### Bjorntzen v Singh 2024 NY Slip Op 30893(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 150757/2021 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.NYSCEF DOC. NO. 56 INDEX NO. 150757/2021 RECEIVED NYSCEF: 03/19/2024


### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.JAMES G. CLYNES PART Justice

---------------------------------------------------------------•••••-------------X

TAHJ BJORNTZEN Plaintiff,

• V. BALBIR SINGH, Defendant.

----------------······-------------------------------······----------------------X INDEX NO. 150757/2021 MOTION DATE 12/14/2022 MOTION SEQ. NO. 001
DECISION+ ORDER ON .MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 00I) 23, 24, 26, 27, 28, 29. 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40. 41, 42, 43, 44 were read on this motion to/for JUDGMENT

- SU:v1MARY 

### Uponthe foregoing documents and following oral argument, the motion 

### by Defendant for summary judgment on the grounds that Plaintiffhas not sustained a serious injury as defined in Insurance Law 5102 (d) and Plaintiffs cross-motion for summary judgment on the grounds that her injuries fall underthe significant limitation and 90/180 days categories ofInsurance Law 5102 (d) are decided as follows: Plaintiffseeks recovery for injuries allegedly sustained as a result ofa June 17, 2020motor vehicle accidentbetween Plaintiffbicyclist and a motor vehicle O\vned and operatedby Defendant. Plaintiff's Bill of Particulars alleges injuries to her neck, back, right shoulder, and right ankle. Plaintiffunderwent right shoulder arthroscopy on November 18, 2020 and right ankle surgery on October 8, 

### 2021. Plaintiffs Bill ofParticulars also alleges that Plainti

### ff was confined to bed for approximately two months and confined to her home for approximately three months. 

### In support of his motion, Defendant relies on the affirmed independent orthopedic examination report ofDr. Jeffrey Dermksian, the affirmed independent radiological reviewreport ofDr. Jonathan S. Luchs, and Plaintiffs examination before trial (EBT) testimony. Dr. Dermksian examined Plaintiffon October 26, 2021, reviewed relevant medical records and reports, including the MRI reports ofPlaintiffs right ankle and right shoulder, and concluded

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### [* 1]NYSCEF DOC. NO. 56 INDEX NO. 150757/2021 RECEIVED NYSCEF: 03/19/2024



### that Plaintiffs diagnoses are status post resolved cervical spine sprain. status post resolved right shoulder sprain, status post resolved lumbar spine sprain, and status post resolved right ankle sprain. She is status postright shoulder surgery and status postright ankle surgery. Dr. Dermksian measured Plaintiffs range ofmotion using a goniometer and found normal range of motion of Plaintiffscervical spine, lumbar spine, and right shoulder. His report noted that he was limited in his examination of Plaintiffs right ankle/foot because Plaintiff had not gone for a first postoperative visit with her surgeon, and thus could not remove the bandage. With regard to Plaintiffs cervical spine and lumbar spine, Dr. Dermksian reported that Plaintiffdisplayed signs of symptom magnification and embellishment with the non-anatomic and non-dermatomal decreased sensation in her right upper extremity and right lower extremity. With regard to the right shoulder, Dr. Dermksian's opinion is that the 

### MRI report ofthe right shoulder from 7/29/2020 was consistent with pre-existing degenerative changes that are not causally related to the alleged incident date of6/17/2020, and thus the right shoulder arthroscopy from 11/18/2020 was performed for pre-existing degenerative changes that are notcausa1ly related to the alleged accident date of 6/17/2020. Dr. Dermksian further noted that the colored intraoperative pictures ofthe right shoulder arthroscopy from 11

### /l 8/2020 showed no tears and no acute abnormalities Withregard to the right ankle, Dr. Dem1ksian was not able to assessifthere was an internal derangement to·1he right ankle because Plaintiffwas immediately postoperative. However, after reviewing the MRI report ofthe right ankle from November 24. 2020, Dr. Dermksian found it consistent with pre-existing, degenerative changes that are not causally related to the subject accident, as there was no evidence ofany tears on the MRL Therefore, Dr. Dermksian reported, based upon a reasonable degree ofmedical certainty. that the right ankle surgery was performed for pre-existing degenerative changes that were not causally related to the subject accident. Dr. Dermksian reported that Plaintiff's examination indicated no evidence ofpermanency, disability, limitations orresiduals withregard to the cervical spine, right shoulderand lumbar spine based upon the objective findings on the physical examination, but he was unable to comment on

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the right ankle as she is 2-3 weeks postoperative. Dr. Dermksian found that Plaintiffis capable of continuing to be a student and perform her usual activities. Dr. Luchs undertook an independent reviev,' ofthe MRis ofPlaintiff's right shoulder. Dr. Luchs found that the 

### MRI shows subacromial impingement resulting in supraspinatus and infraspinatus tendinosis and minimal subdeltoid bursitis. 

### In his report, Dr. Luchs specifically noted that these findings 

### are chronic and degenerative, and not posttraumatic. According 

### to Dr. Luchs, these findings predate the al1eged injury and are not secondary to the alleged injury; there


### are no findings on this exam causally related 

### to the claimant's alleged injury. Defendant has met his initial burden ofestablishing that Plaintiffdid not sustain serious injuries as a result ofthe accident under Insurance Law 5102 (d) (Perez v Rodriguez, 25 AD3d 

### 506 [1st Dept 2006]). The burden therefore shifts to Plaintiff to produce prima facie evidence to support her claim ofserious injury. 

### In opposition to Defendant's motion and in support of Plaintiffs cross-motion. Plaintiff submits the affirmation ofThomas Scilaris MD, the affirmation ofNazia Shah, DPM, Plaintiffs examination before trial (EBT) testimony, and Plaintiffs affidavit. Dr. Scilaris averred that Plaintifffirst presented to his office, Park West Surgical LLC on July 13, 2020. Dr. Scilaris measured Plaintiffs range of motion and reported limitation as to Plaintiffs right shoulder. Dr. Scilaris also reviewed Plaintiffs right shoulder MRI and his impression ,vas that Plaintiffhad right shoulder impingement, tendinosis ofthe rotator cuff and suspected a labral tear. Based upon the examination and the prolonged positive findings, Dr. Scilaris recommended that the patient undergo an arthroscopic surgery. Dr. Scilaris concluded that Plaintiff'sinjury was permanent, was caused

### by the subjectaccident, andthat due to herinjury she was unable to perform her normal duties as a security guard for at least 90 out ofthe first 180 days immediately following the accident. Dr. Shah initially examined Plaintiffon November 3, 2020 and reported limitation in the range ofmotion ofPlaintiffs right ankle. On October 8, 2021, Dr. Shah performed surgery on Plaintiffs right ankle. Dr. Shah concluded that Plaintiffsutfored a tear in the anterior talofibular

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ligament edema, and synovitis, resulting in significant ankle weakness and instability, which was caused 

### by the subject accident. Dr. Shah opined that Plaintiff would not be able to work in her role as a security guard, which required prolong standing, for at least 90 out ofthe first 180 days following the subject accident. InherEBT, Plaintifftestifiedthat she was confined to herbed and homefor thefirst month following the accident. Plaintiff testified that she has trouble walking, cleaning, cooking, and holding things or standing for a long period oftime and that she no longerjogs orrides a bicycle. Inheraffidavit, Plaintiffavers that shehaddifficulty getting an appointment for a specialist since many doctors' offices were completely closed due to the COVID-19 pandemic. She also testified that she attempted to go back to work after about two weeks but was unable to work due to pain. As a result ofher injuries, she avers that she was unable to return to security work and only began working in January 2022, and returned to a light duty clerical position. Plaintiffhas raised sufficient issues ofmaterial fact as to whetherthe injuries she sustained inthe June 17, 2020 accident meetthe threshold for serious injury under Insurance Law 5102 (

### d) to preclude summaryjudgment in Defendants' favor. As such, Defendants' motion for summary judgmentis denied. Plaintiffs cross-motion for summaryjudgmentis denied. Issues offact exist with respect to the remaining categories under Insurance Law 5102 (d), based on the conflicting expert opinions submitted by the parties 

### (Perl vMeher, 18 NY3d 208 [2011]). Accordingly, it is 

### ORDERED that the motion by Defendant for summary judgment on the grounds that Plaintiffhas not sustained a serious injury as defined in Insurance Law 5102 (d) is denied; and it is further 

### ORDERED that the cross-motion 

### by Plaintifffor summaryjudgment onthe grounds that her injuries fall underthe significant limitation and 90/180 days categories ofInsurance 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

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ORDERED that within 30 days ofentry, Plaintiffshall serve a copy ofthis Decision and Order upon Defendant with Notice ofEntry. This constitutes the Decision and Order ofthe Court.

3119.'2024

DATE CHECK ONE;
APPLICATIO,._, CHECK IF APPROPRIATE:

# ~ CASE DISPOSl'.:D GRANTED 

# 0 DENIED SETTLE ORDF.R INCLUDES TRANSFE.R/REASSIG'.\

150757/2021 HJOR:\TZEN,TAHJ \'S, SINGH, BALBIR Motion '.'io. 00I

5 of 5 :-.ON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER ~'ll>lCL-\RY APPOINTMENT

### □ OTHER

### □ REFERENCE

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