McLaurin v Brown

[*1] McLaurin v Brown 2007 NY Slip Op 51322(U) [16 Misc 3d 1106(A)] Decided on June 29, 2007 Supreme Court, Kings County Starkey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007
Supreme Court, Kings County

Rhonda McLaurin, Plaintiff,

against

Butch Brown and Lynda Bonds, Defendant.



2258/2004



APPEARANCES OF COUNSEL

For the Plaintiff(s):

ANDREW HIRSCHHORN

One Cross Island Plaza, Suite 116

Rosedale, New York 11422

For the Defendant(s):

FAUST GOETZ SCHENKER & BLEE

Two Rector Street

New York, New York 10006

James G. Starkey, J.

By notice of motion dated February 8, 2007, Defendants Butch Brown and Lynda Bonds seek summary judgement pursuant to CPLR § 3212 dismissing plaintiff's complaint in its' entirety pursuant to Insurance Law § 5102(d).

The parties appeared in Part 6 of this Court for oral argument on the motion on May 2, 2007 and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Rhonda McLaurin was operating her vehicle on June 12, 2002 at approximately 8:25 PM when the vehicle operated by defendant Butch Brown and owed by co-defendant Lynda Bonds collided with plaintiff's vehicle at the intersection of Atlantic Avenue and Utica Avenue, Brooklyn, New York. As a result, plaintiff Rhonda McLaurin commenced this action seeking recovery for personal injuries sustained.

After discovery was complete, plaintiff filed her note of issue on January 24, 2007. Pursuant to Kings County, IAS Civil Term, Uniform Local Rule 13 and CPLR §3212(a), defendants by motiondated February 8, 2007 move for summary judgment pursuant to New York State Insurance Law Section 5102(d).

LAW AND APPLICATION

Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (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 , at 324.

In support of the motion, defendants annex the affirmed medical reports of Paul Slotwiner, M.D., a neurologist, and Martin Wolpin, M.D., an orthopaedist, both of whom examined the plaintiff. Additionally, each of these doctors reviewed the plaintiff's bill of particulars and medical records. While these reports contain the doctors' findings of non-permanency of plaintiff's injuries, their reports are deficient for summary judgment purposes.

"In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of the a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury." Toure v. Avis Rent A Car System, 98 NY2d 345, 350, 746 NYS2d 865, 774 NE2d 1197 (2002). While the defendants experts' reports quantify the degrees of plaintiff's range of motions, they do not compare these results to standard norms nor do they provide any numerical percentage to disprove the extent or degree of plaintiff's alleged physical limitations. Claude v. Clements, 301 AD2d 554, 756 NYS2d 57 (2nd Dept. 2002). Further, they were not compared to the "normal function, purpose and use of the affected body organ, member, function or system." Toure, supra , at 350. Without such a comparative quantification, "it cannot be [*2]concluded that the [alleged] decreased range of motion is mild, minor or slight so as to be considered insignificant within the meaning of the no fault statute." Bluth v. Worldomni, 38 A.D.817, 818, 832 NYS2d 640 (2nd Dept. 2007).

Since defendants failed to meet their burden, it is unnecessary to consider whether or not plaintiff's opposition papers were sufficient to raise a triable issue of fact. Bluth, supra , at 818.

CONCLUSION

In light of the above, defendants' motion is denied. This constitutes the decision and order of the court. Plaintiff is directed to settle Order on notice.

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J.S.C.