Ramales v Valarta Tr. Inc.
Annotate this CaseDecided on March 18, 2010
Supreme Court, Kings County
Alfredo Ramales, Plaintiff,
against
Valarta Transit Inc. and DANIEL H. CAROU, Defendants.
629/08
Plaintiff's counsel
James M. Sheridan, Esq.
Law Office of Richard M. Kenny
777 Third Avenue, 35th Floor
New York, NY 10017
212-421-0300
Defendants' counsel
David H. Knel, Esq.
BAKER MCEVOY MORRSSEY & MOSKOWITS, P.C.
330 W 34TH ST
NEW YORK, NY 10001
212-857-8230
Francois A. Rivera, J.
By notice of motion filed September 30, 2009, under motion sequence number one, defendants Valarta Transit, Inc. and Daniel H. Carou, (the moving defendants) jointly move pursuant to CPLR §3212 for an order granting them summary judgment dismissing the complaint on the basis that plaintiff Alfredo Ramales (Ramales) did not sustain a serious injury as defined by Insurance Law § 5102 (d). Plaintiff opposes the motion.
BACKGROUND
On January 7, 2008, Ramales commenced this action for damages due to personal injuries by filing a summons and verified complaint with
the Kings County Clerk's office. [*2]Issue was joined by the
defendants' verified answer, filed on May 5, 2008. Ramales' complaint and bill of particulars
allege the following facts. On November 12, 2005, at approximately 7:00 p.m. Daniel H. Carou
was operating a 2004 Ford motor vehicle owned by Valarta Transit, Inc., and Ramales was
riding a bicycle at or near the intersection of 8th Avenue and West 15th Street in New York
County. At that time and location Carou negligently operated his vehicle and collided with
Ramales. As a result of the collision, Ramales sustained physical injuries to his cervical and
lumbar spine, and to his left shoulder, knee and ankle.
MOTION PAPERS
Defendants' motion papers consists of their attorney's affirmation, a memorandum of law and eight annexed exhibits labeled A through H. Exhibit A is the summons and complaint. Exhibit B is defendants' verified answer with demand for bill of particulars. Exhibit C is plaintiff's verified bill of particulars. Exhibit D is an affirmed medical examination report of Dr. Michael J. Katz, an orthopaedic surgeon. Exhibit E is an affirmed amended radiology report of Dr. A. Robert Tantleff, a radiologist. Exhibit F Is a an affirmed radiology report of Jessica F. Berkowitz, M.D. Exhibit G is a copy of a cervical spine MRI report by Dr. Jason Hodges. Exhibit H is a copy of a lumbar spine report by Dr. Jason Hodges.
Ramales' opposition papers consist of his attorney's affirmation and a certified copy of the transcript of his deposition taken conducted on June 8, 2009.
Defendants submitted their attorney's affirmation in reply.
LAW AND APPLICATION
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues" (Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]. The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (Id). Moreover, since summary judgment is the procedural equivalent of a trial, it must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable (Dykeman v. Heht,52 AD3d 767 at 769 [2nd Dept., 2008], citing Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]).
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v. Suffolk County Dept. Of Public Works, 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). [*3]
Insurance Law § 5102 (d) "serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss or 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
In the context of a motion for summary judgment, "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 of serious injury" (Torres v. Shulem, 25 Misc 3d 1210(A) [NY Sup. 2009] citing (Shinn v. Catanzaro, 1 AD3d 195 at 197 [1st Dept. 2003]).
Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury" the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Torres v. Shulem, 25 Misc 3d 1210(A) [NY Sup. 2009] citing Napoli v. Cunningham, 273 AD2d 366 [2nd Dept. 2000]).
Plaintiff provided the moving defendant with a verified bill of particulars dated October 2, 2008. In paragraph twenty of the bill of particulars, plaintiff alleges that he has suffered a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially 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 the November 12, 2005. He alleges in paragraph thirteen that he was confined to bed for approximately one and half months and confined to his home for approximately two months. He further alleges in paragraph fourteen that he has been incapacitated from employment ever since the date of the accident. To prevail on the motion for summary judgment, the moving defendant were required to demonstrate, among other things, that plaintiff did not suffer an injury or impairment under the 90/180 category of Insurance Law § 5102(d).
The moving defendants have submitted an affirmation of their counsel which demonstrates no personal knowledge of the underlying facts of the accident. The moving defendants rely exclusively on the medical reports of Drs. Katz, Tantleff, Berkowitz, and Hodges to establish a prima facie case that plaintiff did not suffer a serious injury.
Dr. Katz is an orthopaedic surgeon who examined the plaintiff on July 1, 2009. Although Dr. Katz concluded in his affirmed report that plaintiff was not disabled, his examination was conducted more than three years after the accident and offered no [*4]opinion about plaintiff's condition during the 180 day period immediately following the accident. Dr. Katz's report is thus of no probative value on the issue of plaintiff's condition during this period (See, Negassi v. Royle, 65 AD3d 1311 [2nd Dept. 2009]; see also Alvarez v Dematas, 65 AD3d 598 [2nd Dept., 2009].
The affirmed report of radiologist Dr. Tantleff speaks only to the condition of plaintiff's lumbar spine as it appears on an MRI image that was taken on March 7, 2006. The MRI is not in evidence. Dr. Tantleff's report does not address the condition of plaintiff's left ankle or left shoulder during the 180 day period following the accident.
The affirmed report of radiologist Dr. Jessica Berkowitz speaks only to the condition of plaintiff's left ankle, and does not address the condition of plaintiff's left shoulder during the 180 day period following the accident.
The moving defendants' counsel claims in the affirmation in support of the motion that Dr. Hodges was a radiologist hired by the plaintiff and not their own expert. This allegation was not rebutted by the plaintiff in his opposition papers. The reports of Dr Hodges, although not affirmed are therefore admissible by the moving defendants (Pagano v. Kingsbury, 182 AD2d 268 [2nd Dept., 1992]). Dr. Hodges' reports discuss the plaintiff's cervical and lumbar spine based on MRIs conducted on March 7, 2006. However, neither report addresses the condition of plaintiff's left shoulder or left ankle. during the 180 day period following the accident. In sum, there is no opinion by any doctor regarding the condition of plaintiff's shoulder during the first 180 days following the accident.
Accordingly, defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, 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 constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. Since the defendants failed to meet their prima facie burden, the court need not consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact and defendants' motion must be denied (Negassi v. Royle, 65 AD3d 1311 [2nd Dept 2009]).
The moving defendants' motion for summary judgment dismissing the complaint
on the basis that the plaintiff did not sustain a serious injury as defined by Insurance
Law § 5102 (d) is denied.
The foregoing constitutes the decision and order of this court.
Enter
J.S.C.
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