Rodriguez v Koval, Rejtig & Dean, PLLC

[*1] Rodriguez v Koval, Rejtig & Dean, PLLC 2009 NY Slip Op 51108(U) [23 Misc 3d 1135(A)] Decided on May 13, 2009 Supreme Court, Nassau County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2009
Supreme Court, Nassau County

Olgin Rodriguez, Plaintiff,

against

Koval, Rejtig & Dean, PLLC, MARK KOVAL, JARON REJTIG and CHRISTOPHER DEAN, Defendants.



14540/06



Law Offices of Robert D. Rosen - Attorney for Plaintiff

Catalano Gallardo & Petropoulos, LLP - Attorneys for Defendants

Thomas Feinman, J.

The defendants move for an order pursuant to CPLR §3025 granting the defendants leave to serve an amended answer to plaintiff's Verified Complaint in the form annexed to the moving papers herein, and an order pursuant to CPLR §3212 granting the defendants summary judgment dismissing plaintiff's Verified Complaint. The defendants submit a Memorandum of Law in support of their motion. The plaintiff submits opposition. The defendants submit a reply affirmation.

Leave to Serve an Amended Answer

That branch of defendant's motion seeking leave to serve an Amended Answer to include the affirmative defenses of lack of capacity and judicial estoppel is unopposed, and therefore, is granted.

Summary Judgment[*2]

The defendants move for summary judgment on the grounds that the plaintiff lacked standing and the legal capacity to pursue the underlying action, and on the grounds that the plaintiff did not sustain a "serious injury"as defined by Insurance Law §5102(d), and thus, plaintiff's claim for non-economic loss is barred by §5104(a) of the New York Insurance Law.

The plaintiff initiated the instant action for legal malpractice due to defendants' failure to commence an action for personal injuries as a result of a motor vehicle accident that occurred on June 27, 2000. The defendants submit that approximately four months after the plaintiff was involved in the subject motor vehicle, plaintiff filed for bankruptcy and failed to list his underlying claim for personal injuries as an asset in his bankruptcy proceeding, and did not amend his proceeding to reflect a cause of action. The plaintiff apparently received a discharge of his debts on April 16, 2001 and bankruptcy proceedings were closed April 27, 2001. The defendants argue that since the plaintiff did not list the underlying personal injury action as an asset when he filed for bankruptcy, he lacks the legal capacity to pursue the underlying action. The defendants also seek to invoke the doctrine of judicial estoppel and submit that since the plaintiff failed to properly disclose the underlying action, plaintiff is precluded from pursuing it, and therefore, precluded from pursuing the instant action for legal malpractice.

It is well settled that the doctrine of judicial estoppel or estoppel against inconsistent positions precludes a party from taking a position in one legal proceeding which is contrary to that which he or she took in a prior proceeding, simply because his or her interests have changed. (Festinger v. Edrich, 32 AD3d 412, citing Ford Motor Credit Co. v. Colonial Funding Corp., 215 AD2d 435; Kimco of NY v. Devon, 163 AD2d 573, and Environmental Concern v. Larchwood Constr. Corp., 101 AD2d 591). "The doctrine rests upon the principle that a litigant should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise". (Environmental Concern v. Larchwood Constr. Corp., supra , quoting Note, The Doctrine of Preclusion Against Inconsistent Positions in Judicial Proceedings, 59 Harv. Law Rev. 1132). The doctrine is invoked to estop parties from adopting contrary positions because the judicial system "cannot tolerate this playing "fast and loose with the courts".' (Id., citing Scarano v. Central Ry Co., 203 F2d 510).

Here, the defendants have not demonstrated, as a matter of law, that the plaintiff, in failing to list the personal injury action as an asset in his bankruptcy proceeding has taken an "inconsistent" position, or is playing fast and loose with the court and therefore, is precluded from pursuing the instant action for legal malpractice. The plaintiff, in opposition to the motion, provides, and the defendants do not dispute in their reply, that a complaint was never filed or served with respect to plaintiff's personal injury action. As so, plaintiff submits the action never matured. In fact, plaintiff claims that the defendants advised the plaintiff that the three year statute of limitations expired and the action was not commenced as a summons and complaint was not filed. Plaintiff argues, in essence, that failure to file the underlying action in his bankruptcy proceeding stems from the defendants' failure to commence suit. In other words, that it is axiomatic that plaintiff did not list the personal injury action as an asset in his bankruptcy proceeding as the action was not commenced. Moreover, plaintiff argues that had the defendants [*3]initiated the lawsuit, the plaintiff could have sought permission to open his bankruptcy action to include the lawsuit as an "asset". (Pinto v. Ancona, 262 AD2d 472).

Upon the foregoing, the defendants have not demonstrated entitlement to summary judgment dismissing plaintiff's complaint on the ground of judicial estoppel, or on the ground that plaintiff lacks capacity to sue.

This Court will now address that branch of the defendants' motion seeking summary judgment on the grounds that the plaintiff did not suffer a "serious injury" as defined by Insurance Law §5102(d), and thus, plaintiff's claims for non-economic loss is barred by §5104(a) of the New York Insurance Law.

The plaintiff claims that as a result of the motor vehicle accident which occurred on June 27, 2000, plaintiff sustained injuries including, but not limited to, an anterior cruciate ligament tear of the right knee, medial meniscus tear of the right knee, internal derangement and limitation and restriction of movement of the right knee, median nerve injury of the left wrist, neurapaxia of the ulna nerve of the left elbow, restriction and limitation of motion of the left shoulder, multiple disc bulges, limitation of motion of the cervical and lumbar spine, bulging discs at L5 - S1, and L1 -2.

The defendants submit the medical examination report of Dr. A. Philip Fontanetta, M.D., an orthopedist. Dr. Fontanetta examined the plaintiff on August 14, 2008. Dr. Fontanetta concludes that plaintiff has a cruciate deficient knee, consistent with an MRI in 2000. However, Dr. Fontanetta states that the age of the tear is undetermined.

"A defendant can establish that the plaintiff's injuries are not serious within the meaning of the 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."( Grossman v. Wright, 268 AD2d 79). The threshold question in determining a summary judgment motion of the issue of serious injury focuses on the sufficiency of the moving papers. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 NY2d 320; Winegrad v. New York University Medical Center, 64 NY2d 851). In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v. Bennett, 122 AD2d 728, affirmed, 69 NY2d 7010). Once the defendants submit evidence establishing that the plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d), the burden shifts to the plaintiff to produce evidence in admissible form demonstrating the existence of a triable issue of fact. (Gaddy v. Eyler, 582 NYS2d 990 {79 NY2d 955} ).

Here, Dr. Fontanetta states that upon examination of the plaintiff, almost eight years post accident, the plaintiff has a cruciate deficient knee. Dr. Fontanetta's affidavit creates issues of fact rather than eliminate them. (Aleksiejuk v. Pell, 300 AD2d 1066). Dr. Fontanetta fails to [*4]address all of plaintiff's claimed injuries including the median nerve injury at the left wrist, neurapaxia of the ulna nerve at the left elbow, and plaintiff's claimed loss of range of motion in his knee and lumbar and cervical spine. Dr. Fontanetta's affidavit is insufficient to demonstrate that the plaintiff did not sustain a "permanent consequential" or "significant limitation" of movement of the plaintiff's cervical or lumbar spine. The defendants' proof failed to objectively establish that the plaintiff suffered no limitation of his spine. (D'Angelo v. Guerra, 307 AD2d 306). The affidavit fails to identify any objective range of motion tests performed. (Minlionica v. Shahabi, 296 AD2d 569; Junco v. Ranzi, 288 AD2d 440).

When a claim is raised under the "permanent consequential limitation of use of a body organ or member", or "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," in order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion is acceptable. (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345). An expert's qualitative assessment of a plaintiff's condition is also probative provided that the evaluation has an objective basis, and the evaluation compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. (Id.) Dr. Fontanetta's affidavit is insufficient to demonstrate that the plaintiff did not sustain a "permanent consequential" or "significant limitation" of movement of the plaintiff's cervical or lumbar spine.

Therefore, the defendants have failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5104(d). Under these circumstances, the Court does not need to consider whether the plaintiff's opposition papers are sufficient to raise a triable issue of fact. (Morales v. New York City Transit Authority, 287 AD2d 604). Accordingly, the defendants' motion for summary judgment on the grounds that the plaintiff did not suffer a "serious injury" is denied.

Conclusion

In light of the foregoing, it is hereby

ORDERED that the defendants are granted leave to serve an amended answer to the plaintiff's Verified Complaint and therefore, the amended answer in the form annexed to the motion papers as an exhibit shall be deemed served five (5) business days after service of a copy of this order with notice of entry upon the attorneys for the plaintiff by first class mail, and it is hereby further

ORDERED that that branch of the defendants' motion seeking summary judgment is denied in its entirety.

E N T E R :

________________________________

J.S.C.

Dated: May 13, 2009

cc: Law Offices of Robert D. Rosen

Catalano Gallardo & Petropoulos, LLP