Shapiro v Mehta

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Shapiro v Mehta 2012 NY Slip Op 30543(U) February 16, 2012 Supreme Court, Suffolk County Docket Number: 09-25895 Judge: Peter H. Mayer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. SIIORT Fl)RM (lRIlER CALNo. 09-25895 11-01289MV SUPREME COURT - STATE OF NEW YORK IAS PART 17 - SUFFOLK COUNTY PRESENT: lion. PETER II. MAYER Justice of lhe Supreme Court MOTION DATE 8-30-11 ADJ.DATE 11-21-11 Mot. Seq. 1/ 006 - XMotD # 007 - MD ---------------------------------------------------------------X LINDA SIIAPIRO and SCOTT SHAPIRO, Plaintiffs, NICOLINI, PARADISE, FERRETTI SABELLA, PLLC Attorney for Defendants 114 Old Country Road, Suite 500 Mineola, New York 1150 I - against - FAROKH MEHTAaod ELAN WURTZEL, ESQ. Attorney for Plainli ITs 527 Old Country Road Plainview, New York 11803 ANN M. MEHTA, Defendants. & MARTIN FALLON & MULLE Attorney for Plaintiff on Counter Claim Scott Shapiro 100 East Carver Street Huntington, New York ! 1743 ---------------------------------------------------------------X Upon the reading and filing of the following papers in this matter: (1) Notice of Cross Motion (006) by the defendants Mehta Cooling dated July 19, 201 ], and supporting papers nLl1nbered 1-9; NOlice of Motion (007) by defendants Mehta dated July 13,20 I I and supporting papers numbered 10-19; Opposition by affidavit of plaintiff I.inda Shapiro dated October 31, 2011 and supporting papers numbered 20(lllid "ltc, he,,1 ills cotlli~cl~' OlllllliStliIiCl1!:'l ill ~tlPPOlt(')/" ,Ilid oppC'>:sed tlie liltlli(')l~; and now 1(') UPON DUE DELlI3ERA TION AND CONSIDERATION motion is decided as follows: it is BY THE COURT of the foregoing papers, the ORDERED; that motion (006), Scott Shapiro as plaintiff on the counterclaim, pursuant to CPLR 3212, seeks summary judgment dismissing the defendants' counterclaim on the basis that he bears no liability for the occurrence of the accident, or, alternatively, for summary judgment dismissing the complaint on the basis that the plaintiff, Linda Shapiro, has not sustained a serious injury as defined by Insurance Law § 5IDl(d), is granted on the issue of liability and the defendant's counterclaim for contribution and apportionment of damages is dismissed, but is otherwise denied as to the issue of serious injury; and it is further ORDERED that motion that motion (007) by the defendants Farokh Mehta and Ann Mehta pursuant to CPI,R 32 [2 for summary judgment dismissing the complaint on the basis that the plaintift~ Linda Shapiro, has not sustained a serious injury as defined by Insurance Law § Sl02(d) is denied; and it is further [* 2] Shapiro v Mehta Il1d,,:\ Nll. 09-15S95 Page NO.:2 ORDERED that the Mehta defendants arc directed to serve a copy ot"thls order with notice of entry. within thirty days orthe date Oflhis order, upon the plaintiffs and the Clerk of the Calcnd,lr Department Supreme Court. Rivcrhcud. New York, and said Clerk ISdirected to set this matter down for a tnal on damage,", j(ll"th\\'lth. This negligence action arises out of a motor vehicle accident \vhich occurred on June 22, 2008. \vhen the vehicle 111 hich Lll1da Shapiro \;vasa passenger, and \vhlch was operated by her husbund. Scott ShapIro, was w struck 111he rear at the intersection of Express Drive South 111 t Huntington, New York, by the vehicle operated by Ann Mehta and owned by farokh Mehta. Damages arc sought by Linda Shapiro personally. and by Scott Shapiro derivatIvely, for the injuries claimed to have been sustained by Linda Shaplfo in thIS accident. By way of her bill oJ"particulars, Linda Shapiro alleges that as a result of the accident, she was caused to sustain injuries consisting of post-traumatic impingement syndrome of the right shoulder and right supraspinatus musculature with loss of range of motion; sprain and strain of the right shoulder; rotator cuff injury to the right shoulder; bursitis of the right shoulder. right scapula and right suprachromial bursa; tendonitis of the right shoulder with pain radiating down the arm; and the need Jor surgel)' to the right shoulder. In motion (006), the plaintifT on the counterclaim, Scott Shapiro. seeks summary dismissal o1'the counterclaim asserted by the defendants for contribution and apportionment of liability on the basis that he bears no liability f~)rthe occurrence of this accident, and further seeks summary judgment dismissing the complaint on the basis that Linda Shapiro did not sustain a serious injury as defined by Insurance Law §5102 (d).l Scott Shapiro, by counsel, incorporates by reference, the arguments asserted by John R. Ferretti submitted with motion (007), and those exhibits annexed thereto. In motion (007), the defendants seek summary judgment dismissing the complaint on the basis that the plamtifC Linda Shapiro, did not sustain a serious injury as set forth in Insurance Law §51 02 (d). The proponent of a summary judgment motion must make a prima f~lcieshowing of entitlement to judgment as a matter of law. tendering sufficient evidence to eliminate any materia! Issues of bet from the case (Friends of Animals)1 Associated Fur Mfrs . ¢ 46 NY2d 1065.416 NYS2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue offaci is presented (Sillman\' Twentieth Century-FlU:: Film Corporation, 3 NY2d 395,165 NYS2d 498 [1957]). The movant has the initial burden oC proving entitlement to summary judgment (Winegrad v N. Y.u. MediCllI Center, 64 NY2d 851,487 NYS2d 316 j 1985]). Failure to make such a showing requires denial of the motion. regardless of the sufficiency oCthe opposing papers (Winegrad )1 N. Y. U. Medical Center, supra). Once such proof has been offered. the burden then shills to the opposing party, who. in order to defeat the motion for summary judgment. must proffer evidence illudmissible form _.and must "show filets sufficient to require a trial or any issue of fact" (CPI ,R 3212[b]; Zuckerman v City ofNcw York, 49 NY2d 557. 427 NYS2d 595 1.l980]), The opposing party must assemble. lay bare and reveal his proof in order to establish that the matters set forth in his pleadings arc real and capable oCbell1g established (Castro v Uberty BIiS Co., 79 AD2d 1014,435 NYS2d 340 [2d Dcpt lOSIIl. It is noted that by moving 10 dismiss the complaint on the basis that the plailllin~ Lillda Shapiro, has not sustained a serious injury within the meaning oClnsurance Law § 5102(d), a conflict is created by counsel on the counterclaim for Scott Shapiro, as Scott Shapiro has asserted a derivative claim on his own behalf in the complaint, and counsel seeks dismissal against his client's interest. I [* 3] Shapiro v 1\1ehta !Ilde'( No. ()()-25895 Page NO.3 Turning to motion (006). the plaintiff on the counterclaim, Scot! Shapiro. seck summary judgment on the issue of liability dismissing the counterclaim for contribution and apportionment of damages as asserted against him. or in the alternative summary judgment dismissing the complall1t on the basts that Linda Shapiro has not sustained a serious ll1jury <IS defined by Insurance Law ~S 102 (d). [n supp0l1 of motion (006), the plaintiff on the counterclal1n has submiut'd an <.lttorney·s alTirmation; signed copies al"the transcrIpts orthe cxallllllatiolls before trial of Scott Shapiro. Ann Mehta. Linda Shapiro, and copies of the pleadings. Counsd for pla1l1titl on counterclaim incorporates by reference the attorney's affirmmion and exhIbits served in motion (007). J'hc accident occurred on June 22, 2008 at Route 110 and the Long lsland Expressway. Scott Shapiro testilied that he was operating a 2000 Nissan Pathlinder, traveling in a southerly direction in the ten travcllane on Route 110 which had three southbound travel lanes and a left turn lane at that location There was a traffic signal light which turned red at its intersection with the service road. He brought his vehicle to stop in the lcll travel lane behind two cars The traffic light turned green for his travel direction. The t\VOvehicles ahead of him 111 \cft travcllane did not move as there were two cars which came from the service road perpendicular his to them blocking the left travel lane. He changed travel lanes about three car lengths from the traffic light and brought his vehicle to a stop in the right hand lane. About three to Jive seconds later, his vehicle was struck in the rear by the defendant's vehicle. Prior to the impact to the rear of his vehicle, through his rear view mirror, he saw the defendants' vehicle, a blue Ford Explorer, behind him in the left lane, about six or seven or eight cars back. When he began to change lanes, he saw the blue Ford begm to change lanes at the same time. Ann Mehta testified to the effect that she had been traveling for about two miles in the left travel lane of Route 110 in a southbound direction. As she approached the north service road by Route 110, she observed that the traffic light at the intersection was green. When she first saw the other vehicle involved in the accident, she was in the left lane and the other vehicle was in the left lane ahead of her, with cars in between. The vehicles in b"ont of her in her travel lane put their brake lights on, and came to a "halted position" north of the south service road. She observed the plaintiff's vehicle about three or four vehicles ahead of her, braking in her lane. She waited while t\-\iOvehicles passed on her right, and looked into her rear view mirror and side view mirrors to check traiTic in the middle lane. Once she saw the cars passing lo her right had cleared, she pulled into the center lane. She observed the plaintiff's vehicle move from the left lane to the middle lane. She then testified that after she moved into the middle lane from the ten lane less than five seconds later, the impact occurred with the plaintiffs vehicle. The left front of her vehicle eame into contact with the right rear of the plaintiff's vehicle. She testilied that the pla1l1tifYs Vt'hicle had been stopped j~)fa couple of seconds when she hit it She observed the vehicle in front of the plaintiff's vehicle pull out in front of him into the middle Jane, causing the plaintiff to stop his vehicle. Linda Shapiro testified that she was in the right front passenger seat 'vhile her husband. Scott Shapiro. was operating their vehicle. They were traveling southbound on Route 110, deserihed as h3vmg three southbound lanes and a left turn lane. They stopped in the left travel lane about SIXor seven cars haek hom the eastbound service road. There were cars stopped in the \clt travel lane behind them \vhilc they were stopped. One by one, the vehicles ahead of them III the left lane put their blinkers on and moved over to the centcr lane. She understood that her husbanu wanted to move to the right, so she looked in her mirror and to the right and saw no cars coming in the center lane after some cars passed them to the right. ller husband had her bllllker on and hegan to move into the middle iane. They then stopped behind a big black SUV that had pulled out ilnd stopped in front or them in the mIddle lane. They were stopped for a fCw seconds prior to the impact. While they were stopped, she looked into her mirror and saw a car coming fast at them !)'Oln directly behind in the middle lane. [* 4] Shnpiro Ii Mehta Illdc.\ No 09-25S95 Page No, .:1- it ISwell settled that when a driver of a motor vehicle approaches another automobde It"omthe rear, he or she is hound to maintall1 a safe rak of speed and has the duty to keep control over his or her 'v'Chiele,and to exercise reasonable care to avoid collidll1g with the other vehicle (Chepel v 111eyers,306 AD2d 235, 762 NYS2d 95 [2003]; Power v Hupart, 260 AD2d 458, 688 NYS2d 194 [1999'1;s!!!!also. Vehicle and Traflic Law 9 I I 29[,a]). Moreover, a rear-end collisiOn with a stopped or stoPPll1g vehicle creates a prima facIe case of liability regarding the operator of the moving vehicle and imposes a duty ofcxplanatioll on the operator of the mOVll1gvehicle to excuse the colliSIOn by providing a non-negligent explanation, such as a mechanical failure, a sudden stop orthe vehicle ahead, and unavoidable skidding on a wet pavement or some other reasonable excuse (.I·!!!!, Rain/ord v /Ian, 18 AD3d 638: 795 NYS2d 645 [2005 I: Thoman v Rivera, 1() AD3d 667,792 NYS2d 558 [2005 L Power II Httpart, supra). In the instant action, Scott Shapiro has established that his vehicle was struck in the rear by the vehicle operated by defendant Ann Mehta when Scott Shapiro moved from the left to the middle lane and came to a stop when the vehicle 111 front pulled out in front of his vehicle and came to a stop due to tranic. Although the defendant testified that the plaintiff stopped his vehicle in the middle lane after pulling out from the left lane, this is not a sutricient defense to rebut the presumption of negligence (Danza v LOl1gieliere, 256 Ad2d 434, 681 NYS2d 603 [2d Dept 1998]; Mitchell v GOl/zales, 269 AD2d 250, 703 NYS2d 124 [I st Dcpt 2000]). Here, defendant Mehta had been stopped, observed the traffic conditions, and was aware that traffic ahead was stopped due to the traffic from the service road. Although the parties had a green light to travel south, the defendant was also aware that cars in front of her in the left travel lane were pulling into the middle lane to get around the stopped traffic ahead. The defendant, instead of yielding to the vehicles ahead, came out behind the vehicles in front of her, and struck the plaintiff's vehicle in the rear. Under the circumstances, it is determined as a matter of law, that the proximate cause of the accident was defendant's failure to keep a safe distance between her vehicle and vehicles in front of her, and the hlilurc to avoid striking the plaintiff's vehicle in the rear when it came to a stop. When the only explanation provided for the accident is that the vehicle in front had stopped suddenly and without warning, as such, the driver's failure to maintain a safe distance between the two vehicles, in the absence of an adequate, nonnegligent explanation, constitutes negligence as a matter of law (Silberman et al v Suny Cadillac Limousine Service, Inc. 109 AD2d 833, 486 NYS2d 357 [2d Dept 1985]: Barile v Lazzarini, 222 AD2d 635, 635 NYS2d 694 j'2d Dept 1995]; Bf(lm/o-Twomey II Ric""eimer, 229 AD2d 554, 646 NYS2d 155 [2d Dept 1996]). A motorist is under a duty to see that which under the facts and Clfeumstances he should have seen by the proper use of his senses (Lester v Jolicofur, 120 AD2d 574, 502 NYS2d 61 [2d Dept 1986]). It is determined as a matter of law that the defendant failed to see that \vhich under the facts and circumstances she should have seen with the proper use oCher senses (see, Gen/vil v Tarnowski, 43 i\D2d 995. ~42 NYS2d 71 [2d Dcpt 2007]). Based upon the foregoing, Scott Shapiro has established prima facie entitlement (0 summary .Judgment disrnlssrng the eounterclanl1 on Issue oflrability. The defendants have not opposed this motion and have f~lJled to raise a factual issue to preclude summary judgment on the issue or liability in Scott Shapll-o';-;favor, and dismissal of the del'endants' counten.:lmm for contribution and apportionment or damages, i\ccording1y, motion (006) is granted to the extent that the defendants' counterclaim ISdisl111ssed a as matter of law on the basis that Scott Shapiro bears no 1Iabilityl~)r the occurr~nce of the accident; and is denied on the issue that the plaintifr, Linda Shapiro, did not sustain a serious injury 111ight orthe decision rendered in l motion (007). Tnsupport ofrnotion (007), th~ defendants have submitted, inter aha, an attorney's al'linnation; copies or the pleadings and plaintilrs bill of particulars: signed copies of the transcripts of the examination before trial of [* 5] Shapiro v Mehta Index No. {)t)-25895 Page NO.5 I.inda ShapIro dated October 18.2010 and February 23, 201 L and the sworn reports oi'Robcr! 1srael, M.D., PC dated April 5.2011 concerning his independent orthopedic examination ol-the plaintill and Melissa SapanCohn. M. D dated Fehruary 13, 2010 concerning her independent radiology revIew of the plalllti trs MHI orthe right shoulder dated November 4,2008. The defendants have 1~l1lcd submit to this court. as requIred by to CPLR 3212 (set', Friellds oJAl1il1lals v Associated Fur Mfrs., supra; Hornbrook v Peak Re.WJrt'i, lle.. 194 / Mlsc2d 273, 754 NYS2d 132 I'Sup Ct, Thompkins County 2002]). the copIes oi'the medical records and MR! reports upon which the defendants' experts base their opmions, leaving this court to speculate as to the contents of plamtilT's medical records and reports. Pursuant to Insurance Law § 5I02(d), '''[sJerious injury' means a personal injury which results ln death; dismembermcnt; significant disfigurement; a fracture; loss oCa Cctus;permanent loss of use ofa body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation oruse of a body function or system; or a medical dctermim~d injury or impairment of a nonpermanent nature which prevents thc injured person Cromperforming substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the onc hundred eighty days immediately following the occurrence of the injury or Impamnent." The term "significant," as it appears in the statute, has been defined as "something marc than a minor limitation of use," and the term "substantially all" has been construed to mean "that the person has been curtailed from performing his usual acti vities to a great extent rather than some slight curtailment (Licari l' Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law 9 5102( d), the initial burden is on the defendant to "present evidence in competent form, shO\ving that plaintiff has no cause of action" (Rodriquez v Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [1st Dept 1992]). Once the defendant has met the burden, the plamtiffmust thcn, by competent prooe establish aprimafacie case that such serious injury exists (DeAngelo v Fidel Corp. Services, fllc .. 171 AD2d 588, 567 NYS2d 454. 455 [1st Dept 1991]). Such proof, in order to be in competent or admissible form, shall consist of atlidavits or affirmations (P(lgllno v Kingsbury, 182 A])2d 268, 587 NYS2d 692 pd Dcpt ] 992]). The proof must be viewed in a lightlllost favorable to the non-moving patiy, here the plamtiff (Camnwrere v Vil/afl()JIa, 166 AD2d 760, 562 NYS2d S08, 810 [3d Dept 1990]). In order to recover under the "permanent loss of use" category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly I' Bangs Ambulance fnc., 96 NY2d 295, 727 NYS2d 378 [2001J). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use or a body organ or member" or "signi fieant limitation or use of a body function or system" categories, either a speci fie percentage of the loss of range of motion must be ascribed or there must be a suffiCIent description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiJr's limitations to the normal function, purpose and use of the body part (Toure vAllis Relit A Car Systems, IIIC., 98 NY2d 345,746 NYS2d 865 [2000]). A mmor. mild or slight limitation of use is considered insigni lican! within the meaning of the statuk (Licari v Elliott, slIjJm). It is determined that the defendants in motion (007) have not established prima l~lCic cntitlcmcnt to summary judgment dismissing the complaint on the basis that Linda Shapiro did not sustain a serious injury. They failed to support their motion \vith the medical records upon \.vhich their experts base their opinions. FurtheL the c;-.;perts'reports raise l~lctuallssues which preclude summary judgment. Thus, that part of motion (006) by the plaintilT on the counterclaim, Scott Shapiro, ror dismissal of the complaint on the basis that Ijmla [* 6] Shapiro v Mehw lndc;..: Nu. OC)-258lJ5 Page No.6 Shapiro did not sustain a serious injury_ must fail as \vell Dr. Israel has set forth in the report concerning his orthopedic examll1ation of the plaintiff the objective method employed ta obtain lhe range o!'motion measurements of the plall1tJtTs' cervical spinc and nght shoulder by use ofa goniometer (see. Martin 11 Pietrzak, 273 AD2d 361. 709 NYS2d 591 [2d Dcpt 2000j; Vomero v GroflrouS, 19 Misc3d 1109A, 859 NYS2d 907 [Supreme Court, Nassau County 2008j), and has compared his findings to the normal ranges of motion for the cervical spine and shoulder. j Ie has I'ound no ddlclts in range of motion upan examination. Although he reviewed the MRI of the plaintiffs right shoulder conducted on November 4,2008, he docs not indicate ifhe revIewed the I-ilmsor the report, and he docs not indicate the Jindings revealed upon his review, leaving this court to speculate as to the same. Although he revie'vvedthe medical records of Kamier Kenneth, M.D., Nathan Jay, M.D., Kula Roger, M.D., and the North Shore University Hospital, the records have not been provided to this comi, leaving 1tto this court to speculate as to the lindings and treatment. Opinion evidence must be based on facts in the record and personally kIHwinto the witness The general rule in New York is that an expe11cannot base an opinion on facts he did nol observe and which were not in evidence, and that expert testimony is limited to bets in evidence. (see, AI/en v UlI, 82 AD3d 1025,919 NYS2d 179 [2d Dcpt 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 lSup Ct, Tomkins County 2002]; Marwillo v J.WN1,277 AD2d 362, 716 NYS2d 98 [2d Dept 2000); Strillgile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Oept 1988]; O'Shea v Sarro, 106 A02d 435, 482 NYS2d 529 [2d Ocp! 1984]). Dr. SapanCohn has not submitted any evidentiary basis for her opinion. Although she concludes that the patient has evidence of degenerative changes, she does not indicate the basis for that opinion, the callse of the degenerative changes, and when the changes began. In addition, she docs not state with specilicity how her findings are not related to the trauma. She opines that these changes take a long time to develop, but cloes not Il1dicate what is mean by a long time, in that there was a lapse of five months between the date afthe accident and the MRI study_ She does not opine as to the causes of the cystic findings and whether or not these findings are inconsistent or consistent with trauma. Additionally, Dr. SapanCohn does not relate her findings to any medical history and clinical presentation hy the patient. The plaintifftcsti{-jed at her continuing deposition that on the day of the accident, or the day after the accident, she began experiencing pain in her right shoulder and right arm. Prior to the accident. she never experienced any problems With her right ann or right shoulder. On July 10,2008 following the accident, she presented to Dr Kula with complaints of nerve pain down her ann to her fingers, pain in hcr arm, and that she was extremely shaken up and anxious from the accident. She also experienced numbness Il1hcr right arm. When her physician sent her for an MR! oCher shoulder, she was told that she had a nerve impingemcnt III the right shoulder She takcs Advil for pain in her right ann and shoulder about four times a week and still has tingling in the fingers of her right hand and her right shoulder, and her arm still hUl1S. As a result of this accident she has dillicult:y \vashing her hair, blow-drying her hair, gctting a dish /i'om a cabinet, getting anything off a shelf when out shopping, has difliculty lifting, cannot extend her arm, cannot sv.'ing the tennis racquet to hit the ball, and has dilliculty vacuuming. She stateclthat her husband has to empty thl,';dishwasher' and clothes dryer for her. It is noted thut the defendant's examining physician did not examinc the plai nli fr during the stalutory period of I 80 days following the accident, thus rendering the defendant's physician's aflidavit insurJicicnt to demonstrate cntitlement to summary judgment on the issue ofwhethcr the pJall1titTwas unable to substantially perform all orthe material acts which constituted her usual and customary daily activities for a period in exccss of90 days during thc 180 day::;immediately follo\ving the accident (Blauclf{frd v Wilcox, 283 AD2d 821,725 [* 7] Sh<lpil'O v Mehta Index No. 09-25Si)5 Pag\..' No, 7 NYS2d 433 pel Dcpt 2001J; sec:, Uddin v Cooper, 32 AD3d ::210, 820 NYS2d 44 [-1stDepl 2006]: Toussaint \I Claudio, 23 AD3d 268,803 N'y'S2d 564 [1st Dep12005J), and the c"per1S offer no opinion with regard to this category 01' serious inJury (sl:'e DelayllllYi:' v Caledonia Limo & Car Service, Inc, 61 AD3d 814, 877 NYS2d 438 r2d Dept 2009]). Thus, the defendant has j~lilcdto demonstrate entitlement to summary judgment on tIllS cntegory of injury as well. The j~1Ctualssues rUIsed in defendunt's moving papers preclude summary judgment. The dcfi.':ndanthas i failed to satisfy his burden of establishing, prima t~lCie,that pla1l1tijTdid not sustain a "serious injury" Vvithinthe meaning of Insurance Law 5102 (d) (Yee,Agathe v TUIl Chell Wang, 98 NY2d 345, 746 NYS2d 865 )2006]); see also, Walters v Papanostassiou, 31 AD3d 439,819 NYS2d 48 [2d Dcpt 2006]). Inasmuch as the moving party has failed to establish prima facie entitlement 10 judgment as a matter of law in the firs! instance on the issue of"scrious injury" within the meaning ofInsurance Law § 5102 (d), it is unnecessary to consldcr vvhether the opposing papers "vere suft-icient to raise a triablc issue of f~lct(see, foug Deok Lee v Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dcp! 2008]); KrIIY" v Torello, 40 AD3d 588, 833 NYS2d 406 [2d Dcp! 2007]; Walker v Village o/Ossining, 18 AD3d 867, 796 NYS2d 658 [2ei Dert 2005]), as the burden has not shifted to the plaintiJI Accordingly, motion (007) by defendants, and that part of motion (006) by the plainti ff on the counterclaim, for summary Judgment dismissing the complaint on the basis that the plaintiff did not su1Tera serious injury as dcfincd by Insurance Law §5102 (d) is denied, Dated:

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