Opinion
025075/2014
04-02-2018
Wanda NEAL, Plaintiff, v. STEPAN HACKING CORP. and Avtar Singh, Defendants.
Counsel for Plaintiff: Greenstein & Milbauer, LLP. (Christopher S. O'Donnell, Esq.), New York Counsel for Defendants: Baker, McEvoy, Morrissey & Moskovits, P.C. (Dominick R. Dale, Esq.), New York
Counsel for Plaintiff: Greenstein & Milbauer, LLP. (Christopher S. O'Donnell, Esq.), New York
Counsel for Defendants: Baker, McEvoy, Morrissey & Moskovits, P.C. (Dominick R. Dale, Esq.), New York
Mary Ann Brigantti, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of motion(s) and/or cross-motion(s), as indicated below:
Papers/Numbered
Notice of Motion and Affidavits Annexed 1
Opposition 2
Reply 3
The motion by defendants Stepan Hacking Corp. and Avtar Singh for summary judgment in their favor and the motion by plaintiff Wanda Neal, improperly denominated by a cross motion, are consolidated for purposes of this determination.
Defendants Stepan Hacking Corp. and Avtar Singh move for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102 (d). Plaintiff submits written opposition to the motion. The motion is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff Wanda Neal as a result of a motor vehicle accident, which occurred on August 5, 2014, on the Macombs Dam Bridge, at or near its intersection with Major Degan Expressway, in Bronx County, New York. The accident allegedly occurred when a vehicle owned by defendant Stepan Hacking Corp. and operated by defendant Avtar Singh collided with the rear of plaintiff's vehicle. Plaintiff further alleges that as a result of the accident, she sustained serious injuries and conditions, including tendon tears in her shoulders and knees.
In support of the motion, defendants Stepan Hacking Corp. and Avtar Singh submit copies of the pleadings, the bill of particulars, the note of issue, the uncertified police report, plaintiff's deposition testimony, and the affirmed medical reports of Dr. Rikki Lane, Dr. John Buckner, Dr. Michael Carciente, and Dr. Audrey Eisenstadt.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320 [1986] ; Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851 [1985] ). The movant has the initial burden of proving entitlement to summary judgment, and failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851 [1985] ). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment ( CPLR 3212 [b]; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320 [1986] ; Zuckerman v. City of New York , 49 N.Y.2d 557 [1980] ).
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 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 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."
A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred by the No–Fault Insurance Law bears the initial burden of establishing, prima facie, that the plaintiff did not sustain a "serious injury" (see Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345 [2002] ; Gaddy v. Eyler , 79 N.Y.2d 955 [1992] ). A defendant can demonstrate a plaintiff did not suffer "serious injury" within the meaning of Insurance Law § 5102 (d) by presenting affidavits or affirmations of medical experts who examined the plaintiff and determined that there is no objective medical evidence supporting the plaintiff's claims (see Spencer v. Golden Eagle, Inc. , 82 A.D.3d 589 [1st Dept. 2011] ; Shinn v. Catanzano , 1 A.D.3d 195 [1st Dept. 2003] ; Grossman v. Wright , 268 A.D.2d 79 [2d Dept. 2000] ). When a defendant seeking summary judgment based on the lack of a serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law ( Pagano v. Kingsbury , 182 A.D.2d 268, 270 [2d Dept. 1992] ; see Grossman v. Wright , 268 A.D.2d 79 [2d Dept. 2000] ; Rodriguez v. Goldstein , 182 A.D.2d 396 [1st Dept. 1992] ). A defendant also may establish the lack of a serious injury by submitting unsworn medical reports and records prepared by the plaintiff's treating medical providers (see Newton v. Drayton , 305 A.D.2d 303 [1st Dept. 2003] ; Lowe v. Bennett , 122 A.D.2d 728 [1st Dept. 1986] ), or the plaintiff's own deposition testimony (see Diaz v. Almodovar , 147 A.D.3d 654 [1st Dept. 2017] ; Bailey v. Islam , 99 A.D.3d 633 [1st Dept. 2012] ). Once a defendant meets this burden, the plaintiff must present proof in admissible form which creates a material issue of fact (see Gaddy v Eyler , 79 N.Y.2d 955 [1992] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557 [1980] ).
The medical report of Dr. Buckner is insufficient to establish that plaintiff did not suffer restriction in range of motion in her shoulders and knees, as he does not provide the alleged normal ranges of motion for the subject body parts (see Bray v. Rosas , 29 A.D.3d 422 [1st Dept. 2006] ; see also Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345 [2002] ; Fernandez v. Hernandez , 151 A.D.3d 581 [1st Dept. 2017] ). Dr. Carciente's medical report is also insufficient, as he does not provide objective quantitative evidence of plaintiff's joint function or the objective tests utilized to examine plaintiff (see Perl v. Meher , 18 N.Y.3d 208 [2011] ; Toure v. Avis Rent A Car Systems, Inc. , 98 N.Y.2d 345 [2002] ; Sentino v. Valerio , 72 A.D.3d 1063 [2d Dept. 2010] ; Lamb v. Rajinder , 51 A.D.3d 430 [1st Dept. 2008] ; Offman v. Singh , 27 A.D.3d 284 [1st Dept. 2006] ; Bray v. Rosas , 29 A.D.3d 422 [1st Dept. 2006] ).
In her affirmed medical report, Dr. Eisenstadt opines that the magnetic resonance imaging ("MRI") examination of plaintiff's left shoulder conducted approximately one month after the accident shows pre-existing downsloping acromion, tendinopahty of the distal supraspinatus, tendinopathy of the distal supraspinatus tendon, and tenosynovitis of the biceps tendon. She further opines that no tear of the rotator cuff can be seen. Dr. Eisenstadt presents no objective quantitative evidence of plaintiff's range of motion in her left shoulder and offers no opinion as to the alleged injuries to plaintiff's right shoulder and knees (see Perl v. Meher , 18 N.Y.3d 208 [2011] ; Toure v. Avis Rent A Car Systems, Inc. , 98 N.Y.2d 345 [2002] ).
In her affirmed medical report, Dr. Lane states that she reviewed plaintiff's emergency room records and the bill of particulars. She opines that plaintiff did not suffer an acute injury to her left shoulder or left knee causally related to the accident, because plaintiff did not complain of pain at the hospital immediately following the collision. However, such report alone is insufficient to establish that plaintiff did not sustain a serious injury to her left shoulder and left knee (cf. Moore–Brown v. Sofi Hacking Corp. , 151 A.D.3d 567 [1st Dept. 2017] ; Frias v. Gonzalez–Vargas , 147 A.D.3d 500 [1st Dept. 2017] ; De La Rosa v. Okwan , 146 A.D.3d 644 [1st Dept. 2017] ; Linton v. Gonzales , 110 A.D.3d 534 [1st Dept. 2013] ).
As to the 90/180–day category, defendants failed to establish a prima facie case that plaintiff does not have a 90/180 claim. Here, plaintiff testified that she had not returned to work as of the date of her deposition, more than one year after the accident, at the instruction of orthopedic surgeon Dr. Gabriel Dassa. However, defendants did not submit any evidence contradicting plaintiff's testimony, or any evidence negating existence of a 90/180–day injury (see Correa v. Saifuddin , 95 A.D.3d 407 [1st Dept. 2012] ; Barry v. Arias , 94 A.D.3d 499 [1st Dept. 2012] ; Suazo v. Brown , 88 A.D.3d 602 [1st Dept. 2011] ).
As defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion are sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851 [1985] ; Santos v. New York City Tr. Auth. , 99 A.D.3d 550 [1st Dept. 2012] ; Escotto v. Vallejo , 95 A.D.3d 667 [1st Dept. 2012] ).
CPLR 3212 (a) provides that if no date for making a summary judgment motion has been set by the Court, such a motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." Absent a showing of good cause for the delay in filing a summary judgment motion, a court lacks the authority to consider even a meritorious, non-prejudicial application for such relief (see Miceli v. State FarmMut. Auto. Ins. Co. , 3 N.Y.3d 725 [2004] ; Brill v. City of New York , 2 N.Y.3d 648 [2004] ). The "good cause" requirement set forth in CPLR 3212 (a)"requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, non-prejudicial filings, however tardy" ( Brill of City of New York , 2 N.Y.3d 648, 652 [2004] ).
Here, the statutory 120–day period for making a summary judgment motion expired on Thursday, December 29, 2016. However, plaintiff Wanda Neal's motion, improperly denominated as a cross motion, was made on January 25, 2017, the date it was served (see CPLR 2211 ). Plaintiff's counsel has provided no explanation or "good cause" for serving the motion late, and thus, the Court has no discretion to entertain it on the merits (see CPLR 3212 [a]; Brill v. City of New York , 2 N.Y.3d 648 [2004] ; Kershaw v. Hospital for Special Surgery , 114 A.D.3d 75 [1st Dept. 2013] ).
Accordingly, it is
ORDERED that the motion by defendants Stepan Hacking Corp. and Avtar Singh for summary judgment dismissing the complaint is denied; and it is
ORDERED that the motion by plaintiff Wanda Neal for summary judgment in her favor is denied; and it is further
ORDERED that the plaintiff shall serve on all parties a copy of this Order with Notice of Entry.