Cabrera v Akm Omar Paruque

[*1] Cabrera v Akm Omar Paruque 2012 NY Slip Op 50797(U) Decided on May 4, 2012 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2012
Supreme Court, Kings County

Jose Cabrera, Plaintiff,

against

Akm Omar Paruque, Roosky Taxi Inc., Defendants.



14277/10



Attorney for Plaintiff

Dominick W. Lavelle, Esq.

38 Willis Avenue

Mineola, New York 11501

(516) 739-8111

Attorney for Defendants

Matthew Lyons, Esq.

Baker, McEvoy, Morrissey & Moskovits, PC

330 West 34th Street, 7th Floor

New York, New York 10001

(212) 857-8230

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on defendants Akm Omar Paruque and Roosky Taxi Inc. joint motion for an order dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

—Notice of Motion

Supporting Affirmation

Memorandum of Law

Exhibits A—H

Affirmation in Reply to plaintiff's opposition

—Affirmation in Opposition by plaintiff

Supporting Affirmation [*2]

Exhibits 1—2

Supplemental Supporting Affirmation

Exhibits 1—2

By notice of motion filed on August 11, 2011, under motion sequence four, the defendants jointly move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff opposes the motion.

BACKGROUND

On June 9, 2010, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated December 7, 2010, defendants joined issue. On July 1, 2011, a note of issue was filed.

The instant action is to recover damages for personal injuries sustained as a result of a motor vehicle accident. Plaintiff's complaint and bill of particulars alleges that on October 3, 2009, at approximately 2:20 a.m., he was driving his vehicle near the vicinity of 8th Street and Driggs Avenue in Kings County, New York. At that date and time, AKM Omar Faruque drove a vehicle owned by Roosky Taxi Inc. in a negligent fashion, collided with the plaintiff's vehicle and seriously injured him.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990])"(People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1d 2008]).

Insurance Law § 5102(d) defines serious injury as: "[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 [*3]consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically 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 customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

"A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim." (see Grossman v. Wright, 268 AD2d 79, 83 [2d 2000]). "With this established, 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 injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury." (Id. at 84.)

The plaintiff's verified bill of particulars alleges, among other things, a rotator cuff tear, superior labral tearing and impingement of the left shoulder as well as injuries to the cervical spine. It also alleges injuries under the 90/180 category of Insurance Law § 5102(d).

In support of the instant motion, defendants submit what they described as the operative report of plaintiff's left shoulder arthroscopy. There is no dispute that the plaintiff underwent this procedure on April 27, 2010. It is noted that the report is not affirmed or certified and the defendants offered no foundation for its admissibility. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v. New York City Tr. Auth., 16 AD3d 45 [2d 2005]). The affirmation of defendants' counsel does not set forth the basis for counsel's knowledge that the operative report is what counsel purports it to be. Assuming for the sake of argument that the report is admissible, the defendants did not explain the reports probative value, that is, how the report supports their contention that plaintiff did not suffer a serious injury. It is therefore disregarded.

The defendants also offered the affirmed report of Dr. David Fisher, a radiologist, who they asked to review the MRI studies of the plaintiff's cervical spine taken on November 16, 2009 and of the left shoulder taken on November 5, 2009. Dr. Fisher found no post traumatic findings. However, Dr. Fisher offered no specific opinion as to plaintiff's condition during the relevant 90/180—day period immediately following the accident.

The defendants asked Dr. Alan Crystal, an orthopedist, to examine the plaintiff. On June 22, 2011, Dr. Crystal examined the plaintiff and did range of motion testing of plaintiff's left shoulder and cervical spine. Dr. Crystal's affirmed report is seventeen pages long. The third, fourth, fifth and eighth page are blurry, barely legible and contain text with a font size of 8 or less. The ninth, tenth and eleventh page are dark and barely [*4]visible photo images. The sixth contains the results of Dr. Crystal's examination of the plaintiff's left shoulder. Dr. Crystal found tenderness along the anterior and posterior aspect of the shoulder and a positive Hawkins and Neer's impingement sign. A positive Hawkins and Neer's test indicates pain in the shoulder located in the sub-acromial space or anterior edge of acromion. Dr. Crystal also opined that the MRI studies of plaintiff's shoulder conducted on November 5, 2009 revealed tendinopathy of the superspinatus tendon and a partially torn rotator cuff.

Dr. Crystal, therefore, directly contradicted the opinion of Dr. Fisher that the MRI revealed no anomalies. Dr . Crystal conducted range of motion testing and found 145 degrees of forward flexion and 90 degrees of rotation and limitation of internal rotation with pain. However, he failed to compare his findings to what is normal (Chiara v. Dernago, 70 AD3d 74 [2d 2010], citing Wallace v. Adam Rental Transp., Inc., 68 AD3d 857 [2d 2009]). Dr. Crystal offered no specific opinion as to plaintiff's condition during the relevant 90/180—day period immediately following the accident.

The defendants submitted what they described as plaintiff's medical records. However, the record was not affirmed or certified and the defendants offered no foundation for its admissibility. The affirmation of defendants' counsel does not set forth the basis for counsel's knowledge that the medical records are what counsel purports it to be. Assuming, for the sake of argument, that the records are admissible pursuant to the rationale articulated in Kearse v. New York City Tr. Auth., 16 AD3d 45 [2d 2005], the records do not support the defendants' motion. In particular, there is a note reflecting range of motion testing of the plaintiff's cervical, thoracic and lumbar spine. The note stated what was normal range of motion in the cervical spine for flexion extention, right and left lateral flexion, and right and left rotation. The note found that plaintiff presented with range of motion restriction of no less than 30 % in every motion tested. Similarly, the note compared plaintiff presentation to normal in the area of the thoracic and lumbar spine. The restriction in range of motion was no less than 30% in every motion range tested. The defendants also submitted plaintiff's deposition transcripts.

Dr. Crystal's affirmed reports contained positive findings of tenderness, pain and restrictions in motion in plaintiff's left shoulder five months after the automobile accident in question. In light of the foregoing, the defendants did not meet their prima facie burden of showing that the plaintiff did not sustain a serious injury due to the subject accident (see generally, Ortiz v. Orlov, 76 AD3d 1000 [2d 2010]). It is, therefore, unnecessary to decide whether the papers submitted by the plaintiff in opposition is sufficient to raise a triable issue of fact (Chiara v. Dernago, 70 AD3d 74 [2d 2010], citing Mannix v. Lisi's Towing Serv., Inc., 67 AD3d 977 [2d 2009]; Smith v. Quicci, 62 AD3d 858 [2d 2009]).

Defendants' motion to dismiss the complaint pursuant to CPLR 3212 based on plaintiff's alleged failure to sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The foregoing constitutes the decision and order of this court. [*5]

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.