Lake v Hertz Corp.

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Lake v Hertz Corp. 2010 NY Slip Op 34015(U) December 20, 2010 Supreme Court, Kings County Docket Number: 27135/06 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] At an IAS Tenn, Part 52 oflhe Supreme Court of the St•lc or New York. held in ond for the County of.Kings, at the Counbouse, al Civic Center, Brooklyn, New Yori<, on lhe 20th d•y ofDeocmber, 2010 HONORABLE FRANCOIS A. RJVERA - - - -- -X DERRICK LAKC. Plaintiff, Index No. 27135/06 - against- HERTZ CORPORATION, MICHA.EL KEVIN WALKER, YVONNE HAMILTON und ANDREA M. KNIGHT, Defendants. - - --·-----X By notice of motion filed on June 30, 2010, under sequence numl)erten, detiendants Yvonne Hamilton uod Andrea M. Knight, joinUy move pUTSU3llt to CPLR §3212 and Insurance Law §SJ02(d) for an order dismissing 01<: complaint on the basis that plai11tiff' did not sus1.ain a serious injury. By notice of aoss-motion filed on July 2, 2010, wider scqueuec number elevtn, defeudunts Hertz Corporation and Michael Kevin Walker, jointly move pursuant to CPl.R §3212 and Insurance Law §5102(d) for the same relief. Fur1hcnnore, cro.s-movants adopt movants' arguments and inCOl'J)orate with.in their O\\IT'I motion papers by ref'erencc said argum<nts as well as Ille affumations, affidavits, docwncnts, and exhibits in support oflhat motion filed under morion sequcocenumbcr ten. Thus. the court will refer to the movants and cross-movQJ\ts collectively as "dcfendunts" hereinafter. Plaintiff Denick Lake (I..akc) opposes the motion and cross-motion. Poge 1 of 8 [* 2] - - - - - -- ---.==-Pq 2of40t BACKGROUND On September 8, 2006, Lake commcnc:<:d this action for pmonal il\jurics by filin& a summons and verified complaint with the Kings County Clerk's offi«:. The movanlS joined issue by their verified an.swer, dated September 21, 2006. The cross·mo~1lJllS joined issue by their verified answer, dated October 20, 2006. By order of this Court doted May 4, 2007 and c:otcrcd on May 8, 2007, the instant action was joined with another action pending in Kings County Supremo Court bearing inde.' number 35&6612()06 (th< cMlier action). In the earlier action, Michael Walker brought a claim opiDst Yvonne Hamilton and A11drca M. KnighL By orocr of this court dated J une 23, 2010 and entered on June 25, 2010, a motion and a cross- molion for relief identical to that sought by the instant motion ond crossmotion were denied without prcjudice to renew because pleadings from tho oction bearing Index number 3586612006 were not annexed to those motion papers filed under motion sequence numbers eight and nine. l.'11<.e 's complain> and bill of particulnrs olleges the following facts. On October 7, 2005, at approximately 10:00 p.m., he was a passenger in a 2005 Mazda motor vehicle bearing New Yorl< S12tc license pbuc number EWTI 131 that was being operated by Michael Kevin \Valkct and WG.S O\\•ned by Hcrt2 Corporation. At the sarnc linlC, Al\drta M. Knight was operating a 1995 Honda moior vehicle owned by Yvonne Hamilton bearing New Y0<k State license plate number CYM4834. Due to the ncgligMce of both drivers the vcl1icles collided nt or near the intersection ofNtw York Avenue and P38• 2 or s • [* 3] ' Hempstead Turnpike, in the Town of Hempstead, County of Nassau, in the State of New York. The collision caused Lake to sustain serious injuries. MOTlON l'APERS Yvonne HaOlilwn and Andrea M. Knight's motion papers consist of an affinnatioo of their counsel and nine annexed exhibits labeled A !hough L. Exhibit A is the instant swnmons and verified complaint. Exhibit 8 is their verified ansv.•er with cross-<:laims. Exhibit C is a copy of the verified answer of Hertz Corporation and Micbae. Kevin 1 Walker. Exhibit D is an order of Justice Spodek dated November 4, 2009, which_amon~ , other things,, cx1cndcd the time to file a note of issue to february 25, 2010. Exhibit E is the aforementioned order of this court dated May 4 , 2007 which joined the instant action with the earlier action bearing index number 3586612006. Exhibit F is Lake's verified bill of particulars. Exhibit G is the certified but unsigned transcript of Lake's depo.•ition conducted on July 20, 2007. Exlubit H is the affinned, narrative report of Dr. Jacquelin Emmanuel, an orthopedic surgeon, who examined Lake on August 9, 2007. Exhibit I is aOirmed narrative rep0r1 of Dr. Audrie DeJesus, a ncurologis~ who also examined Lake on August 9, 2007. Exhibit J is a copy of a check made payable to the Clerk of Supreme Court, Kings County by the law Jinn representing Andrea Knight and Yvonne Hamilwn. E.xhibit K is a copy of the summons and complaint in the earlier action bearing index .nomber 3586612006. Exhibit L is a copy of the verified answer to the sommons and conlplaint in the earlier action bearing index number 35866/2006. Poge3 of 8 [* 4] 21t3&2006 Dtc111011 1110 or<1tt <liltO 12i2Ct'10 ' Hatz Corporation and Michael Kevin Walker's cross-motion papers consist of an affinnation of their counsel and two annexed exhibits labeled A and n. Exhibit A is the instant summons and verified complaint. Exhibit B is their verified answer. Exhibit C is the verified answer with cross claim.• of Andrea Knight ru:id Yvonne Homilton. Lake's 0pp00ition 10 the mo<ion aod cross-motion coosist of an affidavit of his cou=I and five annexed exhibits ll!bcled A tbrougb G. Exhibit A is a copy of the police accident report (MV- 104) of the subj<Q occident. EJ<Juoit Bis• set of rtcon!s from Mercy Medical Center Hospital. Exhibit C is the affirmed, no.rmtive report of Dr. Allon Rothpearl, a radiologist, pertaining to his review of an MRI 1akon of Lake's spine on November 18, 2005. ExhibitD is the affirmed report of Dr. Boris Kleyman, a medical doctor, pertaining to his modical treatmeflt ofLake during 200S and 2006. Exhibit E is a set or physical therapy r<COl<ls. Exhibit F is the affirmed report or Or. Ida Two, pertaining t0 his physical examination of Lake on February 2, 2010. Exhibit G is Lake's . affida vit sworn to on February 2. 2010. Yvonne Hamilton and Andrea M. *night subrnitted an aff mnation of their counsel In reply to Lake's opp0si1ion papers. Hem Corporation and Michael Kevin Walker also submitted an affirmation of their counsel in reply. Their counsel's affirmation referenced two annexed exhibits labeled A and B. EJ<hibit A Is a cover lener to Lake's counsel seeking that counsel arrange for Lake to sign his deposition transcript before a notary. Exhibit B is another Page 4 of 8 -- [* 5] ~1or40I copy or Lake's deposition 1r.1n..npc. LAW AND APPLICATION A motion for summ•ry judgment may be granted only when there is no doubt as to the absence of any lrioblc issue of material fact (Kolivas v. Kirchoff. 14 A.D.3d 493 [2"' Dept. 2005]). '1S5uc finding. rather than issue determination is lhc coun's function. If lh«e is any doubt about the existence or. triable issue of r8CI, or • maierial issue of fact is arguable, summary judgment sbould be denied" (Ce/ardD v. B•U. 222 A.D.2d 547 (2"' Dept. 1995]). A party moving for summary judgment must make a prima facie showing of cntitletnent to judgrnc11t as u mutter of ln,v, offering sufficient evidence to demonstrate lhc llhsence of any material issues of fact (,(/vurez v. Prospect Hosp.. 6& N.Y.2d 320 [1986]; Napolitano v. Suffolk Co1111ty Dept. OfPublic Works, 6S A.0.Jd 676 [2"' Dept. 20090. Once the mo>1111t bas met this burden. the burden then shifts <0 Ille j)3Jt}' opposing the motion lO demonstnte via aclmWible evidence the existence or. facrual issue requiring a lrial of the action (Alvarez v. Prospect Hosp., supra: Zuc.kerman v. City o f Ne w York 49 N.Y.2d 557, 560 [1980]). "As a general n1le, a pany docs not carry its burden in moving for sunu:nary judgment by pointing to g.a.p.s in its opponent's proo~ but ml1.'\l affirmativcl)· dcmonsltatc the merits of ilS claim or defense'' (Set. Men.r.erlch v. £sf""ilO, 4 A-0.3d 399 (2"' Dept. 2004)). Insurance Law§ 5104 (a) provides that in any action by, or on behalf of,a eovcrcd J>Cf'On against another covered person for personal injuries arising out of Pllge sor 8 [* 6] negligence in the operation of a motor vehicle in New York, there shall be no right of recovery for non-economic los.s. ;.e., pain and suffering, e..xcept in the case of a "serious injury" (Toure v. Avis Rent a Car Systems, Inc., 98 N.Y.2d 345 [2002)). Lake indicated in paragraph si.x of bis bill of particulars that he sustained certain injuries to his back \vhich he alleges are pennanent in .nature. ln paragraph eight, Lake indicates that he was not completely confu1ed to bed as a result of the subject acccident. ln paragraph nine. Lake indicates that he \vas nOl completely confined to home as a res-..:!ft oft11e subject accident. ln paragraph ten, Lake i.odicates that he did not miss time from work or school as a result oflhe subject accident. In paragraph eighteen, Lake alleges that bis injuries are serious as that tennis defined within Insurance Law§ 5102 (d). However, Lake docs not specify the particular provision \Vithin Insurance.La'v § 5102 (d) upon \\'hich his injuries ma}' be "serious". The court thus interprets lake's bilJ of particulars to allege that his injuries are "serious" solely as a result of their constituting a permanent consequentiaJ limitation of a use of a body organ 01 member. Jn the C-Ontext of a motion for summruy judgment, a dcfcrldant caJ\ establish that tltc plaintiffs injuries arc not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiffs claim of serious injury(S,., Gro.<Sman v. Wrig/lt, 268 A.D.2d 79 (2'• Dept. 2000]). Pagc 6 of 8 [* 7] In order for the defendanis 10 prevail on their motion for dismissal of the complain~ Ibey must establish prima facie entillemont 10 judgment that Lake did not sustain a serious injury within the meaning of Insurance Law§ SI02 (d) ns a result of the subject motor veh.icJe accident (Tow• v. Avis Rent a Car Syste1'U. Inc., 98 N.Y.2d 345 (2002]). In support of tbci.r motion and Ct'O$$-rno<ion, defcodants rely upon the affinncd medical reports of Jacquelin Emmanuel. MD. aod Maria Audrie DeJtsus, M.D. Ors. Emmanuel and DeJesus a.ffinn th•t Lake exhibited nounal ru11gcs of motion in his cerviea.1and lwnbar spines. Defendants have thus made a prima facic showing that plointiff has not suffered a permanent "serious• injury 10 hu back. Lake se<:ks to raise a tri®Le issue off~ through his pr<$Cnlotion of the affirmed medical report ofDrs. Allen Rethpearl, Boris Kleyman, and Ida Tetro. Dr. Rothpcarl's affirmation docs not include the resullS of range of motion testiog. Or. Rothpearl merely affirnas that 1-akc has suffered from various back ht"miations and disc bulges. Neither herniations nor bulging discs alone constirute a serious injury (Howell v. Reupke, 16 AD.3d 37712"' Dept. 2005]). However, Or. Kleyman, Lake's treatingpbysiciao. allinned that on November 4, 2005. Lake had significant ranges of motioo restrittioos in his lumbar spine causally linked to the subject motor vch.iclc acc-denL furthermore, Dr. Tetro, Lake's examining i physician, affirmed that on February 2, 2010, Lake'Hauge of motion rcstrictioos in his Page 7 of 8 [* 8] ·' . , "' lumbar Spine were still present, w<-rc causally linked to the motor vehicle accidenl and were pemiaaent. Lake raised a triable issue of fact through Q1e affo:med medical reports of Drs. Tetro and Kleyman. Together they found significant limitations of motion in the plaintiff's lumbar spine both on an examination contemp0raneous with the acc.idcnt, and 01\ recent examinations as well (Smiley v. Jo!tnso11, -- N.Y.$.2d ----, 201 O \VL 5094397 (2"" Dept., 2010) citing Tai f/o Kang v. Yowig Sun Cho, 74 A.0.3d 1328 [2"" Dept., 20 10]). ~fhe nlotion and cross motion arc denied. The foregoing coostirutes the decision and order of the court. Ente.r: Enter forthwith: ., .. HON. FRANCOIS A.JUVERA J.S.C.. , - Page 8 of 8 ; '

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