Ovalles v Staton

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Ovalles v Staton 2012 NY Slip Op 32153(U) August 9, 2012 Supreme Court, Suffolk County Docket Number: 10-7640 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 Na. 10-7640 CAL NO. 12-20056MV SLPREME COLJRT - STATE OF NEW 'YORK I.A.S. PART 17 - SUFFO1,KCOUhTY PRESENT: P m m H. MAYER r-io11. Justice of the Supreme Court MOTION DATE 5-18-12 (#002) MOTION DATE 6-15-12 (#003) 6- 1 5- 12 ADJ. DATE Mot. Seq. # 002 - MD # 003 - MD CANNON & ACOSTA, LLP Attorney for Plaintiffs 1923 New York Avenue Huntington Station, New York 1 1746 - ROBERT P. TUSA, ESQ. Attorney for Defendants Staton and Stines 898 Veterans Memorial Highway, Suite 320 Hauppauge, New York 1 1788 against - CIHKISTOPI-II~R STATON, JAYQUAN I,. STINES and JOSE A. COHEN, Defendants. RUSSO, APOZNANSKI & TAMBASCO Attorney for Defendant Cohen 875 Merrick Avenue Westbury, New York 1 1590 Upon the reading and flling of the following papers in this matter: ( I ) Notice of MotioniOrder to Show Cause by defendant Jose A . Cohen, dated April 9,20 12, and supporting papers (2) Notice of Cross Motion (003) by amended notice of motion by the defendant Jose A . Cohen, dated May 8, 20 12 ,supporting papers (9.1 9); and now (m); lJPON IIIJE IIELIl33ERATION AND CONSIDERATION BY THE COURT ofthe foregoing papers, the motion is decided as follows: it is ORDERED that motion (002) by the defendant, Jose A. Cohen, pursuant to CPLR 3212 for summary .iiidgnient dismissing the complaint on the basis that the plaintiff, Soribelkis Ovalles, did not sustain n serious iii-jury as defined by Insurance law $ 5 102 (d) has bee1 rendered academic by the submission of motion (003) as amended, and is denied as moot; and it is further ORflZi'RED that motion (003) by the defendant, Jose A. Cohen, pursuant to CPLR 321 2 for summary judgment dismissing the complaint on the basis that the plaintiffs. Soribelkis Ovalles and Jkpidania ICodriquez, did not sustain a serious injuries as defined by Insurance law 9 5 102 (d), is den i cd . [* 2] o\ alles \ statoll Inde\ No. IO-76.10 Page N o . 3 I n this negligence action. the plaintiffs seek damages for personal injuries 11hich Soribelkis 01 and l~squidaniaRodriquez allege to have sustained on June 38 2009 u hen they mere involved in a1lc.s an automobile accident south of the intersection of Grand Boulevard and Riddle Street, Town of Islip, SuftblL Count). New York. Soribelkis Ovalles and Esquidania Rodriquez were passengers in a vehicle operated by the defendant Christopher I,. Staton. A cross claim has b e m asserted in the answer served bj defendant Jose A. Cohen against Christopher Staton and Jayquan Stines for judgment over against them for indemnification and/or contribution. Christopher Staton and Jayquan Stines have asserted a cross claini against defendant Jose A. Cohen for judgment over against him. It is noted that the answer served by Staton and Stines has not been signed or notarized by them and bears no attorney verification. The proponent of a summary judgment motion must niake a prima facie showing of entitlenient to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact f from the case (Friends o Aninzals v Associated Fur Mfrs.. 46 NY2d 1065, 41 6 NYS2d 790 [ 19791). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillnzan v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must show facts f sufficient to require a trial of any issue of fact (CPLR 3212[b]; Zuckerman v City o New York, 49 NY2d 557. 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Ccrstro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 19811). Pursuant to Insurance Law fj 5 102 (d), [s]erious injury mean:; 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 consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a niedical 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 custoniary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairnient. The term significant, as it appears in the statute, has been def lied as something more 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 activities to a great extent rather than some slight cui-tailnient (Liccrri v Hliot, 57 NY2d 230,455 NYS2d 570 [1982]). On this motion lor suininary judgment on the issue of serious iiljury as defined by Insurance Law 5 5 102 (a). the initial burden is on the moving party to present evidence in competent form, showing that the plaintilf did not sustain a serious injury as a result of the accident (zee Rodriquez v Golclsteitz, 182 A1>2d 396, 582 NYS2d 395, 396 [lst Dept 19921). Once that burden has been met the burden, the opposing party must then, by competent proof, establish aprirnu facie case that such serious injury does exist (see D e h g e l o v Fidel Corp. Services, Itic., 171 AD2d 588, 567 IVYS2d 454, 455 [lst Dept 199 11). Such proof: in order to be i n competent or admissible form, shdl consist of affidavits or aflirniations (Pagmzo v Kitzgsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 19921). The proof must [* 3] bc 1 ic\icd i n a light most favorable to the non-mo\ing party (Crrnimc~rrrr Villrrnoiu. 166 AD2d 760. v 562 NYS2d 808. 8 10 [3d Dept 19901). In order to recover under the permanent loss of use categorq . a plaintiff must demonstrate a total loss of use of a body organ, member. function or system (Oberly v Bangs Ambulance Inc., 96 N E d 295. 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the permanent consequential limitation of use of a body organ or meniber or significant limitation of use of a body function or system categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the qualilative nature of plaintiffs limitations. with an objective basis, correlating plaintiff-s limitations to the normal function, purpose and use ofthe body part (Toure v Avis RentA Car Systems, Znc., 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Lictlri v E//iott. supra). In support of motion (003), the defendant Cohen has submitted, inter alia, an attorney s affirmation; a copy of the summons and complaint, defendants answers and demands, and plaintiffs bill of particulars; the unsigned but certified, transcripts of the examinations before trial of Soribelkis Ovalles dated February 1 1, 20 1 1, and Esquidania Rodriguez dated February 1 1, 20 1 1 ; the report of Jeffrey Guttinan, M.D. dated April 7, 201 1 concerning his independenl orthopedic examination of the plaintiff Ovalles; and the report of Isaac Cohen, M.D. dated June 23,231 1 concerning his independent orthopedic exaniination of plaintiff Rodriguez. By way of the bill ofparticulars, Soribelkis Ovalles alleges that as a result of this accident, she sustained a disc herniation at L4-5 with mass effect upon the thecal sac with foramina compromise and stenosis; C5-6 disc herniation with mass efi ect upon the thecal sac and spinal cord, with stenosis; loss of normal cervical lordosis; and internal derangement of the right shoulder. She alleges she was disabled for six months following the accident. The moving defendant has submitted the sworn report of his expert, Jeffrey Guttinan, M.D. who performed an independent orthopedic examination of Soribelkis Ovalles. Dr. Guttman set forth that he reviewed the medical records from Southside Hospital and the records from Dr. Martin however, such f notes and records have not been submitted to this court as required pursuant to Friends o Aiiimals v Associrrfrd Fur M f r . , .rtip~rr.Expert testimony is limited to facts in evidence. (see crlso Allen v Ulz, 82 AD3d 1025. 91 9 NYS2d 179 [3d Dept 201 11; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct. Toinkins County 20021; Marzuillo v ZSONI, 277 AD2d 362, 71 6 NYS2d 98 [2d I k p t 20001: Striiigile v Rotliniaii, 142 AD2d 637, 530 NYS2d 838 [2cl Dept 19881; O Slzea v Sarro, I06 AIXd 435. 482 NYS2d 529 [2d Dept 19841). Thus Dr. Guttman rnay testify only as to his examination of the plaintiff. Dr. Guttinan determined range of motion values of the plaintiff Ovalles cervical spine and compared those iindiiigs to the normal range of motion values. His impression is that of status post cervical strain and lumbar strain. Dr. Guttnian does not addrcss the injuries claimed by Ms. Ovalles, nanielj disc herniation at L3-5 with mass effect upon the thecal sac, disc herniation at C5-6 with mass effect upon the thecal sac and spinal cord, thus raising a factual questicn as to whether these alleged [* 4] 0\alles i Staton Inde\ iio. IO-7640 Page N o 1 injuries \\ere caused 17). the accident. No report from an examining neurologist has been submitted concerning the asserted effect of the said herniations on the thecal sac and/or spinal cord (see Rroivdrrnie Ccrndurm. 35 AD3d 747. 807 NYS2d 658 [2d Dept 20061). Although the plaintiff alleges internal derangenient of her right shoulder. Dr. Guttman did not examine the plaintiffs shoulder. thus raising a hctual question as to \+hether the alleged derangement of the right shoulder was caused by the accident. Such factual issues further preclude summary judgment. 11 Based upon the foregoing, it is determined that defendant Cohen has failed to establish prima facie entitlement to summary judgment dismissing the complaint on the issue of whether plaintiff Ovalles sustained a serious injury within the meaning of Insurance Law 5 5 102 (d) as to the first category of injury. By way of the bill of particulars, Esquidania Rodriguez alleges that as a result of this accident, she sustained a cervical sprain, cervical derangement, lumbar sprain, arid lumbar derangement. She alleges that she was disabled for two months following the accident. The moving defendant has submitted the report of Isaac Cohen, M.D. concerning his independent orthopedic examination of plaintiff Esquidania Rodriguez who was approximately twenty weeks pregnant at the time of the subject accident. Although Dr. Cohen set forth that he reviewed her labor and delivery instructions and outpatient obstetric observations and evaluations, as well as the records of Dr. Martin, chiropractic records, and neurological evaluatipn by Dr. Steiner, M.D., the same have not been submitted in support of Dr. Cohen s opinion. Nor has a report concerning an independent neurological examination by the defendants been submitted in support 3f this application (see Brotvdcrnze v Crrndura, szrpra); leaving this court to speculate as to any findings by either Dr. Steiner or an independent examining neurologist. There are factual issues concerning how Dr. Cohen determined the range of motion values he ascertained upon examination of the plaintiff s cervical spine and lumbar spine in that he reports that measurements were taken with a goniometer and/or bubble inclinometer and/or by visual examination, as his wording leaves this court to speculate as to which method he employed. It is further noted that the normal range of motion values set forth by Dr. Guttman in his report concerning plaintiff Ovalles, and the normal range of motion values set forth by Dr. Cohen differ, leaving this court to speculate as to which of the moving defendant s examining physicians has set forth the correct range of motion value. It is Dr. Cohen s opinion that plaintiff Rodriguez sustained mild soft tissue complaints to her neck and back which have resolved uneventfully with the passage of time without evidence of permanency or sequelae. His diagnosis is that of cervical and lumbosacral spine strains. Based upon the foregoing, it is determined that the moving defendant has not demonstrated prima lacic cntitlcment to summary judgment dismissing the complaint on the basis that plaintiff Rodriguez did not sustain a serious injury on the first category of serious injury defined in Iiisurance Law 5 5 102 (d). Dcficndant Cohcn s cxainiiiing physicians did not examine either of the plaintiffs during the statutory period of 1 80 days following the accident to establish wliethei- either plaintiff was incapacitated from substantially performing the usual and customary activities of dai ly living for a period of ninety [* 5] da)is 111 the 180 days following the accident (see Blanclznrd 1 Wilcox. 283 AD2d 82 1. 725 NYS2d 433 13d Dept 20011: see C ddin v Cooper. 32 AD3d 270, 820 NYS2d 44 [ I j t Dept 20061; Toussairzf v Clmidio, 23 AD3d 368. 803 NYS2d 564 [ 1st Dept 20053). and the experts offer no opinion with regard to this categor). of serious in-jury (see Delaylznye v Cnledonin Limo & #CarService, I m . , 61 AD3d 814. 877 NYS2d 438 [2d Dept 20091). I n i iew of the foregoing, it is deterniined that the moving defendant has failed to establish prima facie entitlement to summary judgment dismissing the complaint as to either plaintiff on the basis that they did not suffer an iiijury within the definition of the second category of injury as defined by Insurance Law 4 5 102 (d). Accordingly, this unopposed motion (003) by defendant Cohen for dismissal of the complaint as asserted by Soribelkis Ovalles and Esquidania Rodriquez on the basis 1hat neither plaintiff sustained a serious injury as defined by Insurance Law 5 5 I02 (d) is denied. ,

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