Opinion
Index No. 704113/2019
03-09-2023
ANJAN SHRESTHA and YUNSUK PARK, Plaintiffs, v. DUSAN MILKO, INTEGRATED WEB FINISHING SYSTEMS, INC., SHIJUN WANG and CHUANPING LU, Defendants.
Unpublished Opinion
Present: HONORABLE LOURDES M. VENTURA, J.S.C.
LOURDES M. VENTURA. J.S.C.
The following electronically filed (EF) papers read on this motion by defendants Dusan Milko and Integrated Web Finishing Systems, Inc. for an Order: pursuant to CPLR 3212, granting summary judgment in favor of the Defendants, Dusan Milko and Integrated Web Finishing Systems, Inc., on the grounds that Plaintiff, Anjan Shrestha, alleged injuries do not meet the "serious injury" requirements of New York State Insurance Law § 5102; and for such other and further relief as this Court may deem to be just and proper.
Papers Numbered
Notice of Motion - Affirmation - Exhibits.............................. EF 97-108
Affirmation in opposition - Affirmation - Exhibits................... EF 111-118
Upon the foregoing papers, it is ordered that this motion is determined as follows:
Plaintiffs commenced this action to recover for personal injuries sustain as a result of three-car motor vehicle collision that occurred on December 9, 2016, on or near the southbound Hutchinson River Parkway. It is alleged that the lead vehicle was a Toyota operated by Shijun Wang ("defendant Wang") owned by Chuanping Liu ("defendant Liu"). The second vehicle involved in the collision in question was a Toyota owned and operated by plaintiff Anjan Shrestha ("plaintiff Shretha") and the third vehicle was a Ford owned by Integrated Web Finishing Systems, Inc. ("defendant Integrated Web") and operated by Dusan Milko ("defendant Milko").
Defendants Milko and Integrated Web Finishing Systems, Inc. collectively defendants filed this motion seeking an Order pursuant to CPLR 3212 granting summary judgment dismissing all claims based upon plaintiff Anjan Shrestha's failure to meet the serious injury requirements of Section 5102(d) of the Insurance Law of the State of New York.
Plaintiff Shrestha opposes defendant's motion and states that triable issues of fact exist warranting denial of this motion.
DISCUSSION
According to the bill of particulars, plaintiff Shrestha alleges that he sustained injuries to his cervical and lumber spine, right shoulder, left elbow, and left hand shoulder pursuant to NYIL § 5102(d), under the following categories: permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or member; a medically determined injury or impairment of a non-permanent nature which prevents him from performing substantially all the material acts which constitute his usual and customary activities for 90 of the first 180 days after the accident.
"It is well settled that 'the proponent of a summary judgment motions must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (see Pullman v. Silverman, 28 N.Y.3d 1060 [2016]) quoting (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Failure to make such a prima facie "showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64N.Y.2d 851 [1985]).
The burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 A.D.2d 728 [1st Dept 1986], affd, 69 N.Y.2d 701, 512 N.Y.S.2d 364[1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Lopez v. Senatore, 65 N.Y.2d 1017 [1985]). In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiffs examining physician (Pagano v. Kingsbury, 182 A.D.2d 268 [2d Dept 1992]).
Once the burden shifts, it is incumbent upon the plaintiff, in opposition to the defendant's motion, to submit proof of serious injury in "admissible form" (Licari v. Elliott, 57 N.Y.2d 230 [1982]). A medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff s serious injury is deemed competent medical evidence (see Yunatanov v Stein, 69 A.D.3d 708 [2d Dept 2010]). Thus, in the absence of objective medical evidence in admissible form of serious injury, plaintiff s self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 A.D.2d 288 [2d Dept 2001]).
Pursuant to NYIL § 5102(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 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."
The Court of Appeals has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 [2002] citing (Dufel v Green, 84 N.Y.2d 795 [1995]); see also Licari, 57 N.Y.2d at 234-235). As such, objective proof of a plaintiff s injury is required in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 N.Y.2d at 798; Lopez, 65 N.Y.2d 1017); subjective complaints alone are not sufficient (see e.g. Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Scheer v Koubek, 70 N.Y.2d 678 [1987]). "In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury (Toure, 98 N.Y.2d at 345). "As such, [courts require] objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold" [citations omitted] (see Toure, 98 N.Y.2d at 350). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff s limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Id.).
I. Permanent Consequential Limitation of Use of A Body Organ Or Member and Significant Limitation of Use of A Body Function Or Member Categories
Defendants allege that plaintiff Shrestha has not suffered a permanent loss of any body part, member or system as a result of the alleged accident to qualify as a serious injury under NYIL § 5102(d). To qualify as a serious injury under the permanent loss category of NYIL § 5102(d), a plaintiff must submit evidence to establish "a total loss of use" of the injured body part (Oberly, 96 N.Y.2d at 296, supra; Nesci v Romanelli, 74 A.D.3d 765, 766 [2d Dept 2010]; Albury v O'Reilly, 70 A.D.3d 612 [2d Dept 2010]).
Defendants also argues that plaintiff Shrestha's injuries do not qualify as a serious injury under the permanent consequential limitation of use of a body organ or member category of NYIL § 5102(d). To establish a serious injury under the permanent consequential limitation category of NYIL § 5102(d), plaintiff s medical evidence "must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiffs present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 A.D.3d 1027, 1029 [3d Dept 2003] citing Toure, 98 N.Y.2d at 353, supra). Therefore, a defendant is entitled to summary judgment where "plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements" (Lopez v Senatore, 65 N.Y.2d 1017, 1019 [1985]; see also, Kivelowitz v Calia, 43 A.D.3d 1111 [2d Dept 2007]).
In support of defendant's motion, it submits a report affirmed by Doctor Mandeep Virk M.D. ("Dr. Virk") and a report affirmed by Steven Peyser M.D. ("Dr. Peyser"). Dr. Virk examined the plaintiff on July 29, 2021 and found the plaintiff had mild wrist sprain from the December 9, 2016 accident and that such injury is minimal and should not prevent the plaintiff from returning to his employment as an Uber driver. Dr. Virk conducted a range of motion examination upon plaintiff s left shoulder, right shoulder, left elbow, right elbow, left wrist/hand, right wrist/hand and did not report objective finding as to any range of motion restrictions.
Dr. Peyser affirmed in his report upon a review of MRI of the cervical spine reveals spondylitic changes with bulging at C4-5, C5-6 and C6-7 and spondylitic change with a right paracentral disc herniation at Tl-2. These findings are most consistent with pre-existing degenerative disc disease. No post traumatic-type etiology related to the accident date of December 9, 2016, can be determined.
This Court finds based upon the evidence submitted in support of defendant's motion, defendant has established prima facie evidence that the plaintiff did not suffer permanent consequential limitation, permanent loss, or significant limitation use of a body organ, member, function, or system in accordance with NYIL § 5102(d)(see Staff v Yshua, 59 A.D.3d 614, 614 [2d Dept 2009] [finding that an orthopedist's affirmation that plaintiffs goniometer readings were normal, and that the plaintiff could live his daily activities without restrictions was prima facie evidence that the plaintiff's injury was not serious]).
The burden now shifts to plaintiff Shrestha to rebut defendants' prima facie showing and raise a triable issue of fact.
In support of plaintiff Shrestha's motion, plaintiff Shrestha submits a report affirmed by Stephanie Bayner M.D. ("Dr. Bayner"). Dr. Bayner examined and conducted range of motion testing on the plaintiff on September 20, 2022, and the testing showed that the plaintiff has restrictions of motion in his cervical spine, lumbar spine, and right shoulder. Dr. Bayner further opinioned that the plaintiff s injuries, restrictions of motion and complaints are post-traumatic in nature, not degenerative and causally related to his accident on December 9, 2016.
The Court finds that in opposition plaintiff raised triable issues of fact regarding plaintiffs injuries through the submission of the affirmation of Dr. Bayner who concluded that plaintiffs injuries are post-traumatic in nature, and causally related to the subject accident. (See Himmelburger v Buchris, 117 A.D.3d 801, 802 [2d Dept 2014]; Khaimov v Armanious, 85 A.D.3d 978, 979 [2d Dept 2011]; Abdelaziz v Fazel, 78 A.D.3d 1086, 1086 [2d Dept 2010]; Smith v Matinale, 58 A.D.3d 829 [2d Dept 2009]).
In addition, the conflicting medical reports submitted by the parties raises triable issues of fact as to whether plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Wilcoxen v. Palladino, 122 A.D.3d 727, 728 [2d Dept 2014][finding that "in light of the conflicting expert medical opinions submitted by the parties, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident"]; See also Cariddi v. Hassan, 45 A.D.3d 516 [2007]; Gaviria v. Alvardo, 65 A.D.3d 567 [2009]).
Defendant's allegations that plaintiff s injuries are preexisting and/or degenerative in nature are rebutted by Dr. Bayner's affirmation which states that based upon her physical examination of the plaintiff and her opinion the injuries are causally related to the motor vehicle accident and not degenerative (see Greenberg v Macagnone, 126 A.D.3d 937, 938 [2d Dept 2015]).
Based upon the foregoing, the branch of defendant's motion seeking summary judgment on plaintiff s claims of permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or member are denied as there are issues of fact.
II. 90/180 Category
Defendants allege that plaintiff Shrestha did not sustain a medically determined injury or impairment that prevented him from performing substantially all of the material acts constituting him customary daily activities during at least 90 of the first 180 days following the alleged accident.
To establish a serious injury under the 90/180 category of NYIL § 5102(d), a "plaintiff must establish that he or she 'has been curtailed from performing his [or her] usual activities to a great extent'" rather than "some slight curtailment" (Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]; DeFilippo v White, 101 A.D.2d 801, 803 [2d Dept 1984]).
Here, defendants have failed to establish, prima facie, that plaintiff Shrestha did not suffer a serious injury under the 90/180 category of NYIL § 5102(d). While defendants rely on plaintiff Shrestha's deposition testimony to establish, prima facie, his entitlement to judgment as a matter of law under the 90/180 category, plaintiffs testimony did not specifically address her usual and customary daily activities "during the specific relevant time frame" and "did not compare . . . [his] pre-accident and post-accident activities during that relevant time frame" (see Hall v Stargot, 187 A.D.3d 996, 996 [2d Dept 2020]; Reid v Edwards-Grant, 186 A.D.3d 1741, 1742 [2d Dept 2020]; Jong Cheol Yangv Grayline N.Y. Tours, 186 A.D.3d 1501, 1502 [2d Dept 2020]).
To the extent that Dr. Virk concludes that plaintiff Shrestha can perform his activities of daily living as he was doing prior to the accident, that opinion was based upon an examination performed on July 29, 2021, close to five years after the alleged accident and did not relate the findings to the relevant period of time following the alleged accident (see, Jong Cheol Yang v Grayline N.Y. Tours, 186 A.D.3d 1501, supra; Daddio v Shapiro, 44 A.D.3d 699, 700 [2d Dept 2007]; Greenidge v Righton Limo, Inc., 43 A.D.3d 1109, 1110 [2d Dept 2007]).
As defendant has failed to establish his prima facie entitlement to judgment as a matter of law as to plaintiffs claim of a serious injury under the 90/180 category, the Court "need not consider the sufficiency" of plaintiffs opposition papers (see, Hall, 187 A.D.3d at 996, supra; Owens-Stephens v PTM Mgmt. Corp., 191 A.D.3d 691 [2d Dept 2021]; Ali v Williams, 187 A.D.3d 1107 [2d Dept 2020]). Accordingly, the branch of defendants' motion seeking summary judgment dismissing plaintiff Shrestha's claim of a serious injury under the 90/180 of NYIL § 5102(d) is denied (see id).
CONCLUSION
Based upon the foregoing, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a "serious injury" under NYIL § 5102(d) is denied. Any other requested relief not expressly addressed herein has nonetheless been considered by this Court and is hereby denied.
This shall constitute the Decision and Order of the Court.