Calliste v Williams
Annotate this CaseDecided on August 23, 2011
Supreme Court, Kings County
Norris A. Calliste and JAVAKA BROWN, Plaintiffs,
against
Claude Williams, Defendant.
22726/09
Attorney for Plaintiff
Stuart K. Gechlik, Esq.
Alan Ross & Associates, P.C.
2649 Coney Island Avenue
Brooklyn, New York 11223
(718) 646-8888
Attorney for Defendants
Patricia McDonagh, Esq.
James G. Bilello & Associates
875 Merrick Avenue
Westbury, New York 11590
(516) 229-4325
Francois A. Rivera, J.
By notice of motion filed on Feb. 24, 2011, defendant Claude Williams (hereinafter Williams) moves under motion sequence number two, for an order granting summary judgment and dismissing Norris A. Calliste (hereinafter Calliste) and Javaka Brown's (hereinafter Brown) complaint pursuant to CPLR 3212 on the basis that their injuries do not satisfy the "serious injury" requirement of the Insurance Law 5102(d). Plaintiffs jointly oppose Williams' motion.
By notice of cross-motion filed on May 23, 2011, Brown cross-moves under motion sequence number three, for an order granting leave to amend his bill of particulars. No one submitted opposition to Brown's cross-motion.
BACKGROUND
On September 8, 2009, plaintiffs filed a summons and verified complaint with the Kings County Clerks office. By verified answer, dated November 16, 2009 Williams joined issue. To this date a note of issue has not been filed.
Plaintiffs' action is for damages due to personal injury sustained as a result of a motor vehicle accident. Plaintiffs' verified complaint and verified bill of particulars allege that on April 19, 2009 at approximately 3:45 a.m., they were passengers in a automobile owned and operated by Williams which was traveling on the Belt Parkway in the County of Queens. Plaintiffs allege that they sustained serious injuries when Williams negligently collided his vehicle into an overpass.
DEFENDANT'S MOTION PAPERS
Williams' motion papers consist of a notice of motion, an attorney's affirmation and eight exhibits labeled "A" through "H". Exhibit "A" is a copy of the summons and verified complaint. Exhibit "B" is a copy of defendant's answer. Exhibit "C" is a copy of the verified bill of particulars. Exhibit "D" is a copy of the transcript of the deposition of Calliste, taken on August 18, 2010. Exhibit "E" is the affirmed report of an orthopedic examination of Calliste performed by Dr. Allen J. Zimmerman. Exhibit "F" is a copy of the transcript of Brown's deposition taken [*2]on August 18, 2010. Exhibit "G" is a copy of a document purportedly allowing plaintiff Brown to return to work. Exhibit "H" is the affirmed report of an orthopedic examination of Brown performed by Dr. Allen J. Zimmerman.
Plaintiffs' opposition papers consist of an attorney's affirmation and eighteen exhibits labeled "A" through "R." Exhibit "A" is a copy of a portion of the deposition transcript's of Calliste. Exhibit "B" is the hospital report of Calliste from Jamaica Hospital. Exhibit "C" is a narrative medical report from Flatlands Medical Plaza of Calliste. Exhibit "D" is a medical report from Flatlands Medical Plaza of Calliste, pertaining to range of motion testing conducted on April 29, 2009. Exhibit "E" is a medical report from Flatlands Medical Plaza of Calliste, pertaining to nerve conduction dated May 20, 2009. Exhibit "F" is a medical report of Calliste dated May 7, 2009 from Shore Medical Diagnostics, pertaining to an MRI scan of the cervical spine. Exhibit "G" is the affidavit of Javaka Brown. Exhibit "H" is a medical report from Flatlands Medical Plaza pertaining to an examination of Brown. Exhibit "I" is a narrative medical report from Flatlands Medical Plaza of Brown. Exhibit "J" is the affidavit dated May 23, 2011 and medical report dated April 19, 2009 of Benjamin Tannenbaum D.C. from Canarsie Chiropractic pertaining to Brown. Exhibit "K" is the range of motion test report from Flatlands Medical Plaza pertaining to Brown, dated April 29, 2009. Exhibit "L" is the nerve conduction report from Flatlands Medical Plaza of Javaka Brown, dated May 20, 2009. Exhibit "M" is the MRI scan of the cervical spine, dated May 7, 2009 from Shore Medical Diagnostic pertaining to Brown. Exhibit "N" is a medical report of Calliste dated June 8, 2009 from Shore Medical Diagnostics, pertaining to am MRI scan of the cervical spine. Exhibit "O" is a medical report of Calliste dated May 28, 2009 from Shore Medical Diagnostics, pertaining to an MRI scan of the thoracic spine.. Exhibit "P" is the affirmed medical report and other records of Dr. Yuri Koyen pertaining to Brown. Exhibit "Q" is the affirmed medical report of Dr. Zimmerman pertaining to Anthony Lyons, who is not a party to this case. Exhibit "R" is a memorandum of law.
Williams replied to plaintiffs' opposition papers with an affirmation of counsel.
PLAINTIFF'S CROSS-MOTION PAPERS
Plaintiffs' cross motion papers consist of an attorney's affirmation and four annexed exhibits labeled "A" through "D". Exhibit "A" is the verified bill of particulars. Exhibit "B" is a copy of the deposition transcript of plaintiff Brown. Exhibit "C" is the affidavit of Brown. Exhibit "D" is the proposed amended verified bill of particulars.
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, 501 N.E.2d 572 [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 any material facts (Giuffrida v. Citibank, 100 NY2d 72, 790 N.E.2d 772 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 619 N.E.2d 400 [1993]). If a prima facie showing has been made, the burden shifts to opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d at 324).
Insurance Law 5104 (a) provides that in any action by, or on behalf of, a covered person [*3]against another covered person for personal injuries arising out of negligence in the operation of a motor vehicle in New York, there shall be no right of recovery for non-economic loss, i.e., pain and suffering, except in the case of a "serious injury" (Toure v. Avis Rent a Car Systems, Inc., 98 NY2d 345, 350, 774 N.E.2d 1197 [2002]).
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 concluded that no objective medical findings support the plaintiff's claim of serious injury (see, Grossman v. Wright, 268 AD2d 79, 83-84, 707 N.Y.S.2d 233 [2d 2000]).
CPLR 2106 permits attorneys, physicians, osteopaths and dentists who are not parties to an action to serve or file affirmations of truth in lieu of affidavits.
Motion to dismiss Calliste's complaint
The court will first discuss William's motion to dismiss Calliste's complaint. On September 21, 2010, approximately sixteen months after the accident Dr. Zimmerman performed an orthopedic examination of Calliste. Calliste complained of injuries to his neck and back. Dr. Zimmerman did range of motion testing on Calliste's cervical and lumbar spine and found that Calliste had normal range of motion in both areas. He concluded that Calliste has no disability, that he had a normal orthopedic examination and that there was no need for further treatment.
In order for a plaintiff to recover for a serious injury under the 90/180 provision of 5102 (d), the plaintiff must allege 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" (see, Insurance Law 5102 (d)). In Licari v Elliot, 57 NY2d 230, 236, 441 N.E.2d 1088, [1982], the Court of Appeals, in interpreting 5102 (d), stated, "the words substantially all should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather then some slight curtailment." Under Licari "substantially all" means that a person has been "curtailed from performing his usual activities to a great extent, rather than some slight curtailment."
Calliste's verified bill of particulars alleges in paragraphs eight, nine and ten that he was confined to bed for approximately two days and intermittently thereafter, confined to house for approximately four days and intermittently thereafter and totally incapacitated from his employment for approximately one week and intermittently thereafter. On pages thirty four and thirty five of Calliste's deposition transcript, he alleges that he was never confined to bed, never confined to his home and never missed a day of work due to his injuries.
Thus, Calliste's deposition and verified bill of particulars demonstrate that he did not sustain a serious injury under the 90/180 category of Insurance Law 5102(d).
Furthermore, "where a plaintiff's testimony indicates that he or she was not incapacitated for the requisite period... the defendant need not submit a medical opinion in order to meet their burden" (Walcott v. Ocean Taxi, Inc., 22 Misc 3d 1117[A], 880 N.Y.S.2d 228, 2009 NY Slip Op 50158[U] [NY Cty. 2009]). Therefore, Williams has demonstrated through Dr. Allen J. Zimmerman and through Calliste's admissions in his deposition transcripts and bill of particulars [*4]that Calliste did not sustain a serious injury. The burden thern shifts to Calliste to raise a triable issue of fact.
Calliste, in an effort to raise a triable issue of fact submitted the following documents. He offered pages from his own deposition. He also offered the hospital report form Jamaica Hospital as well as the purported affirmed medical report of Dr. Dublin from Flatlands Medical Plaza. Furthermore, he offered the Range of Motion test report, dated April 29, 2009 from Flatlands Medical Plaza as well as the Nerve Conduction Report, dated May 20, 2009 from Flatlands Medical Plaza. Furthermore he offered his MRI scan of the cervical spine, dated May 7, 2009 from Shore Medical Diagnostics. Despite Calliste's contention that Dr. Dublin's report is affirmed, neither it nor any of the other reports are duly affirmed.
With regard to Dr. Dublin's report it is not considered sworn or affirmed in accordance with CPLR 2106. CPLR 2106 states, in pertinent part, that "the statement of a ...physician... when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit." Dr. Dublin's report is not properly affirmed since he failed to affirm pursuant to CPLR 2106 that his report was "true under the penalties of perjury," rather Dr. Dublin chooses to state he "reports under penalties of perjury." (See, Offman v. Singh 27 AD3d 284, 813 N.Y.S.2d 56 [1d 2006]). Physicians reports that are affirmed using language other than the specific language required by CPLR 2106 are inadmissible. In light of the foregoing, Calliste did not raise a triable issue of fact and William's motion to dismiss Calliste's complaint must be granted.
Motion to dismiss Brown's complaint
Williams's has also moved to dismiss Brown's complaint claiming he has not suffered a serious injury. Brown has cross-moved to amend paragraphs nine and ten of his bill of particulars. Brown's verified bill of particulars currently indicates that he was confined to bed for approximately three days, confined to his house for approximately four days and totally incapacitated from employment for approximately two weeks and intermittently thereafter.
Brown wishes to amend the bill of particulars to indicate that he was confined to his home for approximately four weeks and intermittently thereafter and that he was totally incapacitated from his employment from April 19, 2009 through July 19, 2009 and intermittently thereafter.
Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings (Daly-Caffrey v Licausi, 70 AD3d 884, 895 NY2d 197 [2d 2010] citing, Koch v. St. Francis Hospital, 112 AD2d 142, 143, 490 N.Y.S.2d 782 [2d 1985]). A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must show a reason for the delay in asserting the injury and include a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained (see Kyong Hi Wohn v. County of Suffolk 237 AD2d 412, 654 N.Y.S.2d 826 [2d 1997]; Simino v. St. Mary's Hosp. of Brooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 AD2d 800, 484 N.Y.S.2d 634 [2d 1985]).
In this case a note of issue has not yet been filed. The proposed amendment is consistent with plaintiff's deposition testimony and does not assert a new injury. In fact, the amendment to the bill is consistent with and mirrors plaintiff's deposition testimony. It is early enough in the [*5]litigation that the proposed amendment should neither surprise nor prejudice the defendant. Brown's cross-motion to amend the bill of particulars is granted and Williams is deemed served with the amended bill of particulars.
The proposed amendment, however, demonstrates an injury to Brown under the 90/180 category of Insurance law 5102(d). Understandably, Williams did not address this category of injury in the instant motion to dismiss Brown's complaint. The court must, therefore, deny William's motion to dismiss Brown's complaint without prejudice.
In sum, Williams motion to dismiss Calliste's complaint is granted.
Williams' motion to dismiss Brown's complaint is denied.
Brown's cross-motion to amend the bill of particulars is granted.
The foregoing constitutes the decision and order of this court.
Enter:________________________________
J.S.C.
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