Opinion
505427/17
05-06-2019
Sharon WASHINGTON, Plaintiff, v. Ousman NJIE, Defendant.
Attorney for Plaintiff Melissa H. Filed, Esq. Filed Law Group, P.C. 17 State Street, 40th Floor New York, NY 10004 (212) 739-7272 Attorney for Defendant Adam Warner, Esq. Baker, McEnvoy, Morrissey & Moskovits, P.C. 1 MetroTech Center Brooklyn, NY 11201 (212) 857-8230
Attorney for Plaintiff
Melissa H. Filed, Esq.
Filed Law Group, P.C.
17 State Street, 40th Floor
New York, NY 10004
(212) 739-7272
Attorney for Defendant
Adam Warner, Esq.
Baker, McEnvoy, Morrissey & Moskovits, P.C.
1 MetroTech Center
Brooklyn, NY 11201
(212) 857-8230
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on November 20, 2018, under motion sequence one, by defendant Ousman Njie Viktor (hereinafter defendant or Njie) for an order pursuant to CPLR 3212 granting summary judgment in his favor and dismissing the complaint of Sharon Washington (hereinafter plaintiff or Washington) on the basis that Washington has not suffered a serious injury as defined in New York Insurance Law § 5102 (d). Washington has opposed the motion.
Notice of Motion
Supporting Affirmation
Exhibits A to I
Affirmation in Opposition
Exhibits A to K
Reply Affirmation
BACKGROUND
On March 18, 2017, Washington commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office. The defendant joined issue by a verified answer dated April 10, 2017. On September 25, 2018, Washington filed the note of issue.
Plaintiff's verified complaint, verified bill of particulars and deposition testimony alleges the following salient facts. On July 31, 2015, at approximately 5:15 a.m., Washington was driving her 2012 Jeep on Troop Avenue approaching the intersection with Quincy Street in Brooklyn, New York. The intersection was controlled by a traffic light. At that time, Washington gradually brought her vehicle to a stop and then waited for about a minute for the red light to change. While waiting, Washington felt an impact to the rear of her vehicle. At that time, Njie negligently drove his 2004 Ford vehicle into the back of Washington's vehicle (hereinafter the subject accident) causing her to sustain serious physical injuries.
MOTION PAPERS
Defendant's motion papers consist of an affirmation of counsel and nine annexed exhibits labeled A through I. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is a copy of plaintiff's verified bill of particulars. Exhibit C is a copy of defendant's verified answer. Exhibit D is a copy of the note of issue. Exhibit E is a copy of the deposition transcripts of the plaintiff conducted on April 26, 2018. Exhibit F is the affirmed medical report of Dr. Edward A. Toriello, pertaining to his orthopedic examination of Washington conducted on June 27, 2018. Exhibit G is described as copies of Washington's medical records from the Interfaith Hospital Emergency room. Exhibit H is the affirmed report of Dr. Darren Fitzpatrick dated September 8, 2017, pertaining to his radiologic review of an MRI of Washington's left shoulder conducted on August 25, 2017 and of Washington's cervical spine conducted on August 12, 2015. Exhibit I is the affirmed medical report of Dr. Michael J. Carciente, pertaining to his neurologic examination of Washington conducted on June 26, 2018.
Washington's opposition papers consist of an affirmation of counsel and ten annexed exhibits labeled A through K. Exhibit A is the affirmed medical report of Dr. Marvin Moyan dated April 5, 2019, pertaining to his examinations of Washington conducted on March 20, 2019. Exhibit B is described as copies of Washington's medical records from the Interfaith Hospital Emergency room. Exhibit C is an affidavit of Dr. Marvin Moyan dated February 28, 2019. Dr. Moyan states that he is the owner of Rutland Medical, P.C. (hereinafter Rutland) and custodian of its records. He then authenticates Ruthland's records pertaining to his treatment of Washington on September 14, October 7 and November 11, 2015. Exhibit D is the affirmation of Dr. Marvin Moyan dated March 20, 2019 and copies of the NCV/EMG test results administered to Washington. Exhibit E is the affidavit of Ronald Diamant, D.C., pertaining to his examinations and chiropractic treatment of Washington. Exhibit F is the affirmation of Dr. Mark Gladstein dated February 28, 2019 and copies of his operative reports pertaining to his treatment of Washington. Exhibit G is the affirmed medical of Dr. Narayan Paruchuri dated February 13, 2019, pertaining to his radiologic review of an MRI of Washington's lumbar spine conducted on August 12, 2015. Exhibit H is the affirmed medical of Dr. Michael Greene dated February 12, 2019, pertaining to his radiologic review of an MRI of Washington's left shoulder conducted on August 25, 2015. Exhibit I is the affirmation of Dr. Harvey Manes dated February 28, 2019 and copies of his operative report dated September 30, 2015 pertaining to his treatment of Washington. Exhibit J is the affidavit of Washington dated March 20, 2019. Exhibit K is described as a letter from Washington's employer.
Defendant submitted an affirmation of his counsel in reply.
LAW AND APPLICATION
In the instant action, plaintiff's complaint and verified bill of particulars alleges that due to the subject accident she sustained a serious injury to her left shoulder, and to her cervical and lumbar spine. The defendant seeks dismissal of the verified complaint on the basis that the plaintiff did not suffer a serious injury as defined by New York State's Insurance Law § 5102 (d).
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank , 100 NY2d 72 [2003] ).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio , 81 NY2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez , 68 NY2d at 324 ).
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions ( CPLR 3212 [b] ; Poon v. Nisanov, 162 AD3d 804 [2nd Dept 2018] ). The moving party's submissions must show that there is no defense to the cause of action or that the cause of action or defense has no merit ( Gobin v. Delgado , 142 AD3d 1134 [2nd Dept 2016] ).
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 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" ( Nunez v. Alies , 162 AD3d 1058, 1059 [2nd Dept 2018] quoting Grossman v. Wright , 268 AD2d 79, 83 [2nd Dept 2000] ). "With 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" ( Grossman , 268 AD2d at 84 ). "The plaintiff in such a situation must present objective evidence of the injury" (Id. ).
In support of the motion the defendant submitted, among other things, the affirmed reports of Dr. Toriello, an orthopedic surgeon and Dr. Carciente, a neurologist. Each one conducted an independent medical examination of the plaintiff and offered an opinion regarding her claimed injuries. Each one also performed a straight leg raise test of the injured plaintiff's lumbosacral spine. Neither Dr. Toriello nor Dr. Carciente compared his respective findings to what is normal (see Shirman v. Lawal , 69 AD3d 838 [2nd Dept 2010], citing Walker v. Public Adm'r of Suffolk County , 60 AD3d 757 [2nd Dept 2007] ). Instead, Dr. Toriello specifically stated "straight leg raising test is bilaterally full and pain free" and Dr. Carciente stated "the straight leg manuever was normal."
Dr. Toriello also found that plaintiff's range of motion in abduction and flexion of the left shoulder was 90 degrees with normal being between 150-180 degrees and in rotation was 45 degrees with normal being 80-90 degrees. His report demonstrated that he reviewed, among other things, three MRI reports that were dated August 12, 2015. One was of the plaintiff's lumbar spine and it revealed a herniation at L4-5 and a bulge at L5-S1, the other was of the cervical spine that revealed a herniation at C3-4, bulging and herniation at C6-7, and a bulge at C5-6 and the third was of the left shoulder and revealed a small tear of the bicep tendon.
Dr. Toriello opined that the plaintiff did not sustain any injury to her left shoulder due to the subject accident based on his review of the unaffirmed medical records from Interfaith Hospital. He based this conclusion on the fact that the Interfaith record contained no entry that Washington reported experiencing pain in the left shoulder. Dr. Toriello did not offer any further explanation. Consequently, his opinion regarding the cause of plaintiff's left shoulder injury was conclusory and speculative (see Pupko v. Hassan , 149 AD3d 988 [2nd Dept 2017] ). On the other hand, he offered no opinion regarding the cause of plaintiff's spinal disc herniations and bulges mentioned in the August 12, 2015 MRI reports.
For all the foregoing reasons, the defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( Pupko, 149 AD3d at 988 citing, Toure v. Avis Rent A Car Sys. , 98 NY2d 345 [2002] ; Gaddy v. Eyler , 79 NY2d 955, 956-957 [1992] ).
Inasmuch as the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Espinal v. Shortis , 164 AD3d 1217 [2nd Dept 2018] citing Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ).
CONCLUSION
Defendant Viktor Njie's motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the Sharon Washington's complaint on the ground that the injuries claimed do not satisfy the serious injury threshold requirement of the New York Insurance Law § 5102 (d) is denied.
The foregoing constitutes the decision and order of this Court.