Opinion
Index No. 33891/2018E
10-23-2023
GIORGIO M. BETANCES, Plaintiff. v. AMERICAN UNITED TRANSPORTATION INC, D. E. JIMENEZ-CASTANO, EJM LIMO CORP, ELVIS J. MONEGROBERVERE and CLAIRE M. NAYLOR, Defendants.
Unpublished Opinion
BEN R. BARBATO, J.S.C.
The following papers numbered 1 to__were read on this motion (Mot. Seq. No. 4) for SUMMARY JUDGMENT THRESHOLD submitted on July 5, 2023.
Notice of Motion-Affirmation and Exhibits
NYSCEF No(s). 77-86. 99
Notice of Cross-Motion - Affirmation and Exhibit
NYSCEF No(s). 87-97
Affirmation in Partial Opposition
NYSCEF No(s). 98
Affirmation in Opposition and Exhibits
NYSCEF No(s). 104-113
Affirmation in Reply
NYSCEF No(s). 114
Upon the foregoing papers, it is ordered that this motion by defendant CLAIRE M. NAYLOR ("Movant") seeking summary judgment and dismissing Plaintiff s complaint on the grounds that Plaintiff has not sustained a "serious injury" pursuant to the provisions of Insurance Law §§ 5102 (d) and 5102 (a), or alternatively, seeking an Order pursuant to CPLR 3126 striking the answer of defendants AMERICAN UNITED TRANSPORTATION INC. D. E. JIMENEZ-CASTANO ("Cross-Movants"; collectively "Defendants"), for failure to appear for depositions, and the cross-motion by Cross-Movants seeking summary judgment and dismissing Plaintiff s complaint on the grounds that Plaintiff has not sustained a "serious injury" pursuant to the provisions of Insurance Law 5102 (d) and 5102 (a), are GRANTED in part upon review of the moving papers together with opposition submitted thereto.
Plaintiff alleges that, as a result of a motor vehicle accident which occurred on July 30, 2017. Plaintiff sustained injuries to his cervical spine and right shoulder. Plaintiff alleges that be sustained a "serious injury" under the "significant disfigurement." "permanent loss of use." "permanent consequential limitation." "significant limitation of use." and "90/180-day" categories of injury as defined by Insurance Law § 5102 (d).
Serious Injury
In support of the motion. Movant and Cross-Movants submit, inter alia, counsel's affirmations in support; Plaintiff s bill of particulars; Plaintiffs deposition transcript; the affirmed orthopedic report of Pierce Ferriter. M.D.: and the affirmed radiological reports of Mark Decker. M.D.
Dr. Ferriter conducted an orthopedic evaluation of Plaintiff on December 23, 2019. finding normal range of motion in Plaintiff s cervical spine and a minor range of motion restriction upon a single plane of motion of the right shoulder, with negative orthopedic testing. Dr. Ferriter found that Plaintiffs claimed sprain/strains have resolved, there are no findings which would result in orthopedic limitation in use. and Plaintiff is capable of functional use of the examined body parts for normal activities of daily living and usual activities including regular work duties.
Dr. Decker reviewed Plaintiffs cervical spine MRI dated August 8, 2017. which revealed broad bulges at C3-C4. C4-C5. C5-C6. and C6-C7. Dr. Decker opines that there is no evidence to suggest that Plaintiff sustained a traumatic injury to his cervical spine. Dr. Decker also reviewed Plaintiffs right shoulder MRI dated August 8, 2017. which revealed, inter alia. AC joint hypertrophy as well as infraspinatus and supraspinatus tendinopathy. which Dr. Decker opines is longstanding and not causally related to the subject accident.
Defendants' submission of Dr. Ferriter's report establishes prima facie that Plaintiff did not sustain a "significant" or "permanent consequential limitation" of his cervical spine or right shoulder (Velazquez v City of New York. 200 A.D.3d 547. 548 [1st Dept 2021]). Further. Dr. Ferriter's finding of a minor limitation in Plaintiff s right shoulder is insufficient to defeat Defendants' initial showing (see Bianchi v Mason. 179 A.D.3d 567 [1st Dept 2020]; Alverio v Martinez. 160 A.D.3d 454 [1st Dept 2018]; Mendoza v L. Two Go,. Inc., 171 A.D.3d 462 11 st Dept 2019]; Rose v Tall. 149 A.D.3d 554 [1st Dept 2017]). Contrary to Plaintiffs contention. Dr. Ferriter was not required to review Plaintiff s medical records, since he detailed the specific tests used in his personal examination with Plaintiff (see Brand v Engelista, 103 A.D.3d 539 [1st Dept 2013]).
Defendants' submission of Dr. Decker's reports establishes, prima facie, that any injury to Plaintiffs cervical spine and right shoulder was not caused by the accident, shifting the burden of proof on the issue of causation as to this body part (see Feliz v Fragosa, 85 A.D.3d 417 [1st Dept 2011]). Defendants also submit Plaintiff s deposition transcript, wherein Plaintiff admitted that he ceased medical treatment for his claimed injuries in 2018 (Giorgio M. Betances deposition tr at 61-62). which shifts the burden to Plaintiff to explain his cessation of treatment (.see Pommells v Perez. 4 N.Y.3d 566. 574 [2005]: Ortiz v Boamah, 169 A.D.3d 486, 488 [1st Dept 2019]).
In opposition. Plaintiff submits, inter alia, counsel's affirmation; a police accident report; Plaintiff s bill of particulars; the reports and affidavit of Michael Minick, D.C.; MRI reports; Plaintiffs deposition transcript; and the report of Alexandra Grigorian. D.O.
Dr. Minick initially evaluated Plaintiff on August 1, 2017, two days after the accident. Dr. Minick's report indicates that range of motion testing was performed on July 17. 2018. which revealed range of motion restrictions of the cervical spine upon flexion to 44 degrees (50 degrees normal). extension to 50 degrees (60 degrees normal), left lateral flexion to 34 degrees (45 degrees normal), right lateral flexion to 35 degrees (45 degrees normal), left rotation to 60 degrees (80 degrees normal), right rotation to 62 degrees (80 degrees normal), which Dr. Minick causally relates to the subject accident. Dr. Minick evaluated Plaintiff again on January' 6. 2023, at which time range of motion restrictions of the cervical spine were again observed.
Dr. Grigorian evaluated Plaintiff on April 12, 2023. at which time range of motion testing revealed significant range of motion loss in the cervical spine upon flexion to 40 degrees (50 degrees normal), extension to 45 degrees (60 degrees normal), left lateral bending to 30 degrees (45 degrees normal), and right lateral bending to 30 degrees (45 degrees normal). Minor range of motion restrictions were also measured in the right shoulder (.see Bianchi v Mason. 179 A.D.3d 567 [1st Dept 2020]). Dr. Grigorian notes that Plaintiff complained of "flare ups of neck and right shoulder pain lasting several weeks about 3-4 times a year," and causally relates Plaintiffs injuries to the subject accident.
As an initial matter, neither Plaintiff nor his doctors offer any explanation for Plaintiff s cessation of treatment in 2018. which interrupts the chain of causation and renders findings of permanency speculative (see generally Bianchi. 179 A.D.3d 567; Blake v Cadet. 175 A.D.3d 1199. 1200 [1st Dept 2019]; Holmes. 123 A.D.3d 628. 629). Notwithstanding the foregoing, this does not preclude recovery under the "significant limitation of use" category (Bianchi. 179 A.D.3d 567: Blake. A.D.3d 1199. 1200: Holmes. 123 A.D.3d 628. 629).
With respect to the right shoulder, while Plaintiff s physicians raise an issue of fact as to causation. Plaintiff s only evidence of documented limitations was upon Dr. Grigorian's examination on April 12. 2023. nearly six years after the subject accident. Furthermore, range of motion testing at this time revealed only minor limitations, which is insufficient to raise an issue of fact as to whether Plaintiff sustained a "significant limitation of use" of his right shoulder (see Bianchi. 179 A.D.3d 567; Alverio r Martinez. 160 A.D.3d 454 [1st Dept 2018]; Haniff v Khan. 101 A.D.3d 643 [1st Dept 2012]).
With respect to the cervical spine. Plaintiff has raised an issue of fact as to whether he sustained a "significant limitation of use" by submitting his radiologist's affirmed MRI report, which found bulging discs at C3-C4 and C6-C7. and his treating doctor's reports finding significant limitations in range of motion of the cervical spine and opining that these limitations were causally related to the accident (see generally Perez-Vargas v Aarron. 187 A.D.3d 485 [1st Dept 2020]; Bianchi. 179 A.D.3d 567. 568).
With respect to Plaintiff s claim under the "90/180-day" category of injury, this claim must be dismissed. Plaintiff s bill of particulars does not allege that he was disabled for the minimum duration necessary to state such a claim (see Tejada v LKO Hunts Point Parts. 166 A.D.3d 436. 437-438 ; Abreu v NYLL Mgt. Ltd., 107 A.D.3d 512. 513 [1st Dept 2013]; Arenas v Guaman. 98 A.D.3d 46111st Dept 2012]). Further. Plaintiff testified that he was never confined to his bed (Giorgio M. Betances deposition tr at 15). he was confined to his home for one day after the accident (id.) and missed less than one week of work after the incident (id. at 17). which is fatal to his "90/180-day" injury claim (see Rivera v Lopez-Reyes. 203 A.D.3d 554 [1st Dept 2022]).
With respect to Plaintiff s claim of a "permanent loss of use." there is no evidence that Plaintiff suffered a "total loss of use" of any body part. Therefore. Plaintiff s claims under the "permanent loss of use" category are dismissed (see Riollano v. Leavey, 173 A.D.3d 494 [1st Dept 2019]. citing Oberly v Bangs Ambulance, 96 N.Y.2d 295. 299 [2001]). Similarly, as there is no evidence supporting a claim under the "significant disfigurement" category of injury (see Fernandez v Hernandez, 151 A.D.3d 581 [1st Dept 2017]). this claim is dismissed.
Striking the Answer
Any motion relating to disclosure must include "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion" (22 NYCRR § 202.7 [12]). The good faith requirement applies by its terms to any discovery-related application. Such affirmation must provide a substantive description of the efforts undertaken to confer and avoid motion practice (see 241 Fifth Ave. Hotel. LLC v GSY Corp., 110 A.D.3d 470 [1st Dept 2013]). Failure to do so is, standing alone, sufficient ground to deny the motion (see Jackson v Hunter Roberts Constr. Grp., L.L.C., 139 A.D.3d 429 [1st Dept 2016]: Perez De Sanchez v Trevz Trucking LLC, 124 A.D.3d 527 11st Dept 2015]).
Further, effective February 1. 2021.22 NYCRR § 202.20-f imposed the additional mandate that where a discovery dispute cannot be resolved without motion practice." any motion "shall be supported by an affidavit or affirmation from counsel attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and lime of such conference, persons participating, and the length of time of the conference" (22 NYCRR § 202.20-f [b]).
Here. Movants' submission fails to contain an affirmation of good faith as required by 22 NYCRR § 202.27. warranting denial of the motion (Jackson. 139 A.D.3d 429). Furthermore. Movants' affirmation fails to demonstrate compliance with the requirement that in-person or telephonic conferences took place prior to filing the motion as required by 22 NYCRR § 202.20-f (b). Therefore, this branch of Movants' motion is denied.
ACCORDINGLY
The branches of the motion and cross-motion by Defendants seeking an Order granting summary judgment and dismissing Plaintiffs complaint on the grounds that Plaintiff has not sustained a "serious injury'' as defined by Insurance Law § 5102 (d) are GRANTED to the extent that Plaintiff s claims relating to his right shoulder and claims under the "significant disfigurement." "permanent loss of use." "permanent consequential limitation." and "90/180-day" categories of injury are dismissed, and the motion and cross-motion are otherwise DENIED.
This decision constitutes the Order of the Court.