Diana v Daniel
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Diana v Daniel 2012 NY Slip Op 31251(U) April 30, 2012 Supreme Court, Nassau County Docket Number: 765/10 Judge: Joel K. Asarch 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 EMILIO DIANA and EMMA DIANA, Index No: 765/1 0 Plaintiffs - against - DECISION AND ORDER BRENDON DANIEL, Motion Sequence No: 001 to 004 Original Retur Date: 11- 02Defendant. BRENDON DANIEL Third- Par Plaintiff - against - EMILIO DIANA Third- Par Defendant. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 14 were submitted on these four (4) Motions on 2012 and Februar 15 2012: Papers numbered Notice of Motion and Affrmation (Seq. 001) Affirmation in Opposition Februar 6 Order to Show Cause and Affirmation in Support (Seq. 002) Affirmation in Opposition Reply Affirmation Notice of Motion , Affirmation and Affidavits (2) (Seq. 003) Notice of Motion and Affirmations (2) (Seq. 004) Affirmation in Opposition 12- Reply Affirmation The motion by the plaintiff, Emilio Diana, for an Order, pursuat to CPLR 3215 ( c), granting [* 2] him dismissal of the defendant Brendon Daniel' s counterclaim on the grounds that the defendant has abandoned said claim (motion sequence 001); the motion by Order to Show Cause by the third- defendant , Emilo Diana, pursuant to CPLR 603 par , for an Order granting him severance of the third- pary action on the grounds that the underlying case has been discovery to the third certified without due and owing par defendant (motion sequence 002); the motion by the plaintiffs, Emilo Diana and Emma Diana, pursuant to CPLR 3403(a)( 4), for an Order awarding them a preference in the trial of this action on the grounds that th the motion by defendant , Brendon Daniel y are over 70 years of age (motion sequence 003); and , for an Order granting him sumar the plaintiffs ' complaint on the grounds that Emilo Diana injur " threshold requirement of Insurance Law judgment dismissing s injuries do not satisfy the " serious 5102(d) (motion sequence 004), are decided as follows: Briefly, this action arises out of an automobile accident that occured on November 17 2009 at the intersection of Route 110 and Great Neck Road in Babylon , County of Suffolk , New York. Plaintiff's vehicle , heading south on Route 110 , collded with the defendant' s vehicle heading north on Route 110 , when the defendant made a left (Emilo Diana Tr. , p. 41). In his answer to the plaintiffs tur in front , which was of plaintiffs vehicle ' complaint , the defendant denies the material allegations and asserts a counterclaim solely against the plaintiff Emilo Diana, that reads in full as follows: 13. That if the plaintiff was damaged as alleged in the complaint , all of which is denied by the defendant( s), then such damage was caused wholly or in par by the negligence of the plaitiff, motor vehicle. Emilo Diana, in the ownership, operation and control of plaintiff's [* 3] 14. That if the defendant(s) are held liable as to the cause of action on behalf of Emma Daniel (sic) then the plaintiff, Emilo Daniel (sic), is liable wholly or in par for any damages that may be awarded and such damages should be apportioned accordingly as the proportion oftheir respective liability shall be determined. (Answer 13- 14). These allegations of the defendant' s counterclaim also form the basis of the defendant' third-par action against Emilio Diana (Third Par Complaint 6). Summary Judgment - Serious Injury (motion sequence 004) Defendant Brendon Daniel has moved for an Order pursuant to CPLR 3212 , awarding him sumar judgment dismissing the plaintiffs ' complaint on the grounds that Emilio Diana do not satisfy the " serious hereafter stated , this motion is injur" s injuries threshold requirement of Insurance Law ~5102(d). For reasons part. That is , granted in part and denied in although both plaintiffs claim to have sustained serious injuries as a result of this motor vehicle accident , defendat's motion seeks to dismiss only plaintiff Emilo Diana s claims. Thus , while the plaintiff Emilo Diana s claims are dismissed in their entirety, plaintiff Emma Diana s claims are unaffected i11a. Specifically, plaintiff Emilio Diana claims that , as a result of the collsion , he sustaned inter alia the following serious injuries: " a flexion-extension tye involunta and unexpected thrst of the stretching ad injur to the injur caused by a sudden , violent head and neck... with resultant pain , inflamation , tearing, surounding soft tissues , muscles , tendons and ligaments in the neck, back and shoulder area resulting in muscle spasm and restriction and limitation thereof; " and " injur to back , neck and shoulders requiring physical therapy for three (3) months " (Bil of Pariculars 5). Plaintiff claims that following this accident, he was " intermittently" confined to his bed and [* 4] home as a result of ths accident (Id. at ~7). At his oral examination before trial , plaintiff Emilo Diana testified that " a few months before this accident " he was involved in another motor vehicle accident (Emilio Diana Tr. neither he nor his wife , Emma Diana, were injured in that accident (Id , p. 16) but that at p. 19). Plaintiff Emilo Diana was retired at the time of this accident. With respect to activities that may have been impaired as a result of this accident , he testified that he did not " before this accident (Id do anything at all" at p. 83). He stated "Nothing. I didn' t do anYthing. I don t do anything.... I don t have any hobbies at all. I watch TV , baseball , sports. That was about it" pp. 83- 84). (Id He did , however, state that he can no longer stand too long in the kitchen to cook; instead he is forced to sit down because of his back at p. 84). (Id Plaintiff, who was 82 years old at the time of the accident , claims that his injures fall within the following six categories of the serious injur statute: to wit , significant disfigurement; a fracture; permanent loss of use of a body organ, member, fuction or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body fuction or system; and a medically determined injur or impairment of a non-permanent nature which prevents the injured person from performing substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment (Bil of Pariculars ~6). However, based upon a plain reading of the papers submitted herein bil of pariculars and testimony, it is clear that the plaintiff , including the plaintiff Emilo Diana did not fracture any bone as a result of this accident. His injuries therefore do not satisfy the statutory definition of a " (Catalan v. s Empire Storage Warehouse 213 AD2d 366 (2 Dept 1995)). fractue [* 5] His claim that his injuries fall within the " significant disfiguement" category are also dismissed. The stadard by which significant disfigurement is to be determined withn the meaning of the statute is whether a reasonable person would view the condition as unattactive , objectionable or as the subject of pity or scorn (see Dept.2005); Sirmans v. considered " signficant" Tugman v. P JC Sanitation Service, Inc. 23 AD3d 457 (2 Mannah 300 AD2d 465 (2 Dept.2002)). A disfigurement may be and thus constitute a " serious injur" if a reasonable person viewing the injured par' s body in its altered state would regard the condition as unattactive , objectionable , or a subject of pity or scorn (Spevak v. Spevak 213 AD2d 622 (2 Dept 1995)). In the absence of any claim in his bil of pariculars or his deposition referencing any "unattactive , objectionable condition, it is clear that the plaintiff has also abandoned his claim that his alleged injuries left his body in an altered state that is a " subject of pity or scorn. Furher , inasmuch as the plaintiff has failed to allege and claim that he has sustained a " total loss of use " of a body organ , member, fuction or system as a result of this accident , it is clear that his injuries also fail to satisfy the " (Oberly v. permanent loss of use " category of Insurance Law ~5102(d) Bangs Ambulance 96 NY2d 295 (2001)). Similarly, any claims that plaintiffs injures ~5102(d) are also contradicted by his satisfy the 90/180 category ofInsurance Law own testimony, wherein he states that he was only intermittently" confned to his bed and home as a result of this accident. Furer , no where does the plaintiff claim that as a result of his alleged performing any of his daily activities he was curailed " to 230 236 (1982); Sands (Monk v. injures , he was " medically" Dupuis 287 AD2d 187 , 191 (3 Dept. 2001)), or that a great extent rather than some slight curlment" v. impaired from (Licari v. Ellott 57 NY2d Stark 299 AD2d 642 (3rd Dept. 2002)). In light of these facts , this Cour [* 6] determines that plaintiff has effectively abandoned his 90/180 claim for puroses of defendant' initial burden of proof on a threshold motion (Joseph v. Forman 16 Misc.3d 743 (Sup. Ct. Nassau 2007)). Thus , this Cour wil restrict its analysis to the remaining two categories as it pertains to the plaintiff Emilo Diana; to wit , permanent consequential limitation of use of a body organ or member and significant limitation of use of a body fuction Under the no-fault fuction or system or statute or system. , to meet the threshold significant limitation of use of a body permanent consequential limitation , the law requires that the limitation be more than minor , mild , or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injur (Licari v. Ellot supra; Gaddy v. Eyler 79 NY2d 955 (1992); Scheer v. or condition Koubeck 70 NY2d 678 (1987)). A minor, mild or slight limitation shall be deemed " insignificant" within the meaning of the statute (Licari v. Ellot supra; Grossman v. Wright 268 AD2d 79 83 (2 Dept. 2000)). When , as in this case , a claim is raised under the "permanent consequential limitation of use of a body organ or member" or " signficant limitation of use of a body fuction or system categories , then , in order to prove the extent or degree of the physical limitation , an expert' designation of a numeric percentage of plaintiff s loss of range of motion is acceptable (Toure v. Avis Rent A Car Systems 98 NY2d 345 , 353 (2002)). In addition , an expert' s qualitative assessment of a plaitiffs condition is also probative , provided that: (1) the evaluation has an objective basis , and (2) the evaluation compares the plaintiffs limitations to the affected body organ , member, function or system (Id). normal fuction , purose and use of the Recently, the Cour of Appeals in Meher 18 NY3d 208 (2011), held that a quantitative assessment of a plaintiffs Perl injures does not ," [* 7] have to be made during an initial examination and may instead be conducted much later , in (Id). connection with litigation With these guidelines in mind , this Cour will now tu to the merits of the motion at hand. In support of his motion , the defendant relies solely upon the plaintiff and the afrmed report of Dr. J. Serge Parisien, M. s deposition transcript , an ortopedic surgeon , who performed an independent examination of the plaintiff on October 20 2011. This proof establishes that the plaintiff did not sustan a " serious AD3d 614 (2 injur" Dept. 2009); within the meanng of Insurance Law Cantave 51 02( d) (Stag v. Yshua , 59 Gelle 60 AD3d 988 (2 Dept. 2009)). Specifically, the v. affirmed report of Dr. Parsien , who examined the plaintiff and performed quantified range of motion testing on his cervical spine , lumbosacral spine and both shoulders with a goniometer , compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal , sufficiently demonstrates that the plaintiff did not sustain a " serious injur" as a result of this accident. The defendant' s medical proof confirms that despite extensive motor and sensory testing, there were no deficits , and based on the clinical findings and medical records review (t)he claimant presents with status post cervical and lumbar sprain/strain and status post bilateral shoulder sprain with pre-existing history of degenerative changes of the cervical and lumbar spine and bilateral shoulders as well as pre-existing history of right shoulder surgery and lower back injur. Having made a showing that the plaintiff Emilio Diana did not sustain a " serious prima facie injury" within the meaning of the statute , the burden shifts to the plaintiff to come forward with evidence to overcome the defendant' s submissions by demonstrating a triable issue of fact that a serious injur " was sustained (Pommels v. Perez 4 NY3d 566 (2005); Grossman v. Wright supra). Here , counsel for the plaintiff fails to submit any medical proof or even proffer the affidavit [* 8] of the plaintiff himself in opposition to the defendant' s motion for sumar judgment (CPLR 3212(b); Roche v. Hearst Corp. 53 NY2d 767 (1981)). When a defendant' s motion is suffcient to raise the issue of whether a " serious injur" has been sustained , the burden shifts and it is then incumbent upon the plaintiff, in opposition to defendant' s motion , to produce evidence in admissible form to support the claim for serious injur establish a (Licari v. Ellot supra). In order to be sufficient to case of serious physical injur, the affirmation or prima facie affidavit must contain medical findings which are based on the physician s own examinations , tests and observations and review of the record , rather than manifesting only the plaintiffs subjective complaints (Grasso Angerami 79 NY2d 813 (1991)). The plaintiffs failure to present any such evidence is fatal to his opposition. Therefore , in light of plaintiffs failure to raise any triable issue of fact , defendant' s motion for sumar judgment dismissal of plaintiff Emilo Diana s complaint on the grounds that he did not sustain a serious injur within the meaning of the Insurance Law, is (motion sequence granted 004). Accordingly, plaintiff Emilo Diana s complaint is dismissed in its entirety. The motion is denied with respect to the claims of plaintiff Emma Diana. Emma Diana s complaint surives. Motion for a Trial Preference (motion sequence 003) With respect to the plaintiff Emma Diana s motion pursuant to CPLR 3403(a)(4) for an Order , awarding her a special preference on the grounds that she is over 70 years of age , such motion is granted. Having submitted an affidavit and a copy of her birt certificate , the plaintiff Emma Diana has demonstrated a prima facie entitlement to an age preference pursuant to CPLR 3403 (a)( 4). Accordingly, she is automatically entitled to a special trial preference York 248 AD2d 425 (2 Dept. 1998); Milton Point Realty Co. (Borenstein v. v. City of New Haas 91 AD2d 678 (2 Dept. [* 9] 1982)). A Note of Issue and Certificate of Readiness has been filed ajur demanded and a calendar number has been assigned (2012H0079). Accordingly, the paries shall appear in the Trial Assignent Par of this Court on May 17, 2012 at 9:30 a. Counterclaim and Impleader Issues (motion sequences 001 and 002) The defendant answered the complaint or about AprilS , 2010. A counterclaim was interposed in the answer (although it appears as if there was no reply served). Thereafter, or about October 26, 2011 , counsel for the defendant commenced a third- par action against (at the time) the plaintiff Emilo Diana. The gravamen of the third-par complaint was that if the plaintiff Emma Diana recovers a judgment against the defendant , then Emilo Diana should be responsible for his proportionate share of liability and should be responsible for contributing thereto - the same cause of action as contained in the counterclaim. The availability of third-par practice in New York is governed by CPLR 1007 , which provides that " a)fter the service of his answer a defendant may proceed against a person not a party who is or may be liable to that defendant for all or par of the plaintiffs claim against that defendant.. . " (emphasis supplied). Here, at the time the impleader complaint was asserted, it was subject to dismissal as procedural defective as defendant already asserted a claim (identical to his counterclaim) against Emilo Diana as Aricle 31 discovery and the case plaintifJ. All paries had an opportity to conduct CPLR was thereafter certified as tral ready. Procedurally, based on the dismissal herein of the plaintiff Emilo Diana s claims against the defendant , the defendant's continued use of the counterclaim against Emilo Diana has been lost. Clearly, the defendant has not purosely abandoned his (counter ) claim for contribution. But for the fact that the defendant has already commenced the third- par action against Emilo Diana [* 10] defendant' s counterclaim would have been deemed a third-par & Son, Inc., AD2d 507 (2 216 AD2d 73 (1 st Dept. 1995); Dept. 1992). Nevertheless and Christiansen v. Wright claim. See v. E.s. McCann Silver Lake Contracting Corp. , 188 notwthstading the lack of abandonment , the motion by the plaintiff on the counterclaim is granted and the counterclaim is dismissed (motion sequence 001). However, the Cour declines to sever the timely instituted thrd-pary action against third- par defendant Emilo Diana. No new entity has been joined as a third-par defendant in this proceeding. Emilio Diana was a par when this proceeding commenced. He has been represented by counsel (albeit a different counsel) and has had the opportty counterclaim. Counsel' s to seek disclosure on the arguments that Emilo Diana will be "unduly prejudiced since he has rightfully sought discovery yet same has essentially been ignored and/or overlooked by the paries to ths action" are conclusory and fly in the face of the history of this litigation. While discovery demands are attached as Exhibit " D" to the moving papers , such discovery focuses primarly on Emilo Diana s injuries , notice , personal and propert damage , and other items more properly sought of a plaintiff and not a third-par defendant. Accordingly, the motion to sever the third-par action is denied. All applications not specifically addressed are denied. Ths shall constitute the Decision and Order of this Cour. Dated: Mineola, New York April 30 , 2012 ENTERED MAY 0 1 2012 NASSAU COUNTY COUNTY CLIRK" OfFteE [* 11] Copies mailed to: Fran X. Kilganon , Esq. Attorney for Plaintiffs Desena & Sweeney, LLP. Attorneys for Plaintiff on Counterclaim Mar, Toher & Mar, Esqs. Attorneys for Defendant
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