paracentral herniation at C5-6 with thecal sac indentation. The MRI of the Lumbar Spine revealed the following: Bulging disc at L3-4 without stenosis; Bulging disc at L4-5 with mild bilateral biforaminal stenosis; Central herniation at L5-S1 with thecal sac indentation. Left foraminal herniation component impinging upon the exiting L5 root. On February 15, 2016, plaintiff, Kazi Suraiya Begum Manik presented to All County Diagnostic Radiology, LLC for MRIs of her Right Knee and Left Knee. The MRI of the Right Knee revealed the following: of 31

24 Tear of the posterior horn of the medial meniscus; Sprain of the medial collateral ligament; and, Joint effusion. Baker's cyst. Deep infrapatellar bursitis. The MRI of the Left Knee revealed the following: Tear of the posterior horn of the medial meniscus. Plainti ff Sumaiya Sumi Presented to Doshi Diagnostic for an X-Ray of Her Right Shoulder A Copy of the Affirmation of Steven Ham, M D. "H" is annexed hereto as Exhibit On November 12, 2015, plaintiff, Sumaiya Sumi presented to Doshi Diagnostic Imaging Services on November 12, 2015 for an X-Ray of the Right Shoulder. The X-Ray of the Right Shoulder revealed the following: 5-mm oval lucent lesion overlying the humeral head with thin sclerotic margins most likely representing a degenerative or posttraumatic cyst. Plaintiff Sumaiya Sumi Presented to All County Diagnostic, LLC for an MRI of Her Cervical Spine A Copy of the Affirmation of John Himelfarb, M D. "I" is annexed hereto as Exhibit On December 18, 2015, plaintiff Sumaiya Sumi presented to All County Diagnostic Radiology, LLC for an MRI of the Cervical Spine. The MRI of the Cervical Spine revealed the following: Straightening of the curvature of the cervical spine with some loss of the normal lordosis; Posterior disc bulge at the C3-4 level; of 31

25 Posterior disc bulge at the C4-5 level coming in close proximity to the ventral aspect of the cord; Posterior annular tear and sic bulge at the C5-6 level; and, Posterior disc herniation at the C6-7 level favoring the right side. PLAINTIFFS PRESENTED TO NEW YORK SPINE SPECIALIST FOR AN EVALUATION Plaintiff Kazi Suraiya Begum Manik Presented to New York Spine Specialist for an Evaluation Copy of the Certified Report of Demetrios Mikelis, M D. is annexed hereto as Exhibit "J" On June 19, 2018, plaintiff, Kazi Suraiya Begum Manik presented to Dr. Demetrios Mikelis, M.D. at New York Spine Specialist with complaints of low back and neck pain with radiation into both upper extremities, with radiation into both lower extremities, and with radiation with numbness, tingling and dysesthesias. Plaintiff, Kazi Suraiya Begum Manik reported neck and back pain each as a 7/10 and described it as dull/aching and dull/sharp and increased with activity. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Demetrios Mikelis, M.D. Flexion: 70 degrees 40 degrees 42.86% Extension: 45 degrees 30 degrees 33.33% Bilateral turning: 80 degrees 50 degrees 37.5% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Demetrios Mikelis, M.D. Flexion: 90 degrees 60 degrees 33.33% of 31

26 Extension: 40 degrees 15 degrees 62.5% Bilateral turning: 60 degrees 30 degrees 50% It was Demetrios Mikelis, M.D.'s belief within a reasonable degree of medical certainty that plaintiff, Kazi Suraiya Begum Manik had: a herniated cervical intervertebral disc; herniated lumbar intervertebral disc; cervical nerve root impingement; and, bilateral lumbosacral nerve root lesions. Dr. Demetrios Mikelis, M.D. discussed surgical options and the possibility of injections with plaintiff. Plaintiff Sumaiya Sumi Presented to New York Spine Specialist for an Evaluation Copy of the Certified Report of Demetrios Mikelis, M D. is annexed hereto as Exhibit "K" On June 19, 2018, plaintiff, Sumi Sumaiya presented to Dr. Demetrios Mikelis, M.D. at New York Spine Specialist with complaints of neck pain, leg and knee pain, with radiation into both upper extremities, and with radiation with numbness, tingling and dysesthesias. Plaintiff, Sumi Sumaiya reported neck pain as a 6/10 and described it as dull/aching and dull/sharp and increased with activity. Examination of the cervical spine revealed decreased range of motion. Range of motion testing of the cervical spine performed by Dr. Demetrios Mikelis, M.D. Flexion: 70 degrees 55 degrees 21.43% Extension: 45 degrees 35 degrees 22.22% Bilateral turning: 80 degrees 70 degrees 12.5% Examination of the lumbar spine revealed decreased range of motion. Range of motion testing of the lumbar spine performed by Dr. Demetrios Mikelis, M.D of 31

27 Flexion: 90 degrees 80 degrees 11.11% Extension: 40 degrees 30 degrees 25% Bilateral turning: 60 degrees 50 degrees 16.67% It was Demetrios Mikelis, M.D.'s belief within a reasonable degree of medical certainty that plaintiff, Sumi Sumaiya had a herniated cervical intervertebral disc and cervical nerve root impingement. THE DEPOSITIONS OF PLAINTIFFS SUPPORTS HOW THIS ACCIDENT IMPACTED THEIR DAILY LIFE WELL OVER 90 OUT OF THE FIRST 180 DAYS AFTER THIS ACCIDENT Plaintiff Kazi Suraiya Begum Manik Still Has Pain And Difficulty Carrying Things A Copy of Plaintiff's Deposition Testimony is annexed hereto as Exhibit "L" In her deposition testimony taken on October 9, 2017, plaintiff, Kazi Suraiya Begum Manik testified that she broke her teeth, injured her back, her shoulder, her knees, and her neck as a result of the subject motor vehicle accident which occurred on October 28, Further, plaintiff testified that she now has difficulty carrying things. Q: What part of your face was bleeding? A: My tooth was broken and my tongue cut and my lip cut. Page 20, Lines 3-6. *** Q: Now, at the first visit at the therapy center, what physical complaints did you make at that point? A: I was complaining about my both knees, my back, my neck, my shoulders, both shoulders and the back of my head. Q: This pain to your right shoulder, do you experience that every day, as well? of 31

28 A: It still hurts a little. Pages 38-39, Lines and. *** Q: Are there activities that you could no longer do since the accident? A: I cannot climb stairs. Before accident I used to do the grocery shopping. I cannot do this anymore. I used to do the floor mopping, cooking. I cannot do that and I used to do when I take a shower, I used the water - I use the water with the bowl. I can't do that anymore, wash my body. I used to pray five times a day standing and praying, and now I have difficulty because sometimes I sit a little some of it I will be standing. I used to make handmade bread. I cannot do that anymore. Pages 48-49, Lines and 2-9. Additionally, plaintiff still suffers from health problems causally related to the accident. Because of the injuries that she sustained, she is unable to do many of the activities that she used to be able to do such as those listed above. (See plaintiff's attached Affidavit of Merit, annexed hereto as Exhibit "B"). Ms. Manik's deposition testimony illustrates an active lifestyle and a person who cannot live her life as she did prior to the accident. Plaintiff Sumaiya Sumi Still Has Pain And Difficulty Performing Household Tasks A Copy of Plaintiff's Deposition Testimony is "M" annexed hereto as Exhibit In her deposition testimony taken on October 9, 2017, plaintiff, Sumaiya Sumi testified that her shoulder and neck were injured as a result of the subject motor vehicle accident which occurred on October 28, Further, plaintiff testified that she now has difficulty carrying things of 31

29 Q: Do you still experience neck pain? A: Still I have a pain. Q: Do you experience that every day? A: Every day. Q: This pain to your right shoulder, do you experience that every day, as well? A: It still hurts a little. Q: Is this something that you experience every day or is this something that comes and goes? A: When I carry something, I can't carry. I have a hard time. Pages 16-17, Lines and Additionally, plaintiff still suffers from health problems causally related to the accident. Because ofthe injuries that she sustained, she is still unable to carry things. (See plaintiff's attached Affidavit of Merit, annexed hereto as Exhibit "B"). DEFENDANTS' IME PHYSICIANS FOUND RANGE OF MOTION LOSS Plaintiff Kazi Suraiya Begum Manik Presented to Two (2) "M" IME Physicians - See Defendant's Exhibit "I", "J", and Of particular note, plaintiff, Kazi Suraiya Begum Manik was examined by Igor Rubinshteyn, M.D. on November 20, 2017 for an independent orthopedic evaluation. Dr. Rubinshteyn's examination revealed that Plaintiff, Kazi Suraiya Begum Manik had decreased range of motion in forty-five (45) different levels. For example, Dr. Rubinshteyn's examination of the cervical spine revealed decreased range of motion as follows: Flexion: 50 degrees 20 degrees 60% Extension: 60 degrees 20 degrees 66.67% of 31

30 Right Rotation: 80 degrees 30 degrees 62.5% Left Rotation: 80 degrees 30 degrees 62.5% Right Lat. Flexion: 45 degrees 10 degrees Left Lat. Flexion: 45 degrees 10 degrees Despite Dr. Rubinshteyn's examination, he determined that all of plaintiff's injuries had since resolved. Plaintiffs have offered admissible medical evidence that directly contradicts defendants' position that they did not sustain a "Serious Injury" within the meaning of the No- Fault Law. It should be left to a jury to determine which party's evidence is more persuasive. Plaintiffs refer the Court to the accompanying Memorandum of Law. Accordingly, the motion for Summary Judgment submitted by Defendants, PTM MANAGEMENT CORP., PASCAL MALGARES, and NEW YORK CITY TRANSIT AUTHORITY, must be denied in its entirety. Regardless of plaintiffs' submissions, the instant motion must be denied as the defendants have failed to meet their burden of proof and a motion for Summary Judgment. As discussed, the defendants never addressed whether plaintiffs sustained an injury that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the first 180 days immediately following the accident. Thus, defendants have not met their burden and the instant motion must be denied. Based upon the Affirmation in Opposition, the Affirmed Reports of Dr. Thomas Pobre, M.D., the Affirmed Reports of Dr. Anuradha Anand, M.D., the Affirmed Reports of Dr. Oliver Masaba, M.D., the Affirmed Reports of Dr. Steve Ross, M.D., Affirmation of David R. Payne, M.D., the Affirmation of Steven Ham, M.D., the Affirmation of John Himelfarb, M.D., the Certified Reports of Dr. Demetrios Mikelis, M.D., and Plaintiffs' sworn Affidavits of Merit, there is more than sufficient evidence in this case for a jury to conclude that plaintiffs suffered a "Serious of 31

31 Injury" as a result of the automobile accident on October 28, In any event, plaintiffs have offered admissible medical evidence which directly contradicts defendants' position that they did not sustain a "Serious Injury" within the meaning of the No-fault Law. It should be left to a jury to determine which party's evidence is more persuasive. Accordingly, the motion for Summary Judgment submitted by defendants must be denied. WHEREFORE, Plaintiffs, KASI SURAIYA BEGUM MANIK and SUMAIYA SUMI respectfully request that the motion submitted by Defendants, PTM MANAGEMENT CORP., PASCAL MALGARES, and NEW YORK CITY TRANSIT AUTHORITY, be denied in its entirety, together with such other and further relief as this Court deems just and proper. Dated: Garden City, New York July 9, 2018 PAUL AJLOUNY & ASSOCIATES, P.C. By: stin S. Curtis Esq. Att r eys for Plaintiff 320 Old Country Road, Suite 205 Garden City, New York (516) GALLO, VITUCCI, KLAR, LLP Attorneys for Defendants 3rd 90 Broad Street, FlOOr New York, New York (212) of 31