Opinion
5214/14
07-26-2017
Saleh MOZEB and Hanna Mozeb, Plaintiffs, v. Rafiqul ISLAM and Zero Nine Transportation, Inc., Defendants.
Attorneys for plaintiffs: DeToffol & Associates, 30 Broad St, 35th Floor, New York, NY 1004, 212–962–2220 Attorneys for defendants: Baker, McEvoy, Morrissey & Moskovits, P.C., 1 MetroTech Center, Brooklyn, NY 11201, 212–857–8230 Attorney for Saleh Mozeb, defendant on the counter-claim: Adams Hanson Rego & Kaplan, 1 Executive Blvd Ste 280, Yonkers, NY 10701 (914) 233–1880
Attorneys for plaintiffs: DeToffol & Associates, 30 Broad St, 35th Floor, New York, NY 1004, 212–962–2220
Attorneys for defendants: Baker, McEvoy, Morrissey & Moskovits, P.C., 1 MetroTech Center, Brooklyn, NY 11201, 212–857–8230
Attorney for Saleh Mozeb, defendant on the counter-claim: Adams Hanson Rego & Kaplan, 1 Executive Blvd Ste 280, Yonkers, NY 10701 (914) 233–1880
Paul Wooten, J.
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits 1, 2, 3, 4
Answering Affidavits—Exhibits (Memo) 5, 6, 7, 8
Replying Affidavits (Reply Memo) 9, 10
Motion sequence numbers 2, 3, 4 and 5 are hereby consolidated for disposition.
This personal injury action arises from a motor vehicle accident that occurred on September 17, 2013 on East 8th Street at or near its intersection with Beverly Road in Kings County, New York. Saleh Mozeb (Saleh) and Hanna Mozeb (Hanna) (collectively, plaintiffs) allege that on the date of the accident Saleh was operating his vehicle Northbound on East 8th Street, with Hanna sitting in the front passenger seat, when the vehicle owned by Zero Nine Transportation (Zero Nine) and operated by Rafiqul Islam (Rafiqul) (collectively, defendants) struck the front passenger side of his plaintiffs' vehicle. Plaintiffs commenced this action via Summons and Verified Complaint on March 31, 2014 for injuries allegedly sustained during the accident. Defendants joined issue on July 1, 2014 by interposing a Verified Answer with counter-claim. Before the Court is a motion by defendants for summary judgment, pursuant to CPLR 3212, dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 2). Plaintiffs are in opposition to this motion. Defendants submit a reply. Also before the Court is a motion by Saleh, the defendant on the counterclaim, for an Order: (1) pursuant to 22 NYCRR § 202.21(3) vacating the Note of Issue and Certificate of Readiness filed on December 30, 2015; and (2) pursuant to CPLR 3124 and 3126 directing co-plaintiff Hanna to comply with all outstanding discovery; or in the alternative, preclude Hanna from offering any evidence at trial (motion sequence 3). Hanna is in opposition to this motion. Defendants are in partial opposition to the motion. Also before the Court is a cross-motion by plaintiffs for an Order: (a) striking defendants' Answer for failure to appear at Court Ordered Depositions; or in the alternative, (b) precluding defendants from offering their witness testimony at the time of trial; and (c) granting summary judgment in plaintiffs' favor against defendants on the issue of liability (motion sequence 4). Defendants are in opposition to the cross-motion. Lastly, Saleh also cross-moves for an Order: (1) granting summary judgment in his favor on the issue of liability against the defendants; and (2) dismissing the counterclaim against him for defendants' failure to appear at their Court Ordered depositions (motion sequence 5).
DISCUSSION
A. Motion Sequence 2
SERIOUS INJURY THRESHOLD
"A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102(d) (see Licari v. Elliott , 57 NY2d 230 [1982] ). Insurance Law § 5102(d) defines "serious injury" as:
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 loss]; permanent consequential limitation of use of a body organ or member [permanent consequential limitation]; significant limitation of use of a body function or system [significant limitation]; or a medically determined injury or impairment of a non-permanent 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 [90/180].
The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories. "Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case ( Licari , 57 NY2d at 235 ; Insurance Law § 5104[a] ). The serious injury requirement is in accord with the legislative intent underlying the No–Fault Law, which was enacted to " ‘weed out frivolous claims and limit recovery to significant injuries’ " ( Toure v. Avis Rent A Car Sys., Inc. , 98 NY2d 345, 350 [2002], quoting Dufel v. Green , 84 NY2d 795, 798 [1995] ). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries ( id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id. ).
BURDEN OF PROOF
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari , 57 NY2d at 237 ). Where a defendant is the movant, the defendant, bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102(d) (see Toure , 98 NY2d at 352 ; Gaddy v. Eyler , 79 NY2d 955, 956–57 [1992] ). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v. Palmieri , 1 NY3d 536, 537 [2003] ; Rubensccastro v. Alfaro , 29 AD3d 436, 437 [1st Dept 2006] ).
"In cases such as the present one, a defendant can establish that the plaintiff's 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 plaintiff's claim" ( Grossman v. Wright , 268 AD2d 79, 83–84 [2d Dept 2000] ). "This established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" (id. ; see Gaddy v. Eyler , 79 NY2d 955 [1992] ). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at 84 ). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id. ; Kauderer v. Penta , 261 AD2d 365 [2d Dept 1999] ).
The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari , 57 NY2d at 236 ). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id. ).
Here, the complete record before the Court indicates that there are conflicting medical reports submitted by the parties which raise triable issues of fact as to whether plaintiffs sustained serious injuries within the meaning of Insurance Law § 5102(d) (see Pommells v. Perez , 4 NY3d 566, 576 [2005] ; see also Wilcoxen v. Palladino , 122 AD3d 727, 728 [2d Dept 2014] [finding that "in light of the conflict expert medical opinions submitted by the parties, the Supreme Court properly denied the defendants' motion for summary judgement dismissing the complain..."]; Garcia v. Long Island MTA , 2 AD3d 675, 675 [2d Dept 2013] ). In support of their motion to dismiss on the issue of serious injury, defendants submit, inter alia , uncertified emergency room discharge records from Maimonides Medical Center, an affirmed orthopedic report from Dr. J. Serge Parisien, M.D., dated May 14, 2015, an affirmed neurological report from Dr. Jean–Robert Desrouleaux dated May 14, 2015 and an independent psychological evaluation from Dr. Samuel J. Rock, PhD, dated May 14, 2015 as it relates to both Saleh and Hanna. In his affirmed reports Dr. Parisien objectively concluded that range of motion to plaintiffs' shoulders and lumbar spine were normal. With respect to Saleh, Dr. Parisien concluded that "alleged injury to the cervical, thoracic and lumbar spine, resolved; alleged injury to the bilateral shoulders, resolved; alleged injury to the left knee resolved" (see Defendants exhibit H). With respect to Hanna, Dr. Parisien objectively concluded that "alleged injury to the cervical, thoracic and lumbar spine, resolved; alleged injury to bilateral shoulders, resolved; alleged injury to the right ankle resolved" (id. at Exhibit I). Moreover, Dr. Desrouleaux's report objectively found that Saleh did not suffer range of motion limitation to his neck and objectively concluded that "alleged injury to the cervical, thoracic and lumbar spine, resolved" and that the "claimant is able to function in his pre-accident capacity and carry out his work duties and day-to-day activities without neurological restriction" (Defendants' exhibit J). Dr. Desrouleaux also concluded that Hanna's "alleged headaches, resolved; alleged injury to the cervical, thoracic and lumbar spine, resolved" and that Hanna "is able to function in her pre-accident capacity and carry out work duties and day-to-day activities without neurological restrictions" (id. at exhibit K).
In opposition however, plaintiffs submit the affirmed medical report from David H. Delman, M.D. (Dr. Delman's report) September dated 16, 2015, wherein Dr. Delman objectively concluded that Saleh suffered "loss of cervical spine flexion of 20%, cervical extension of 67%, cervical rotation to the right of 44%, cervical rotation to the left of 38%, lumbar flexion o 72%, lumbar extension of 100%, lumbar bending to the right of 75%, lumbar bending to the left of 100% ..." (Plaintiff's exhibit G, at 2). Dr. Delman further noted that "based upon the permanent loss, my prognosis for any full recovery of the cervical spine, lumbar spine, and left knee remains extremely poor" (id. at 3). With respect to Hanna's cervical spine, Dr. Delman concluded that "range of motion in flexion is 40 degrees, normal is 50 degrees (20% loss); extension is 45 degrees, normal 60 degrees (25% loss) rotation to the right is 65 degrees, normal 80 degrees (19% loss) ..." (plaintiff's exhibit K at 2). With respect to Hanna's lumbar spine, Dr. Delman concluded that "range of motion in flexion is 60 degrees, normal 90 degrees (33% loss) ... lateral bending to the right is 20 degrees, normal 40 degrees (50% loss); bending to the left is 20 %, normal is 40 degrees (50 % loss)" (id. ). Dr. Delman further concluded that "there is a causal relationship between the patient's motor vehicle accident that occurred on September 13, 2013 and her above complaints, injuries, and disabilities" (id. at 3). Therefore, given the conflicting expert opinions, the Court finds that it cannot grant defendants' motion for summary judgment on the issue of serious injury.
B. Motion Sequence 3
Saleh argues that the Note of Issue should be vacated as co-plaintiff Hanna has failed to provide all treating health care provider information and authorizations to obtain her medical records. Additionally, Saleh argues that neither defendants have appeared for depositions, thus, discovery is not yet completed. In opposition, Hanna attaches copies of medical authorizations sent to Saleh's attorney. In partial opposition, defendants argue that Saleh's motion should be denied as untimely as the motion was filed two days after the 20 day deadline set forth in 22 NYCRR § 202.21(e). Notwithstanding that Saleh's motion was in fact two days late, the Court, on its own motion, finds that the Note of Issue and Certificate of Readiness dated December 30, 2015 must be vacated since the case is not ready to proceed to trial. Specifically, the instant Note of Issue gave the impression that discovery was completed when it is not (see generally Tirado v. Miller , 75 AD3d 153, 156 [2d Dept 2010] ["The purpose of a note of issue and certificate of readiness is to assure that cases which appear on the court's trial calendar are, in fact, ready for trial"; see also 22 NYRR202.21[e]; Levy v. Schaefer , 160 AD2d 1182, 1183 [3d Dept 1990] ["Supreme Court properly vacated the note of issue on its own motion because the instant note of issue incorrectly gave the impression that discovery was completed when it was not ( 22 NYCRR 202.21 [e]"). However, to the extent that Hanna has represented to this Court that she has already provided Saleh with the requested authorizations for her medical records, that branch of Saleh's motion is denied as moot.
C. Motion Sequence 4
"A court may strike a pleading as a sanction if a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" ( Tos v. Jackson Hgts. Care Ctr., LLC , 91 AD3d 943 [2d Dept 2012] [internal quotation marks omitted]; see CPLR 3126 ; Carabello v. Luna , 49 AD3d 679 [2d Dept 2008] ). "To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct" (id. , quoting Maignan v. Nahar , 37 AD3d 557, 557 [2d Dept 2007] ; see Bates v. Baez , 299 AD2d 382 [2d Dept 2002] ; Espinal v. City of New York , 264 AD2d 806 [2d Dept 1999] ; Moray v. City of Yonkers , 76 AD3d 618 [2d Dept 2010] ; Riccuiti v. Consumer Prod. Servs., LLC , 71 AD3d 754, 755 [2d Dept 2010] ["Although actions should be resolved on the merits whenever possible, where the conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted"] ). "The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures" ( Tos , 91 AD3d at 944 ; Espinal , 264 AD2d at 806 ; Maignan , 37 AD3d at 557 ). It is well settled that the determination whether or not to strike a pleading lies within the sound discretion of the trial court (see Bates , 299 AD2d at 382 ; CPLR 3126 ; Pirro Group, LLC v. One Point St., Inc. , 71 AD3d 654, 655 [2d Dept 2010] ).
In light of the strong public policy which favors the resolution of actions on the merits (see Singer v. Riskin , 137 AD3d 999, 1001 [2d Dept 2016] ["Public policy strongly favors the resolution of actions on the merits whenever possible"] [internal quotation marks omitted]; Krause v. Lobacz , 131 AD3d 1128 [2d Dept 2015] ; Brice v. City of New York , 139 AD3d 888 [2d Dept 2016] ; Adzer v. Rudin Mgt. Co. , 50 AD3d 1070 [2d Dept 2008] ), the Court declines to strike defendants' Answer at this point in time. However, the Court grants the portion of plaintiffs' motion, pursuant to CPLR 3124, compelling defendants to appear for depositions within 60 days of the entry of this Order. Failure to do so, shall result in an Order striking defendants' Answer (see CPLR 3126 ; Pugliese v. Mondello , 67 AD3d 880, 881 [2d Dept 2009] ["The Supreme Court providently exercised its discretion in granting a conditional order striking the answer unless the defendant furnished the plaintiff with certain documents by a date certain"] ).
The Court now turns to the portion of plaintiffs' motion on the issue of liability. "There can be more than one proximate cause of an accident" ( Jones v. Vialva–Duke , 106 AD3d 1052, 1052 [2d Dept 2013], quoting Cox v. Nunez , 23 AD3d 427, 428 [2d Dept 2005] ). To prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault" ( Derieux v. Apollo NY City Ambulette, Inc. , 131 AD3d 504, 504–505 [2d Dept 2015] ; Zhu v. Natale , 131 AD3d 607, 608 [2d Dept 2015] ). "Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault" (id. ; see Lu Yuan Yang v. Howsal Cab Corp. , 106 AD3d 1055 [2d Dept 2012] ). A driver who enters an intersection against a red light in violation of Vehicle and Traffic Law § 1111(d) is negligent as a matter of law (see McCourt v. Wasilewski , 122 AD3d 693, 694 [2d Dept 2014] ).
In support of their motion, plaintiffs submit Saleh's EBT testimony wherein he testified that on the date of the accident, he was driving his vehicle on East 8th North Street with his daughter, Hanna, seated in the front seat (see Notice of Cross-motion [MS 4], Saleh Tr. at 20). Saleh stated that as he approached the intersection of East 8th Street and Beverley Road, the traffic light governing his direction of travel was green and remained green when his vehicle was struck (id. at 23). Saleh averred that he did not hear honking prior to the accident and saw defendants only seconds before the impact (id. at 27). Similarly, plaintiffs submit Hanna's EBT transcript wherein she testified that on the date of the accident, she was a passenger in her father's vehicle. Hanna testified that prior to the accident, the light at the intersection of East 8th Street and Beverly Road was in their favor (id. Hanna Tr. At 10). Hanna stated that she observed defendants' vehicle coming very fast (id. at 12) but did not hear honking horns or screeching brakes before the impact (id. at 13). The Court finds plaintiffs' evidentiary submission sufficient to establish that Saleh's vehicle entered the intersection while he had a green light in his favor. The Court finds that the evidence establishes that neither Saleh nor Hanna heard screeching tires or honking horn and had only seconds to react to avoid the accident. As such, the Court finds that plaintiffs Saleh and Hanna's' motion on the issue of liability must be granted.
The Court finds defendants' opposition insufficient to raise triable issues of fact. Notably, defendants fail to submit evidence in admissible form, like the affidavit of Rafiqul, to describe the circumstances of the accident, but rather rely upon an affirmation of counsel and an uncertified copy of the MV–104 police accident report. However, defendants' counsel lacks personal knowledge of the facts, and "[s]uch an affirmation by counsel is without evidentiary value and thus unavailing" ( Zuckerman v. City of New York , 49 NY2d 557, 563 [1980] ; see Warrington v. Ryder Truck Rental , Inc. , 35 AD3d 455, 456 [2d Dept 2006] ["An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance"]; Gomes v. Revere Sugar Corp. , 140 AD2d 582 [2d Dept 1988] ). "The party opposing the motion ... must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests" ( Gilbert Frank Corp. v. Federal Ins. Co. , 70 NY2d 966 [1988] ). Similarly, the uncertified police report is inadmissible hearsay and thus unavailing (see Nationwide General Ins. Co. v. Bates , 130 AD3d 795 [2d Dept 2015] ). Therefore, the Court finds that plaintiffs' motion on the issue of liability must be granted.
D. Motion Sequence 5
To the extent that the Court has granted plaintiffs' motion for liability in motion sequence 4, the Court finds that the branch of Saleh's motion seeking liability in his favor is denied as moot. Moreover, to the extent that the Court has already declined to strike defendants' Answer for their failure to appear for their Court ordered depositions, the Court finds that the portion of Saleh's motion seeking to dismiss the counterclaim on similar grounds is denied as moot and academic.
CONCLUSION
Accordingly it is hereby,
ORDERED that defendants' motion for summary judgment on the issue of serious injury [MS 2] is denied in its entirety; and it is further,
ORDERED that the portion of Saleh's motion to vacate the Note of Issue filed on December 30, 2015 [MS 3] is granted and the Note of Issue is hereby vacated; and it is further,
ORDERED that the portion of Saleh's motion for an Order directing co-plaintiff, Hanna, to provide all outstanding discovery, or in the alternative, preclude Hanna from offering any evidence at trial is denied as moot; and it is further,
ORDERED that the portion of the motion by plaintiffs for an Order pursuant to CPLR 3126 striking defendants Rafiqul and Zero Nine's Verified Answer with counter-claim dated July 1, 2014 [MS 4] is denied except for the portion seeking an Order, in the alternative, compelling defendants to appear for depositions in this action; and it is further,
ORDERED that the defendants shall appear for depositions in this action within 60 days from the entry of this Order; and it is further,
ORDERED that defendants Rafiqul Islam and Zero Nine Transportation, Inc.'s failure to appear for depositions within 60 days shall result in defendants' Answer being stricken upon application to the Court; and it is further,
ORDERED that plaintiffs shall file the Note of Issue on or before November 13, 2017; and it is further,
ORDERED that the portion of plaintiffs' motion for summary judgment on the issue of liability against the defendants [MS 4] is granted; and it is further,
ORDERED that Saleh's motion for summary judgment granting liability in his favor on the counter-claim and for an Order dismissing the counter-claim for defendants' failure to appear at Court Ordered depositions [MS 5] is denied; and it is further,
ORDERED that counsel for the plaintiffs shall serve a copy of this Order with Notice of Entry upon the defendants and the Clerk of CCP who shall vacate the Note of Issue in accordance with this Order.
This constitutes the Decision and Order of the Court.