Martinez v. Ruggiero

2023 NY Slip Op 34572

• Court: New York Supreme Court, Kings County
• Decided: December 26, 2023
• Status: Unpublished

Opinion

Martinez v Ruggiero 2023 NY Slip Op 34572(U) December 26, 2023 Supreme Court, Kings County Docket Number: Index No. 509897/2020 Judge: Debra Silber 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. FILED: KINGS COUNTY CLERK 01/02/2024 10:46 AM INDEX NO. 509897/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/02/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : PART 9 ____________________________________________

MARA M. MARTINEZ, DECISION / ORDER Plaintiff, Index No. 509897/2020 -against- Motion Seq. No. 1

JOANNA RUGGIERO, Defendant. ____________________________________________ Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant’s motion for summary judgment.

Papers NYSCEF Doc.

Notice of Motion, Affirmation and Exhibits Annexed.................... 26-46 Affirmation in Opposition and Exhibits......................................... 51-53, 55 Reply Affirmation.......................................................................... 54

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

This is a personal injury action arising out of a motor vehicle accident that occurred on May

3, 2019. At the time of the accident, the plaintiff and the defendant were each driving their own

vehicles when they came into contact with each other at the intersection of East 80th Street and

Avenue J, in Brooklyn, New York.

The defendant timely moves for summary judgment dismissing the plaintiff’s complaint,

pursuant to CPLR Rule 3212, on the ground that plaintiff did not sustain a “serious injury” as defined

by Insurance Law § 5102 (d).

Plaintiff’s bill of particulars alleges that she sustained injuries to her left shoulder, right

shoulder, cervical spine, and lumbar spine as a result of the accident. At the time of the accident,

plaintiff was sixty-five years old. Plaintiff did not request an ambulance at the scene, but she

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testified that she went to a hospital emergency room after the accident. She subsequently had

arthroscopic surgery to her left shoulder.

The defendant provides, in support of her motion, affirmed medical reports from an

orthopedist and a radiologist, the plaintiff’s and the defendant’s EBT transcripts, plaintiff’s bill of

particulars, the pleadings, the police accident report, photos of the vehicles, plaintiff’s radiology

reports from Lenox Hill Radiology, plaintiff’s discharge summary from her emergency room visit on

May 6, 2019, plaintiff’s left shoulder surgical report, several of plaintiff’s treatment records and an

affirmation of counsel.

Jeffrey Guttman, M.D., an orthopedist, examined plaintiff on February 23, 2022, two years

and nine months after the accident. He provides an affirmed IME report [Doc 35] that states that

he reviewed plaintiff's bill of particulars, the emergency department records dated 05/06/2019, the

plaintiff’s medical records, including MRI reports, and the operative report dated 09/04/2019, by

Dov J. Berkowitz, with color surgical photographs of the left shoulder.

In his report, Dr. Guttman states that he conducted range of motion tests on the parts of the

body that the plaintiff claims were injured in the subject accident. In his examination of the plaintiff’s

cervical spine, lumbosacral spine, and right shoulder, he reports that he found that the plaintiff had

normal ranges of motion in all planes, when compared to “normals”. However, in his examination

of the plaintiff’s left shoulder, Dr. Guttman found significant restrictions in the plaintiff’s range of

motion. Specifically, he found that plaintiff’s left shoulder had “forward elevation to 160 degrees

(180 degrees normal), extension to 60 degrees (40 degrees normal), abduction to 150 degrees

(180 degrees normal), adduction to 30 degrees (30 degrees normal), external rotation to 75

degrees (90 degrees normal), internal rotation to 50 degrees (80 degrees normal).” Despite the fact

that the plaintiff testified that she had never been in any previous accidents [Doc 33 at page 68],

and that Dr. Guttman says that he agrees with the findings on the operative report, including the

postoperative findings of a rotator cuff tendon tear and a tear of the anterior superior labrum in the

plaintiff’s left shoulder, he nevertheless opines that the plaintiff’s injuries to her left shoulder are

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degenerative and pre-existing. He also opines that the “[t]he decreased range of motion in the left

shoulder exhibited by the claimant is considered a subjective response not substantiated by

objective findings.”

The court finds that defendant fails to make a prima facie case for summary judgment by

establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law §

5102(d) as a result of the subject accident. See, Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002].

Dr. Guttman reports significant restrictions in plaintiff’s range of motion in her left shoulder. As the

defendant has failed to meet her burden of proof as to all claimed injuries and all applicable

categories of injury, the motion must be denied, and it is unnecessary to consider the papers

submitted by plaintiff in opposition (see Yampolskiy v Baron, 150 AD3d 795 [2d Dept 2017]; Valerio

v Terrific Yellow Taxi Corp., 149 AD3d 1140 [2d Dept 2017]; Koutsoumbis v Paciocco, 149 AD3d

1055 [2d Dept 2017]; Aharonoff-Arakanchi v Maselli, 149 AD3d 890 [2d Dept 2017]; Lara v Nelson,

148 AD3d 1128 [2d Dept 2017]; Sanon v Johnson, 148 AD3d 949 [2d Dept 2017];Weisberg v

James, 146 AD3d 920 [2d Dept 2017]; Marte v Gregory, 146 AD3d 874 [2d Dept 2017]; Goeringer

v Turrisi, 146 AD3d 754 [2d Dept 2017]; Che Hong Kim v Kossoff, 90 AD3d 969 [2d Dept 2011]).

In any event, had defendant made a prima facie case for dismissal, plaintiff has provided

enough evidence to overcome it. In opposition to the motion, the plaintiff offers an affirmation from

her treating surgeon, Dr. Dov. Berkowitz. In his affirmation, Dr. Berkowitz states that he reviewed

the defendant’s affirmed IME reports, as well as the plaintiff’s treatment records, and he opines that

the plaintiff “has sustained a permanent partial impairment of her left shoulder due to the above-

referenced accident.” He further opines that “[b]ased on the accuracy of these records, I state in

my professional medical opinion that the injuries patient received to her left shoulder cannot

possibly be attributed to any degenerative changes. The fact that the patient was asymptomatic

prior to the May 3, 2019, accident, the symptoms of pain which the patient demonstrated right after

the May 3, 2019, accident and presently, the complaints of pain in the left shoulder, which patient

exhibited immediately after the accident, the testing initially performed to patient's left shoulder, as

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well as during the recent examination I performed on July 13, 2023, without any significant

improvements, the fact that the patient reached only partial recovery, despite the extensive

rehabilitation treatment and presently expresses the symptoms of pain, all of these factors taken in

summation support my professional medical opinion that the above described injuries Ms. Martinez

sustained to her left shoulder could only be caused by the accident dated May 3, 2019.”

As such, even if the defendant had made a prima facie showing, thereby shifting the burden

of proof to the plaintiff, the affirmation from Dr. Berkowitz would be sufficient to raise a triable issue

of fact with a “battle of the experts,” and require a trial.

Accordingly, it is ORDERED that the motion is denied.

This constitutes the decision and order of the court.

Dated: December 26, 2023

ENTER:

db Hon. Debra Silber, J.S.C.

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