Coughman v Garcia

[*1] Coughman v Garcia 2009 NY Slip Op 52161(U) [25 Misc 3d 1217(A)] Decided on August 12, 2009 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2009
Supreme Court, New York County

Clyde Coughman, Plaintiff,

against

Junnio Garcia, Defendant.



115844/2005



Attorney for Plaintiff:

Holihan Phemister & Associates

56-29 Metropolitan Ave.

Ridgewood, NY 11385

Attorney for Defendant:

Kay & Gray

875 Merrick Avenue

Westbury, NY 11590

Paul Wooten, J.

On September 3, 2003, plaintiff Clyde Coughman ("plaintiff") was in a motor vehicle accident near the intersection of West 135th Street and Lenox Avenue in New York County, New York. The accident involved a collision between plaintiff's vehicle and a vehicle owned and operated by defendant Junnio Garcia ("defendant"). Plaintiff commenced this action to recover damages for alleged personal injuries suffered as a result of the subject motor vehicle accident. The parties completed discovery and a Note of Issue was filed on March 12, 2008. Defendant now moves for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the threshold issue of "serious injury," pursuant to Insurance Law § 5102 (d).

SERIOUS INJURY THRESHOLD

Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101 et seq. - the "No-Fault Law"), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102 (d) (see Licari v Elliott, 57 NY2d 230 [1982]). 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 loss"]; permanent consequential limitation of use of a body organ or member ["permanent consequential limitation"]; significant limitation of use of a body function or system ["significant limitation"]; 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 [*2]impairment ["90/180"].

Plaintiff alleges that the motor vehicle accident resulted in permanent injuries to his back and right shoulder (see defendants' motion, exhibit B, bill of particulars at ¶¶ 6-7.) Within his bill of particulars, he claims a "serious injury" under the following four relevant categories: (1) permanent loss; (2) permanent consequential limitation; (3) significant limitation; and (4) 90/180. (Id. at ¶ 18.) The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories.

"Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104 [a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to " weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). As such, to satisfy the statutory threshold, plaintiff is required to submit competent objective medical proof of his injuries (id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).

SUMMARY JUDGMENT ON SERIOUS INJURY

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). The moving defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102 (d) (see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006]).

A defendant can satisfy the initial burden by relying on the sworn or affirmed statements of their own examining physician, plaintiff's sworn testimony, or plaintiff's unsworn physician's records (see Arjona v Calcano, 7 AD3d 279, 280 [1st Dept 2004]; Nelson v Distant, 308 AD2d 338, 339 [1st Dept 2003]; McGovern v Walls, 201 AD2d 628, 628 [2d Dept 1994]). Reports by a defendant's own retained physician, however, must be in the form of sworn affidavits or affirmations because a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Pagano v Kingsbury, 182 AD2d 268, 270 [2d Dept 1992]). Moreover, CPLR 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury.

A defendant can meet the initial burden of establishing a prima facie case of the nonexistence of a serious injury by submitting the affidavits or affirmations of medical experts who examined plaintiff and opined that plaintiff was not suffering from any disability or consequential injury resulting from the accident (see Gaddy, 79 NY2d at 956-57; Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004]; see also Junco v Ranzi, 288 AD2d 440, 440 [2d Dept 2001] [defendant's medical expert must set forth the objective tests performed during the examination]). A defendant can also demonstrate that plaintiff's own medical evidence does not indicate that plaintiff suffered a serious injury and that the injuries were not, in any event, causally related to the accident (see Franchini, 1 NY3d at 537). A defendant can additionally point to plaintiff's own sworn testimony to establish that, by plaintiff's own account, the injuries were not serious (see Arjona, 7 AD3d at 280; Nelson, 308 AD2d at 339).

Plaintiff's medical evidence in opposition to summary judgment must be presented by way of sworn affirmations or affidavits (see Pagano, 182 AD2d at 270; Bonsu v Metropolitan [*3]Suburban Bus Auth., 202 AD2d 538, 539 [2d Dept 1994]). However, a reference to unsworn or unaffirmed medical reports in a defendant's motion is sufficient to permit plaintiff to rely upon the same reports (see Ayzen v Melendez, 299 AD2d 381, 381 [2d Dept 2002]). Submissions from a chiropractor must be by affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR 2106 (see Shinn v Catanzaro, 1 AD3d 195, 197 [1st Dept 2003]). Moreover, an expert's medical report may not rely upon inadmissible medical evidence, unless the expert establishes serious injury independent of said report (see Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [2d Dept 1995]; Rice v Moses, 300 AD2d 213, 213 [1st Dept 2002]).In order to rebut defendant's prima facie case, plaintiff must submit objective medical evidence establishing that the claimed injuries were caused by the accident, and "provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration" (Noble v Ackerman, 252 AD2d 392, 394 [1st Dept 1998]; see also Toure, 98 NY2d at 350). Plaintiff's subjective complaints "must be sustained by verified objective medical findings" (Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]). Such medical proof should be contemporaneous with the accident, showing what quantitative restrictions, if any, plaintiff was afflicted with (see Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003]). The medical proof must also be based on a recent examination of plaintiff, unless an explanation otherwise is provided (see Bent v Jackson, 15 AD3d 46, 48 [1st Dept 2005]; Nunez v Zhagui, 60 AD3d 559, 560 [1st Dept 2009]).

A medical affirmation or affidavit that is based on a physician's personal examination and observation of plaintiff is an acceptable method to provide a physician's opinion regarding the existence and extent of plaintiff's serious injury (see O'Sullivan v Atrium Bus Co., 246 AD2d 418, 419 [1st Dept 1998]). "However, an affidavit or affirmation simply setting forth the observations of the affiant are not sufficient unless supported by objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on a neurological examination" (Grossman, 268 AD2d at 84; see also Arjona, 7 AD3d at 280; Lesser v Smart Cab Corp., 283 AD2d 273, 274 [1st Dept 2001]). A physician's conclusory assertions based solely on subjective complaints cannot establish a serious injury (see Lopez v Senatore, 65 NY2d 1017, 1019 [1985]).

Plaintiff's medical proof of the extent or degree of a physical limitation may take the form of either an expert's "designation of a numeric percentage of a plaintiff's loss of range of motion"; or qualitative assessment of a plaintiff's condition, "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" (Toure, 98 NY2d at 350). The medical submissions must specify when and by whom the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether plaintiff's limitations were significant (see Milazzo v Gesner, 33 AD3d 317, 317 [1st Dept 2006]; Vasquez v Reluzco, 28 AD3d 365, 366 [1st Dept 2006]).

Further, a plaintiff who claims a serious injury based on the "permanent loss" category has to establish that the injury caused a "total loss of use" of the affected body part (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295, 299 [2001]).

The "permanent consequential limitation" category requires a plaintiff to establish that the injury is "permanent," and that the limitation is "significant" rather than slight (see Altman v Gassman, 202 AD2d 265, 265 [1st Dept 1994]). Whether an injury is "permanent" is a medical determination, requiring an objective basis for the medical conclusion of permanency (see Dufel, 84 NY2d at 798). Mere repetition of the word "permanent" in the physician's affirmation or affidavit is insufficient. (See Lopez, 65 NY2d at 1019.)

The "significant limitation" category requires a plaintiff to demonstrate that the injury has [*4]limited the use of the afflicted area in a "significant" way rather than a "minor, mild or slight limitation of use" (Licari, 57 NY2d at 236). In evaluating both "permanent consequential limitation" and "significant limitation," "[w]hether a limitation of use or function is significant' or consequential' . . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel, 84 NY2d at 798). Moreover, a " permanent consequential limitation' requires a greater degree of proof than a significant limitation,' as only the former requires proof of permanency" (Altman, 202 AD2d at 651).

The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.). A physician's statement that is too general and non-specific does not support a 90/180 claim (see e.g. Morris v Ilya Cab Corp., 61 AD3d 434, 435 [1st Dept 2009]; Gorden v Tibulcio, 50 AD3d 460, 463 [1st Dept 2008]).

Finally, "even where there is objective medical proof, when additional contributing factors interrupt the chain of causation between the accident and claimed injurysuch as a gap in treatment, an intervening medical problem or a preexisting conditionsummary dismissal of the complaint may be appropriate" (Pommels v Perez, 4 NY3d 566, 572 [2005]). Accordingly, a plaintiff is required to offer a reasonable explanation for a "gap in treatment" (id. at 574; see also Colon v Kempner, 20 AD3d 372, 374 [1st Dept 2005].) To raise an issue of fact, the explanation must be proffered by physicians within medical reports or affidavits (see Farozes v Kamran, 22 AD3d 458, 458 [2d Dept 2005]; Ali v Vasquez, 19 AD3d 520, 521 [2d Dept 2005]; Hernandez v Taub, 19 AD3d 368, 369 [2d Dept 2005]). Alternatively, when the explanation for the gap is proffered by plaintiff, it must be supported by corroborative proof to substantiate plaintiff's bare allegations (see Paul v Allstar Rentals, Inc., 22 AD3d 476, 477 [2d Dept 2005]).

DISCUSSION

In support of the summary judgment motion, defendant submits inter alia, plaintiff's bill of particulars; plaintiff's March 2, 2007 deposition; an affirmed medical report of Dr. Mark Pitman dated April 9, 2008; and an affirmed medical report of Dr. C. M. Sharma dated April 9, 2008. (See defendants' motion,exhibits B, D, E.)

Dr. Pitman conducted an orthopedic independent medical examination ("IME") of plaintiff on April 9, 2009. His report notes that he reviewed plaintiff's 2003 medical records from Dr. Pfeiffer; a 2004 report from Dr. Jason Shevetz; and acupuncture notes and other check-sheets. Dr. Pitman makes no reference to the results of the prior examinations, and attaches no copies of the reviewed records. There is no indication that he relied on any of the prior records. His examination revealed that plaintiff's range of motion of the cervical spine, lumbar spine and shoulder were all within normal range. Dr. Pitman concluded that plaintiff was not disabled for his occupation as a toll taker, and that he had reached maximum medical improvement.

Dr. Sharma conducted a neurological IME of plaintiff on April 9, 2008. Dr. Sharma reviewed an October 8, 2003 MRI of the lumbar spine; a September 25, 2003 X-ray of the cervical spine; a September 4, 2003 report from Dr. Shevetz; and a September 4, 2003 report from Dr. Zinovy Pugach. Dr. Sharma does not discuss the results of any of the prior medical records or attach copies of such records, and there is no indication that Dr. Sharma relied on any of the results. Dr. Sharma's examination of plaintiff's spine showed that plaintiff had normal posture and could bend forward and touch his feet. In the supine posture the straight leg raising test was negative. Movements of the neck and shoulders were in normal range. Dr. Sharma's diagnosis was: 1. Subjective cervical and lumbar pain; and 2. Normal neurological [*5]examination. Dr. Sharma concluded that there was no causally related neurological problem, no neurological disability, no neurological limitations to usual work activities and no permanent neurological problem.

Plaintiff's bill of particulars states that as a result of the accident, he was confined to bed and to home for four to six weeks, and was incapacitated from employment for four to six weeks (bill of particulars at ¶¶ 8-11). At his deposition, plaintiff denied being confined to bed or home for any period of time (plaintiff's March 2, 2007 deposition at 17-18). He also stated that he only missed about three weeks of work (id. at 18).

Plaintiff also testified at his deposition that he discontinued physical therapy after nine or ten weeks because the no-fault insurance ran out (id. at 18-19). Other than having a MRI, he did not see any other doctors or receive additional physical therapy (id. at 19-20). At the time of the accident, plaintiff had health insurance coverage from his job (id. at 19).

Based on the foregoing, defendant has established a prima facie case that plaintiff did not suffer a "serious injury" under the categories of permanent loss, permanent consequential limitation or significant limitation (see Insurance Law § 5102 [d]). Defendant has submitted sufficient objective medical evidence demonstrating that plaintiff has normal range of motion, and suffers from no orthopedic or neurologic disability resulting from the accident. (See Gaddy, 79 NY2d at 956-57 [defendant established prima facie case "through the affidavit of a physician who examined [the plaintiff] and concluded that she had a normal neurological examination"); Gorden, 50 AD3d at 462-63 [defendants met initial burden where affirmed reports of orthopedist and neurologist, made after a review of plaintiff's medical records and a personal examination, stated that plaintiff did not suffer from a neurologic or orthopedic disability and that the injuries were resolved]).

Defendant has also sustained his burden of proof with regard to the 90/180 category. A defendant can establish the nonexistence of a serious injury under 90/180 absent medical proof by citing to evidence, such as plaintiff's own testimony, demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting his usual and customary daily activities for the prescribed period (see Copeland v Kasalica, 6 AD3d 253, 254 [1st Dept 2004]). Plaintiff's bill of particulars asserts that he was confined to bed and to home for only four to six weeks, and that he was incapacitated from employment for only four to six weeks. He alleges even lesser periods of confinement and incapacity in his deposition testimony. These time periods are far less than the 90/180 days required by the statute (see id. [home and bed confinement for less than the prescribed period evinces lack of serious injury].

Since the Court finds that defendant has sustained his initial burden of establishing prima facie entitlement to summary judgment, the burden shifts to plaintiff to produce evidentiary proof in admissible form establishing the existence of a genuine issue of fact (see Gaddy, 79 NY2d at 957). In opposition to summary judgment,plaintiff submits, inter alia, unsworn physical therapy and chiropractic notes; an unsworn October 8, 2003 MRI of the lumbosacral spine; an unsworn report of Dr. Jason Shevetz dated February 29, 2004; and an affirmed report of Dr. Randolph Rosarion dated September 2, 2008 (See plaintiff's affirmation in opposition, exhibits A, B, C, D.)

Dr. Shevetz examined plaintiff on September 4, 2003, and sets forth no range of motion degrees in his report. Dr. Shevetz's impression was: 1. Status post motor vehicle accident; and 2. Acute traumatic sprain and strain of the cervical and lumbosacral paraspinal muscles and ligaments. He opined that there was a causal relationship to the accident, and that limitations in using the cervical/dorsal and lumbosacral spine interfered with plaintiff's working ability and his activities in daily living. Dr. Shevetz's report also references other unsworn medical records consisting of: (1) the October 8, 2003 MRI of the lumbar spine revealing [*6]annular bulging of the posterior annular fibers at the L5-S1 level; (2) a normal September 25, 2003 X-ray of the lumbar spine; (3) a September 25, 2003 X-ray of the cervical spine revealing DJD lower cervical spine; and (4) the results of initial and follow-up examinations in September 2003 by chiropractor Michael Angelotto, a physical therapist, an acupuncturist and Dr. Zinovy Pugach.

Dr. Rosarion's report, which was plaintiff's only affirmed medical evidence, was prepared following an examination of plaintiff on July 16, 2008. Dr. Rosarion's report notes that he reviewed and relied upon the following unsworn records, which he terms "certified medical records" : (1) the October 8, 2003 MRI; (2) Dr. Shevetz's February 29, 2004 report; (3) a September 8, 2003 report of Alexandr Rapoport, CSW; (4) a September 4, 2003 initial evaluation by Dr. Pugach; and (5) treatments dates and bills from September 3, 2003 through December 17, 2003. Although Dr. Rosarion notes that copies of the "certified medical records" were annexed to his report, copies of the records are not annexed. There is no indication that the records were certified. After discussing the results of the records, Dr. Rosarion states that plaintiff's injuries have "not been resolved."

Dr. Rosarion also conducted a series of tests on plaintiff's lumbar spine revealing flexion 40 (normal is 60), extension 30 (normal is 30), left rotation 30 (normal is 30), right rotation 15 (normal is 30), left lateral flexion 15 (normal is 25) and right lateral flexion 15 (normal is 25). There was muscle spasm of the lumbar paraspinal musculatures with tenderness to digital palpation when examining the lumbosacral spine with weakness and pain when muscle testing the lumbar paraspinal musculatures with both flexion and extension. Bilateral straight-leg raising test elicited pain bilaterally, suggesting a severe sprain or disc lesion in the lumbar spine. Ely's test elicited pain, suggesting lesion of lumbar nerve roots. Based on the examination and the referenced records, Dr. Rosarion's diagnosis was: 1. Cervical spine derangement; 2. Lumbosacral spine L5-S1 annular bulge; and 3. Lumbosacral spine derangement. Dr. Rosarion opined that the treating physicians were "correct in their assessments," and that as a result of the accident plaintiff had a permanent partial disability related to his loss of range of motion; would continue to have a permanent significant limitation of the use of his lumbar spine; and was not expected to be able to perform his normal daily activities in a pain-free environment as he did in the past. Dr. Rosarion additionally notes that plaintiff's course of treatment ended when his insurance denied further benefits, and when it was determined that no complete cure was likely and further physical therapy would be futile.

The Court finds that none of the medical evidence submitted by plaintiff in opposition to summary judgment is admissible (see Pagano, 182 AD2d at 270). With the exception of Dr. Rosarion, all of the medical records submitted by plaintiff are unsworn. It is well settled that a plaintiff may not rely upon unsworn medical evidence to defeat a defendant's summary judgment motion (see Migliaccio v Miruku, 56 AD3d 393, 394 [1st Dept 2008] ["Statements and reports by the injured party's examining and treating physicians that are unsworn or not affirmed to be true under penalty of perjury do not meet the test of competent, admissible medical evidence sufficient to defeat a motion for summary judgment."]; Copeland, 6 AD3d at 254 [plaintiff failed to provide objective medical proof in competent form to establish serious injury where plaintiff "submitted unsworn medical records and reports that were not in admissible form"]; DeJesus v Paulino, 61 AD3d 605, 607 [1st Dept 2009] [unsworn emergency room records and other reports had no probative value]; Shinn, 1 AD3d at 197 [chiropractor's report must be by affidavit]; Black v Regalado, 36 AD3d 437, 438 [1st Dept 2007]).

Dr. Rosarion's report, though affirmed, is similarly inadmissible because it relies upon unsworn medical records. A plaintiff's treating physician may not rely upon his review of an unsworn medical report prepared by another doctor, where a sworn copy of such report has not [*7]been attached to the treating physician's affidavit or affirmation. (See Friedman, 216 AD2d at 267; Merisca v Alford, 243 AD2d 613, 614 [2d Dept 1997]). This is because just like plaintiff, who cannot rely on unsworn medical evidence to establish a serious injury, neither can his doctors.

Although defendant's experts indicate that they reviewed the unsworn medical records, such cursory review does not open the door to plaintiff's reliance upon of these same records to raise a genuine issue of fact. Defendant's experts did not attach copies of the unsworn records in their submissions. Nor did they discuss the results of the prior examinations, or rely upon such results. (See Hernandez v Almanzar, 32 AD3d 360, 361 [1st Dept 2006] [defense experts' review of unaffirmed reports "did not open the door to plaintiffs' reliance on them, since defendants did not submit such reports in support of the motion, nor did their experts rely on them in forming their conclusions"]; Dembele v Cambisaca, 59 AD3d 352, 352 [1st Dept 2009] [orthopedist's conclusions were inadmissible to the extent that they were based on unsworn medical records since defendant's doctors did "not submit copies of those unsworn papers with their reports, or expressly rely upon them in forming their own conclusions"]; cf. Ayzen, 299 AD2d at 381 (affirmation of plaintiff's treating physician that was based upon unsworn medical records was properly before the court because the results were referred to by defendants' examining physician). Plaintiff, therefore, has failed to present any competent objective medical evidence sufficient to rebut defendant's prima face entitlement to summary judgment (see Franchini, 1 NY3d at 537; Copeland, 6 AD3d at 254; Nemchyonok, 2 AD3d at 421).

The Court additionally finds that there is an unexplained gap in plaintiff's treatment of over four years, which is "fatal to his claim of serious injury" (Vasquez, 28 AD3d at 366; see also Pommels, 4 NY3d at 574; Colon, 20 AD3d at 374). Plaintiff has not presented a sufficient excuse for this lengthy gap. In view of plaintiff's lack of admissible medical evidence, there is no medical proof that plaintiff was discharged from treatment because he had reached maximum medical improvement (cf. Paz v Wydrzynski, 41 AD3d 453, 453-54 [2d Dept 2007] [plaintiff's chiropractor adequately explained gap where plaintiff was discharged because he had reached his maximum recovery and any further treatment would be merely palliative]. Nor has plaintiff raised an raise an issue of fact through his own testimony, as there is no corroborating proof that he discontinued treatment due to the cancellation of the no-fault insurance policy (see Francovig v Senekis Cab Corp., 41 AD3d 643, 644 [2d Dept 2007]). Notably, plaintiff testified at his deposition that he also had health insurance through his employment.

The Court recognizes that summary judgment is a drastic remedy since it deprives a litigant of his or her day in court (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court nevertheless concludes that defendant is entitled to summary judgment because he established a prima facie case that plaintiff did not sustain a "serious injury," and plaintiff failed to present a triable issue of fact sufficient to preclude summary judgment.

For these reasons and upon the foregoing papers, it is,

ORDERED that defendant's motion for summary judgment is granted; and it is further,

ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendant, dismissing the complaint in its entirety, with costs and disbursements to defendant as taxed by the Clerk; and it is further,

ORDERED that defendant shall serve a copy of this order, with notice of entry, upon plaintiff.

This constitutes the Decision and Order of the Court.

Dated: August 12, 2009