Richard v Jerez

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Richard v Jerez 2013 NY Slip Op 33736(U) December 9, 2013 Sup Ct, Bronx County Docket Number: 301485/09 Judge: Ben R. Barbato Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Dec 13 2013 ' '"' \ . !j)) I I i Bro~~l~~PREME COURT - COUNTY OF BRONX 1--------Case Disposed 0 ! I Settle Order 0 t j Schedule Appearance 0 ¢ PART 21/SJT 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: --------------------------------------,----------------------------X \~ ~\ J.o.,rdJ ~--·--·-· f; J ·~·... Index N2. L-tt------J 3o111~E/09 -·--0,,..-;;.- ~0V\'r&YI 'SJ)_, 5"~~Jgst\}o.7;;() ~ttn.OJW-n~~k'c Hon. Ben R. Barbato (fc\ iYU. ye,Y\{> G'l°. )C\X\_ .l \J,n \ Y\,0-r XJJ~';r-t A.J.S.C. + -r ----·--------------------------------------------------------------X The following ~j1\en numberec 1 ~J Read on this motion, I.A IDl crna , , Noticed on Cf\ \1' \1..-~ lo IO ~and duly submitted on the Motion Cal end~ l! Af\."f~- ' I PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits . Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law . -o.na c~-~+iion d~ . Upon the foregoing papers this motio~ decided in accordance with the attached Decision and Order. DEC l 2 2013 Dated: I 0 ~ I 2!)13 ---- 12.. Hon. BE@.=ARB~1~. £ c_ - [* 2] FILED Dec 13 2013 Bronx County Clerk SUPREME COURT OF THE STATE QF NEW YORK COUNTY OF BRONX Present: Honorable Ben R. Barbato FEDNEL RICHARD, DECISION/ORDER Plaintiff, -againstIndex No.: 301485/09 RAMON D. JEREZ, V AZOYMANAN DO.UKOURE, MINE TRANS CORP. and WILNERT VA\,COURT, Defendants. The following papers numbered I to 9 read on this mption and cross motion for summary judgment noticed on September 17, 2012 and October IO, 2012 respectiv~ly and duly transferred on October I I, 2013. Papers Submitted Notice of Motion, Affirmation & Exhibits Notice of Cross-Motion, Affirmation & Exhibits Affirmation in Opposition & Exhibits Reply Affirmation Numbered I, 2, 3 4, 5, 6 7, 8 9 Upon the foregoing papers, and after 1reassignment of this matter from Justice Alison Y. Tuitt on October 11, 2013, Defendant, Wiln¢rt Valcourt, seeks an Order granting summary judgment and dismissing Plaintiff's Complaint on the issue ofliability and for failure to satisfy the serious injury threshold under Insurance Daw §5102(d). By cross-motion, Defendants, Vazoymanan Doukoure and Mine Trans Corpr> seek an Order granting summary judgment and dismissing Plaintiff's Complaint for failure to1satisfy the serious injury threshold under Insurance Law §5102(d) and an Order denying Defendant Valcourt's summary judgment motion on the issue of liability. This is an action to recover for person~ injuries allegedly sustained as a result of a motor vehicle accident which occurred on June 9, 20~7, on Macombs Dam Bridge, in the County of [* 3] FILED Dec 13 2013 Bronx County Clerk Bronx, City and State ofNew York. On March 10, 2011, the Plaintiff ~ppeared for a physical examination conducted by ' Defendants' appointed physician Dr. Michael J. Katz, an Orthopedic surgeon. Upon examination and review of Plaintiffs medical records,[Dr. Katz determined that Plaintiff suffered cervical and lumbosacral spine strain, left knee contus\on and left ankle contusion, all of which had resolved at the time of the examination. Dr. Katz c)lpines that Plaintiff shows no signs or symptoms of permanence relative to the musculoskelet~l system or related to the motor vehicle accident of ' I June 9, 2007. Dr. Katz further finds that flaintiff is not currently disabled and that he is capable of full time full duty work as a sanitation Jr'orker without restrictions. Dr. Katz opines that Plaintiff is capable of his activities of daily living and all pre-loss activities. Defendants also submit Plaintiffsiupper extremity and lower extremity somatosensory studies which revealed normal findings. : The Court has read Plaintiffs subupissions, the affirmed reports of Dr. Joyce Goldenberg and Dr. Nicky Bathia, as well as Dr. Ron~d Wagner's affirmed MRI reports. Any reports, Affirmation or mediciil records not submitted in admissible form were not considered for the purpose of this Decisiol[l and Order. See: Barry v. Arias, 94 A.D.3d 499 (1st Dept. 2012). Under the "no fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has qeen sustained. Licari v. Elliot, 57 N.Y.2d 230 (1982). The proponent of a motion for summary j4dgment must tender sufficient evidence to the absence of any material issue of fact and the right tp judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegra6/. v. New York University Medical Center,64 N.Y.2d 851 (1985). In the present action, the burd,en rests on defendant to establish, by submission of [* 4] FILED Dec 13 2013 Bronx County Clerk evidentiary proof in admissible form, that: plaintiff has not suffered a "serious injury." Lowe v. Bennett, 122 A.D.2d 728 (1st Dept. 1986),aff'd 69 N.Y.2d 701 (1986). Where a defendant's motion is sufficient to raise the issue of"".hether a "serious injury" has been sustained, the burden then shifts and it is incumbent upon the plaintiff to produce primafacie evidence in admissible form to support the claim of serious injUIJ~. Licari, supra; Lopez v. Senatore, 65 N.Y.2d 1017 (1985). Further, it is the presentation of objective proof of the nature and degree of a Plaintiffs injury which is required to satisfy the stat4tory threshold for "serious injury". Therefore, disc bulges and herniated disc alone do not autbmatically fulfil the requirements oflnsurance Law §5102(d). See: Cortez v. Manhattan Bible Church, 14 A.D.3d 466 (1st Dept. 2004). Plaintiff must still establish evidence of the extent pf his purported physical limitations and its duration. Arjona v. Calcano, 7 A.DJd 279 (1st Dept. 2004). In the instant case Plaintiff has demonstrated by admissible evidence an objective and quantitative evaluation that he has suffere~ significant limitations to the normal function, purpose and use of a body organ, member, functiotj. or system sufficient to raise a material issue of fact for determination by a jury. Further, he ha(s demonstrated by admissible evidence the extent and duration of his physical limitations sufficient to allow this action to be presented to a trier of facts. The role of the court is to determine! whether bona fide issues of fact exist, and not to resolve issues of credibility. Knepka v. Talyman, 278 A.D.2d 811 (4th Dept. 2000). The moving party must tender evidence sufficient to establish as a matter of law that there exist no triable issues of fact to present to a jury. Alvarez\{. Prospect Hospital, 68 N.Y.2d 320 (1986). Based upon the exhibits and deposition testimon)\ submitted, the Court finds that Defendants have not met that burden. However, based upon th~ medical evidence and testimony submitted; Plaintiff has not established that h~ has been unable1to perform substantially all of his normal activities for [* 5] FILED Dec 13 2013 Bronx County Clerk 90 days within the first 180 days immedi~tely following the accident and as such is precluded from raising the 90/180 day threshold pnlvision of the Insurance Law. Upon a reading of the Examinations Before Trial and in consideration of the arguments of the parties, summary judgment on the issj.le of liability shall be denied. Therefore it is ORDERED, that Defendant, Wil(nert Valcourt's motion for an Order granting summary ' judgment and dismissing Plaintiffs Complaint on the issue of liability is denied and Defendant I ; Wilnert Valcourt's summary judgment mption on the issue of serious injury is granted to the extent that Plaintiff is precluded from raising the 90/180 day threshold provision of the Insurance Law; and it is further ORDERED, that Defendants Vazoymanan Doukoure and Mine Trans Corp.'s crossmotion for an Order granting summary jupgment dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold pursua;nt to Insurance Law §5102(d) is granted to the extent that Plaintiff is precluded from raising th~ 90/180 day threshold provision of the Insurance Law. Dated: December 9, 2013 DEC 1;2 2013

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