Walcott v Ocean Taxi Inc.

[*1] Walcott v Ocean Taxi Inc. 2009 NY Slip Op 50158(U) [22 Misc 3d 1117(A)] Decided on February 3, 2009 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2009
Supreme Court, Kings County

Travis Walcott, Plaintiff,

against

Ocean Taxi Inc., KEPLER M. AUGUSTE, MONIQUE MICHELLE AND JAMES R, WALTER, Defendants.



39004/2004



Plaintiff Walcott was represented by Lazarowitz & Manganillo, LLP, 2004 Ralph Ave., Brooklyn, NY 11224. Defendants Ocean Taxi and Kepler Auguste were represented by Filip Tiffenberg, PC, 1775 Broadway, NY, NY 10019. Defendants Michelle and Walter were represented by Robert P. Tusa, Esq., 2 Metrotech Center, Brooklyn, NY 11201.

Herbert Kramer, J.

What is a defendant's burden on a threshold motion that seeks to dismiss a plaintiff's 90/180 claim?[FN1]

Defendants Ocean Taxi Inc and Kepler L.M. Auguste sought to dismiss the plaintiff's complaint on the ground that he did not sustain a serious physical injury within the meaning of the provisions of Insurance Law §5102(d). This Court denied their motion in part because the defendants did not provide sworn medical reports demonstrating that the plaintiff was capable of performing his customary activities during the 90/180 period. The defendants now seek to reargue this decision claiming that they satisfied their burden through the provision of the plaintiff's sworn testimony to the effect that he had returned to work within one week of the accident. Since this is an issue which in this Court's view recurs frequently and which has been the subject of an evolving body of case law in the Second Department, this Court is hereby granting reargument.

There is a line of cases in the Second Department and in other departments, holding that the defendants did not meet their burden with respect to the 90/180 claim made in the plaintiff's bill of particulars because the defendants' examining doctors did [*2]not relate their findings with respect to this category of serious injury for the period of time immediately following the accident. See Faun Thai v. Butt, 34 AD3d 447(2d Dept. 2006); Lopez v. Geraldino, 35 AD3d 398(2d Dept. 2006) citing Toussaint v. Claudio, 23 AD3d 268 (lst Dept., 2005) ("reports of the defense medical experts, based on examinations of plaintiff conducted six years after the subject automobile accident, addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident, and were, accordingly, insufficient [to sustain defendants' burden of proof on the 90/180 claim]") and Lowell v. Peters, 3 AD3d 778(3d Dept. 2004)("report of the IME relied upon by defendants fails to discuss this particular category of serious injury and, further, the IME took place well beyond the expiration of the 180-day period").

In the above decisions, there is no indication that the defendants had relied upon or indeed could rely upon the sworn statements of the plaintiff in order to meet their burden. However, in Volpetti v. Yoon Kap, 28 AD3d 750(2d Dept. 2006), an oft cited case in this area, the indications are present that such may have been the unspoken ratio decidendi of the case. There the Court seemed to be making the same findings as in the above cited cases holding that the defendants failed to meet their burden because their experts did not relate their findings to this category of serious injury for the period of time immediately following the accident. Yet, the briefs in this case reveal that in fact the plaintiff claimed to have missed some three to four months of work.

Indeed, in later cases the plaintiffs' testimony does become more important and the decisions appear to vary the burden imposed upon defendants in accordance with the claims made by the plaintiff.

Thus where a plaintiff has asserted in a deposition that he or she has been incapacitated for a period of time longer than 90 of the first 180 days, or the defendant's examining doctors make note of such claim, the Second Department looks to the IME report to see whether the IME doctor has ruled it out. If in fact the IME doctor has not related his findings to the 90/180 category of injury than the Second Department has repeatedly held that the defendant has failed to make his or her burden. See e.g. Scinto v. Hoyte, 57 AD3d 646(2d Dept. 2008) (Plaintiff alleged injury in the 90/180 category in her bill of particulars, the defendant's "examining orthopedist did not specifically relate any of his findings to this category of serious injury for the relevant period following the accident . . . the plaintiff's deposition testimony which was also annexed to the defendant's summary judgment motion, was insufficient to establish the defendants burden of proof in this regard" [emphasis added]). See also Koulouris v. IMS Car Service, Inc., 43 AD3d 879 (2d Dept. 2007) (plaintiff testified that she was out of work for more than three years and confined to her home for six months); Daddio v. Shapiro, 44 AD3d 699 (2d Dept. 2007) (plaintiff testified that he missed 41/2 to 5 months of work immediately following the accident); Ali v. Rivera, 52 AD3d 445 (2d Dept. 2008) (defendant's experts note that the plaintiff missed six months from work in the critical period but do not comment on it). See also Sayers v. Hot, 23 AD3d 453(2d Dept. 2005); Torres v. Performance Auto Group, 36 AD3d 894 (2d Dept. 2007).

However, where, as here, the plaintiff has not indicated that he was out of work or otherwise incapacitated for the requisite period, what precisely is the defendant's burden? Is the defendant obligated to bring an IME report that rules out the 90/180 [*3]claim?. The answer, apparently is "no" based upon a fairly recent Second Department case. Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664(2d Dept. 2008). In Sanchez the plaintiff testified that he missed work for five weeks and the Court held that the defendants made a prima facie showing through that deposition testimony that the plaintiff did not sustain a serious injury as a result of the accident and made no reference at all to the IME report.

In sum, these cases seem to suggest that where a plaintiff presents evidence supporting the 90/180 claim, then the defendant to satisfy its burden must come forth with a doctor's report ruling out that claim. However, where a plaintiff's testimony indicates that he or she was not incapacitated for the requisite period, than the defendants need not submit a medical opinion in order to meet their burden.

In the case at bar, the defendants argue that the plaintiff's testimony that he returned to work within a week of the accident would, under Sanchez, supra, satisfy the defendants' burden without more. This Court agrees. Accordingly, this Court's decision of August 6, 2008 is hereby modified so as to reflect the holding that the defendants have met their burden of going forward with respect to the plaintiff's 90/180 claim. As such the burden now shifts to the plaintiff. In light of the fact that the plaintiff testified that he only missed a week from work and since the other aspects of his life had seemingly not been affected except that he had more difficulty "carrying stuff" and did not participate regularly in pick up games on Sundays, plaintiff failed to raise an issue of fact with respect to his 90/180 claim.[FN2]

However, with respect to that branch of the defendants' motion directed towards the plaintiff's remaining claims, renewal is granted and upon renewal this Court adheres to its original determination.[FN3] [*4]

Accordingly, the defendants motion to reargue is granted and upon reargument the defendant's motion for summary judgment with respect to the plaintiff's 90/180 claim is granted and the complaint is dismissed as to that claim. The court otherwise adheres to its original decision.

This constitutes the decision and order of the Court.

J.S.C. Footnotes

Footnote 1: The Insurance Law provides that a serious physical injury includes "a medically determined injury or impairment of a non-permanent nature which prevents [the injured party] from performing substantially all of the material acts which constitute [the person's] usual and customary daily activities for not less than [90] days during the [180] days immediately following the occurrence of the injury or impairment" (Insurance Law 5102(d))

Footnote 2: The bare statement by plaintiff's doctor to the effect that plaintiff's "health was impaired, curtailed and that he suffered extensive pain and body mobility restrictions" in the 90/180 period does not explain or discuss the plaintiff's actual lifestyle changes, was unsupported and did not suffice to sustain the plaintiff's burden.

Footnote 3: The defendants contend that this Court erred in finding that the plaintiff met his burden with respect to the remaining claims since the plaintiff allegedly failed to provide range of motion studies that were contemporaneous with the accident. The issue raised by the defendants essentially devolves to a question of what constitutes a "contemporaneous" examination. A working definition can be found in Thompson v. Abbasi, 15 AD3d 95(lst Dept. 2005) where the Court opined that a "post-accident" limitation is one suffered "within a reasonable time after the accident under all relevant circumstances." Thus, it has been found that six years is not reasonable, Li v. Woo Sung Yun, 27 AD3d 624( 2d Dept. 2006) and one year was not considered to be even "roughly contemporaneous with the subject accident" Deutsch v. Tenempaguay, 48 AD3d 614(2d Dept. 2008) whereas six months may well have been sufficiently contemporaneous but for the fact that the reports were not sworn, Toulson v. Young Han Pae, 13 AD3d 317(lst Dept. 2004). However, evaluations done within "a few months" of the accident were considered acceptable. Castro v. Frias, 2001 WL 1722883 Applt Term, 1st Dept. 2001).

In our circumstances, the examination took place within three and one half months of the accident and as such this Court finds that it is reasonably contemporaneous with the accident. Any other issues raised by the defendants devolve to questions of credibility best left for a jury.