The opinion
Restrepo v Costa
2025 NY Slip Op 31904(U)
May 30, 2025
Supreme Court, New York County
Docket Number: Index No. 158632/2024
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. 158632/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/30/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JAMES G. CLYNES PART 39M
Justice
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INDEX NO. I 58632/2022
RICARDO RESTREPO,
MOTION DATE 08/06/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
DOREEN LEA YENS COSTA, HALEY MARIE TOBIN DECISION+ ORDER ON
MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37,
38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57
were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, the motion by Defendants DOREEN LEAVENS COSTA
and HALEY MARIE TOBIN for summary judgment on the grounds that Plaintiffs claimed
injuries do not satisfy the serious injury threshold under Insurance Law 5102 (d) are decided as
follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a September 3, 2021
motor vehicle accident. Plaintiffs Bill of Particulars alleges injuries to his cervical spine, head,
neck, and body and was required to undergo anterior cervical fusion surgery and that those injuries
fall within the categories set forth under Insurance Law 5102 (d).
The burden rests upon the movant to establish that Plaintiff has not sustained a serious
injury (Love v Bennett, 122 AD2d 728 [!51 Dept 1986]). The burden shifts to Plaintiff to show he
did sustain such injury or that there are questions of fact with objective proof of the injury to satisfy
the statutory serious injury threshold (see Martin v Schwartz, 308 AD2d 318 [1st Dept 2003]).
In support of their motion, Defendants submit, in pertinent part, the affirmed independent
medical examination report of Dr. Michael T. Goldstein, and the affirmed independent medical
examination of Dr. Marc Agulnick, the radiology report of Dr. Margaret Whalen, the visit notes
of Dr. Jose Rodriguez-Ospina, records from SightMD, the Clinical Report from Stony Brook
Southampton Hospital, the NYU Langone Health System records, the follow-up records of Dr.
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Joseph Dryer, the biomechanical report of Andrew J. Rentschler, PhD, and the examination before
trial testimony of Plaintiff.
Dr. Margaret Whalen's radiology report dated June 9, 2006, noted a "small convexed
posterior margin" to the disc and noted findings felt most consistent with a small subligamentous
herniated nucleus pulposus at the level of C5-6 and no herniated nucleus pulposus noted on C6-7.
The progress notes from NYU Langone note that Plaintiff is limited by cervical spine
precautions, restricting participation in instrumental activities of daily living and meaningful roles
and activities but also notes Plaintiff is independent with activities of daily living and notes there
is no need for additional acute care of occupational therapy services.
Defendants also rely on medical records with progress notes by Dr. Joseph Dryer dated
March 2, 2022. Dr. Dryer examined Plaintiff as a follow-up after the anterior cervical fusion at
C5-6 and C6-7. Dr. Dryer reported that Plaintiff was pain-free for approximately three weeks
following the surgery, with the exception of "the usual incisional and postoperative pain," then
reported neck pain with intermittent left upper extremity radiculopathy. Dr. Dryer noted no
evidence of myelopathy and some settling of the C6-7 graft. Dr. Dryer noted he expected Plaintiffs
symptoms to resolve, and a reevaluation would be needed.
Defendants rely on Dr. Goldstein who reviewed relevant medical records and examination
of Plaintiff including the verified Bill of Particulars, office visits notes, consultation reports, and
surgical photographs. Dr. Goldstein reviewed the reports of Dr. Paul Choinski from examinations
of the Plaintiff on September 29, 2014, December 29, 2014, June 23, 2015, September 10, 2015,
April 19, 2016, October 31, 2016, June 19, 2017, April 30, 2018, August 16, 2018, and February
17, 2021. Dr. Goldstein reviewed the reports of Dr. Lawrence Buono who examined Plaintiff on
August 2, 2021, August 9, 2021, and August 23, 2021. On September 17, 2021, Plaintiff was
examined at Stony Brook Southampton Hospital and noted there was no ocular injury. Dr.
Goldstein noted that no mention of eye trauma was made and stated that to a reasonable degree of
medical certainty, there was no evidence of any injury related to the progression of Plaintiffs
glaucoma. Plaintiff was examined at SightMD on October 11, 2021, October 21, 2021, November
26, 2021, January 21, 2022, May 3, 2022, September 23, 2022, January 10, 2023, and April 19,
2023. Dr. Goldstein opines to a reasonable degree of medical certainty that there is no evidence
nor finding in his examination that there is injury related to the progression of Plaintiff's glaucoma.
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Defendants rely on the report by Dr. Marc Agulnick who examined Plaintiff on November
27, 2023. Using a goniometer and comparing Plaintiff's ranges to AMA Fifth Edition normal
references, Dr. Agulnick measured the range of motion of Plaintiff's lumbar spine and cervical
spine. Dr. Agulnick reported flexion of the cervical spine was 30 degrees with a normal of 50
degrees, with extension of 40 degrees with a normal of 60 degrees. Dr. Agulnick's diagnoses
included cervical degenerative disc disease, disc herniation at C5-6, cervical spine disc herniation
at C6-7 status post-ACDF of C5-6 and C6-7, and cervical sprain resolved. He also reported that
Plaintiff's reflexes were brisk in the upper and lower extremities bilaterally but symmetric. He
noted that Plaintiff had a left-sided Hoffmann's sign and no Babinski's sign, and the straight leg
raising signs were negative bilaterally. In his opinion, there were no signs of any true radiating
radiculopathies, and his neurologic findings were not severe or causing any true disability in
strength or function and there was no showing of imaging signs consistent with an acute disc
herniation. Dr. Marc Agulnick reported that Plaintiff's cervical spine, thoracic spine, lumbar spine,
and right knee injuries were all resolved and not caused by the accident on September 3, 2021. He
further opined that Plaintiff had returned to his physical job and that following surgery there was
no indication or reason to limit his work or put limitations on his work and his participation in all
activities performed prior to the reported injury, without restrictions. He also found that there was
no need for any further surgical intervention with no disability or permanent injury.
Finally, Defendants rely on the biomechanical report of Andrew J. Rentschler, PhD, who
opined that based on his analysis, the low impact of the subject accident could not have caused
Plaintiff's claimed injuries (Peart v Carreras, 227 AD3d 479 [1st Dept 2024]).
Defendants have met their 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
[1 st Dept 2006]) and shifted the burden to the opponent of the motion to establish, the existence of
genuine issues of material fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986].
In opposition, Plaintiff relied on Plaintiff's deposition testimony, the affirmation and
operative report by Dr. Joseph W. Dryer, the emergency room hospital records of Stony Brook
Hospital, and the medical records of Dr. Rasel Rana. Plaintiff also relied on the testimony of R.
Blandon, Plaintiff's employee, who testified that Plaintiff was not able to perform the physical
labor required for his job.
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Dr. Joseph Dryer, a board-certified Orthopedic surgeon affirmed that Plaintiff, RICARDO
RESTREPO was under his care on November 17, 2021. Dr. Dryer reviewed the Magnetic
Resonance Image (MRI) of Plaintiffs cervical spine and right shoulder obtained on June 8, 2006,
subsequent to a soccer incident in 2006. He noted multilevel disc degeneration but no acute trauma
or injury. He noted small central disc herniation at CS-6 without spinal cord compression which
was significantly larger with spinal cord compression in the MRI dated October 20, 2021. He also
noted acute myelomalacia at C5-6 and smaller disc herniation at C6-7 not present (pre-existing) in
the 2006 scans. Dr. Dryer noted the cervical range of motion was diminished in flexion and
extension, Hoffmann's sign was negative and the Baskinski sign was absent. Dr. Dryer specifically
addressed Dr. Agulnick's findings of degenerative disease opining that the Plaintiff developed
exacerbation of the pre-existing herniation as a result of the accident with an acute finding which
was not present in 2006 and was directly related to the accident of September 3, 2021.
Dr. Dryer diagnosed Plaintiff with cervical spinal cord compression and cervical
myelopathy which required cervical surgery. Dr. Dryer performed anterior bi-level cervical
discectomy and fusion at CS-6 and C6-7 with allograft and anterior instrumentation on December
21, 2021. Dr. Dryer saw Plaintiff post-operation and opined there was disc herniation present since
2006 but Plaintiff was asymptomatic and patient developed exacerbation of the pre-existing C5-6
disc herniation as a result of the September 3, 2021 accident with the presence of spinal cord
myelomalacia and signal change, an acute finding.
This affirmed operative report of the surgeon, Dr. Dryer who performed the discectomy
and examined the plaintiff constitutes objective medical evidence of serious injury
contemporaneous with the accident and is sufficient to defeat summary judgment (see Johnson v
Garcia, 82 AD3d 561 [1st Dept 2011]).
Dr. Dryer further opined that Plaintiff has a permanent cervical injury as a result of the
accident on September 3, 2021, he has permanent cervical limitations and is not capable of full
work responsibilities and the work restrictions are permanent.
Once a serious injury is established, Plaintiff can recover damages for all injuries that are
causally related to the accident without meeting the serious injury threshold (see Rubin v SMS Taxi
Corp., 71 AD3d 548 [151 Dept, 2010]). The opinion of Plaintiffs physician specifically addressed
the degeneration findings, opining that Defendants' injuries were causally related to the accident
and that they were previously asymptomatic, which is sufficient to raise an issue of fact as to
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causation, precluding summary judgment (see Johnson v Garcia, 82 AD3d 561 [1 st Dept, 2011),
see Duran v Kabir, 93 AD3d 566 [1 st Dept 2012]; Amaro v American Medical Response of New
York, Inc., 99 AD3d 563 [1 st Dept, 2012]).
With respect to the 90/180 days category of senous mJury, Dr. Dryer's reported
permanency of Plaintiff's injury and limitation is competent evidence that Plaintiff is still unable
to perform substantially all his normal activities and was not able to perform his activities for at
least 90 days of the first 180 days as a result of the accident. Plaintiff's testimony in his
examination before trial stated that he could do no physical work or lifting and could only talk to
his customers and order supplies and that he was out of the office for three months subsequent to
the surgery. Plaintiff's testimony as to his restrictions in conjunction with Dr. Dryer'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 Defendants DOREEN LEA YENS COSTA and HALEY
MARIE TOBIN for summary judgment on the grounds that Plaintiff's alleged injuries fail to
satisfy the serious injury threshold under Insurance Law 5102 (d) is denied; and it is further
ORDERED that within 30 days of entry, Plaintiff shall serve a copy of this Decision and
Order upon Defendants with Notice of Entry.
This constitutes the Decision and Order of the Court.
5/30/2025
DATE JAMES G. CLYNES, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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