Ali v El Tone Leasing Corp,
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Ali v El Tone Leasing Corp, 2012 NY Slip Op 32479(U) September 21, 2012 Sup Ct, Suffolk County Docket Number: 07-21232 Judge: Thomas F. Whelan 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. CAL. No. SHORT I-ORM ORDER 07-21232 11-01484MV SUPREME COURT - STATE OF NEW YORK 1AS. PART 33 - SUFFOLK COUNTY COPY PRESENT: Hon. MonON DATE 11-10-12 ADJ. DATE 6-25-12 Mot. Seq. # 003 - MG; CASEDlSP #004-MD THOMAS F. WHELAN Justice o1'the Supreme Court ---------------------------------------------------------------X SlBEN & SlBEN, LLP Attorney for Plaintiffs 90 East Main Street Bay Shore, New York 11706 JOSUE M. ALl and SERGIO ALl, Plaintiffs, FAUST GOETZ SCHENKER & BLEE Attorney for Defendants Two Rector Street, 20th Floor New York, New York 10006 - against - SERGIO ALl, ProSe 9 Benj oe Dri ve Bay Shore, New York 11706 EL TONE LEASFNG CORP, ALClDES ARGUETA, and ALADOZ ARGUETA, SERGIO ALl, ProSe 33 COlmecticut Avenue Bayshore, New York 11706 Defendants. ------------.----------.--. -- X Upon the following papers numhered I to -----=!.L read on these motions for summary ludgment and dismissal and to amend pleadinl!s , Notice of Motion! Order to SllOWCause and supporting papers 1- 20: 25 - 39 : Notice of Cross Motion and supporting papers _, Answering AfliJavits ,-ll1d supporting papers 21 - 24, 40 - 41 ,Replying Affidavits and supporting papers 42 - 44 _; Other _; (al1d afu liauill!! e()ulI.j~1ill .lUPPOlt ilm:!oppo.Kd to tlte IliotiOlI) it is, ORDERED that the motion (003) by defendants for summary judgment and dismissal and the motion by defendants (004) for leave to amend and summary judgment are consolidated for the purposes o1'tl11sdetermination; and it is further ORDERED that the motion (003) by defendants for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing the complaint of plaintiff Josue M. Ali on the ground that he did not sustain a "serious injury" as defined in Insurance Law § 5102 (d), and for an order pursuant to (fIR [* 2] Ali v Fl Tone Leasing Corp. lnde:-:No. 07-21232 Page NO.2 CPLR 3126 dismissing the complaint of plaintiff Sergio Ali for failure 10 appear li.)ra court-ordered depo~;ition and for failure to comply with discovery demands is granted: and it IS further ORDERED that the motion by delendants (004) lor an order pursuant to CPLR 3025 granting kaw 10 amend their answer to include the allinnativc defense orthe Graves Amendment (49 use § 30106), and tor an order pursuant to CPI,R 3212 granting summary Judgment ill f'<Jvor f defendant EI o ['one I,easing Corp. i/s/h/a I~lTone Leasing Corp. dismissing plainti fTs' complaints and all cross claims ~IS against it IS denied <1S 11100t. This is an action I to recover damages fCll"ersonal Injuries allegedly sustained by plainti ITJosue p M. Ali and Corproperty damages allegedly sustained by plal11tijTSergio All in a motor vehicle aecKlcnt that occurred on May 10,2007 at approximately 7:20 p.m. The accident allegedly occurred on I3rentwood Road at or near its intersection with Connetquot Avenue in [slip, New York. By his bill of particulars. plaintilT Josue M. Ali alleges that as a result orthe subject accident he sustained the following serious injuries. cerVical spine sprain. cerVical myofascitis, and lumbar spine sprain. In addition. plaintiff Josue M. Ali alleges that fo[lowing the accident he was treated at the emergency room of So .Ithside Hospital in Bay Shore, New York and then released, and that he was confined to bed and home until approximately June 10. 1007. PlaintiiT Josue M. Ali also alleges that at thc time of the accident he was employed as a machinist and that he was Incapacitated from his employment from March 10.2007 until approximately June 10,2007. He further alleges that as a result oCthe subject accident he sustained economiC loss in excess or basic economic loss as defined In Insurance Law § 5102 (a). Defendants seek summary judgment dismissing the complaint of plainti ITJosue M. Ali on the grounds that he did not sustain a "serious injury" as delined in Insurance Law 5102 (d). Their submissions include the pleadings, plaintiffs bill of particulars, plaintiffs deposition transcript. and the arlirmed report dated October 29, 2010 of defendants' examining ortJlopedic surgeon. Vartkes Khachadurian. M.D. * * Insurance Law 5102 (d) del-Illes "serious in.iury'· as "'a personal injury \vhich results in death; dismemberment: significant dlsligurement: a fracturc: loss of a tctus~ permanent loss of use of a hody organ. member, function or system: permanent consequcntial limitation of use of a body organ or member: signi !Icant limitatioll of use or a body function or system; or a medically determined injury or Impairment or a l1on-pcnmment nature \vhich prevents the Injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not lcss than ninety days during the onc hundred eighty days immediately following thc occurrence of the injury or lmrmrment. In order to recover under !he ··pennancllt loss or use·' category. plalntifr must demonslrate a total loss of use or a body organ, member. function or system (Oher~11 Bangs Amhulam:e lI1C 96 NY2d v .. 295.727 NYS2d 378l2001!). To prove the extent or degree of physical limitation with respect to the IBy order dated February 5, 1008 (J Baislcy).lhe actioll commenced by piaintiff.Jostic M. !\Ii IVClS corso]idalcd with a n-l,llcd ;lclion commenced by plainliffScrgio Ali in Suffolk Coullty DistriC1 Cour: [* 3] t\li v J-:lTone Leasing Corp. Index No. 07-21232 Pagc No.3 ·'pcrmanent eonsequcntial limitation or use of a body organ or member"' or "significant limitation or use of a hody function or system" categories. either objective evidence of the extent. percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of plaintitT must be provided or there must be a sufficient description orlhe "qualitative nature-- of plaintiffs limitations, with an objectivc basis. correlating plaintifTs limitations to the normal function, purpose and use orthe body part (see. Toure v Avi.\' Relit A Car SY.'item~·,Illc .. 98 NY2d 345.746 NYS2d 865 r2000]; Mejia v DeRo.\"e, 35 AD3d 407, 825 NYS2d 722 l'2d Dept 20061). In order to qualify under the 901180-days category. an injury must be "medieally determincd"mcaning that the condition must be substantiated by a physician, and the condition must be causally related to the accident (see D(l/lIlls I' Va/{Ie~;, 4 t\D3d 8 H7. 'J.2t NYS2d 11412d Dcpl201111 A party moving j~)r summary judgment muslmake a prima facie showing or entitlement to judgment as a matter or law, oncring sufficient evidence to demonstrate thc absence of any material issues of tact (see Alvarez v Pr()spectlJo~p., 68 NY2d 320, 508 NYS2d 923 19861; Zuckermau v Ci~v of New York. 49 NY2d 557. 427 NYS2d 595 f1980J). The failure to make such a prima facie showing requires the denial of the 1110tion regardless oflhe sufficiency orthe opposing papers (see Willegrad v New York lIn;l/. Med. Ctr.. 64 NY2d 851, 487 NYS2d 316 f1985-1; Booue 1I New York City Tr. Alltlt., r 2631\D2d463, 692 NYS2d 73112d DcptI999]). The deposition lranscript dated Apnl 23. 20 I0 of plaintiff Josue M. Ali rcveals that his father is co-plaintifTSergio AIi, that he resides with his parents, that he was the operator of the vehicle involved in the accident, and that his father owned the vehicle. Plaintiff testified that while his vehicle was stopp~d it was struck in the rear and that the two other vehicles involved in the accident were a taxi operated by a man and a Toyota four-door vehicle operated by a woman. In addition. plaintiff testified that he complained ~t the scene of the accident of pain in his neck and back, and that he was x-rayed at the hospital and given medication and a prescription ror ibuprofen and then released from the hospital on the same day. PlaintiiTalso testified that a few days after the accident he went to see his C1thcr's chiropractor. Dr. Craig Sell',eL who treated plainti 1'fthree times a week ror about two weeks. [n June 2007, plaintilfwent to a medical doctor. Dr. Maria lIerrera, who was referred by the chiropractor, and saw her twice a \veck !()r approximately three months. According to plaintirf, she prescribed physical therapy three times a week. gave ibuprofen and prescribed "patches" lor his back. Plaintiff further testified that he also saw his primary care physician for back pain for approximately eight visits and that his primary care physician only prescribed medication, Plaintiff stated that following the accident. he was confined to bed for a ""couple of days" and confined to his home for a "couple orweeks"Plaintifr never saw a neurologist. has no future medical appointments. and no one has advised surgery or injections. PlaintifTtestificd thai he retun1ed to his work as a machinist in July 2007 and worked one full day. 0pl.:rating the machine thm he operated prior (0 the accident. then he wenl back to Dr. Herrera who told l1'm to stay out of\-\'ork. Plaintiff further testified that he told his supervisor that he could not work bccau~;c '·my doctor lold me 1 couldn't \vork because ormy back pain" and explained that "rslhe told me to stay out of work I think it was for. like. two months, three months." PlaintifTlcl! work and did not return until November 2007. When he returned to work in November 2007 his duties and responsibilities dId not chunge. no one assisted him. and he continued to work live days a week. 40 to 50 [* 4] All v El Tone Leasing Corp. lndc>... No. 07-21232 Page NO.4 hour~ a 'Neck. for three 1110mhswhen he f()und belleI' job opportunities and lert. Plaintiff stated that there is nothing that he cannot do at all as a result of the accident but that there are activities that he can do with limitations which arc construction vI/arkas a carpenter, which he used to do prior to hIs work as a machinist, und playing soccer, basketball and baseball, which he used to play in the summertime. In his an-Inned repOt"t,defendants' examining orthopedic surgeon, Dr Khachadurian, indicates that he exmnmed plaintiff Josue M. A[i on said date, that he revievvl:d plamtitrs records, and that he performed range of motion testing ofp[aintiff's lumbar spine and cervical spine. Dr. Khachadunan states that plaintiffs "examination was performed with the use of a percussion hammer, sensory pIns, measunng tape and visual." Among his findings for the lumbar spine are normal lumbar lordOSISwith no evidence of spasm or shift oCthe lumbar spine, forward tlcxion of90 degrees (normal 90 degrees). bacbvard extension oj' 30 degrees (normal 30 degrees), side-to-side tilt 30 degrees (normal 30 degrees), and side-to-side rotation of 45 degrees (norma[ 45 degrees). With respect to plaintiff's cervical spine, Dr. Khaehadunan repolied that there was no evidence of spasm or shift and that plaintif'fwas able to extend backwards 60 degrees (normal 60 degrees), rotate right and [eft 45 degrees (normal 45 degrees), tilt right and lert 30 degrees (normal 30 degrees). and tlcx forward to 70 degrees (normal 70 degrees). I-Ieadded that there was no evidence of radicular or referred pain on examination of the cervical spine in the sitting position, deep tendon reflexes at the dbows and wrists were normal, and the Tinel signs were negative at the elbows, wnsts and hands. Dr. Khachadurian found that the sensory pin examination of the upper extremities 'vvasnormal. In conclusion, he diagnosed cl:Tviea!sprain with no clinical evidence of neuromotor delleits, and no clinical evidence of herniated discs, radiculitis or radiculopathy, resolved. Dr. Khachadurian also diagnosed lumbar sprain with no clinical evidence of herniated discs, radIculitis or radiculopathy, resolved He opined that plaintifT had no evidcnce of orthopedic disabl[ity related to the subject accident ,md could perform his usual work activities umestncted. Here, defendants met their prima facie burden of showing that plaintiff Josue M. AJi did not sustain a -'senous injury" 'vvithinthe meaning ofInsurance Law ~ 5102 (d) as a result of the subject accident (see Lim v Flores, 96 AD3d 723, 946 NYS2d 183 l2d Dept 20] 2J; Remier)1 Torres, 79 AD3d 776, 0 13 NYS2d 299 [2d Dept 2010]). Defendants' submissions include the aftlrmed report of their examining orthopedic surgeon who found no [imitation in motion upon range-or-motion testing of plamtiffs cervical and lumbar regions of his spine (see id, Ranford v Tim's Tree amI Lawn Serv., Inc., 71 AD3d 973, 897 NYS2d 245 [2d Dl:pt 201 OJ). Defendant also submitted proof establishing, pnm<l facie, that plaintiff did not sustmn a serious injury under the 90/] 80 category of Insurance Law ~ 5] 02 (d) (see Kolodziej 11 SlljJ{freSe, 88 AD3d 851,931 NYS2d S09l2d Dept 201 I): see (//so Kllrpil10s v Cora, 89 AD3d 994, 933 NYS2d 383 ,2d Dept 2011 I). Moreovcr. thcre is no evidence that plmntitT incurred economic loss 111 xcess ofbusic economic loss as dclined in Insurance Lavv ~ 5102 (a) (see e MOrfin I' Palmer, 234 i\D2d 526, 651 N YS2d 195 J:2dDept f9961). Once deICnda111s ack their prima f~lCic m showing that plainLifTJosue M. A[i did not sustain a "serIOUSinjury'· within the meaning of Insurance Law ~ 5102 (d) as a result or the subject accident, the burden shifted to plaintilTto produce sufficient evidcnce to raise a triable issue of fact (see DtlJllilli l' Cl{tlle, 59 i\D3d 490,873 NYS2d 189 [2d Dept 2009], /1' denied 13 NY3d 702, 886 NYS2d 93 [2(091). [* 5] Ali v EJ rone Leasmg Corp. Inc!lx No. 07-2]232 .. ¢ Page '\lo_ 5 In opposition to the mallon, plaintiff Josue M. Ali submitted his uncertiiied Southside Ilospltal emergency room records and the mitial report dated f'vlarch 16,2007 of CraIg Selzer, D_C to demonstrate that he did sustain a "serious injury" as defined in Insurance Law ~ 5102 (d). Plaintiff Josue M. Ali j~lIlcdto raise a triable issue of fact in opposition to the motion (.lee Jenson v Brooke, 97 AD3d 539, 947 NYS2d 328 r2d Dcpt 20121). Plaintiff's hospital records are uncen:ified and thus rail to raise a triahle issue of tsct (see V'Ona v Bryal1, 83 AD3d 646. 919 NYS2d 881 l:~d Dept 20] IJ). In addition, the initial report of plaintiffs chiropractor, Dr Selzer, does not constitute competent evidence to oppose the motion for summary judgment because it is not in allidavit l'orm (see CPLR 2106; Pierson v Edwards, 77 AD3d 642, 909 NYS2d 726 l2d Dept 201 OJ; Perdomo v Scott. 50 AD3d 1115, 857 NYS2d 212 [2d Dept 2008]). Moreover, plaintiff failed to establish economic loss in excess of basic economic loss (see Diaz I' Lopresti, 57 AD3d 832, 870 NYS2d408 [2d Dept :wmm, FInally, plamtil'rs submissions fall to set forth competent medical eVIdence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all ol"hls daily activities for not less than 90 days of the first] 80 days thereafter (see Pierson v Edwards. SlIfJru). Therefore. defendants' motion for summar:!-'judgment dismissing the complaint of plaintiff Josue M. Ali on the ground that he did not sustain a "serious injury" as defined in Insunmcc Law ~ 5102 (d) is granted. Defendants also seek an order pursuant to CPLR 3 J 26 striking the complaint of plaintiff pro se Sergio /\Ii 1·'01' his repeatcd failure to comply with Court orders compelling an examination bef()J'etnal and hIS failurc to provide outstandmg discovery or to object to the demands for discovery. They argue that the failure to provide said discovery has denied them the right and opportunity to properly defend this action. Defendants attach an affirmation of good htith indicating that defendants' counsel has attempted to communicate \-vithplaintiffpro se to resolve by agreement the issues raised by the motion but has been unable to reach an agreement. In support of their request, defendants also suhmit copies 01' the preliminary conference order dated February 22, 2008; defendants' demand for discovery and inspection dated February 22, 2008 demandmg, among other things, copies of all estimates, rep31r records, invoices, receipts or work orders for damages to plaintilf's vehicle; a stipulation dated February 23,2010 that depositions ol'plaintilfs were to be held on or before April 23, 2010 and that all parties were to respond to outstanding discovery and inspection within 30 days; defendants' notice for discovery and Inspection dated 1\,1ay10,20 I0 seeking, among other things, an authorization to obtain plaintiff SergIO i\1J's property damage claim j-ilcfrom Nationwide Insurance Company: the so-ordered stipulation daled .July 12. 2011 (3. Whelan) directing that "Sergio Ali will be produced for a deposition on or bcfore S/8!!l Josue /\Ii & Sergio Ali \-villprovide [defendants] with authorizations to obtain the property damage claim(s) file from the carricr (Nationwide)"; defendants' notice dated July 22, 201101' examination before trial or plamtll'f Sergio Ali on August 8, 2011: and the affidavit nfscrvice of the motion on plaintillpro se at two different Bay Shore. New York addresses. The nature and degree of the penally to be imposed pursuant to CPLR 3126 is a matter nr discretion (Sl'l' Kihll' Pj~fler. 94 NY2d 118,700 NYS2d 87 1"19991; Ietz v Wctal1.HJIl.67 NY2d 71 L Z 499 N YS2d 933 [1986]: Friedman, f[arjclIist, [anger & Kraut I' Roscllthal. 79 AD3d 798, 9] 4 NYS2d 19612d Dept 2{)]01: Morano v Westchester Paving & Sealil1g Corp., 7 AD3d 495. 776 NYS2d 8312d Dept 2004j; Novis J! BClles. 268 AD2d 464. 701 NYS2d 914 r2d Dept 2000]). Although striking [* 6] All v El Tonc Lcasing Corp_ Indc;.; No. 07-21232 Page NO.6 a pleading is a drastic remedy, it i~ appropriatc \'v'here then:: is a clear showing that the failure to comply \vith discovery demands was \villful or contumacious (see Frias v Fortini, 240 AD2d 467, 658 NYS2d 435 [ld Dept ]997]). It can be mferred that a party's conduct is willful and contumacious when it repealedly fails to comply with discovery demands and court orders compelling disclo~llre without providing a reasonable excuse for noncompliance (see Commisso v OnlulIl, 85 ADJd 845, 925 NYS2d 612 [2d Dept 20111; Mei fall ZlulIlg v Suntana, 52 AD3d 484, 860 NYS2d 129 !2d Dept 2008]; Dbls/her v Geico fns. Co., 32 AD3d 893, 820 NYS2c1 804 [2d Dcpt 2006]: Kroll II Parkway Plaza ./oillf Venture, 10 AD3d 633, 781 NYS2d 613 [2d Dcpt 2004]; Ordollez v Guerra, 295 AD2d 325, 743 NYS:~d 156 [2d Dept 2002]). '"If the credibIlity of eourl orders and the integrity of our judicial system arc to be maintaincd, a litigant cannot ignore court orders with impunity" (KiM v I~fefrer, supra at 123). Here, pla1l1tiffSergio Ali J:lilcd to submit any opposition to the motion and thus did not oiTer a reasonable excuse for Jailing to comply with the repeated discovery demands or the orders 01' the Court directing compliance with those demands (see Northfield filS. Co. v Model Towillg and Recovery, 63 !\D3d 808, 881 NYS2d 135 [2d Dcpt 2009]; see also Montemurro 1J Memorial Sloan-Kettering Cancer err." 94 !\D3d 1066,942 NYS2d 623 [2d Oept 2012J; Roug KlIllg Wang II Chien-Tmng Lin, 94 AD3d 850,941 NYS2d 7] 7 '-2d Dept 2012); Morgenstern v Jeffmm Corp., AD3d 913, 912 NYS2d 231 [2d Dept 2010"]). Therefore, the Court grants defendants' request to unconditionally strike the complaint ofplalntiffScrgio Ali (see id.; Smith v l!.,'asternLong b". Hosp., 263 AD2d 477, 692 NYS2d 726 [2d Dept ] 999[). n Based on the forego111g, defendants' further request for leave to amend their answer to include the affirmative defense or the ("Jraves Amendment (49 30106), and for summary judgment in j~lVor of defendant EI Tone Leasing Corp. i/s/h/a El Tone Leasing Corp. (EI Tone) dismissing the complaint as against it is denied as moot. use ~ Accordingly, the motion (003) by defendants for summary judgment in their hwor dismissing the complamt of plain tilT Josue lV1. All on the ground that he did not sustain a "serious injury" as defined in Insurance Law ~ 5] 02 (d), and for an order pursuant to CPLR 3126 dismissing the complaint ofplallltitr Sergio Ali for Cailure to appear for a court-ordered deposition and Ii)!" failure to comply with discovery demands IS granted. The plaintiffs' complaints are dismissed. The motion (004) by defendants for leave to aml~nd their answer and for summary judgment in favor oC defendant EJ Tone Leasing Corp. i/s/h/a El Tone Leasing Corp. is denied as moot. I Dated ... - I I 'I 1 1/1:1 !d ¢... ¢ --'1-. __ .. -
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