Dixon v R & S Limo, Inc.

[*1] Dixon v R & S Limo, Inc. 2012 NY Slip Op 52090(U) Decided on November 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2012
Supreme Court, Kings County

Gregory Dixon, Plaintiff,

against

R & S Limo, Inc. MOHAMMAD ZUBAIR, Defendants.



12915/11



Attorney for Plaintiff

Melissa C. Ingrassia, Esq.

Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.

100 Herricks Road

Mineola, New York 11501

(516) 741-5252

Attorney for Defendants

Colin F. Morrissey, Esq.

Baker, McEvoy, Morrissey & Moskovits, P.C.

1 Metro Tech Center, 8th Floor

Brooklyn, New York 11201

(212) 857-8230

Francois A. Rivera, J.

By notice of motion filed on May 30, 2012, under motion sequence one, defendants R & S LIMO, Inc. (R & S) and Mohammad Zubair (Zubair) jointly move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff Gregory Dixon (Dixon) did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff opposes the motion.

BACKGROUND [*2]

On June 7, 2011, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated June 24, 2011, the defendants joined issue. On July 18, 2012, 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 alleges in his complaint and bill of particulars that on November 29, 2010, at approximately 9:15 p.m., he was driving his car in the vicinity of East 108th Street at the intersection of Avenue T in Brooklyn, New York. At that date, time and location he was struck by a vehicle owned by R & S and negligently driven by Zubair and sustained serious injuries.

MOTION PAPERS

Defendants' motion papers consists of an attorney's affirmation and six annexed exhibits, labeled A through F. Exhibit A is a copy of the pleadings. Exhibit B is a copy of plaintiff's response to the defendants' demand for a verified bill of particulars. Exhibit C is the radiological report of Dr. Tantleff, opining on Dixon's cervical and lumbar spine MRI's taken on January 7, 2011 and December 14, 2010, respectively. Exhibit D is the affirmed medical report of Dr. Lisa Nason, pertaining to her orthopedic examination of Dixon on March 29, 2012. Exhibit E is the affirmed medical report of Dr. Jean-Robert Desroulex, pertaining to his neurological examination of Dixon on February 9, 2012.

Plaintiff's opposition papers consist of an attorney's affirmation dated August 13, 2012, an affirmation of Dr. Robert Diamond pertaining to Dixon's cervical and lumbar MRI's, and three exhibits labeled A through C. Exhibit A is the affirmed report of Dr. Max Jean-Gilles, Dixon's treating physician. Exhibit B is the radiological report of Dr. Robert Diamond opining on Dixon's cervical and lumbar MRI's. Exhibit C consists of reports prepared by Dr. Mark Gladstein pertaining to the trigger point steroid injection he administered to Dixon's spine.

Defendants replied with an affirmation of counsel dated October 3, 2012.

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 [*3]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 [1st Dept 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 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 [2nd Dept 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 defendants, however, failed to meet their burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys. 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Walker v Public Adm'r of Suffolk County, 60 AD3d 757 [2009]). With regard to range-of-motion testing performed on the plaintiff's lumbar spine, the defendants' expert orthopedist, Dr. Lisa Nason, indicated only that the straight leg maneuver was negative and failed to compare her finding to what is normal (see Walker v Public Adm'r of Suffolk County, 60 AD3d at 757; Malave v Basikov, 45 AD3d 539 [2007]). Similarly, defendants' expert neurologist, Dr. Jean-Robert Desroulex, indicated only that the bilateral straight leg raise was "normal at 90 degrees" but failed to compare his finding to what is normal (Shirman v Lawal, 69 AD3d 838 [2nd Dept 2010]). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition to defendants' motion (see Page v Belmonte, 45 AD3d 825 [2nd Dept 2007]; Tchjevskaia v Chase, 15 AD3d [*4]389 [2nd Dept 2005]).

Defendants' motion to dismiss the complaint is therefore denied.

The foregoing constitutes the decision and order of this court.

Enter:

J.S.C.