Jian-Qung Shi v Abilene Motor Express, Inc.

[*1] Jian-Qung Shi v Abilene Motor Express, Inc. 2017 NY Slip Op 51004(U) Decided on August 14, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2017
Supreme Court, Kings County

Jian-Qung Shi, Plaintiff,

against

Abilene Motor Express, Inc. and LARRY LEE JACKSON, Defendants.



4279/15



Attorneys for the Defendants

John B. Saville, Esq.

Lewis Johs Avallone Aviles, LLP

One CA Plaza, Suite 225

Islandia, New York 11749

Attorneys for Plaintiff

Caesar & Napoli, P.C.

233 Braodway, Suite 2348

New York, New York 10279

212-226-2100
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of defendants Abilene Motor Express, Inc. and Larry Lee Jackson (hereinafter the defendants or movants), filed on March 31, 2017 under motion sequence number two, for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint on the grounds that plaintiff Jian-Qung Shi (hereinafter Shi) did not suffer a serious injury as defined in Insurance Law § 5102(d).

Notice of MotionAffirmation in supportExhibits A—KPlaintiff's affirmation in oppositionExhibits A—HReply affirmation

BACKGROUND

On April 8, 2015, plaintiff commenced the instant action for damages for personal injuries by filing a summon and verified complaint with the Kings County Clerk's office. By a joint verified answer dated April 27, 2015, the defendants joined issue. On January 27, 2017, plaintiff filed a note of issue.

Plaintiff's complaint and verified bill of particulars allege that on May 15, 2014, at approximately 4:57 a.m., while driving his vehicle in the vicinity of 3rd Avenue and 55th Street in Kings County, New York, he was struck by a vehicle owned by Abilene Motor Express, Inc. and operated by Larry Lee Jackson (hereinafter the subject accident).

Plaintiff claims that the subject accident was caused by Larry Lee Jackson's negligent operation of his vehicle. He also claims that the collision caused him to sustain serious injuries to his cervical spine, right hip, left thigh and to experience headaches, dizziness and post traumatic stress syndrome.

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 [2nd Dept 1990] )" (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dep 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 [*2]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 plaintiff's verified bill of particulars alleges, among other things, an injury to the cervical spine, right hip, left thigh as well as headaches, dizziness and post traumatic stress syndrome due to the accident. Plaintiff has also alleged injuries under the 90/180 category of Insurance Law § 5102(d).

In support of the instant motion, the defendants have submitted what they described as records from Lutheran Medical Center and an Electro-diagnostic report. Neither one of the items is affirmed or certified and the defendants have offered no foundation for their 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 [2nd Dept 2005]). The affirmation of defendants' counsel does not set forth the basis for counsel's knowledge that the Lutheran Medical Center record and the an Electro-diagnostic report are what counsel purports them to be. They are, therefore disregarded.

The defendants have also submitted the affirmed report of Dr. Jeffrey Passick, an orthopedic surgeon who they hired to perform an independent medical examination of the plaintiff. Dr. Passick, conducted the examination on June 1, 2016, over on year after plaintiff's accident. Dr. Passick found that plaintiff had a limitation in flexion of the lumbar spine. Plaintiff could only move to 40 degrees with 60 degrees being normal. Dr. Passick did not offer an opinion regarding plaintiff's physical condition during the first six months after the accident. Nor did he offer an opinion regarding plaintiff's claim of post traumatic stress syndrome.

The defendants have also submitted the affirmed reports of Dr. Scarpinato, an orthopedic surgeon, and Dr. Joesph C. Cole, a Pain Management Specialist. Plaintiff saw both of these doctors as part of his no fault obligations. Both doctors performed a straight leg raise test of the plaintiff. Neither doctor, however, compared the findings of plaintiff's range of motion to what was normal (Shirman v Lawal, 69 AD3d 838 [2nd Dept 2010], citing Walker v. Public Adm'r of Suffolk County, 60 AD3d 757 [2nd Dept 2007]).

In light of the foregoing, the defendant's motion papers failed to adequately address the plaintiff's claims, clearly set forth in the bill of particulars, that he sustained serious physical injuries to his spine, right hip, left thigh as well as headaches, dizziness and post traumatic stress syndrome under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (Youn Koo Lyu v Aleksandr, 110 AD3d 715 [2nd Dept 2013]; citing Bove v Zanelli, 102 AD3d 644 [2nd Dept 2013]), and that the plaintiff sustained a serious injury under the 90/180—day category of Insurance Law § 5102(d).

Since the defendant failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue [*3]of fact (Youn Koo Lyu v Aleksandr, 110 AD3d 715 [2nd Dept 2013] citing Stukas v. Streiter, 83 AD3d 18, 24 [2nd Dept 2011]).

CONCLUSION

Abilene Motor Express, Inc. and Larry Lee Jackson joint motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint on the grounds that Samuel Shi did not suffer a serious injury as defined in Insurance Law § 5102(d) is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.