Opinion
Index EF008587-2018
07-23-2020
WALTER NELSON, Plaintiff, v. CHRISTINE M. BERNABEI and ARNOLD A. BERNABEI, Defendants.
Unpublished Opinion
DECISION AND ORDER
CRAIG STEPHEN BROWN, JUDGE.
The following papers numbered 1 to 25 were read on the motion by defendants, Christine M. Bernabei and Arnold A. Bernabei, pursuant to CPLR 3212 for summary judgment dismissing the plaintiffs complaint on the grounds that plaintiff did not sustain a serious injury under the Insurance Law); and on the motion by Plaintiff Walter Nelson, pursuant to CPLR 3025, for leave to amend his bill of particulars to allege a new injury or diagnosis:
| PAPERS | NUMBERED |
| Notice of Motion for Summary Judgment /Affirmation in Support (Slater) / Exhibits A - K | 1-13 |
| Notice of Motion to Amend Bill of Particulars/Affirmation in Opposition to Motion and in Support of Cross-Motion (Cambareri)/ Exhibits 1-7 | 14-22 |
| Reply Affirmation in Opposition to Motion to Amend and in Further Support of Motion for Summary Judgment (Slater) / Exhibit A | 23-24 |
| Reply Affirmation in Further Support of Motion to Amend (Cambareri) | 25 |
Upon the foregoing papers, it is hereby ORDERED that the defendants' motion for summary judgment is denied and the plaintiffs motion to amend the bill of particulars is granted.
Background and Procedural History
This is an action for personal injuries allegedly sustained as the result of a motor vehicle collision which occurred on September 3, 2016 on Route 17 in Middletown, New York. Plaintiff alleges that defendant passed plaintiffs vehicle on the left shoulder of the highway and struck the driver's side of plaintiff s vehicle. Plaintiff commenced this action by e-filing a summons and verified complaint on August 15, 2018. Issue was joined by the e-filing of defendants' answer on September 13, 2018, Plaintiffs verified bill of particulars, dated September 25, 2018, alleges injury to his cervical, thoracic and lumbar spine, as well as injury to the right shoulder. Plaintiff served a supplemental bill of particulars on November 13, 2018, and a second supplemental bill of particulars on December 13, 2018. The examination before trial of plaintiff was held on July 9, 2019, An independent medical examination of plaintiff conducted on behalf of defendants was performed on October 1, 2019. A medical examination of plaintiff conducted by plaintiffs treating physician was performed On October 3, 2019. Plaintiff filed a note of issue on January 9, 2020.
Plaintiffs Deposition Testimony
On September 3, 2016, plaintiff was traveling westbound on Route 17 in Middletown, New York. While Plaintiff was traveling in the "fast lane," i.e., the left lane, defendant Christine Bernabei passed plaintiffs vehicle on the left shoulder, and struck plaintiffs vehicle on the driver's side of plaintiff s vehicle. Plaintiffs head struck the driver's side window and his left shoulder struck the driver's side door. Plaintiff testified that he injured his back and neck in the September 3rd accident. Despite testifying that his left shoulder struck the driver's side door, plaintiff testified that he injured his right shoulder in the September 3rd accident.
Plaintiff was involved in a motorcycle accident on September 14, 2016. Plaintiff injured his neck and back in the motorcycle accident. Plaintiff presented to a doctor on the advice of counsel after the motorcycle accident.
Plaintiff was involved in another motor vehicle accident in January 2017. Plaintiff injured his right shoulder and right knee in the January 2017 accident.
Prior to September 3rd accident, plaintiff held three jobs working at Friendly's in Goshen, the Chester Diner, and at Applebee's. He did not return to any of those jobs following the September 3 rd accident.
In July 2018, plaintiff was employed as a houseman for Marriott. He had been working for Marriott for approximately a year. Plaintiff was injured at work while moving a sleeper-sofa couch. He injured his back and neck, and his left shoulder at work and has not returned to work since his July 2018 injury.
Throughout his deposition, plaintiff had difficulty recalling when he sustained a particular injury and could not necessarily attribute that injury to a particular incident. In addition, plaintiff testified that he was not working because of the injury to his back and neck but could not pinpoint which accident caused the injuries preventing him from working.
Discussion
Motion to for Leave to Amend
The Court, as a preliminary matter, will address plaintiffs motion, in which he seeks leave to file an amended bill of particulars to amend the allegation of injury to the right shoulder and instead assert an allegation of injury to the left shoulder.
CPLR §3042(b), in relevant part, permits the amendment of a bill of particulars once as a matter of course prior to the filing of a note of issue. Leave to amend, thereafter, is ordinarily freely granted, absent prejudice or surprise, unless the amendment sought is on the eve of trial (see Alvardo v Beth Israel Med. Or., 78 A.D.3d 873 [2nd Dept, 2010]; Ito v. 324 East 9th Street Corp., 49 A.D.3d 816 [2nd Dept., 2008]). Motions seeking leave to serve an amended bill of particulars, after the filing of a note of issue, are addressed to the discretion of the Court. Such motions require, by necessity, closer scrutiny and should be denied where there has been an inordinate, unexplained delay coupled with a material change in the content of the bill of particulars which is prejudicial to the adverse party (see Baud v Forest & Garden Apts., 178 A.D.2d 578 [2nd Dept., 1991]; Dubisette v Davis, 158 A.D.2d 504 [2nd Dept., 1990]; Simpson v Browning-Ferris Indus. Chem. Servs., 146 A.D.2d 769 [2nd Dept., 1989]; Alexander v Seligmcm, 131 A.D.2d 528 [2nd Dept., 1987]). In exercising that discretion, the Court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay has been offered and whether material prejudice will result therefrom (see Navarette v Alexiades, 50 A.D.3d 869 [2nd Dept., 2008], citing Cohen v Ho, 38 A.D.3d 705 [2nd Dept., 2007]; Sampson v Contillo, 55 A.D.3d 591 [2nd Dept., 2008]).
Here, ostensibly the plaintiff should have been aware of which shoulder was injured as a result of the September 3, 2016 accident when he first met with his attorneys, who recommended that he seek medical attention in September of 2016. Even if plaintiff is a poor historian, seemingly his attorneys should have been aware of which shoulder was injured in the September 3rd accident when they obtained his medical records. At the very least, plaintiffs counsel should have understood the error when they received the report of plaintiff s own treating physician of an examination that occurred on October 3, 2019 and as well as the report of the independent medical examination of Dr. Bradley Wiener that occurred on October 1, 2019. The IME report was exchanged with plaintiffs counsel on or about November 25, 2019. Both reports make it abundantly clear that plaintiffs left shoulder, and not his right shoulder, was injured in the September 3rd accident. While the Court appreciates that the COVID-19 public health emergency prohibited plaintiff from filing a motion during the shutdown, that does not explain the otherwise prolonged delay in seeking to amend the bill of particulars, given the information that was available to plaintiffs attorneys.
That being said, the Court is unable to find that material prejudice will occur to the defendants should the plaintiff be permitted to amend the bill of particulars. Defendants are in possession of the medical records with respect to plaintiffs left shoulder injury, plaintiff was questioned at his deposition with respect to injury to his left shoulder, and Dr. Weiner examined plaintiffs left shoulder. Moreover, the matter is not on the eve of trial. As such, plaintiffs motion for leave to serve an amended bill of particulars is granted (see Grande v Peteroy, 39 A.D.3d 590, 591 [2d Dept, 2007], compare DeLaurentis v Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d 774, 775-776 [2d Dept., 2014]). However, the Court will permit the defendants to engage in limited discovery with respect to the plaintiffs left shoulder, should they find same is warranted.
Motion for Summary Judgment
The proponent of a motion for summary judgment must establish that the cause of action or defense has no merit sufficiently to warrant the court as a matter of law to direct judgment in his or her favor (see Bush v St. Clare's Hospital, 82 N.Y.2d 738 [1993]). The movant is required to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case. Failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Medical Or., 64N.Y.2d 851 [1985]; Zuckerman v New York, 49 N.Y.2d 557 [1980]). Summary judgment is a drastic remedy only granted where this burden is met and then only if the opposition to the motion fails to establish the existence of a material issue of fact requiring a trial (see Vega v Restani Construction. Corp., 18NY3d499 [2012], Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). One opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require the trial of a material question of fact on which she rests her claim or must demonstrate an acceptable excuse for her failure to meet the requirement (see Zuckerman v New York, 49 N.Y.2d at 562). In deciding a motion for summary judgment, a Court's function is to identify whether there are any material triable issues of fact, not to make credibility determinations or findings of fact. Issue-finding, rather than issue-determination, is required (see Vega v Restani Construction. Corp., 18 N.Y.3d at 505). Summary judgment should be granted where only one conclusion may be drawn from the established facts (see Kriz v Schurn, 75 N.Y.2d 25 [1989]). If there is any doubt as to the existence of a triable issue, then the motion for summary judgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223 [1978]).
Defendants move for summary judgment, claiming that plaintiff has failed to meet the threshold requirements of Insurance Law §5102 because he did not provide proof that he sustained a serious injury as a result of the September 3rd accident. Defendants bear the initial burden of establishing a prima facie case that plaintiff did not sustain a serious injury (see Toure v Avis Rent-A-Car Sys., 98 N.Y.2d 345 [2002]).
It is well established that proof under the permanent consequential limitation of use or the significant limitation of use categories requires a comparative determination of the degree or qualitative nature of the injury based on the normal function, purpose and use of the body part and must be supported by objective medical evidence (Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002]; Dufel v Green, 84 N.Y.2d 795, 798 [1995]).). "[Subjective complaints alone are not sufficient" to meet the threshold (Toure, 98 N.Y.2d at 350).
In support of their motion, defendants submitted the report of Dr. Bradley Wiener, an orthopedist, who conducted an independent medical examination of plaintiff on behalf of the defense. Dr. Wiener examined plaintiff on October 1, 2019. Examination of plaintiff s left shoulder showed decreased range of motion in forward elevation, abduction, and external rotation. There was no weakness on resisted internal rotation and no restriction to adduction or extension. Dr. Wiener compared the MRI study of the left shoulder taken on December 16, 2016 with the MRI of plaintiff s left shoulder taken on August 16, 2018, following plaintiffs July 10, 2018 work-related accident. The December 16, 2016 MRI showed significant impingement, but no rotator cuff tear. However, the August 16, 2018 MRI showed significant bone edema at the greater tuberosity at the humerus, which appeared consistent with an impaction fracture. Dr. Wiener noted that while it was unclear from the claimant whether he sustained injury to the left shoulder as a part of the work accident on July 10, 2018, that the acuity of the findings noted on the August MRI suggested a causal relationship between the work accident on July 10, 2018 and the August 16, 2018 MRI findings of an impaction fracture. Dr. Wiener opined that the "constellation of findings appears consistent with acute traumatic injury rather than chronic finding related to a motor vehicle accident that occurred almost 2 years prior." Dr. Wiener opined that plaintiff "did not sustain a serious or significant injury to the left shoulder, nor is there evidence of a permanent limitation in function or use of the left shoulder based solely and specifically on the accident that occurred on September 3, 2016."
Dr. Wiener further reported that physical examination of the cervical spine was within normal limits except plaintiff exhibited 20 degrees of tilt to both left and right side where 40-50 degrees is within normal limits. Examination of the thoracolumbar spine was within normal limits. Dr. Wiener noted that plaintiff reported injuries to his cervical and lumbar spine following each of his three motor vehicle accidents, and reported injury to the lumbar spine as a consequence of his work-related accident on July 10, 2018. He further noted that all diagnostic imaging, as well as all treatment plaintiff received occurred after the motorcycle accident on September 14, 2016. Dr. Wiener thus opined that "it is impossible for the claimant to identify any objective evidence to corroborate his claim of serious or significant injury associated with the accident on September 3, 2016."
In opposition to the motion, plaintiff submits the October 3, 2019 report of his treating physician, Dr. Charles Episalla, together with the affirmation of Dr. Episalla dated May 5, 2020. Like Dr. Wiener, upon examination of plaintiff s cervical spine, Dr. Episalla found plaintiff exhibited 20 degrees of tilt to both left and right side, but he also found 20 degrees rotation where 30 degrees is normal. Examination of the lumbar spine showed 70 degrees range of motion, where 90 degrees is normal, as well as 20 degrees of left and right tilt and 25 degrees rotation, where 30 degrees is normal. Examination of the left shoulder showed 0-145 degrees flexion and abduction with normal being 0-180 degrees. Dr. Episalla opined that plaintiffs subsequent motor vehicle and work-related accidents exacerbated the injuries to plaintiffs left shoulder and spine that occurred on September 3rd. Dr. Episalla affirmed that, "Based upon a reasonable degree of medical certainty, I believe there is a causal relationship between the injuries and limitations I found upon physical examination on October 3, 2019 and the motor vehicle accident on September 3, 2016. The subsequent work-related accident exacerbated his left shoulder and spinal injuries, however the substantial cause of their current condition is the accident at issue because of the extensive medical treatment prior to July 2018. This is based upon the medical records available for my review, my treatment of the patient, and the history obtained from the patient."
The plaintiff has proffered evidence which "raises issues of material fact as to whether he sustained a 'permanent consequential limitation of use of a body organ or member' or a significant limitation of use of a body function or system" (Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 352 [2002]; see also Trigg v. Gradischer, 6 A.D.3d 525 [2nd Dept., 2004]; Fabiano v. Kirkovian, 306 A.D.2d 373 [2nd Dept, 2003]; Pulo v. Schait, 302 A.D.2d 441 [2nd Dept., 2003]; Negrete v. Hernandez, 2 A.D.3d 511 [2nd Dept., 2003]; Paul v. Allstate Rentals, Inc., 22 A.D.3d 476 [2nd Dept., 2005]; Collado v. Pineda, 31 A.D.3d 684 [2nd Dept., 2006]; Yu v. C&A Seneca Construction, 40 A.D.3d 630 [2nd Dept., 2007]). Accordingly, the defendants' motion for summary judgment dismissing plaintiffs claim of a significant or permanent consequential limitation of use must be denied (see also, Perez v. Vasquez, 71 A.D.3d 531 [1st Dept, 2010]).
The motion is further denied with respect to the claim that plaintiff sustained an injury which prevented him from performing substantially all of the material acts which constituted his 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 (Ins. Law §5102[d]). The Appellate Division, Second Department has made it clear that the report of an independent examination of plaintiff, conducted over a year after the accident, must relate its findings to the 90/180 claim (see Volpetti v Yoon Kap, 28 A.D.3d 750 [2nd Dept., 2006]). A report which fails to do so falls short of satisfying the burden of proof necessary to establish the absence of a serious injury (see Scinto v Hoyte, 57 A.D.3d 646 [2nd Dept., 2008]). As defendants' expert has failed to adequately address the 90/180 claim clearly set forth in plaintiffs bill of particulars, the motion for summary judgment on that issue must be denied. (Torres v. Performance Automobile Group, Inc., 36 A.D.3d 894 [2nd Dept., 2007]).
Defendants are directed to serve any additional discovery demands with respect to the left shoulder injury within two weeks of this order.
Plaintiff is directed to respond to any such additional demands within two seeks of service of the demands.
The matter is scheduled for a status conference on July 24, 2020 at 9:30 a.m.
Any matters not specifically addressed have been considered and denied.
The foregoing constitutes the Decision and Order of the Court.