Umelo v Venzen
Annotate this CaseDecided on June 8, 2011
Supreme Court, Kings County
Augustine Umelo, Plaintiff,
against
Keniesha R. Venzen and MARK PENADO, Defendants.
9378/2009
Attorney for Plaintiff
Michael T. Ridge, Esq.
910 Grand Concourse
Suite 1D
Bronx, NY 10451
(718) 590-5400
Attorney for Defendants
Mayu Miyashita, Esq.
Cheven, Keely & Hatzis, Esqs.
40 Wall Street, 12th Floor
New York, NY 10005
(212) 809-7600
Francois A. Rivera, J.
By notice of motion filed on December 7, 2010, defendant moves under motion sequence two, for an order dismissing plaintiff's complaint, pursuant to CPLR 3212, on the basis that plaintiff's injuries do not satisfy the "serious injury" requirement of New York Insurance Law § 5102(d).
Plaintiff opposes the motion.
BACKGROUND
On April 16, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. By verified answer, dated August 17, 2009, defendants joined issue. On October 5, 2010, a note of issue was filed.
Plaintiff's action is for damages due to personal injuries sustained as a result of a motor vehicle accident. Plaintiff's complaint and bill of particulars alleges that on June 7, [*2]2008, a commercial vehicle operated by defendant Mark Penado (hereafter "Penado") and owned by defendant Keniesha R. Venzen (hereafter "Venzen"), struck plaintiff as plaintiff was walking near the intersection of Church Avenue and Kings Highway in Brooklyn, New York, County of Kings. Plaintiff alleges to have sustained severe physical injuries as a result of defendant Penado's negligent operation of defendant Venzen's vehicle.
MOTION PAPERS
Defendant's motion papers consist of a notice of motion, an attorney's affirmation and nine exhibits, labeled A through I. Exhibit A consists of an E-law printout dated December 2, 2010. Exhibit B consists of a copy of the plaintiff's summons and verified complaint dated April 16, 2009. Exhibit C consists of a copy of the defendants' verified answer dated August 17, 2009. Exhibit D consists of a copy of plaintiff's bill of particulars dated August 10, 2009. Exhibit E consists of a copy of the neurological medical reports of Dr. Ravi Tikoo, dated April 28, 2010. Exhibit F consists of a copy of the orthopedic medical report of Dr. Robert J. Orlandi, dated April 27, 2010. Exhibit G consists of a copy of the radiological medical report of Dr. Richard A. Heiden dated October 8, 2010. Exhibit H consists of copies of medical reports pertaining to the plaintiff's alleged prior accident of June 1, 2005. Exhibit I consists of copies of claims search reports pertaining to the plaintiff's two alleged prior accidents and one alleged subsequent accident.
Plaintiff's opposition papers consist of an attorney's affirmation dated February 17, 2011 and three exhibits labeled A through C. Exhibit A consists of an affidavit of the plaintiff. Exhibit B consists of a copy of the narrative report of Dr. Eric Senat, an orthopedist. Exhibit C consists of a copy of the plaintiff's deposition testimony dated March 24, 2010.
Defendant submitted a reply affirmation dated March 29, 2011, consisting of an attorney's affirmation.
LAW AND APPLICATION
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, 508 N.Y.S.2d 923 [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, 760 N.Y.S.2d 397 [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, 601 N.Y.S.2d 463 [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 v. Prospect Hospital, supra, 68 NY2d at 324).
Insurance Law § 5104(a) provides that, "when an insured injures someone in a [*3]motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met," (Raffellini v. State Farm Mut. Auto. Ins. Co., Inc., 9 NY3d 196, 205, 848 N.Y.S.2d 1 [2007]).
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 impairment ["90/180-day"]."
Plaintiff provided the defendant with a verified bill of particulars dated October 3, 2009. In paragraph twelve, plaintiff alleges, among other things, suprapatellar effusion of the right knee, internal derangement of the cervical spine, internal derangement of right wrist and loss of range of right knee, right wrist as well as cervical and lumbar spine. In paragraph thirteen, plaintiff alleges that he has sustained serious injury as defined by Insurance Law § 5102(d) in that, among other things, plaintiff has sustained permanent loss, permanent consequential limitation, significant limitation and has been prevented from performing substantially all the acts which constitute plaintiff's usual and customary daily activities for not less than ninety of the one-hundred eighty days immediately following the accident. In paragraph fourteen, plaintiff alleges to have been confined to bed for approximately three weeks and to home for approximately three months.
In support of the instant motion, defendant submitted the affirmed report of Dr. Ravi Tikoo, a neurologist. Dr. Tikoo examined the plaintiff on April 28, 2010 and concluded that plaintiff demonstrated an essentially normal neurological examination. Dr. Tikoo diagnosed plaintiff with a history of cervical strain, a history of lumbosacral strain and a history of soft tissue injuries of the right knee and right hand. Although Dr. Tikoo found that plaintiff has no disability or work restriction, he offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.
Dr. Orlandi examined the plaintiff on April 27, 2010 and concluded that plaintiff demonstrated an excellent prognosis. Dr. Orlandi diagnosed plaintiff with resolved cervical and lumbar strains and as having no clinical residuals related to the plaintiff's right knee arthroscopy of August 26, 2008. Although Dr. Orlandi found that plaintiff has no disability or work restriction, he offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.
On or about October 8, 2010, Dr. Heiden reviewed radiological films taken on July 17, 2008 pertaining to plaintiff's right wrist and right knee. Dr. Heiden concluded, among [*4]other things, that plaintiff exhibited a normal right wrist MRI and a tear of the posterior horn of the medial meniscus inferior surface but that these findings have no causal relationship to the accident. Although Dr. Heiden found that the radiological findings were longstanding, chronic and not attributable to the accident of June 6, 2008, he offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.
The affirmed reports of Drs. Tikoo, Orlandi and Heiden are silent as to the plaintiff's condition during the relevant 90/180-day time period. Therefore, defendant has not met its burden because the affirmed medical reports submitted by defendants' physicians fail to specifically discuss the 90/180-day category of serious injury clearly articulated in the plaintiff's verified bill of particulars (Scinto v. Hoyte, 57 AD3d 646, 647, 870 N.Y.S.2d 61 [2nd Dept., 2008]).
The defendant's motion to dismiss the complaint pursuant to CPLR 3212 and Insurance Law § 5102(d) is denied.
The foregoing constitutes the decision and order of the court.
Enter:
_________________________
J.S.C.
Enter Forthwith:
_________________________
J.S.C.
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