Genao v. Delacruz

2024 NY Slip Op 30485(U)

• Court: New York Supreme Court, New York County
• Decided: February 14, 2024
• Status: Unpublished

Opinion

Genao v Delacruz 2024 NY Slip Op 30485(U) February 14, 2024 Supreme Court, New York County Docket Number: Index No. 155768/2020 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155768/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/14/2024

SUPREME COURT OF THE ST A TE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22M Justice --- ----- ----- -- ------ ------------ ------ -------------------------------------- ----X INDEX NO. 155768/2020 SANTA GENAO MOTION DATE 01/08/2024 Plaintiff, MOTION SEQ. NO. ----=-00.::...:1:.....__ _ -v- ORLANDO DELACRUZ, DECISION+ ORDER ON MOTION Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 00 I) 24, 25, 26, 27, 28, 29, 30, 31, 32,33,34,35, 36, 37,38.39,40 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, the motion by Defendant Orlando Delacruz for summary

judgment on the grounds that Plaintiffs claimed injuries do not satisfy the serious injury threshold

under Insurance Law 5102(d) is decided as follows:

Plaintiff seeks recovery for injuries allegedly sustained as a result of a July 2 7, 20 I 8 motor

vehicle accident. Plaintiffs Bill of Particulars alleges injures to her cervical spine, thoracic spine,

lumbosacral spine, left shoulder, left knee and left hip/pelvis and that those injuries fall within the

categories set forth under Insurance Law 5102( d).

The burden rests upon the movant to establish that the plaintiff has not sustained a serious

injury (Love v Bennett, 122 AD2d 728[ 1st Dept 1986 ]). When the movant has made such a

showing, the burden shifts to the plaintiff to produce prima facie evidence to support the claim of

serious injury (see Lopez v Senatore, 65 NY2d 1017[1985]).

In support of their motion, Defendants rely on the affirmed independent examination report

of Dr. Salvatore Corso who reported that Plaintiffs cervical spine, left knee and left hip were all

resolved and that there was no permanent or significant injury as a result of the accident on July

27, 2018.

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Dr. Corso did not review any medical records, Magnetic Resonance Image (MRI) or X-

Ray report and noted his opinion was based solely on his examination on April 15, 2022. He

indicated that he reviewed the Verified Bill of Particulars, report of Motor Vehicle accident and Police accident report. Dr. Corso performed an independent orthopedic evaluation on April 15,

2022, for the purpose of evaluation not treatment. Dr. Corso measured Plaintiffs range of motion

using a standard hand-held goniometer and based his normal range of motion on the AMA

guidelines. Dr. Corso found that range of motion of the cervical spine revealed flexion of 50

degrees (50 degrees normal), extension of 60 degrees (60 degrees normal), right and left rotation

to 80 degrees (80 degrees normal), and right and left lateral flexion to 45 degrees (45 degrees

normal), without pain. Dr. Corso performed the Foraminal compression test, Spurling test and

Traction test and they were all negative; range of motion for the thoracic spine and lumbosacral

spine yielded normal ranges. The Clonus test, Laguere's test, forward flexion, straight leg raising,

bilaterally, Lasegue's test, Kemig test and Waddell's test were performed and were all negative.

Dr. Corso performed the Faber test and the Trendelenburg test with regards to the Left hip/pelvis

which were both negative; range of motion was normal and no instability was found. Finally, Dr.

Corso performed a Sulcus test, Hawkin's impingement sign, Neer's impingement sign,

Apprehension test, Liftoff test, Speed's test, O'Brien test with regards to the left shoulder/arm and

the Lachman's test, Anterior Drawer test, Valgus/Varus, Patellar apprehension test, Patellar Grind

test, J-Sign and McMurray test with regards to the left knee/leg. He noted no atrophy and normal

range of motion for both left shoulder/arm and left knee/leg. He concluded the Plaintiff's alleged

cervical sprain, alleged thoracic sprain, alleged lumbar sprain, left shoulder/arm sprain, alleged

left knee/leg, alleged left hip/pelvis and alleged ribs sprain were resolved. In his opinion, there

was no objective clinical findings indicative of a present disability, and functional impairment

which prevented the Plaintiff from usual activities including work, school and hobbies.

Defendant has met his initial burden of establishing that Plaintiff did not sustain serious

injuries as a result of the accident under Insurance Law 5102(d) (Perez v Rodriguez, 25 AD3d 506

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[ I st Dept 2006]). The burden therefore shifts to Plaintiff to produce prima facie evidence to

support her claim of serious injury.

In opposition, Plaintiff relied on the treatment records and affirmation of Dr. Dov

Berkowitz and Dr. Graeme Whyte, who are Orthopedic surgeons in the same practice actively

participating in the diagnosis and treatment of Plaintiff, the affirmation and MRI report of Dr.

Priyesh Patel. the affirmation of Dr. Regina Moshe, the supervisor of Dr. B. V. Reddy Synder,

Diagnostic Radiologist and the X-Ray reports obtained from New York-Presbyterian Weill-

Cornell Medical Center on the date of the accident, July 27, 2018. The Bill of Particulars notes

that the Plaintiff had lumbosacral spine surgery on October 16, 2018 and October 23, 2018 along

with a trigger point injection.

Dr. Whyte initially examined Plaintiff; Dr. Berkowitz noted, "The patient came to my

office for a consultation with Dr. Whyte on May 21, 2019". Dr. Berkowitz notes that Plaintiff

complained of left shoulder pain and had significant pain in the posterolateral aspect and lateral

aspect of the left hip. Dr. Whyte performed a physical examination of the left knee, left shoulder,

and left hip and found significant limitation with respect to internal rotation, and external rotation

was to 20 degrees (normal 45 degrees). Dr. Berkowitz notes the MRI report, which was available

to Dr. Whyte, was positive for tearing of the labrum. The MRI report of the left knee was positive

for joint effusion as well as ligamentous sprain injury. Dr. Berkowitz noted routine x-rays of the

pelvis, right knee, and left hip demonstrated adequate joint space. Dr. Berkowitz notes that the

Plaintiff was re-evaluated by his office on .lune 18, 2019, September 3, 2019 and December 3,

2019 as shown in the office files kept by himself and Dr. Whyte.

The medical reports of Dr. Whyte can be authenticated as business records by Dr.

Berkowitz's office manager or Dr. Berkowitz, Plaintiffs treating physician," ... notwithstanding

that these records contained reports from other doctors, based on the treating physician's testimony

that they were created in the ordinary course of business for the purposes of diagnosis and

treatment (Freeman v Shtogaj, 174 AD3d 448, 449 [I st Dept 2019] citing Freeman v. Kirkland,

184 AD2d 331 [1st Dept 1992]). They will be properly admitted since, the assumption is " .. that

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the notes and records routinely kept by the treating doctors in the course of their practice will be

produced and identified at trial and will be authenticated by a witness with personal knowledge of

such record keeping matters . .. Business entries of this kind are admissible in evidence for the truth

of the matters asserted in such records." Generally, "a physician's office records, supported by the

statutory foundation set forth in CPLR 4518(a), are admissible in evidence as business records ."

(see CPLR 2306, 4518 (c) and 4532-a; Flaherty v Am. Turners NY, Inc., 291 AD2d 256, 258 (1st

Dept 2002]). Finally, Dr. Berkowitz re-evaluated the Plaintiff for treatment purposes on February

7, 2023. He found that the MRJ showed tendinosis of the rotator cuff and the MRJ of the left hip

was positive for tearing of the labrum at the anterior and anterosuperior aspects, Plaintiff had loss

of motion specifically in her left hip and left shoulder and that plaintiff would benefit from a

continued course of treatment. The Hawkin's, O'Brien's sign tests were also performed which

were positive for the left shoulder and a mild positive McMurray's test also resulted. Dr.

Berkowitz did not rely on Dr. Whyte physical examination as the principal basis of his opinion but

merely as a link in the chain of data. He primarily relied on his own re-evaluation and physical

examination performed on February 7, 2023, the tests he performed and the MRI report and CT

scan that were performed on plaintiff and " ... the materials reviewed by the expert were '·of [the]

kind accepted in the profession as reliable in forming a professional opinion" (People v Sugden,

35 NY2d 453 [1974]). Dr. Berkowitz is thus allowed to testify as an expert with regards to the

non-testifying treating doctor reports and reach a legal conclusion. Dr. Berkowitz opined that the

Plaintiffs injuries and subsequent treatment were, related to the Jul y 27, 2018 motor vehicle

accident and there was permanent injury to her left hip .

Dr. Patel, a board-certified Diagnostic Radiologist in the submitted affirmation had the

same findings in the interpretation of the MRJ of the left hip, signed on August 16, 2018. Dr. Patel

found a tear of the anterior and anterior/superior labrum, a sprain in the ACL of the left knee in

the MRI signed August 22, 20 I 8 and tendinosis of the supraspinatus and infraspinatus tendons

with fraying of the bursal surface fibers in the MRI of the left shoulder, signed September 29, 2018.

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Dr. Moshe affirmed the MRI performed by Dr. B.V. Reddy, Diagnostic Radiologist which

showed central subligamentous herniations with regional nerve root impingement in the MRI of

the cervical spine and acute appearing herniation with regional exiting nerve encroachment and

posterior disc bulges with central regional nerve root encroachment in the MRI of the lumbar spine.

Plaintiffs evidence raises an issue of fact as to whether permanent consequential limitation

of the hip or shoulder was sustained (see Mitchell v Calle. 90 AD3d 584 [lst Dept 2011];

Djetoumani v. Transit, Inc .. et al, 50 AD3d 944 [2nd Dept 2008]). Dr. Berkowitz's examination

along with the MRI reviews by Dr. Patel and Dr. Moshe makes his report sufficient to demonstrate

continuing limitations (De las Santos v. Basilio, 176 AD3d 544, 545 [1st Dept 2019]; Frias v Son

Tien Liu, 107 AD3d 589[1st Dept 2013]). If a claimant can satisfy at least one of the serious injury

thresholds, then the claimant is permitted to recover for all damages proximately caused by the

accident, even those that are not considered "serious" (Rubin v SMS Taxi Corp., 71 AD3d 548 [1st

Dept 201 OJ). As Plaintiff has shown sufficient evidence of serious injury to her left hip/pelvis and

has been declared permanently injured in her left hip, it is not necessary to determine the adequacy

of the evidence as to her left knee or left shoulder. She may be entitled to recover for all injuries

causally related to the subject accident (see Linton v. Nawaz, 14 NY3d 821 [201 O]; Rubin v SMS

Taxi Corp., 71 AD3d 548 [ l st Dept 201 O]). Therefore, the Court need not determine whether

Plaintiffs other injuries fall into one of the serious injury categories under Insurance Law 5102( d).

With respect to the 90/180 days category of serious injury, Dr. Berkowitz's reported

permanency of Plaintiff's injury and limitation to some extent in activities of daily living is

competent evidence that Plaintiff was unable to perform substantially all of her normal activities

for at least 90 days of the first 180 days, as a result of the accident. Plaintiff testified in her

examination before trial that she worked as a cleaning technician, 5 days per week for

approximately 7 hours per day at different places. Plaintiff testified that she can no longer exercise

in the same capacity and that she now works caring for an aunt, 7 days a week for 4 hours per day,

where she cooks, does laundry, and accompanies her aunt to the doctor. She also testified that she

was away from her job for 6 months, after the accident. Plaintiff's testimony as to her restrictions

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in conjunction with Dr. Berkowitz's report has raised an issue of fact as to the 90/180 days category

as well. Accordingly, it is,

ORDERED that the motion by Defendant Orlando Delacruz for summary judgment on the

grounds that Plaintiffs alleged injuries fail to satisfy the serious injury threshold under Insurance

Law 5102( d) is denied; and it is further

ORDERED that any requested relief not specifically addressed herein has nonetheless

been considered; and it is further

ORDERED that within 30 days of entry, Plaintiffs shall serve a copy of this Decision and

Order upon the Defendant with Notice of Entry.

This constitutes the Decision and Order of the Court.

2/14/2024 DATE

~ CIIECKONE: CASE DISPOSED .',O'.\'-Fl:",IAL DISPOSITIO'.\'

GRA:'l"TED 0 DE'iJED GRA'.\'TED I:'; PART □ OTHER APPLICATION: SETTLE ORDER SliBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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