Alicea v Simeon

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Alicea v Simeon 2012 NY Slip Op 32776(U) November 7, 2012 Supreme Court, Suffolk County Docket Number: 09-36593 Judge: Denise F. Molia 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] copy SHORT FORM ORDER INDEX No. CAL. No. 09-36593 12-00525MV SUPREME COURT - STATE OF NEW YORK IAS. PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Justice of the Supreme Court MOTION DATE 8-10-12 ADJ. DATE 9-28-12 Mot. Seq. # 001 - MD ---------------------------------------------------------------X CARMEN ALICEA. Plaintifl~ STEVEN D. DOLLINGER & ASSOCIATES Attorney for Plaintiff P.O. Box 369 Huntington Station, New York 11746 - against BERTIE SIMEON, Defendant. FRANK J. LAURINO, ESQ. Attorney for Defendant 999 Stewart Avenue Bethpage, New York 11714 ---------------------------------------------------------------X Upon the following papers numbered I toll read on this motion for summarv judgment; Notice of Motion! Order!o Show Cause and supporting papers (00 I) I - 11 ; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers 12-13; Replying Affidavits and supporting papers 14-15; Other 16-17; (Il:lldll:f1elItelllllig counsel ill ~t1ppt'lltIl:lidt'lppo~ed 10 the l1iolion) it is, ORDERED that this motion (001) by the defendant, Bertie Simeon, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff, Carmen Alicea, has failed to sustain a serious injury as defined by Insurance Law § 5102 (d), is denied; and it is further ORDERED that the branch oftbe motion which seeks dismissal of the second cause of action on the issue of Property Damage to the plaintiff's vehicle has been rendered academic by settlement of the same and is dcnied as moot. This is an action to recovcr damages for personal injuries allegedly sustained in a motor vehicle accident on Friday, April 13.2007, on Stuyvesant & Washington Avenue, in Brentwood, New York, when a vehicle operated by thc plaintiff, Carmen Alicea, was struck by a vehicle operated by defendant Bertie Simeon. The defendant now seeks summary judgment on the basis that Cannen Alicea did not sustain a serious injury as defined by Insurance Law §5102 (d). The plaintiff opposes the defcndant's application. The proponent of a summary judgment motion must make a pnrna facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to climinate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of [act is presented (Frielld.\· of Animals v Associated Fur jl4frs., 46 NY2d 1065,416 NYS2d 790 r19791; Sillmall v Twentieth [* 2] Alicea v Simcon Index No_ 09-36593 Page No. :; 3 NY1d 395. 165 NYS2d 498 [1957]). The movant has the initial burden or proving entitlement to summary judgment (JVillegrad v N. Y. U. 1~1edic{l1Cellter. 64 NY2d 851. 487 NYS2d 316 ["1985]). Failure to make such a showing requires denial or the motion. regardless Oflhc sunicicncy or th", opposing papers (Willegr{l(llI N Y. U. Mediml Ce1lter. supra). Once such proof has been olkn:d. the burden then shifts to the opposing party. who. in order to defeat the motion lor summary judgment. must proffer evidence in admissible form ...and must ··show facts sunielent to reqUIre a trial or any issw: of t~lCt"(CPI,R 3212[bl: Zuckl!r1lUlI1 \' City of New York. 49 NYld 557, 427 NYSld 595 [1980J). ·I'he opposing party must assemble. lay bare and reveal his proor in order to establish that the matters set forth in his pkaclings are real and capabk: of being established (Ca.\·tro v Liher~)! 8m- Co" 79 !\D2d 1014,435 NYS2d 340 [2d flop! 19XII). CelltlllT-Fox Film Corportttioll. * !)llrSllantto Insurance Law 5102 (d)... ·I.slcrious inJury' mcans a personal injury which results In death; dismemberment: significant disfigurement a fi·acture; loss ora fetus; pcrmancnt loss of use ora body organ. member. function or systcm; pcrmanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medical determined injury or impairment of a non-permanent nature which prevents the injured person from pcrfanning substantially all of the matenal acts which constitute such person's usual and customary daily activities for not less than nillety days during tbe one hundred eighty days immediately following the occurrence of the injwy or impairment.'· The teml '·significant:' as it appears in the statute. has been defined as ··something more than a minor limitation or use." and the tcrm :·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 curtailment (Licari v Elliot. 57 NY2d 230. 455 NYS2d 570 11982]). On a motion for summary judgment to dismiss a complaint l·ar lailure to set forth a prima facie cusc of serious injury as defined by Insurance Law 5102(d). the initial burden is on the defendant to ;'present evidence in competent form. showing that plaintilT has no cause of action" (Rodriquez l' Goldstein, 182 !\ D2d 396. 582 NYS2d 395. 396 [ 15t Dept 1992D. Onee the defendant has met the burden. the plaint! rr must then. by competent pro()t'~establish 8prilllo./(/cie case that such senous injury exists (DeAngelo v Fidel Corp. Sen'ices, luc .. 171 ;\ D2d 588, 567 NYS2d 454, 455 [1st Dept 1991J). Such prooj~in order to be in compttent or admissible Corm.shall consist of affidavits or nf1irmations (Paga1lo II Killg,\·bur.l', 182 !\D2d 268.587 NYS2d 69212d De])t I 992J). The proot'must be viewed in alight most favorable 10 the nonmoving party. herc the plaliltilT(Cammarere,' Vil/tlJ101'tI. 166 AD2d 760. 562 NYS2d 808, 810 [3d Dept 199011· * [n ordcr to recover under the "permanent loss of usc" categOly. a plaintilTmllst dcmonstrate a wta! loss or use of a body organ. membcr. function or systl.'lll (Ober(J' v Ballgs AmhultlJ1ce Illc .. 96 NY2d 295. 727 NYS1d 37812001 p. To prove the extcnt or degree of physical limitation with respect to the "pcrmanent consequential limitation of use of a hody organ or mcmber·· or "signi tieant limitation or use of a hody function or systcm·' t:atcgoril's. eithcr a specific percentage of the loss of range or motion must be ascribed or there must he a suniclcnt description or the ··qualitative naturc·' of plaintilr s limitaIJons. with an ohjcctive basis. com:lating plailllilrs limitations to the normal fUllction. purpose and use ofthc body part (roure \I ...J'is Relit /1 Car System.\·, IlIc .. 98 NY2d 345. 746 NYS2d 865 [lOOO!). 1\ millor. mild or slight lilllitatinll l of U::;e cl)Jlsi clered IIlsignttil.'<llll vtlh 111the mean ing 0 f tile statute (LiCtlri I' Ellio11. S/111m). is \ [* 3] Alicca v SlIlli.:Oll Indcx No. 09-36593 Page No_ ;; In support ol'this motion. the Jelcndam has submitted. 111teralia, an attorney's affirmation: a copy of the summons and complaint. defend3nt 's ans\ver \-vith various discovery demands. and plaintifT s veri lIed and supplemental verified bills or partIculars: the expert report of Chandra M. Channa. M.D. dated Apnl 15. 2011 conccrllll1g thi.: indepcmknt neurologlcal examination of the plaintiff the cxaminJtion before trial of Carmen Alicea: and a copy ora release o1'the property damage claim with proof of payment in the Ulllount or two thousand seven hundred fifty-om: and 15/100 dollars. Based uponlhi.: prool'that the property damage claim was sel1led and payment was tendered by Lincoln (jeneral Insurance Company by' check dated September 27,2007. and the ri.:kasc for property damage \vas duly executed by the parties on Scpti.:mber 17, 2007, that part orthe dl'lendant's application fix dismissal ur lhe second cause oC action Cor propeny damagi.: has been rendered academic and IS denied as moot. By way oCher verifIed bill of particulars. Carmen Alicea allegcs that as a result ofthc subject accidcnt she sustained injuries consisting or an [.4-5 posterior disc bulge with flattening of the ventral thecal sac: straightening oflhe cervical lordosis; C2-3 through C7-Tl disc hydration loss; C3-4 posterior disc bulge; C45 and C5-6 posterior disc herniations with vcntral CSF impression at those levels; C4-) central canal stenosis; C6-7 and C7-Tl posterior, more prominent disc herniations with ventral CSF impression and central canal stenosis: C6-7 increased herniation on the lell resulting in ventral cord impression; C7-TJ cord abutment; C6-7 dimmishing ventral cord impression: C6-7 increasing ventral cord impression; ll1sultlo the muscular skeletal system and neuroperipheral system or both the cervical and lumbar spine; headaches; spinal radiculitis; necessity for pain and anti-inflammatory medications; limited ranges or motion; post traumatic stress disorder; and loss of activities and enjoyment of life. It is noted that by stipulation datcd March 9, 2011. the plaintiff has withdrawn the claim IDr post traumatic and psychological distress. Based upon a review ot'the foregoing evidcntiary submissions, it is determined that thc defendant hus l'ailcd to establish prima J"flcicentitlement to summary .judgment on the issue oC whether the plainti IT sustained a serious injury as di.:l~ni.:dby Insurance Lnv ~ 5102 (d). The clelcnJant's expcrt. Chandra M. Channa, M.D. has not ]Jrovldi.:d copies oCthe medical records which clekndant expert stated were revievved and upon which the expert opinion was based in part, including thc MRI reports of the plaintiJrs lumbar and ccrvical spine. records Ji'om Southsicle Ilospital; x-ray report of thc cervical ancllumbar spine. and the report oj" Walter Priestly. D.C., as required pursuant to CPI,R 3211_ Expert testimony is limitcd to facts in evidence (.I'ee. AI/ell v lIh. 81 AD3d 10:25. 919 NYS1d 179 12d Dept 20111; MarzlIillo l'iso/1l, 177 i\D2cl 362. 716 NYS2d 98 11d Dept lOOO]: Strill{:i1e I' Rot/mum. 141 /\.[)2d 637.530 NYS2d 838 [2d [kpt ] 9881. O'Shea v Sarro, 106 AD2d 435. 482 NYS2d 529 (:lei Dept J9841). which cvidentiary proof has no! he en provided in the moving papers. Although the pLlIntitTtestilicd that she was tre;lted for her back anclncck pain by Walter Priestly. D.C. h)llowing the accidcnt. 110 report fhm1 dejendant's chiropractic expert concerning an lIlucpcndent chIropractic cxamltlation has hcen submitwd by the llloving deCcndant. leaving this e(Juri to speculate as to thelllldings (Broll't1a/1lcv emulum. 25 i\[)3d 747. S07 NYS2d 658 [-2d [)cpt1006]: Rodriguez I'Schick/er. 229 AD2d 326, 645 NYS2d 31 II st Dcpt 1996]). Although the plaintdTtestiJled lhat she received two injections into her lumbur spll1e at a hospital. those records have not been provided tn this eourt and the e."pcrl does nOl C!lll1mcnt upol1the neccssity for the administration oCthe inJcctions. or rule out that such admTllistration was not causally relatcd to jhc subject aCCIdent. It is additionally noted that alter the accidellt. [* 4] Alicea \! Simeon Index Nt), 09-3659] Pag!.' No. -J th~ plaintiff also tl"l:.'i1tt'd Dr. B[anco. hl'r privat(' attending physician. whose n:conls also ha\'c nUl bt..'en with prm'ided, Dr. Clwrma ubtaint..'drange of motion measurements oftht..' plaintirfs cervical and lumbar spine with :l goniometel·. Thc diagnosis rendereel by Dr Channa was cervical and lumbar sprain, resolvcd. and normal Ileuro[ogica [ e:\<l11'1 on, [lowcver. Dr. Charm;;!·s report IScone! usury and UllSUPPll)"li':cl. dm:s nllt inati Ill' address the issLKconcerning the lllultiple cervical und lumbar herniations which the plaintl1l'alkgl',s to havl' sustained in Ihis accident. and does not rule out thut these injuries wen: c<lused by Ihe accident- !caving this court to speculate as to 1hose claims. Although tht- plaintilThas alleged that she sulTers li·OI11eadache and h cervical and lumbar radiculitis, Dr. Charma. does not opme as to these injuflcs. or rule out that thl'y wen: caused by the accident. ag.alll. h.'l.lVing to this court to speculate as to the same. and raising further factual it issues. Based upon the multiple factual issues and lack of supporting t:videntiary proof. it IS determined that the defendant l"ailedto establish prima facie that the plaintiff did not sustarn a serious injury as set liJrth in th(' first categories of injuries as defined by Insurance l,aw § 5]02 (el). Turning [0 the second category ofll1juries defined in Insurance La\-v § 5102 (cl), it is determined that the del"endant"s examining physician did not examine the plaintiff during the statutory period of 180 del)'s following the accident thus rendering defendant's physician's affirmation rnsutJicient to demonstrale entitlement to summary judgment on the issue of whether the plaintiffwus unable to substantially perform all of the material acts which constituted her usual and customary daily activities lor a period in excess 01'90 days dunng the 180 days immediately follO'wing the accident (Bltlllc/wrd I' Wilcox. 283 AD2d 821, 725 NYS2d 433 ]3d Dept 2001): see, Uddin )' Cooper, 32 AD 3d 270.820 NYS2d 44 [1st Dept 200GJ: Toussaint v Claudio, :?3 AD3c1268. 803 NYS2d 564 [1st Dept :W05J). and the examining phYSician does nOi comment on the same. Accordingly. thl.'re are factual issues conccrmng. this cat~gory of injury. ·Ih: plaintilltestitied that she is employed as a data elltry ckrk at by liFe ACI·ospact'. On the d,IY fllllowing thl' accideill. shc experiellced pam allover her body. and still stru;;gles with the pam in her Ileck and hilCk. fur which she treated with Dr. Pricstly for more than six mOllths. She stopped treatment because the lllsurance company would 110 longer cover tlk' visits. and thus. she could not complete the injections tn her neck and hack. Prior to this accident she did not have pain 111 her neck or hack. and had ncver been diagnosed With any condition involving her neck or hack. Duc to the pain she was expcriencing. she \Va::; unable to perform her usual joh at her place of cmployment as she could 110 !t'nger carry some of the hox ¢ ¢ 's and could not Jifi. Shl' has not bl't..'nahle to resume lifting or carrYing SiIll'Cthm as she still has the pain in her hack and nl..'ck.Sl'Vl"ndays a wCt.'k.lasting all day long. She still mputs mformatioll on the computer. hut has to sit and take it easy. Shc takl's Aleve and uses patches ror the pain. She continucd that the pain in hLT neck is causing probkms With h(:rj(lb, Sh ¢. develops headaches. cannot r()Cll~.and has to take Excl'drin ~ Migrallll' She i(l'· ¢ ¢S gardening and can no longer garden at all. She stopped her t1l(,lllbersl1ipat tlK' gym as · she CDnIHllongel" perform tl1os(:uClivities. She has trouble grabbing hl.'rdaughkr and doing aCliviti\..'s\\illh iler. 'I'hus. thct· ¢. arc l~lCluallssues concel"llmg this second categl1ry ol'il1.1uril'S ' rhesc f~lelLlalissucs raiscd ill defemlant"s moving. papers preclude summal)'.ludgmcnt. as thl' dell,'ndam tliled to satisl~· the burdl'n oCestablishing. prima l:lCie.that tht' plaintilfdid nol sustain a ··serious injury·· "'Ithin th ¢ ¢ lllt..'aningor Insurancl' I.aw 510:? (d) under either ciltq!.Ory(set'.. ,lgalhe I' Tun Chen Wang. · 98 NY:?d 3-1-5. 46 NYS2d 865 [~()06]): see a/so, Walters I' Papa/las(u.H·ioli. 31 AIBd -1-39,819 NYS~d-l-8 7 [* 5] /\llcca v Simeon Index No, 09-36593 Page No, 5 12d Dept 2(j()6j1. Inasmuch as the- moving party's in motion (001) has j~\iled to establIsh prima facie entItlement to judgmcIlt as a maHer or law in the first 1l1stance Oil the Issue ,,("serious injury'· within the I1waning or Insurance I ,(1\\1 ~ 5102 (d). it is unnecessary to consider whether the opposing papers m:n.' suniclcnt tn raise a triable issue O(bCl (see. }long Deok Lee I' Singh 56 AD3d G(ll, X67 NYS2d 339 [:2d DCPI 20m.q): Kf(~rll II Torella. 40 /\D3d SXX. g33 NYS2d 406[2d Dept 2007"1: Walker I' Village (~l Ossining. I X i\D3d X(l7. 796 NYS2d 658 l,2d Dcpt 200511 as the burden has lwt shined to the pl(llntill Accordingly. motion (001) by the clclcndant fi)1' summary .Judgment dismissing denicd in Its entlrdy. Jb i the complaint "\ . - .( , '~ ~<./_. FINAL DISPOSITION X J S.t'. NON-FINAL DISPOSITION , is

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