An expert update

Jean v New York City Tr. Auth., 2011 NY Slip Op 05455 (App. Div., 2nd 2011)

The defendants failed to establish, prima facie, that the injured plaintiff did not sustain a serious injury under the significant limitation of use category of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted, among other things, an affirmed report of Dr. Alan J. Zimmerman, their examining orthopedic surgeon, who found range-of-motion restrictions in the injured plaintiff's left shoulder and documented the less-than-normal findings in the numeric values he gave for each specific range of motion. However, in the conclusion of his report, Dr. Zimmerman failed to even address these losses of range of motion to the injured plaintiff's left shoulder. Moreover, his opinions that the left shoulder surgery treated a "non-causally related condition," that "[a] bursa is a degenerative [condition] and not causally related," that "[i]mpingement is a developmental condition, not a traumatic condition which was pre-existing and not causally related," and that "[a]ll of the cervical [magnetic resonance imaging] findings are degenerative, pre-existing and not [causally] related," are without probative value, as he failed to explain or substantiate, with objective medical evidence, the basis of his conclusions (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Ortiz v S & A Taxi Corp., 68 AD3d 734; Powell v Prego, 59 AD3d 417). Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the papers submitted by the plaintiffs in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Houck v Simoes, 2011 NY Slip Op 05452 (App. Div. 2nd, 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to show that her "expert" Anthony Mellusi was qualified to provide expert evidence in this case (see generally Riccio v NHT Owners, LLC, 79 AD3d 998, 1000; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296). In any event, Mellusi's opinion based upon his inspection of the staircase more than a year and a half after the accident was insufficient to raise a triable issue of fact (see Lal v Ching Po Ng, 33 AD3d 668, 668-669). Mellusi's opinion based upon his review of the photographs that the plaintiff took four days after her accident was conclusory and insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557; Mastroianni v State of New York, 35 AD3d 674, 675). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion for summary judgment, since she did not submit evidence which would change the prior determination (see CPLR 2221[e][2]).

Hoberg v Shree Granesh, LLC, 2011 NY Slip Op 05451 (App. DIv., 2nd 2011)

The Supreme Court did not improvidently exercise its discretion in refusing to preclude the plaintiff's expert witness from testifying that the failure to equip the stairway in the motel lobby with handrails violated Multiple Residence Law § 132. Although the plaintiff's expert witness disclosure statement did not specify the statutory provision requiring the lobby stairway to be equipped with handrails, it was sufficient to apprise the defendant of the subject matter of the expert's proposed testimony, and was neither "so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise" (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759; see CPLR 3101[d][1][i]; Rabinowitz v Elimian, 55 AD3d 813, 814; Popkave v Ramapo Radiology Assoc., P.C., 44 AD3d 920, 921). There is also no indication that the plaintiff's delay in retaining the expert and serving the expert witness notice was willful or intentional, or that the defendant was prejudiced as a result of the delay (see Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563, 564; Lanoce v Kempton, 8 AD3d 449, 451; Young v Long Is. Univ., 297 AD2d 320). Moreover, the defendant did not show that it was prejudiced by the fact that the plaintiff's supplemental bill of particulars erroneously alleged a violation of Multiple Dwelling Law § 52(1) which does not apply to the premises, since both that provision and the applicable provision, Multiple Residence Law § 132, identically require stairs more than three feet and eight inches in width to be provided with handrails on each side.

The scope and manner of cross examination "are left to the sound discretion of the trial court" (Salm v Moses, 13 NY3d 816, 817; see Bernstein v Bodean, 53 NY2d 520, 529), and here the Supreme Court did not improvidently exercise its discretion in limiting the defendant's cross-examination of the plaintiff's expert witness (see Matter of Simone D., 9 NY3d 828, 829; Forte v Standard Fusee Corp., 204 AD2d 600, 600).

Contrary to the defendant's contention, the Supreme Court properly permitted the plaintiff to introduce evidence during the damages phase of the trial concerning the effect her injuries had on her activities and personality. This evidence was relevant to loss of enjoyment of life, which is a factor to be considered by the jury in assessing damages for pain and suffering (see Nussbaum v Gibstein, 73 NY2d 912, 914; McDougald v Garber, 73 NY2d 246, 255-256). In addition, the photograph of the plaintiff recovering from her injuries in the hospital was not inflammatory, and was properly admitted to help the jury evaluate the medical testimony and assess the plaintiff's pain and suffering (see Heath v Makita Corp., 255 AD2d 419, 420; Salazar v Fries & Assoc., 251 AD2d 210, 211; Colon v New York City Hous. Auth., 248 AD2d 254, 255; Axelrod v Rosenbaum, 205 AD2d 722, 723).

Grisales v City of New York, 2011 NY Slip Op 05450 (App. Div., 2nd 2011)

The municipal defendants, in support of their cross motion for summary judgment dismissing the complaint insofar as asserted against them, failed to meet their prima facie burden of showing that the plaintiffs 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; Gaddy v Eyler, 79 NY2d 955, 956-957). As to the plaintiffs' decedent, Angelica Cuadros, the municipal defendants, in support of their cross motion, relied on, inter alia, the affirmed medical reports of Dr. Edward M. Adler and Dr. Amy M. Weiss-Citrome. Dr. Adler, an orthopedist, examined Cuadros on September 4, 2008. On that date, while he set forth findings with respect to her right knee range of motion, he failed to compare those findings to what was normal (see Frasca-Nathans v Nugent, 78 AD3d 651; Chiara v Dernago, 70 AD3d 746; Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514). Moreover, in the report of Dr. Weiss-Citrome, who examined Cuadros on September 6, 2006, seven months post-accident, she noted significant limitations in Cuadros' cervical and lumbar spine (see Torres v Torrano, 79 AD3d 1124; Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Scotti v Boutureira, 8 AD3d 652). Furthermore, when Dr. Weiss-Citrome examined Cuadros' knees, she merely concluded that the examination revealed "functional" range of motion, yet failed to set forth the objective testing she performed to arrive at that conclusion (see Karvay v Gueli, 77 AD3d 625; Chiara v Dernago, 70 AD3d 746; Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977; Smith v Quicci, 62 AD3d 858; Giammalva v Winters, 59 AD3d 595).

As to the plaintiff Mariana Grisales (hereinafter Grisales), the municipal defendants, in support of their cross motion for summary judgment, relied upon, inter alia, the affirmed medical report of Dr. Adler, who examined her on September 4, 2008. While he made certain findings with respect to the range of motion of the cervical region of her spine, he failed to compare all of those findings to what was normal (see Rhodes v Stoddard, 79 AD3d 997; Frasca-Nathans v Nugent, 78 AD3d at 651; Chiara v Dernago, 70 AD3d at 746; Page v Belmonte, 45 AD3d at 826).

Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 2011 NY Slip Op 04655 (App. Div., 2nd 2011)

The expert affidavit submitted by the plaintiff, which relied upon facts contradicted or unsupported by the record, was speculative and conclusory as to the negligence and wrongful death causes of action and did not raise a triable issue of material fact as to any of the causes of action alleged in the complaint (see Romano v Stanley, 90 NY2d 444, 451-452; Kane v Ausubel, 44 AD3d 717, 717-718; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

McLoughlin v Suffolk Obstetrics & Gynecology, LLP, 2011 NY Slip Op 05464 (App. DIv., 2nd 2011)

The defendants Suffolk Obstetrics and Gynecology, LLP, Paul Lograno, and St. Charles Hospital and Rehabilitation Center (hereinafter collectively the defendants), demonstrated their prima facie entitlement to judgment as a matter of law by submitting an expert affirmation, as well as the examinations before trial of the plaintiff's treating physicians, which establish that there was no departure from good and accepted medical practice with respect to the plaintiff's post-operative treatment (see Stukas v Streiter, 83 AD3d 18; Breland v Jamaica Hosp. Med. Ctr., 49 AD3d 789; DiMitri v Monsouri, 302 AD2d 420). The plaintiff's submissions in opposition to the motion, including the conclusory affirmation of the plaintiff's expert, were insufficient to raise a triable issue of fact (see Deutsch v Chaglassian, 71 AD3d 718, 719; Dunn v Khan, 62 AD3d 828, 829; DiMitri v Monsouri, 302 AD2d at 421).

Arroyo v Morris, 2011 NY Slip Op 05624 (App. Div ., 1st 2011)

In opposition, plaintiff failed to refute defendants' evidence of a preexisting degenerative condition of the lumbar spine or a preexisting chronic condition of the left knee, and therefore failed to raise an inference that injury to either the spine or the knee was caused by the accident (see id.; see also Jimenez v Rojas, 26 AD3d 256 [2006]; Diaz v Anasco, 38 AD3d 295 [2007]). Further, none of plaintiff's doctors made any reference to either the degenerative or the chronic condition; without an explanation for ruling out these conditions as the cause of plaintiff's injuries, the doctors' opinions that the injuries were caused by the accident are speculative (see Valentin, 59 AD3d at 186). As there is no objective medical evidence that plaintiff's injuries were caused by the accident, plaintiff's statement that he was out of work for nine months is insufficient to establish his 90/180-day claim (see Linton v Nawaz, 62 AD3d 434, 443

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