Feliciano v Kameraj
Decided on April 26, 2007
Supreme Court, Richmond County
John Feliciano and Anna Feliciano, Plaintiff(s),
Zenun Kameraj, Defendant.
Philip G. Minardo, J.
Upon the foregoing papers, defendant's motion , inter alia, for leave to file a belated motion for summary judgment and dismissal of the complaint based upon the alleged lack of a "serious injury" (Insurance Law § 5102[d]) is decided as follows.
In this personal injury action, plaintiff John Feliciano (hereinafter "plaintiff") seeks to recover damages for injuries he allegedly sustained on April 1, 2005 after being pinned between two parked cars in front of 987 Lexington Avenue, New York, New York. It is alleged by plaintiff that he was standing between the cars when they were forced together after one of them
was struck by a vehicle driven by defendant Zenun Kameraj. Plaintiff further alleges that as a result of defendant's negligence he sustained "serious injuries" within the meaning of Insurance Law § 5102 (d). Specifically, Mr. Feliciano alleges that he suffered a
possible torn right ACL, torn right medial meniscus, tenderness on the right medial joint line, horizontal signal involving the posterior horn and posterior junction of the medial meniscus contacting the free margin suggestive of a horizontal tear, inflammatory changes involving the proximal right tibiofibular articulation, chondromalacia involving the medial aspect of the patellofemoral articulation, possible . . . surgery on right knee, knee joint effusion, L4/5 and [*2]L5/S1 central focal disc herniations at both levels, L4/5 disc space level disc herniation deforms the anterior margin of the thecal sac, increased signal hypersensitivity within the posterior margin of the annulus fibrosis, partial loss of disc signal at L4/5, herniated disc at L5/S1 deforming the anterior epidural fat and the anterior margin of the thecal sac, partial loss of disc signal seen at L5/S1, grogginess and constipation as a result of vicodin prescription for pain [and] mild sprain of the medial collateral ligament (see Plaintiff's Verified Bill of Particulars, ¶ 24).
Plaintiff's wife Anna Feliciano has pleaded a derivative cause of action.
Plaintiff commenced this action on or about June 3, 2005. A note of issue and certificate of readiness was filed in or about July 2006. Local court rules require that all dispositive motions be made within 60 days after the filing of the note of issue. Nevertheless, CPLR 3212 permits the court to consider an untimely motion for summary judgment upon a showing of "good cause" for the delay. "Good cause requires a satisfactory explanation for the untimeliness of the motion" (Tower Ins. Co. of NY v Razy Assoc., __ AD3d ___, 2007 NY Slip Op 1554, 2 (2d Dept]); the meritorious nature of the motion or claim is insufficient (see Brill v City of New York, 2 NY3d 648, 652 ). More recently, it has been held that "significant outstanding discovery" may justify the delay in some situations (Czernicki v Lawniczaki, 25 AD3d 581, 581-582 [2d Dept 2006]).
Here, defendant argues that the delay in moving is the direct result of plaintiff's failure to provide HIPAA compliant authorizations for medical records. In support of this argument, defendent has submitted correspondence and stipulations which show that additional authorizations were obtained well after plaintiff filed the note of issue. It is claimed that upon receiving the necessary authorizations, defendant acted diligently to retrieve and analyze said documents prior to moving for summary judgment.
Plaintiff opposes the granting of leave, and argues that "good cause" has not been demonstrated. The Court disagrees.
The acquisition of plaintiff's medical records were material and necessary to defendant's ability to establish the alleged lack of a serious injury (see CPLR 3101[a]). Accordingly, plaintiff's delay in providing defendant with HIPAA compliant authorizations clearly impaired defendant's ability to make a timely motion. Given defendant's evidence of "good cause" for the delay, the Court will proceed to address the merits of the motion.
Here, defendant claims that plaintiff's injuries are not "serious" within the meaning of Insurance Law § 5102 (d). In support, defendant has submitted the sworn reports of several physicians, each of whom opined that plaintiff's injuries are not causally related to the accident on April 1, 2005. Rather, plaintiff's injuries are adjudged to be the product of "chronic longstanding processes" that require years to develop.
In opposition, plaintiff has submitted the sworn report of his treating orthopedist, Dr. Albert B. Accettola.[FN1] [*3]
It is well settled that the "proponent of a summary judgment motion must make a 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" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once the movant has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the [opposing party] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; see Zuckerman v City of New York, 49 NY2d 557 ). Nevertheless, in reviewing such a motion, the court is enjoined to accept as true the evidence tendered by the nonmoving party, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotations omitted]).
Insurance law § 5102 (d) provides for the recovery of noneconomic losses by covered persons who sustain a "serious injury" in an automobile accident. For these purposes, "serious injury" is defined to mean
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 (Insurance Law § 5102 [d]).
Here, defendant has made a prima facie showing that plaintiff did not sustain a serious injury through the affirmations of their medical experts, Drs. Gregory Montalbano and A. Robert Tantleff (see Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416 [2d Dept 2003]). To the extent relevant, Dr. Tantleff opined there was no evidence of a fracture, a tear in the meniscus, a separation, joint effusion, or lesions supportive of plaintiff's alleged knee injuries. Rather, he noted that the apparent changes and buckling were more consistent with degeneration and/or sprain. Regarding plaintiff's alleged back injuries, Dr. Tantleff found no evidence of spasms, edema, or abnormal contractions and opined that the bulging discs are due to degeneration and the aging process. For his part, Dr. Montalbano opined that plaintiff had sustained only a partial tear of the ligament and no disability. Therefore, the burden has shifted to plaintiff to demonstrate a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 ).
In this case, plaintiff has sustained his burden by presenting sufficient evidence in admissible form to create a triable issue on the question of whether he sustained a "permanent consequential limitation of use" and/or a "significant limitation of use" of any organ, member, body function or system. Specifically, Dr. Accetolla opined based on objective medical evidence that plaintiff's injuries are permanent in nature, and are causally related to the accident on April 1, 2005. However, there is no evidence of any "permanent loss of use" (see Bangs v [*4]Oberly Ambulance, 96 NY2d 295 [a "permanent loss of use" must be total]), or that plaintiff was prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident. Pertinent to the latter, plaintiff's inability to return to work was limited to 32 days. As a result, plaintiff may not recover under the foregoing categories of "serious injury".
Accordingly, it is
ORDERED, that defendant's motion for leave to file a belated motion for summary judgment is granted; and it is further
ORDERED, that the motion for summary judgment is denied except as to plaintiff's claim to injury under the "permanent loss of use" and/or "90/180" day categories of serious injury; and it is further
ORDERED that the above categories of injury should not be considered at trial.
E N T E R ,
/s/ Philip G. Minardo
Dated: April 26, 2007 Footnotes
Footnote 1:This Court will not consider the report of plaintiff's chiropractor Donna Sands which is not in admissible form (CPLR § 2106; Doumanis v Conzo, 265 AD2d 296, 296 [2d Dept 1999]["in order to make a competent, admissible affirmation, a chiropractor, like most other persons, must first appear before a notary or other such official and formally declare the truth of the contents of the document"]).