Opinion
Index No. 505200/2020 Mot. Seq. Nos. 2&3
04-25-2024
YANIRA GARCIA, SONIA GARCIA and WILBER B. MARTINEZ, Plaintiffs, v. KALU UDENSI and BC LEASING CORP, Defendants.
Unpublished Opinion
At IAS Part 99 of the Supreme Court of the State of New York, held in and for the Count}' of Kings, at the Courthouse located at 360 Adams Street, Brooklyn, NY 11201, on the 25 day of April 2024.
Motion Date: 1/17/2024
DECISION AND ORDER
MONTELIONE, RICHARD J., J.
After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):
Papers
N Y SCEF DOC.#
Plaintiffs' Motion pursuant to CPLR §5015(a), vacating the June 14, 2023, Decision and Order of the Hon. Richard J. Montelione, J.S.C, which granted defendants, KALU UDENSI and BC LEASING CORP.'S (hereinafter "Defendants"), motion for summary judgment pursuant to the "serious injury" threshold as codified by New York State Insurance Law §5102(d); upon granting Plaintiffs' motion to vacate, denying Defendants' prior motion for summary judgment in its entirety; etc.; Attorney Affirmation of Patrick J. McGrath, affirmed on July 26, 2023; Exhibit A, Certified Police Report; Exhibit B, Decision and Order of the Court........................................................................
57-60
Defendants' Attorney Affirmation of Michael Lachman, affirmed on September 26, 2022...
61
Defendants' Notice of Motion and Supporting Papers.............................................
31 -42,48
Plaintiffs Attorney Affirmation in Opposition and Supporting Papers...........................
49-55
This action involves alleged personal injuries suffered because of a motor vehicle action which occurred on August 10, 2019, and was commenced by filing the summons and complaint on March 2, 2020. Issue was joined by service of an answer on June 3, 2020. By order dated May 26, 2022, the court ordered a joint trial of the matters under index #505200/2020 and #522145/2021. The defendants by motion sequence #2 moved for summary judgment on the basis that plaintiff cannot prove a serious injury which meets the threshold requirements mandated by Insurance Law § 5102(a). The defendants' motion for summary judgment (MS#2) was adjourned as follows:
Date
Rescheduled
Reason
Outcome
12/19/2022
2/27/23
Adjourned
2/27/2023
3/22/2023
Administratively rescheduled
3/22/2023
5/3/2023
Adjourned
FINAL
5/3/2023
6/14/2023
Adjourned
FINAL FINAL ****APPL ON RECORD LAST adj****
6/14/2023
Granted
The Plaintiffs seek vacatur of the court's order dated June 14, 2023 (NYSCEF Doc. #56) pursuant to CPLR 5015(a) and in the interest of justice. The court's order dated June 14, 2023 reflects the following:
For reasons placed on the record, defendants' motion for summary judgment on the issue of threshold is granted, (MS#2). Plaintiff was directed to file opposition papers one week prior and failed to do so or offer a satisfactory explanation for their failure to timely submit opposition. Plaintiff is granted leave to move to vacate this order upon good cause.
Plaintiffs did not attach a transcript of the proceedings or the court's rationale within the transcript to its moving papers. Plaintiffs argue, "[i]t is respectfully requested that the court overlooked certain facts surrounding this matter in granting defendants' motion" and "[specifically, it is alleged that plaintiffs have an excusable default herein." (NYSCEF Doc. #58, Aff. ¶ 8). The plaintiffs argue that counsel's medical condition caused the delay in timely providing opposition papers to defendants' motion for summary judgment. The defendants argue that the motion is untimely, but there is no notice of entry that was ever served and filed which triggers the limitations of a motion to reargue or to vacate a default and therefore the motion is timely. See State of New York Mtge. Agency v Braun, 182 A.D.3d 63, 70, 119 N.Y.S.3d 522, 529, 2020 NY Slip Op 01107, 2020 WL 717958 [2d Dept 2020], see e.g. CPLR 222l[d][3], "(A) motion for leave to reargue: ... shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." The court accepts "good cause" for the plaintiffs' default, and in the interest of justice, will vacate the plaintiffs' default. The court now turns to consideration of defendants' underlying motion for summary judgment and supporting papers, and plaintiffs' opposition to the motion.
The court will entertain an ex parte application whereby the plaintiffs' counsel's attorney affirmation (NYSCEF Doc. # 58) is sealed, due to privacy issues, to the general public but otherwise accessible to the parties.
(d) "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or
system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
"[A] defendant can establish that a plaintiffs injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Grossman v. Wright, 268 A.D.2d 79 [1st Dept.2000]). The court finds that the defendant has met their initial burden of proof of showing that the defendant did not suffer a serious injury under the Insurance Law given that all range of motions, measured with a goniometer, are within normal limits, orthopedic issues resolved, and other conditions are the result of degeneration. (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). Once defendant meets its prima facie burden, the burden shifts to the plaintiff to show there is an issue of fact requiring a trial. Ibid.
A plaintiff fails to "raise a triable issue on causation" when she fails to "refute or address the findings of preexisting degeneration in plaintiffs own medical records, or explain how the accident, rather than preexisting conditions, was the cause of the alleged spinal injuries (Andrade, 160 A.D.3d at 536; Lee v Lippman, 136 A.D.3d 411, 412 [1st Dept 2016])", see Diakite v PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588, 2019 NY Slip Op 04875, 1, 2019 WL 2504644 [1st Dept 2019], Plaintiff Yanira Garcia
Regarding Yanira Garcia, defendant's physician Dr. Jeffrey Guttman performed an orthopedic examination and registered range of motion measurements with the aid of a standard handheld goniometer, showing cervical spine flexion to 50 degrees (50 degrees normal), extension to 50 degrees (60 degrees normal-17% reduction), right and left rotation to 70 degrees (80 degrees normal-12.5% reduction) and right and left lateral flexion to 40 degrees (45 degrees normal-11% reduction), with pain. The lumbosacral spine showed flexion to 80 degrees (90 degrees normal-11 % reduction), extension to 20 degrees (25 degrees normal-20% reduction), and right and left rotation to 25 degrees (25 degrees normal), with pain.
Plaintiff Sonia Garcia
Regarding Sonia Garcia, defendant's physician Dr. Jeffrey Guttman performed an orthopedic examination and registered range of motion measurements with the aid of a standard handheld goniometer, showing cervical spine range of motion reveals flexion to 50 degrees (50 degrees normal), extension to 60 degrees (60 degrees normal), right and left rotation to 80 degrees (80 degrees normal), and right and left lateral flexion to 40 degrees (45 degrees normal-11% reduction), with no pain. The lumbosacral spine showed flexion to 90 degrees (90 degrees normal), extension to 25 degrees (25 degrees normal), and right and left rotation to 25 degrees (25 degrees normal), with mild pain. Right Knee: "Examination of the right knee revealed healed arthroscopic portals and a neutral alignment. There is no effusion. There is no tenderness reported. Range of motion is flexion to 130 degrees (150 degrees normal) and extension to 0 degrees (0 degrees normal), without pain. Muscle strength is 5/5. There are no signs of instability. There is no atrophy. - Lachman's test - negative - Anterior Drawer test - negative - Valgus/Varus - negative Patellar apprehension test - negative Patellar Grind test - negative J-Sign - negative - McMurray test - negative"
An MRI performed by Audrey Esenstadt, M.D.. showed "Disc bulging has no traumatic etiology. The chronicity of the disc bulging is evident by the associated uncinate/facet joint hypertrophy seen on the right at the C4-5 and C5-6 levels and on the left at the C6-7 level. These are bony productive changes of posterior articulating joints well over six months in origin and a response to the long-standing asymmetric disc bulging seen at these levels." "The degenerative changes seen could not have occurred in the five-week interval between the examination and the incident."
In regard to the right knee, the report of Dr. Jeffrey Neil Guttman, who used a goniometer, indicates (NYSCEF Doc. #40):
Right Knee: Examination of the right knee revealed healed arthroscopic portals and a neutral alignment. There is no effusion. There is no tenderness reported. Range of motion is flexion to 130 degrees (150 degrees normal) and extension to 0 degrees (0 degrees normal), without pain. Muscle strength is 5/5. There are no signs of instability. There is no atrophy.
• Lachman's test - negative
• Anterior Drawer test - negative
• Valgus/Varus - negative
• Patellar apprehension test - negative
• Patellar Grind test - negative
• J-Sign - negative
• McMurray test - negative
IMPRESSION: • Alleged cervical spine sprain, resolved Alleged lumbar spine, sprain, resolved • Alleged right knee arthroscopy healed.
The EBT of Yanira Garcia, T. 11:19-21 (NYSCEF Doc. #39) and Sonia Garcia, T. 26:6-12 (NYSCEF Doc. #42), indicates no time from work was missed because of the accident.
The defendants have met their prima facie burden of showing that plaintiffs' Yanira Garcia and Sonia Garcia have not suffered a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d). See Alford v Morency, 225 A.D.3d 828, 2024 NY Slip Op 01694, 2024 WL 1290436 [2d Dept 2024], See also Zanni v Knutson, 211 A.D.3d 994, 995, 181 N.Y.S.3d 588, 589, 2022 NY Slip Op 07261, 2022 WL 17824662 [2d Dept 2022]. The burden shifts and the plaintiffs must raise an issue of fact to defeat defendants' motion for summary judgment. See Smith v Giuffre, 208 A.D.3d 609, 173 N.Y.S.3d 584, 2022 NY Slip Op 04926, 2022 WL 3221694 [2d Dept 2022], In opposition, the plaintiffs offer the physician affirmation of William B. Jones, M.D., F.A.B.P.M., F.A.A.P.M.R., an orthopedic surgeon, who indicates that he examined plaintiff Yanira Garcia and found limited range of motion but there is no indication of the objective medical evidence (or device) used to conduct the measurements and the court cannot consider these allegations. See Kreimerman v Stunis, 74 A.D.3d 753, 902 N.Y.S.2d 180, 2010 NY Slip Op 04748, 2010 WL 2218581 [2d Dept 2010]. Degeneration is not addressed. The court notes that the MRI reports are not in admissible form and cannot be considered in opposition. Ibid.
The plaintiffs also offer the physician affirmation of Maxim Tyorkin, M.D., F.A.A.O.S. Dr. Tyorkin who performed right knee surgery for Sonia Garcia on March 17, 2020, but there are no range of motion findings.
The plaintiffs Yanira Garcia and Sonia Garcia have failed to raise an issue of fact and the complaint involving these two defendants must be dismissed. See Kreimerman v Stunis, 74 A.D.3d 753, 902 N.Y.S.2d 180, 2010 NY Slip Op 04748, 2010 WL 2218581 [2d Dept 2010], Based on the foregoing, it is
ORDERED that plaintiffs' motion is GRANTED (MS-3) to the extent that their default is vacated and the court's order dated June 14, 2024 and entered on June 23, 2024 is VACATED; and it is further
ORDERED that upon consideration of the underlying motion for summary judgment on the merits, the defendants' motion is GRANTED and the complaint of Yanira Garcia and Sonia Garcia (MS#2) is DISMISSED; and it is further
ORDERED that any other request for relief is DENIED.
This constitutes the decision and order of the Court.