Khanfour v Nayem
Annotate this Case
Download PDF
Khanfour v Nayem 2016 NY Slip Op 30893(U) April 18, 2016 Supreme Court, Bronx County Docket Number: 309119/12 Judge: Betty Owen Stinson 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 Apr 21 2016 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------x MAHMOUD M. KHANFOUR, DECISION AND ORDER Plaintiff(s), Index No: 309119/12 - against MOHAMMAD NAYEM AND JAKE ROSS HACKING CORP., Defendant(s). ----------------------------------------x Stinson, J. In this action automobile accident, summary judgment, for personal injuries stemming from an defendants move for an order granting them thereby dismissing plaintiff's complaint on grounds that he failed to sustain a serious injury as defined by the Insurance Law. that defendants Plaintiff opposes the instant motion asserting fail to establish prima facie entitlement to summary judgment and that questions of fact nevertheless preclude summary judgment. For the reasons that follow hereinafter, defendants' motion is granted. The instant sustained in complaint and a action motor bill of is vehicle for personal accident. particulars allege injuries Read the allegedly together, following. the On September 24, 2011, on Lexington Avenue near its intersection with Page 1 of 10 [* 2] FILED Apr 21 2016 Bronx County Clerk East 73rct Street, New York, NY, plaintiff was involved in a motor vehicle accident. Specifically, plaintiff's vehicle came into contact with a vehicle operated by defendant MOHAMMAD NAYEN and owned by defendant JAKE ROSS HACKING CORP. Plaintiff alleges that defendants were negligent in the operation and ownership of their vehicle, said negligence causing him to sustain injuries. Plaintiff alleges to have sustained a host of injuries, being disc herniations at C3-C4 and C6-C7. the most serious Plaintiff alleges that the foregoing injuries are serious as defined by Insurance Law § 5102(d), inasmuch as he sustained a (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a limitation of use of a body organ or member; (3) body function or system; significant and/or (4) a medically determined injury or impairment of a non-permanent nature which prevented him from performing all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following his accident. The evidence establishes that with regard to all categories of serious injury alleged, plaintiff's injuries were the result of prior accidents, wherein he hurt the same parts of his body which he claims were injured here. Accordingly, causation. Page 2 of 10 defendants negate [* 3] FILED Apr 21 2016 Bronx County Clerk The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Zuckerman v City of New York, defendant seeking 68 Hospital, summary NY2d 49 NY2d 557, 562 judgment must 320, 324 [1980]). [1986]; Thus, a establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v Distefano, 16 AD3d 637, 638 [2d Dept 2005]; City Transit Authority, 304 AD2d 634, 634 Peskin v New York [2d Dept 2003]). movant meets his initial burden on summary judgment, Once the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). The Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). v Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]). Insurance Law§ 5104(a), also known as the "no-fault law,• by Page 3 of 10 [* 4] FILED Apr 21 2016 Bronx County Clerk design and intent, severely limits the number of personal injury law suits brought as a result of motor vehicle accidents (Licari v Elliott, 57 NY2d 230, 236 [1982]). Thus, because any injury not falling within the statute's definition of "serious injury" is minor, it should not be accorded a trial by jury, and, therefore, "[i]t is incumbent upon the court to decide in the first instance whether plaintiff has a meaning of the statute" A defendant cause of action to assert within the (id. at 237). seeking summary judgment on grounds that plaintiff's injuries are not serious under the Insurance Law must establish that plaintiff's injuries do not meet the threshold promulgated by the statute (Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Brown v Achy, Goldstein, 9 AD3d 30, 31 182 AD2d 396, 397 [1st Dept 2004]; Rodriguez v [1st Dept 1992]) , and can meet the requisite burden in a myriad of ways. Significantly, a defendant can establish entitlement to summary judgment by negating causation, meaning by the tender of evidence establishing that the injuries alleged are not related to the accident [2005]; at issue (Pommells v Perez, 4 NY3d 566, 573-574 Franchini v Plameri, 1 NY3d 536, 537 [2003]; Marsh v City of New York, 61 AD3d 552, 552 [1st Dept 2009]; Kaplan v Vanderhans, 26 AD3d 468, 469 [2d Dept 2006]; Giraldo v Mandanici, 24 AD3d 419, 419-420 [2d Dept 2005]). Once defendant establishes the foregoing 1 a plaintiff's failure to rebut a defendant's prima facie showing Page 4 of 10 [* 5] FILED Apr 21 2016 Bronx County Clerk that the injuries sustained by plaintiff pre-dated the accident or were caused by some other event or condition warrants dismissal of the action (Franchini at 537 ["Plaintiff's submissions were insufficient to defeat summary judgment because her experts failed to adequately address plaintiff's preexisting back condition and other medical problems."]; Marsh at 552; Kaplan at 469; Giraldo at 420) Notably, the court in Linton v Nawaz (62 AD3d 434 [1st Dept 2009) affd, 14 NY3d 821 [2010]) held, despite the foregoing cases, that where a defendant's assertion to negate causation is evidence of degeneration and/or a preexisting condition based solely on the review of plaintiff's imaging studies, a plaintiff sufficiently raises an issue of fact by merely submitting a medical affirmation from an examining doctor containing an opinion causally relating the injuries alleged to the accident giving rise to the suit (id. at 443). Specifically, the court stated [d]efendants' sole competent evidence in favor of summary judgment was a doctor's opinion that plaintiff's injuries pre-existed the accident. Plaintiff submitted the affirmation of a treating physician, based on a physical examination performed within days of the accident, opining that the injuries were caused by the accident. There is no basis on this record to afford more weight to defendants' expert's opinion and there are no 'magic words' which plaintiff's expert was required to utter to create an issue of fact. If anything, plaintiff's expert's opinion is entitled to more weight. Moreover, that opinion Page 5 of 10 [* 6] FILED Apr 21 2016 Bronx County Clerk constituted an unmistakable rejection of defendants' expert's theory. In rejecting the magic word rule, at 443) . (id. however, it is clear that the court in Linton was only doing so in cases where causation was negated via a medical affirmation undergirded solely by a review of radiological unpersuasive (id. at 441). Becerril v Sol Cab Corp. v FTM Servo, Corp. films, which the court deemed In fact, the court cited cases such as (50 AD3d 261 [1st Dept 2008]) and Brewster (44 AD3d 351 [1st Dept 2007]) with approbation, noting that these cases involved plaintiffs who were undisputedly involved in a prior accident in which the same body parts were injured but [who] failed to address why the prior accidents were not a possible cause of their current symptoms (Linton at 442). Thus, where a defendant's evidence establishes that the injuries alleged are causally unrelated to an accident because they can be traced to a prior accident, judgment, plaintiff's doctor must to avoid summary specifically address that contention and relate the injuries alleged to the accident giving rise to the suit (Becerril at 261-262 ["Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease. In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation."]; Brewster at 352 ["Brewster conceded Page 6 of 10 [* 7] FILED Apr 21 2016 Bronx County Clerk at his deposition that he had sustained injuries to his neck, back and shoulder in a prior automobile accident. Once a defendant has presented evidence of a preexisting injury, even in the form of an admission made at a deposition, it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation. Brewster's submissions totally ignored the effect of his previous mishap on the purported symptoms caused by the latest accident. The fact that Hernandez's expert discerned some minor loss of motion in Brewster's lumbar spine is irrelevant where the objective tests performed by this physician were negative, and Brewster had testified to a preexisting injury in that part of his body." (internal citations omitted)]). In support of this motion, defendants submit five sworn medical reports, only two of which are relevant to this decision. The first, radiologist, cervical authored by Audrey Eisenstadt a details her review of an MRI study to plaintiff's spine. Specifically, performed on December 29, alleged. (Eisendstat) , 2011, she reviewed images of a study three months after the accident While noting herniations in the spine, Eisendstat opines that the dessication and osteophyte formation present in the study suggest degenerative disc disease which preexisted the accident on September 24, 2011. Eisensdstat and plaintiff's right The details second her shoulder report review performed Page 7 of 10 of on is on also an authored MRI September study 29, by to 2011, [* 8] FILED Apr 21 2016 Bronx County Clerk approximately Eisendstadt two months opines that after while the the accident image alleged indicates herein. some joint effusion, the same has no relationship to the accident giving rise to the suit. Defendants also submit a portion of plaintiff's deposition transcript, accident, wherein he testified that prior to the instant he was involved in two prior motor vehicle accidents where he sustained injury. Specifically, in 1988, plaintiff was involved in an accident where he sustained four fractured ribs, a hip fracture, and a fracture to his left shoulder. In 1999, he was also involved in an accident, fracturing two teeth and herniating a disc in his lower back. Based on the foregoing, defendants establish prima facie entitlement to summary judgment in that they tender evidence which demonstrates that the injuries sustained by plaintiff, cervical and lumbar spine namely, herniations and tendinitis in his right shoulder, were not caused by his accident on September 24, (Pommells at 573-574; Franchini 469; Giraldo at 419-420). 2011 at 537; Marsh at 552; Kaplan at Specifically, plaintiff testified that he had two prior motor vehicle accidents wherein he hurt his back, herniated a disc and also fractured his hip and left shoulder. Eisendstadt cervical Similarly, opined spine with that injuries, respect with the respect same plaintiff's preexisted to plaintiff's Page 8 of to 10 claimed the right claimed accident. shoulder [* 9] FILED Apr 21 2016 Bronx County Clerk injury, Eisendstadt opined that any injury evinced in the images she reviewed - such as joint effusion - was not the related to the instant accident. Thus, because defendants' evidence negating causation is more than just an opinion by a doctor who reviewed plaintiff's films, the burden shifts to plaintiff to rebut the absence of causation by specifically addressing the foregoing, namely the claim that the injuries sustained were caused by the instant accident rather than plaintiff's prior accidents Brewster at 352). (Linton at 442; Becerril at 261-262; Any argument that plaintiff's testimony doesn't specify that he injured all the same body parts claimed here in the prior accident such that his current injuries cannot be attributed to those accidents, is unavailing. Significantly, plaintiff testified that the accident in 1988 was "a bad accident," so much so, that he sustained fractures to his upper and lower body. Such testimony coupled with Eisenstadt's opinion is sufficient to negate causation and shift the burden to plaintiff who must appropriately rebut the foregoing evidence. Plaintiff's opposition fails to sufficiently rebut the absence of causation so as to raise an issue of fact sufficient to preclude summary judgment. To be sure, while plaintiff submits a legion of medical evidence, evincing treatment from the date of the instant accident through 2015, none of it addresses defendants' evidence that all of plaintiff's injuries predate the instant accident and Page 9 of 10 [* 10] FILED Apr 21 2016 Bronx County Clerk were caused by his prior two accidents. In particular, the affirmation from Leon Reyfman (Reyfman), a pain management doctor, simply states that "[t] here is a direct causal relationship between Plaintiff's the accident described and the patient's injuries." opposition fails to raise an issue of fact and defendants' motion is granted (see Style v Joseph, ["Where, as here, plaintiff 32 AD3d 212, 214 [1st Dept 2006] sustained injuries as a result of accidents or incidents that preceded the accident giving rise to the litigation, plaintiff's expert must adequately address how plaintiff's current medical problems, in light of her past medical history, are causally related to the subject accident."]). It is hereby ORDERED that the complaint be dismissed with prejudice. It is further ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof. This constitutes this Court's decision and Order. Dated : April lf, 2016 Bronx, New York Betty Owen Stinson, JSC Page 10 of 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
