Gutt v Bryan

[*1] Gutt v Bryan 2008 NY Slip Op 52133(U) [21 Misc 3d 1121(A)] Decided on October 24, 2008 Supreme Court, New York County Wooten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 3, 2008; it will not be published in the printed Official Reports.

Decided on October 24, 2008
Supreme Court, New York County

Rudolph Gutt, SHNADEUR GUTT and OTTO GUTT, Plaintiffs, v Xiomara Bryan and Chumell Williams, Defendants.



120350/03



Attorney for the Plaintiff:

Leo Tekiel, Esq.

129 Front Street

Mineola, New York 11501

Attorney for the Defendant:

Mary A. Bjork, Esq.

500 New Karner Road - 3rd Fl.

Albany, New York 12205

Paul Wooten, J.

Defendants Xiomara Bryan (Bryan) and Chumell Williams (Williams) move for an order, pursuant to Insurance Law §§ 5102 and 5104, and CPLR §§ 3211 (a) (2), 3211 (a) (7) and 3212, granting a summary judgment and dismissing the complaint.

This is a personal injury action in which plaintiffs Rudolph Gutt (R. Gutt), Shnadeur Gutt (S. Gutt), and Otto Gutt (O. Gutt) seek monetary damages for injuries they allegedly sustained on November 27, 2000, at the intersection of Queens Boulevard and 33rd Street, Queens County, New York, when the Chevy van they were riding in was struck from behind by a vehicle owned by Bryan and driven by Williams. At the time of the accident, R. Gutt, who owned the van, was the driver, and S. Gutt and O. Gutt were passengers.

Although none of the parties attached complete deposition transcripts for court review, the undisputed evidence reveals that plaintiffs' vehicle was struck on the back right side, that plaintiffs were able to drive their van from the scene, and that none of the plaintiffs sought medical aid until three days after the accident.

Plaintiffs commenced this action by service of a summons and complaint on or about November 23, 2003, claiming that as a result of the accident, each has suffered and/or sustained: (1) a permanent loss of use of a body organ or member; (2) a significant limitation of use of a body function or system; and/or (3) a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his usual and [*2]customary daily activities for not less than 90 days during the 180 days (90/180) immediately following the accident. According to their bills of particulars, each plaintiff has also sustained a resulting economic loss as defined under Insurance Law § 5104.

Issue was joined by service of defendants' answer, on or about September 16, 2004, and the parties pursued discovery, including oral depositions and the exchange of documentary evidence. The Note of Issue was filed on June 22, 2007, and defendants now seek a summary dismissal of the complaint on the ground that none of the injuries allegedly suffered by plaintiffs meet the statutory threshold requirement to maintain this action. Defendants argue that plaintiffs' allegations, as elaborated in their bills of particulars, consist of non-permanent, soft-tissue injuries which do not fall within the purview of Insurance Law § 5102 (d), the statute which is commonly referred to as "No-Fault," and which 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 immediately following the occurrence of the injury or impairment.

SUMMARY JUDGEMENT STANDARD

It is well settled that the " legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to serious injuries.'" (Toure v. Avis Rent-A-Car Sys., Inc., 98 NY2d 345, 350 [2002]quoting Dufel v. Greene, 84 NY2d 795, 798 [1995]) The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment. (Perez v. Rodriguez, 25 AD3d 506, 507 [1st Dept 2006]).

The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (JMD Holding Corp. v Congress Fin. Corp., 795 NY2d 502 [2005]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986];Winegrad v New York Univ. Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006]; Thomas v Holzberg, 751 NY2d 433, 434 [1st Dept 2002]; Silverman v. Perlbinder, 762 NY2d 386[1st Dept 2003]). The failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Medical Center, supra ). The motion must be supported "by affidavit...from a person having knowledge of the facts, by a copy of the pleadings and by other available proof . . ." (CPLR § 3212 [b]). A conclusory affidavit, expressions of hope, unsubstantiated allegations or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden (Winegrad v New York Univ. Medical Center, supra ). A party may also demonstrate a prima facie entitlement to summary judgment through the [*3]affirmation of its attorney based upon documentary evidence (Zuckerman v City of New York, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172 [1st Dept 1999]).Where the proponent of the motion has made a prima facie showing, the burden then shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a triable issue of fact (Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; Zuckerman v City of New York, supra ; Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Forrest v Jewish Guild for the Blind, 765 NY2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in to sufficiently establish the existence of a "serious injury," which mandate's resolution by trial. If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978].

DISCUSSION

In order to weed out frivolous claims, and limit recovery to significant injuries (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002]), the No-Fault Law precludes recovery for pain and suffering, and other non-economic loss, between covered persons, unless the plaintiff pleads and proves a "serious injury" (Insurance Law § 5104 [a]). The burden of proof on the threshold issue of whether a serious injury has been sustained is on the plaintiff (CPLR § 3016 [g], 3043 [a] [6]). However, on a defendant's' motion for summary judgment, the motion papers must establish a prima case through evidence in admissible form that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) (Baez v Rahamatali, 6 NY3d 868 [2006]).

Annexed to defendants' motion are the affirmed Independent Medical Examination (IME) reports of Dr. Eduardo V. Alvarez, the orthopedist who reviewed each plaintiff's medical history, performed their physical examinations at his office on February 24, 2007, and prepared the reports attached as exhibits to defendants' motion. Dr. Alvarez concluded that none of the plaintiffs sustained a serious injury as a result of the accident.

I. Randolph Gutt

Addressing first the claims of R. Gutt, it is R. Gutt's contention that, as a result of the accident, he sustained the following injuries: cervical sprain, spasm, irritation and inflammation; lumbar sprain and spasm, restriction of movement, depression, anxiety, headaches, pain, discomfort and an inability to walk, stand, sit, or lay in the same position for long periods of time. When he appeared at the IME, six years after the accident, Dr. Alvarez noted that R. Gutt's chief complaint was of intermittent pain and stiffness in his back and neck when bending and lifting, and that R. Gutt (reportedly) missed work, as a tub glazier/handy man, for two weeks following the accident. During the physical examination, R. Gutt exhibited:

(1) normal gait, was able to sit comfortably, get up, walk on his heels and toes without complaint of pain; (2) normal posture with preservation of the cervical, thoracic and lumbosacral lordosis; (3) range of motion (ROM) of cervical/thoracic spine: flexion to 45˜, 45 ˜ being normal; extension to 45˜, 45˜ being normal; right and left lateral bending to 45˜, 45 ˜ being normal; right and left lateral rotation to 90˜, 90˜ being normal; (4) no [*4]complaint of tenderness on palpation along the spinous processes of the cervical/thoracic spine or along the paracervical muscle; (5) no weakness of the intrinsic muscles of the cervical spine; (6) Foraminal compression test was negative; (7) ROM of lumbosacral spine: flexion to 90˜, 90˜ being normal; extension to 30˜, 30˜ being normal; right and left lateral bending and rotation to 45˜, 45˜ being normal; (8) complaints of mild tenderness along spinous processes of the lumbosacral spine; (9) no complaints or evidence of either spasm or tenderness on palpation along the sacroiliac joints, sciatic notches or paralumbar muscles; (10) straight leg raising negative to 90˜ bilaterally in the sitting position with complaints of tightness on both hamstring muscles; (11) neurologic exam showed no motor, sensory or reflex changes on upper or lower extremities; (12) no focal muscle atrophy noted; (13) both Lesegue and Valsalva maneuver tests were negative; and (14) no complaints of pain, numbness or tingling radiating down his arms or legs.

Dr. Alvarez's stated medical impression was of a resolved sprain/strain of both the thoracic spine and of the lumbosacral spine. Additionally, Dr. Alvarez found no objective evidence of any ongoing, causally related orthopedic disability.

The IME report constitutes competent evidence that this plaintiff sustained only minor soft-tissue injuries which are now resolved and which do not interfere with his work or daily life. By attaching it as an exhibit to their motion, defendants have established prima facie entitlement to summary judgment on the threshold issue of R. Gutt's injuries, and the burden shifts to R. Gutt to demonstrate the existence of a triable issue of fact as to whether, as a result of the November 27, 2000-accident, he sustained a serious physical injury as defined under No-Fault (Franchini v Palmieri, 1 NY3d 536 [2003]; Gaddy v Eyler , 79 NY2d 955, 957 [1992]); Shinn v Catanzaro, 1AD3d 195, 197 [1st Dept 2003]).

R. Gutt opposes the motion and attempts to raise a question of fact by including a series of unaffirmed or unsworn medical reports, dated December 7, 2000, January 24, 2001 and February 2, 2001, which were performed at New Millenium Medical Services, P.C. (New Millenium) by Dr. Arthur J. Kaplowitz.Dr. Kaplowitz's reports are inadmissible and cannot be considered on this motion. The Courts have unanimously held that a party may not use an unsworn medical report prepared by the parties' own physician on a motion for summary judgment (See Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 813 NY2d 56 [1 Dept 2006]) Moreover, CPLR § 2106 ["requires a physician's statement be affirmed to be true under the penalties of perjury"]).

In addition, R. Gutt's January 18, 2001, ultrasound/radiology report and his February 2, 2001 motor and sensory nerve studies report, are also inadmissible. These reports, which contain similar substituted signatures, or to be more accurate, substituted initials scribbled at the bottom of the exhibits, do not constitute competent evidence since they are not subscribed and affirmed (CPLR § 2106; Grasso v Angerami, supra ; Offman v Singh, supra ; Burgos v Vargas, 33 AD3d 579, 580 [2nd Dept 2006]);

The selected portion of R. Gutt's deposition testimony which he submits in opposition to the motion only contains testimony to the effect that he can no longer lift heavy items (R. Gutt Deposition, at 41 - 42). [*5]

The February 20, 2001, psychological assessment prepared by Sarai T. Batchelder, PhD, is admissible. However, she fails to support the psychological claims identified in the bill of particulars. Dr. Batchelder states that based upon her examination of R. Gutt, it is her professional opinion that he exhibits a normal and nonpathological stress reaction in response to the accident, and that he does not suffer from a significant anxiety disorder, and that he does not exhibit evidence of significant psychopathology.

Finally, plaintiff submits a physician's affidavit by Dr. Charles Bagley of Millenium Medical, dated February 29, 2008. The affidavit, which contains conclusory assertions as to the severity and permanency of plaintiff's injuries, and is clearly tailored to meet the statutory language, is also problematic in that Dr. Bagley relates R. Gutt's injuries to an accident occurring on March 4, 2000, and not to the subject accident which occurred on November 27, 2000. Additionally, Dr. Bagley fails to explain how and when R. Gutt's initial compliant of neck pain (December 7, 2000 initial evaluation) evolved into physical injuries to other parts of his body. He not only fails to correlate plaintiff's claims to the November 27, 2000-accident, he fails to offer objective medical evidence to substantiate the severity of plaintiff's injuries or to medically explain the relationship between the alleged injuries and the alleged restrictions of movement. Finally, Dr. Bagley's affidavit contains no medical support for plaintiff's claim that he sustained a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90/180 days immediately following the accident (Sainte-Aime v Ho, 274 AD2d 569, 570 [2nd Dept 2000]).

Accordingly, R. Gutt's submissions, which lack any objective medical evidence of one or more serious physical injuries, are insufficient to raise a triable issue of fact.

II. Shnadeur Gutt

Turning to the motion to dismiss the complaint of S. Gutt, defendants assert that the evidence does not support S. Gutt' s claim that she sustained serious physical injuries while sitting in the front passenger seat of the subject van when it was rear ended on November 27, 2000. In her bill of particulars, S. Gutt claims the following injuries: cervical sprain, spasm, lumbar sprain and inflamation, anxiety, depression, pain, discomfort, abdominal muscle sprain, an inability to walk, stand, sit, or lay in the same position for long periods of time.

Like her brother, S. Gutt appeared for her orthopedic IME with Dr. Alvarez on February 24, 2007, complaining of intermittent pain and stiffness in her neck and back, especially when bending and lifting. In his report, Dr. Alvarez noted that she had normal posture with preservation of the lumbosacral lordosis, was able to walk freely, sit, stand, walk on her heels and toes without complaint of pain, and was able to get on and off of the examination table without issue. The examination revealed:

(1) ROM of cervical/thoracic spine: flexion to 45˜, 45˜ being normal; extension to 45˜, 45˜ being normal; right and left lateral bending to 45˜, 45˜ being normal; right and left lateral rotation to 90˜, 90˜ being normal; (4) no bony or soft tissue tenderness in cervical or thoracic area; (5) no weakness of the intrinsic muscles of the cervical spine; (6) [*6]Foraminal compression test was negative; (7) ROM of lumbosacral spine: flexion to 90˜, 90˜ being normal; extension to 30 ˜, 30˜ being normal; right and left lateral bending and rotation to 45˜, 45˜ being normal; (8) mild tenderness on palpation along paralumbar muscles; (9) complaints of mild tenderness over spinous processes of the lumbosacral spine; (10) no tenderness over the sacroiliac joints and sciatic notches; (11) no palpable paraspinal muscle spasms; (12) straight leg raising negative to 90˜ bilaterally in the sitting position; (11) neurologic exam showed no motor, sensory or reflex changes on upper or lower extremities; (12) both Lesegue and Valsalva maneuver tests were negative; and (13) no complaints of pain, numbness or tingling radiating down her arms or legs.

Dr. Alvarez's stated medical impression was of a resolved sprain/strain of S. Gutt's thoracic spine and of her lumbosacral spine. He found no objective evidence of any ongoing causally related orthopedic disability, and noted that she did not report missing any work as a result of this accident.

The above IME report constitutes competent evidence that S. Gutt did not sustain serious physical injuries as defined under No-Fault, and defendants have established prima facie entitlement to summary judgment (Franchini v Palmieri, 1 NY3d 536, supra ). Accordingly, the burden shifts to plaintiff to demonstrate the existence of a triable issue of fact as to whether she sustained one or more serious physical injuries as a result of the accident (id.; Giddy v Eyler, 79 NY2d at 957).

To this end, S. Gutt submits copies of her December 8, 2000 initial evaluation at New Millenium by Dr. Kaplowitz, his follow-up examination report of January 30, 2001, a radiology report, dated February 1, 2001, a motor and sensory nerve studies report, dated February 2, 2001, an MRI report dated February 6, 2001, a physician's affidavit by Dr. Charles Bagley, dated February 29, 2008, and selected portions of her deposition testimony.

The Court reviewing the January 12, 2001 electro-diagnostic studies and the February 2, 2001 ultrasound/radiology of her lower trunk/spinal region, concludes that neither report reveals a serious injury in the areas examined. Moreover, neither report and Dr. Kaplowitz's medical reports are submitted in admissible form because once again, the reports contain similar substituted initials instead of the requisite affirmed signatures (CPLR § 2106; Grasso v Angerami, supra ; Offman v Singh, supra ; Burgos v Vargas, supra ).

Plaintiff, however, does submit an admissible copy of her February 6, 2001 cervical spine MRI report diagnosing straightening of her cervical curve, which is consistent with muscle spasm. The report also states that S. Gutt's spinal cord appeared intact and presented no evidence of bulge, focal disc herniation, or central, lateral or foraminal narrowing.

The affidavit of Dr. Bagley who examined S. Gutt on February 29, 2008, lacks medically objective evidence as to how her alleged injuries are related to the November 27, 2000 accident or how her alleged injuries constitute one or more medically determined injuries or impairments of a non-permanent nature which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90/180 days immediately following the [*7]accident (Sainte-Aime v Ho, 274 AD2d at 570 [2nd Dept 2000]). Instead, he recites a host of minor soft tissue injuries followed by a conclusory statement that because she remains symptomatic and unable to attend to her normal daily activities, she necessarily "sustained a serious injury' as defined, which was causally related to the accident" which occurred on November 27, 2000 and/or March 4, 2000 (he included both dates in his report). Dr. Bagley's affidavit, which is tailored to meet the statutory language, provides no basis for concluding that her allegedly persistent conditions are "presently more than minor, mild or slight'" (Parks v Miclette, 41 AD3d 1107, 1110 [3rd Dept 2007] quoting Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Licari v Elliot, 57 NY2d at 236]).

Finally, it is the submitted portions of S. Gutt's deposition testimony which confirm that her limitations as a result of the accident are relatively minor. In response to questions posed, S. Gutt testified that the pain she has experienced in her lower back since the time of the accident, has limited her only in her ability to carry heavy objects. Neither S. Gutt nor any of her medical providers offer a meaningful, rather than rote, explanation as to why she ceased medical intervention if, in fact, she was experiencing both pain and/or significant limitations on a regular basis.

The evidence submitted in opposition to defendants' summary judgment motion is inadequate to raise a question of material fact as to whether S. Gutt suffered a serious injury when the vehicle she was riding in was hit by defendants' vehicle (see Perez v Rodriguez, 25 AD3d 506, 509 [1st Dept 2006]).

III. Otto Gutt

For many of the reasons set forth above, the complaint of O. Gutt, who was sitting in the back seat of the van at the time of the accident, must also be dismissed. According to his bill of particulars, O. Gutt sustained: right C4-C5 radiculopathy, cervical sprain and myosotis, median and ulnar sensory neuropathy, inflammations, adjustment disorder, anxiety, depression, restriction of motion, an inability to walk, stand, sit, or lay in the same position for long periods of time, weakness and distress.

He appeared along with R. Gutt and S. Gutt at the office of Dr. Alvarez on February 24, 2007, for an orthopedic IME. He reported, among other things, that he sustained injuries to his neck and lower back, underwent tests (but was not told of the results), missed two weeks of work as a tub glazier, attended physical therapy for about three or four months, took pain medication, and is no longer under any treatment for any of his injuries. His chief complaint to Dr. Alvarez was of intermittent pain and stiffness of his neck and back when bending and lifting, as well as complaints of blurred vision (which was not included in his bill of particulars). Dr. Alvarez noted in his report that O. Gutt did not complain of any pain, numbness or tingling radiating down his arms or legs, that he was able to undress and redress normally, he was able to stand and walk on his heels and toes without complaint of pain and/or weakness; to get on and off the examining table without difficulty, to sit, get up, and to walk normally, and that O. Gutt exhibited normal posture with preservation of the lumbosacral lordosis. Dr. Alvarez made the following findings during the physical examination:

(1) ROM of cervical/thoracic spine: flexion to 45˜, 45˜ being normal; extension to 45˜, 45˜ being normal; right and left lateral bending to 45˜, 45˜ being normal; right and left [*8]lateral rotation to 90˜, 90˜ being normal; (4) no bony or soft tissue tenderness in cervical or thoracic area; (5) no weakness of the intrinsic muscles of the cervical spine; (6) Foraminal compression test was negative; (7) ROM of lumbosacral spine able to touch his toes (no numerical assessment given); extension to 30˜, 30˜ being normal; right and left lateral bending and rotation to 45˜, 45˜ being normal; (8) mild tenderness on palpation along lower lumbar spine and lower paralumbar muscles; (9) no complaints of tenderness over the sacroiliac joints and sciatic notches; (10) no palpable paraspinal muscle spasms; (11) straight leg raising negative to 90˜ bilaterally in the sitting position; (12) neurologic exam showed no motor, sensory or reflex changes on upper or lower extremities; (13) both Lesegue and Valsalva maneuver tests were negative; and (14) shoulders symmetrical, with no evidence of atrophy; (15) ROM of shoulders flexion to 180˜, 190˜ being normal; abduction to 180˜; 180˜ being normal; extension to 40 ˜, 40˜ being normal; adduction at 30˜, 30˜ being normal; external and internal rotation to 90˜, 90˜ being normal; no crepitations noted; no impingement signs bilaterally, no evidence of instability.

Dr. Alvarez's stated medical impression was of a resolved sprain/strain of O. Gutt's cervical spine, thoracic spine, and lumbosacral spine. He found no objective evidence of any ongoing causally related orthopedic disability, and noted that O. Gutt is able to continue working his usual and customary job activities without restriction.

The IME report constitutes competent evidence that O. Gutt did not sustain serious physical injuries as defined under No-Fault, entitling defendants to summary judgment on the issue of serious injury. Accordingly, the burden shifts to plaintiff to demonstrate the existence of a triable issue of fact as to whether he sustained one or more serious physical injuries as a result of the accident (Franchini v Palmieri, 1 NY3d 536, supra ; Gaddy v Eyler, 79 NY2d at 956 - 957).

In opposition to the motion, O. Gutt submits essentially the same medical documents as his co-plaintiffs, except for the noticeable absence of a copy of an initial evaluation, presumably at Millenium Medical, since his exhibits on submission contain a copy of a January 30, 2001 "follow-up" evaluation by Dr. Kaplowitz of Millenium Medical. However, neither the electro-diagnostic studies report nor the ultrasound report is admissible into evidence because neither report is properly subscribed and affirmed (CPLR § 2106; Grasso v Angerami, supra ; Offman v Singh, supra ; Burgos v Vargas, supra ).

The portion of O. Gutt's deposition testimony that was submitted in opposition to the motion confirms only that O. Gutt experiences pain in his lower back and neck, that he is unable to lift heavy objects, and that his sister handles his laundry.

However, with respect to the psychiatric consultation, dated February 13, 2001, Dr. Batchelder found that on psychological assessment, O. Gutt was exhibiting post-traumatic stress, depressive, and anxiety symptoms that appear to be associated with the subject accident. She recommended psychotherapeutic intervention, which plaintiff appears not to have pursued, as no psychiatric treatment records have been submitted, and no explanation is offered either in his deposition testimony or his sworn affidavit, to explain their absence.

Once again, the conclusory affidavit prepared by Dr. Bagley, who examined O. [*9]Gutt on February 29, 2008, lacks merit in that his assertion that plaintiff's injuries are significant and permanent and meet the statutory threshold is not supported by medical evidence that is independent of plaintiff's subjective complaints of pain. The affidavit fails to include medically objective evidence as to how O. Gutt's alleged injuries, including the noted areas of tenderness and a "trigger point" at "left L3," constitutes anything more than discomfort, or how any of his current claims of pain are related to the November 27, 2000 accident.

Finally, there is no evidence that any medical provider, since the time of the accident, restricted O. Gutt from performing his work or any other activity, or any meaningful explanation as to why he failed to seek additional medical intervention.

Based on the failure of plaintiffs to submit sufficient, admissible evidence to raise a question of material fact on the issue of serious injury, their claims for economic loss under Insurance Law § 5104 must also be dismissed.

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Enter:

Dated:

Paul WootenJ.S.C.