Cullinan v Lambert

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Cullinan v Lambert 2017 NY Slip Op 33504(U) December 21, 2017 Supreme Court, Westchester County Docket Number: Index No. 59184/2015 Judge: Terry Jane Ruderman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:53 AM NYSCEF DOC. NO. 126 INDEX NO. 59184/2015 RECEIVED NYSCEF: 12/21/2017 1· ofright appeals as of time for appeals To commence statutory time right · the statutory commence the · copy· advised to serve you are advised 5513[a]), (CPLR 55 (CPLR 13[a]), you serve a copy parties. upon all parties. entry, upon of of entry, notice of with notice order, with this order, of this YORK SUPREME COURT COURT OF OF THE THE STATE STATE OF NEW NEW YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------~--------------------------------------------~-------------------)( -------- -- ------------------------------ -:-------------------x -------------PATRICK CULLINAN CULLINAN AND CULLINAN, GERALDINE CULLINAN, AND GERALDINE PATRICK DECISION ORDER AND ORDER DECISION AND No. 1 Sequence NO.1 Sequence Inde)( 59184/2015 Index No. 59184/2015 Plaintiffs, Plaintiffs, -against-againstDOUGLAS V. LAMBERT, LORRAINE V.LAMBERT, AND LORRAINE LAMBERT AND DOUGLAS R. LAMBERT Defendants. ~ Defendants. -------------------------~----7------------------------~-------~----~~---------)( --.--------------.-------.---· ·----------x -------------------------·------·---RUDERMAN, J. RUDERMAN, motion for The following following papers considered inconnectionwith inconne6tionwith defendants' defendants' motion were considered papers were The 3212: to CPLR 3212: summary judgment complaint;pursuant toCPLR the complaint;pursuant dismissing the judgment dismissing summary Papers . . Papers Notice of Motion, Motion, Affirmation Support and E)(hibits A- 0 0 Exhibits AAffirmation in Support Notice of Affirmation in Opposition Opposition and E)(hibits A - I and Exhibits Affirmation Reply Affirmation Affirmation Reply Numbered Numbered 1 2 3 June 26, 2014 this action and Geraldine Geraldine Cullinan Cullinanl 1 commenced commenced this actiori on June 2014 to Patrick and plaintiffs Patrick The plaintiffs that vehicle accident motor vehicle recover damages for personal allegedly sustained sustained in a motor accident that plaintiff allegedly injuries plaintiff personal injuries recover damages Cross the Cross Parkway and the occurred 1,2012 River Parkway Harlem River the Harlem of the intersection of the intersection 2012 at the December 1, occurred on December the suffered the he suffered that he Broll)( alleges that bill of partic11lars alleges Plaintiffs billofparticlliars York. Plaintiffs New York. Bronx, New Expressway in Broll)(, Bronx E)(pressway significant disfigurement, disfigurement, fracture, consequential limitation, limitation, significant significant permanent consequential permanent loss, permanent fracture, permanent significant Law § New limitation arid 90/180 90/180 categories .categories of of serious serious injury injury defined defined by N ew York York Insurance Insurance Law 9 5102( 5102( d) limitation inter alia, (Plaintiffs Exhibit E)(hibit C,, C, ~ 9). More More specifically, specifically, plaintiff claims that sustained, inter alia, a central central that he sustained, plaintiff claims (Plaintiffs L4-L5 and an levels L4-L5 subligamentous disc herniation spine levels lumbar spine thecal sac at lumbar impinging on the thecal herniation impinging subligamentous exiting the e)(iting of the L5-S impingement of with impingement herniation. with protrusion· herniation disc protrusionforaminal disc and foraminal posterior and right posterior L5-S 1 right nerve (ld.). root (Id.). nerve root which he support of of their their motion, motion, defendants defendants argue argue tha(plaintiff that'plaintiff s lumbar lumbar injuries, injuries, for which In support rr- - plaintiffs surgery in 2015, 2015, are not not causally causallyrelated the-2012 subject subject accident. Rather, plaintiffs accident. Rather, related to the-2012 back surgery had back . / / references to "plaintiff' Cullinan is the only alleged serious and thus, "plaintiff' are are thus, all references injury, and physical injury, serious physical with an alleged plaintiff with only plaintiff Cullinan . ·--" to him, noted. other noted. unless other him, unless 1 Patrick Patrick 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:53 AM NYSCEF DOC. NO. 126 INDEX NO. 59184/2015 RECEIVED NYSCEF: 12/21/2017 unrelated accidents by two injuries are the the result of chronic chronic disc disc degeneration degeneration precipitated two unrelated accidents - a 2007 2007 precipitated by result of injuries by a was struck plaintiff was which plaintiff work-related (the "2007 "2007 accident") accident") and a 2013 incident incident in which struck by injury (the work-related injury defendants contention, defendants this contention, vehicle while while crossing crossing the street street (the "2013 "2013 accident"). accident"). To support support this vehicle submit plaintiff's of particulars, deposition testimony testimony transcript, transcript, ambulance ambulance and and emergency emergency particulars, deposition bill of plaintiffs bill submit treating plaintiffs treating reports from room along with evaluations and reports from plaintiff's medical evaluations various medical with various reports, along room reports, Kphysicians (Defendants' - N). Exhibits C - F; K (Defendants' Exhibits physicians between 2008 Defendants also also submit submit the the results results of of x-rays x-rays and and MRis MRIs taken taken between 2008 and and 2013, 2013, Defendants notes 2008, notes August 11, 2008, report, dated x-ray report, which span the course course of of all three accidents. The The first x-ray dated August three accidents. which span changes degenerative changes and degenerative L4-L5, and level L4-L5, spine level the lumbar spine plaintiffs lumbar herniation at plaintiff's disc herniation of a disc existence of the existence levels L4-L5 L4-L5 and and LS-SI L5-S1 (Plaintiff's (Plaintiff's Exhibit Exhibit H). The The report report from from the the second second x-ray, x-ray, taken taken both levels at both there are no 2013, specifically three after the subject subject accident accident on March specifically states states there March 11, 2013, months after three months of an results of The results Exhibit I). The (Plaintiffs Exhibit 2008 (Plaintiff's significant changes spine from from 2008 lumbar spine plaintiffs lumbar changes to plaintiff's significant posterior and right posterior MRI, taken taken five months after the the subject subject accident accident on May May 4, 2013, 2013, show show a right and months after MRI, L4-L5 disc decrease in the size foraminal disc disc protrusion slight decrease size of of the L4-L5 note a slight protrusion at L5-S 1 and note foraminal taken on MRI, taken Another MRI, Exhibit G). Another (Plaintiffs Exhibit herniation 2008 (Plaintiff's from 2008 change from interval change other interval but no other herniation but December 12, 2013, 2013, shortly shortly after after the the 2013 2013 accident, accident, also shows shows disc disc degeneration degeneration at L4-L5 L4-L5 and December Exhibit L5-S 1 (Plaintiffs partial disc degeneration degeneration with anterolateral osteophyte osteophyte formation formation at L5-S (Plaintiff's Exhibit right anterolateral with right partial disc canal stenosis. fracture or canal herniation, fracture disc herniation, 0). However, states that stenosis. there is no disc that there report states MRI report the MRI However, the The defendants defendants also also present present the the independent independent medical medical examination examination report report of of Dr. Alok Alok D. The plaintiffs review of plaintiff and a review Sharan, who opined that, examination of of the plaintiff of plaintiff's physical examination based on a physical that, based who opined Sharan, from the originating from disease originating degenerative disc disease medical standing degenerative long standing has long plaintiff has documentation, plaintiff medical documentation, 2007 work work accident, accident, and and that that the the subject subject accident accident of of December December 1, 2012, 2012, may may have have at most most 2007 until 2011 present from was present which was temporarily aggravated plaintiff'.s lower back condition which from 2007 2007 until back condition plaintiff.slower temporarily aggravated 2015 plaintiffss 2015 opinion, plaintiff medical opinion, that, in his medical (Defendants' Sharan further stated that, further stated Exhibit M). Dr. Sharan (Defendants' Exhibit back surgery surgery and and present disability status status is unrelated unrelated to the the .2012 2012 accident accident and and is likely likely related related to present disability back underlying plaintiff's underlying well as plaintiff's plaintiff's 2007 accident, accident, which disc, as well herniated disc, resulted in a herniated which resulted plaintiffs 2007 accident. degenerative subsequent 2013 accident. disease and subsequent disc disease degenerative disc opposition, plaintiff plaintiff submits submits an affidavit, affidavit, corrections corrections to the transcript transcript of of his deposition deposition In opposition, radiologist's with his radiologist's affirmation of of his treating Sathish Modugu, Modugu, M.D., M.D., along along with physician Sathish treating physician and the affirmation independent plaintiffs independent of plaintiff's and surgeon's reports, results of records, and the results hospital records, reports, hospital orthopedic surgeon's and orthopedic Worker's Compensation Compensation Board Board medical medical examination examination (Plaintiff's (Plaintiff's Exhibits Exhibits A-I). A - I). According According to the the Worker's 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:53 AM NYSCEF DOC. NO. 126 INDEX NO. 59184/2015 RECEIVED NYSCEF: 12/21/2017 months after Modugu affirmation, affirmation, plaintiff first presented Modugu five months after the the subject subject accident accident ~o Dr. Modugu presented to plaintiff first Modugu revealed-reduced on May 1,2013. examination of of plaintiff reduced flexion flexion and extension extension of of the plaintiff revealed clinical examination 2013. A clinical May 1, lumbar spine spine with with severe severe pain pain and an asymmetric asymmetric and abnormal abnormal gait, gait, which which continued continued through through lumbar prior to the just prior plaintiff for surgical early November 2013 when Modugu referred referred plaintiff surgical evaluation evaluation just the when Dr. Modugu November 2013 early medical plaintiffss medical review of based on his review that, based 2013 accident. accident. In his affirmation, affirmation, Dr. Modugu states that, of plaintiff Modugu states through 2008 through from 2008 films from MRI films lumbar spine history, physical exam exam findings, medical records records and lumbar spine MRI findings, medical history, physical the present, and contrary contrary to defendants' defendants' expert, expert, it is Modugu's Modugu's medical medical opinion opinion that that the the subject subject present, and the which L5-S1, herniation at L5-S new disc herniation caused a new accident aggravated aggravated the L4L5 disc herniation 1, which herniation and caused L4-L5 accident surgery. back surgery. 2015 back was plaintiffs 2015 need for plaintiffs the need warrant the enough to warrant significant enough was significant Analysis ·. Analysis prima facie make a prima must make A party summary judgment CPLR 3212 3212 must facie pursuant to CPLR judgment pursuant moving for summary party moving evidence to sufficient evidence tendering sufficient of law, tendering showing matter of judgment as a matter entitlement .to judgment of entitlement showing of . . Hospital, Prospect Hospital, material fact (Alvarez demonstrate that that there there is no genuine genuine dispute dispute a~ as .to to any material (Alvarez v Prospect demonstrate party burden shifts 68 NY2d [1986]). Once Once such such a showing showing has been the burden shifts to the party made, _the been made, NY2d 320, 324 [1986]). establish the sufficient to establish admissible form opposing form sufficient proof in admissible evidentiary proof produce evidentiary motion to produce the motion opposing the -- . NY2d at 324, existence of of material material issues issues of of fact fact which which requir~ require a trial trial of of the the action action (Alvarez, (Alvarez, 68 NY2d 324, existence record to citing Zuckerman City of of New 557,.562 [1980]). In assessing assessing the record 562 [1980]). NY2d 557, New York, 49 NY2d Zuckerman v City citing facts in the the facts view the must view court must the court trial, the determine fact for trial, of fact issues of material issues there are material whether there determine whether Health & Hosps. Corp., New York light most most favorable favorable to the the non-moving non-moving party (Jacobsen v New York City City Health Corp., party (Jacobsen light 22 NY3d [2014]). NY3d 824 [2014]). recover for cannot recover plaintiff cannot that plaintiff the basis To prevail judgment on the summary judgment motion for summary prevail on a motion .. basis that No-Fault Law, New York's under New non-economic loss loss in connection connection with with a motor motor vehicle vehicle accident accident under York's No-Fault Law, non-economic within the defendant must establish prima sustain a serious serious injury injury within not"sustain ~id not plaintiff did that the plaintiff prima facie that must establish a defendant rely on may rely defendant may motion, a defendant of its motion, meaning 5102(d). _In In suppo~ support of Law§9 510~(d). Insurance Law York Insurance New York of New meaning of unsworn reports reports of of plaintiffs (McGovern v 'Jf~lls, Walls, 201_AD2d 201AD2d 628 [2d [2d Dept Dept 1994]) 1994]) physicians-(McGovern_v plaintiff's physicians the unswom physicians (Marsh retained physicians sworn affidavits affidavits or affirmations affirmations of of the defendant' s .own retained (Marsh v tlie defendant,'s or on the sworn Dept 1992]). Wolfson, 186 AD2d 1992]). AD2d 115 [2d Dept Wolfson, ·were the -injuries Here, defendants' defendants'. -contention contention that that plaintiff's plaintiffs.injurieswere the result result of of the the 2007 2007 and and 2013 2013 . Here, . . .. . . . . When a defendant matter oflaw. accidents, does does not disprove plaintiffs serious injury injury claim claim as a matter of law. When defendant plaintiffs serious not disprove accidents, predated the conditions predated injuries or conditions plaintiffs injuries moves summary judgment that plaintiffs theory that the theory judgment on the moves for summary must show subject accident, accident, the the submissions submissions on the motion motion must show both both that that the the injuries injuries or conditions conditions subject 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:53 AM NYSCEF DOC. NO. 126 INDEX NO. 59184/2015 RECEIVED NYSCEF: 12/21/2017 were attributable prior accidents pre-existing conditions, were not were attributable to prior accidents or pre-existing conditions, and that that they they were not exacerbated exacerbated McKenzie v Redl, Red!, 47 AD3d 775, 776 [2d Dept Dept 2008]; by the subject subject accident accident (see McKenzie 47AD3d 2008]; Cebularz Cebularz v Diorio, 32 AD3d 976 [2d Dept Dept 2006]). 2006]). Defendants' Diorio, AD3d 975, 975,976 Defendants' submissions submissions failto failto show, show, as a matter matter of of law, that that plaintiffs plaintiffs injuries injuries were 2007 or 20 I 3 accident, pre- . were solely solely attributable attributable to the 2007 2013 accident, or to a preexisting not exacerbated 2012 accident. existing degenerative degenerative disease, disease, and not exacerbated by the 2.012 accident. Even assuming prima facie, that that plaintiff plaintiff did not not sustain Even assuming defendants' defendants' submissions submissions establish, establish, prima sustain a serious injury under Law d), plaintiff plaintiffss evidence serious injury under Insurance Insurance Law §S 5102 ((d), evidence in opposition opposition. creates creates Ia . .. I question which precludes precludes the· granting of judgment. question of of fact on the issue, issue, which the'granting of summary summary judgment. Based upon the the foregoing, Based upon foregoing, it is hereby, hereby, ORDERED motion for summary judgment· dismissing dismissing the the complaint ORDERED that that defendants' defendants' motion summary judgment. complaint pursuant to CPLR pursuant CPLR 3212 3212 is denied; denied; and it is further further ORDERED parties appear Settlement ORDERED that that the parties appear on January January 23, 2018, 2018, at 9:15 a.m., a.m., in the Settlement Conference Martin Luther Conference Part Part of of the Wes.tchester Westchester County County Courthouse, Courthouse, 111 111 Dr. Martin Luther King, King, Jr. Boulevard, New York York 10601. Boulevard, White White Plains, Plains, New This This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. ""~~~ffe......--_,. ~~ ~ RUDERMAN, RUDERMAN, JI.S.C. .S. C. ~~ New York York Dated: White Plains, Dated: White Plains, New December December 2 2017 2.1/ ,,2017 4 [* 4] 4 of 4

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