Loverde v Gill

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Loverde v Gill 2011 NY Slip Op 32643(U) September 30, 2011 Supreme Court, Nassau County Docket Number: 50/10 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - ST ATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen v: SVETLANA V. LOVERDE, STEVEN LOVERDE, and ANASTASIA BERESTOV A, Plaintiff(s), Index No. 50/10 Motion Submitted: 8/1/11 Motion Sequence: 001 002 -against- DANISH A. GILL and TARIQ MAHMUD, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . XXX Briefs: Plaintiff' slPetitioner ' s................. Defendant' s/Respondent' s................................ Motion by plaintiff, Svetlana V. Loverde granting her summary judgment on the issue of liabilty is granted. , pursuant to CPLR Cross motion by defendants , 3212 , for an Order Danish A. Gil and Tariq Mahmud , for an Order awarding them summary judgment dismissing the plaintiff, Anastasia Berestova ' s complaint on the grounds that her injuries do not satisfy the " serious injury " threshold requirement of 51 02( d), is granted. Insurance Law This action arises out of a motor vehicle accident that occurred on December 19 , 2008 at approximately 2:36 p. m. at the intersection of Post Avenue and Stone Hil Road in Nassau County, New York. At the time of the accident , plaintiff Svetlana Loverde was traveling [* 2] northbound on Post Avenue through a green traffic light controllng the intersection when the Gil vehicle , traveling west on Stone Hil Road , admittedly slid westbound into the intersection controlled by a red traffic light. Plaintiff, Anastasia Berestova , was a passenger in the car being operated by her mother , Svetlana Loverde. It is undisputed that at the time of the accident, there was snow on the roadway. At her oral examination before trial , Svetlana Loverde testified that at the time and location ofthe accident , the ground was wet. She stated that it was only " some split seconds between the first time that she saw the defendants ' vehicle and the moment of impact. She testified that she did not sound the horn , apply the brakes or turn the steering wheel in either direction; she only removed her foot from the gas (Svetlana Tr. , p. 24). Defendant , Danish A. Gil , testified that at the time of the accident , he was operating his employer , defendant Tariq Mahmud' s vehicle in the scope of his employment from the Mobil gas station on Jericho Turnpike to the Mobil gas station in Roslyn. He stated that it was snowing when he left the gas station and at the time of the accident. He testified that traffic was light at the subject intersection and that he was traveling approximately 15 to 20 miles per hour westbound on Stone Hil Road when he observed a green traffic light as coming down a hil when he first observed the green traffic light at the subject intersection (Gil Tr. , p. 20). He testified that he observed the light turn yellow from a distance of approximately 20 to 30 yards and , as a result, he began to pump his brakes to "build the pressure' for the car to stop. He then observed the light turn red. Gil testified that the front portion of his vehicle was already in the intersection when the light changed from yellow to red. approximately one quarter of a mile in front of him. He stated that he Upon the instant motion , plaintiffSvetlana Loverde , seeks summar judgment on the issue of liability. On a motion for summary judgment , it is the proponent' s burden to make a prima showing of entitlement to judgment as a matter o flaw , by tendering sufficient evidence (JMD Holding Corp. v. Congress to demonstrate the absence of any material issues fact Andre v. 2d 502 (2005); Financial Corp. 4 N. Y.3d 373 384 , 828 N. 2d 604 , 795 N. 35 N. Y.2d 361 320 N. 2d 853, 362 N. S.2d 131 (1974)). The Court must deny Pomeroy, facie prima facie the motion if the proponent fails to make such a sufficiency of the opposing papers 820 N. showing, regardless of the (Liberty Taxi Mgt. Inc. v. Gincherman 32 A. D.3d 276 2d 49 (1 st Dept. , 2006)). Ifthis showing is made , however , the burden shifts to the par opposing the summary judgment motion to produce evidentiary proof in admissible (Alvarez form sufficient to establish the existence of material issues of fact that require a trial v. Prospect Hospital 68 N. Y.2d 320 324 501 N. 2d 572 , 508 N. 2d 923 (1986)). [* 3] Pursuant to the Vehicle and Traffic Law ~ 1110 , the driver of any vehicle shall obey the instructions of any official traffic-control device. Section 1111 , which deals with traffic , a driver control devices , provides that a green light is an invitation to proceed. Nonetheless who has a green light must stil use Judson 283 N. Y. 393 , 398, 28 N. st Dept. reasonable care under the circumstances (Shea v. Costalas v. City of New York, 143 , 1988)). Thus , ifthe driver saw or should have seen E.2d 885 (1940); 2d 868 (1 2d 573 532 N. another vehicle in the intersection or so near the intersection that a collsion is likely to occur (Costalas v. City of New the driver is required to use reasonable care to avoid the collsion 2d 593 (pt York, supra; Crespo v. New York City Hous. Auth. 222 A. 2d 300 , 635 N. Sontag v. Mulkerin 63 A. 2d 699 , 404 N. S.2d 697 (2d Dept. , 1978)). Dept. , 1995); Here , the plaintiff, has sufficiently established her cause of action so as to permit this (Menekou v. Crean 222 A. D.2d court, as a matter of law , to direct judgment in her favor 2d 532 (2d Dept. , 1995)). Specifically, plaintiff's reliance on the 418 419- 420 , 634 N. deposition testimony of the parties establishes that proximate cause of the accident was defendant Gil' s failure to bring his vehicle to a lawful stop. In opposition , the defendant has failed to produce admissible proof establishing a at 420). material is ue of fact (Id. Defendants ' allegation that there are questions of fact as to whether the plaintiff should have observed the Gil vehicle and whether she could have and should have taken steps to avoid the accident are nothing more than ' mere guesswork and speculation. and do not Defendant's allegations are unsubstantiated by the record before this Court (Febot v. New York Times Co. 32 N. 2d 486 299 N. 2d 256 (1973)). 672 346 N. properly create an issue of fact Accordingly, the motion by plaintiff Svetlana V. Loverde , for an Order granting her summary judgment on the issue of liabilty is granted. The cross motion by defendants for an Order awarding them summary judgment dismissing the plaintiff, Anastasia Berestova s complaint on the grounds that her injuries do not satisfy the " serious injury " threshold requirement of Insurance Law ~51 02( d), is also granted. In bringing this action , plaintiff Anastasia Berestova claims that she sustained inter alia the following serious injuries as a result of the subject accident: lumbar trauma and bilaterally; , L2- L3 disc bulge; lumbosacral radiculitis; hypersthesia C7 pain; L1hypothesia L 1 left; lumbosacral spasm; cervical trauma and pain; hypoesthesia C7 bilaterally; cervical spasm; thoracic trauma , pain and spasm; left leg trauma and pain (Bil [* 4] of particulars that she was confined to the hospital for one day and to her home for approximately one month following the accident 6). However, at her sworn examination before trial , plaintiffBerestova stated that she was not confined to her home at all as a result of the injuries she sustained in this accident (Berestova Tr. , p. 29). of Particulars 5). Plaintiff alleges in her bil (Id. at (Id. , Further , Berestova also testified that at the time of the accident , she was unemployed (Id. at 6). She stated that she was a full time student at Nassau Community College Berestova testified that she did not miss any time from school or any classes as a result of this accident (Id. a result of this accident at 7). She also testified that there is nothing that she can no longer do as (Id. at 31). The 18- year old plaintiff Anastasia Berestova claims that her injuries fall within the following four categories ofthe serious injury statute: to wit , 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; and a medically determined injury or impairment of a non-permanent nature , which prevents the injured person from performing substantially all ofthe material acts which , constitute such person usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence qf the injury or impairment (Bil of Particulars 16). Inasmuch as the plaintiff has , however, failed to allege and claim that she has sustained a " total loss of use " of a body organ , member , function or system , it is plain that 5102(d) her injuries do not satisfy the "permanent loss of use (Oberly v. Bangs Ambulance, Inc. 96 N. 2d 295 , 751 N. 2d 457 727 N. S.2d 378 (2001)). " category of Insurance Law Similarly, plaintiff's claims that her injuries satisfy the 90/180 category ofInsurance 02( d) are also unsupported and contradicted by her own testimony wherein she states that she did not miss any time from her school or classes. Further , inasmuch as she testified that there is nothing that she can no longer do as a result of this accident, plaintiff has failed to otherwise provide any evidence that she was " medically " impaired from doing any activities as a result of this accident for 90 days within the first 180 days following this accident. Therefore , this Court determines that plaintiffhas effectively abandoned her 90/180 (Joseph v. claim for purposes of defendant' 2d 902 (Sup. Ct. Nassau 2007)). Forman 16 Misc. 3d 743 , 838 N. Law ~51 s initial burden of proof on a threshold motion Accordingly, this Court wil restrict its analysis to the remaining two categories as it pertains to the plaintiff; to wit , permanent consequential1imitation of use of a body organ or member; and , significant limitation of use of a body function or system. [* 5] In support of a claim that the plaintiff has not sustained a serious injury, defendants may rely either on the sworn statements of their examining physician or the unsworn reports 182A. 2d268 , 587N. S.2d (Pagano v. Kingsbury, ofthe plaintiff's examining physician 692 (2d Dept., 1992)). When a defendants ' motion is sufficient to raise the issue of whether a " serious , in injury " has been sustained , the burden shifts and it is then incumbent upon the plaintiff opposition to defendants ' motion , to produce prima facie evidence in admissible form to (Licari v. Elliot 57 N. 2d 230 , 441 N. 2d 1088 455 2d 570 (1982)). In order to be sufficient to establish a prima facie case of serious physical injury, the affirmation or affidavit must contain medical findings , which are based support the claim for serious injury , rather on the physician s own examinations , tests and observations and review of the record than manifesting only the plaintiff's subjective complaints. However , unlike the movant' proof, unsworn reports of plaintiff's examining doctor or chiropractor are not sufficient to (Grasso v. Angerami 79 N. 2d 813 , 588 N. E.2d 2d 178 (1991)). Otherwise , a medical affirmation or affidavit , which is based 580 N. defeat a motion for summary judgment on a physician s personal examination and observations of plaintiff, is an acceptable method to provide a doctor s opinion regarding the existence and extent of a plaintiff's serious injury citing (see Reid v. Wu 2003 WL 21087012 , (N. Sup. ), 2003 N. Y. Slip Op. 2d 167 (1st Dept. 1998)). Sullvan v. Atrium Bus Co. 246 A. 2d 418 668 N. 50816(U) Essentially, in order to satisfy the statutory serious injury threshold , the legislature Toure v. Avis Rent requires objective proof of a plaintiff's injury. The Court of Appeals in stated that plaintiff's proof of injury must be supported by objective medical (Toure v. Avis Rent A Car Sys. 98 N. 2d 345 evidence 353, 774N. E.2d 1197, 746N. S.2d865 (2002)). UnswornMRreportsarenotcompetent 301 A. 2d 438 , 754 2d 7 (lst Dept. , 2003)). However , even the MR and CT scan tests and reports must be paired with the doctor s observations during his physical examination of the plaintiff A Car Systems, , such as MRI and CT scan tests (Gonzalez v. Vasquez, evidence unless both sides rely on those reports (Toure v. Avis Rent A Car Systems, supra). On the other hand , even where there is ample objective proof of plaintiff's injury, the that certain factors may override a plaintiff's objective medical proof of limitations and nonetheless permit dismissal of the Court of Appeals held that additional contributing factors , such as gap in treatment , an intervening medical problem , or Pommels v. Perez, supra Court of Appeals held in plaintiff's complaint. Specifically, in Pommels v. Perez, a preexisting condition , would interrpt the chain of causation between the accident and the 2d 380 (2005)) 4 N. Y.3d 566, 830 N. E.2d 278 , 797 N. The Court held that while " the law surely does not require a record for needless treatment in order to survive summary judgment , where there has been a gap in treatment or cessation of treatment , a plaintiff must offer some reasonable explanation for the gap in treatment or claimed injury (Pommels v. Perez, [* 6] cessation of treatment" (Id. ; Neugebauer v. Gill 19 A. D.3d 567 , 797 N. S.2d 541 (2d Dept. , 2005)). Under the no- fault statute , to meet the threshold significant limitation of use ofa body function or system or permanent consequential limitation , the law requires that the limitation be more than minor , mild , or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or (Licari v. Ellot, supra; Gaddy v. Eyler 79 N. Y.2d 955 , 591 N. 2d 1176 , 582 Scheer v. Koubeck 70 N. 2d 678 512 N. E.2d 309 , 518 N. 788 (1987)). A minor , mild or slight limitation shall be deemed " insignificant" within the 707 2d 79 (Licariv. Elliot, supra; Grossman v. Wright 268 A. 2d 233 (2d Dept. , 2000)). condition 2d 990 (1992); meaning ofthe statute When , as in this case , a claim is raised under the "permanent consequential limitation of use of a body organ or member" or " significant limitation of use of a body function or system " categories , then , in order to prove the extent or degree of the physical limitation , an expert' s designation of a numeric percentage of plaintiff's loss of range of motion is acceptable (Toure v. Avis Rent A Car qualitative assessment of a plaintiffs Systems, Inc., supra). condition In addition , an expert' is also probative , provided that: (1) the evaluation has an objective basis; and , (2) the evaluation compares the plaintiff's limitations to the normal function , purpose and use of the affected body organ , member , function of' (Id. system With these guidelines in mind , this Court wil motion. now turn to the merits of defendants In that regard , in support of their motion , defendants submit inter alia plaintiff's emergency room report from Winthrop University Hospital; the unsworn report from plaintiff's neurologist , Dr. J. R. Alluri , who examined the plaintiff on January 22 , 2009; and , a neurologist who performed an the affirmed report of Dr. Mathew M. Chacko, M. independent neurological examination of the plaintiff on November 10 , 2010. With this evidence , defendants have established their prima facie entitlement to judgment as a matter of law. Specifically, Dr. Mathew M. Chacko , a board certified neurologist and psychiatrist examined the plaintiff, performed quantified range of motion testing on her cervical spine and lumbar spine with a goniometer , compared his findings to normal range of motion values and concluded that the ranges of motion measured were normal. Dr. Chacko also performed motor and sensory testing and found no deficits , and based on his clinical findings and [* 7] medical records review , concluded that plaintiff had a resolved cervical and lumbar strains (Staffv. Yshua 59 A. D.3d 614 874 N. S.2d 180 2d 129 (2d Dept. , 2009)). Cantave v. Gelle 60 A. 3d 988 , 877 N. (2d Dept. with no permanent or residual disability , 2009); Having made a prima facie showing that the injured plaintiff did not sustain a " serious injury " within the meaning of the statute , the burden shifts to the plaintiff to come forward with evidence to overcome the defendants ' submissions by demonstrating a triable issue of (Pommels v. Perez, supra; see also Grossman v. fact that a " serious injury " was sustained Wright, supra). D. , a chiropractor who first examined the plaintiff on December 31 2008; her own affidavit; and , a chiropractor. the " affirmation " of Louis Filardi , D. In opposition , plaintiff submits the sworn affidavit of Stephen Pruden , Initially it is noted that the " affirmed" report of Louis Filardi does not constitute competent medical evidence in opposition to defendants ' prima facie showing of entitement Chiropractors do not come within the scope of the statute allowing affirmations by certain persons to be given the same force and effect as an affidavit. A chiropractor must first appear before a notar or other such official and (Doumanis v. Conzo 265 A. Casas v. Montero 48 A. D.3d 728 , 853 N. 2d 20 I (2d Dept. 296 , 696 N. 358 (2d Dept. , 2008)). This , Filardi , failed to do. Accordingly, this Court wil not consider his " affirmation " in opposition to defendants ' motion. (CPLR 92106). to judgment as a matter of law formally declare the truth of the contents ofthe document , 1999); Furthermore , while it is noted that Mr. Pruden ' findings are contained in a sworn affidavit and that therefore said affidavit constitutes competent evidence in opposition to 2106; see also Pichardo v. Blum 267 A. 2d 441 , 700 defendants 2d 863 (2d Dept. , 1999)), said affidavit , nonetheless fails to present an issue of fact herein. Specifically, in his chiropractic examination , performed approximately 12 days after the date of plaintiff's accident , Mr. Pruden claims to have performed range of motion testing on plaintiff's cervical and lumbar spine. In fact , his conclusions are premised almost entirely BPon the findings of such range of motion testing. However, it remains unclear to this Court as to how a chiropractor can perform such an examination of the plaintiff. Moreover although Mr. Pruden sets forth range of motion of the plaintiff's cervical and lumbar spine he fails to set forth what objective testing was used to determine such measurements. Failure to indicate which objective test was performed to measure the loss of range of motion is It renders the Toure v. Avis Rent a Car , and the Court can not consider such expert' s opinion as to any purported loss insufficient 2d 600 (2d Dept. , 2006)). (Id. ; Powell v. Alade 31 A. D.3d 523 , 818 N. ' motion contrary to the requirements of (CPLR Systems, supra. [* 8] Therefore , in the absence of any competent or admissible evidence supporting a claim for serious injury under anyone of the nine categories of Insurance Law ~51 02( d), defendants ' motion seeking summar judgment dismissal of Anastasia Berestova ' s complaint (Licari v. Elliot, supra). is herewith granted The foregoing constitutes the Order of this Court. Dated: September 30 2011 Mineola , N. ENTERED OCT 07 2011 NAHAU COUNTY COUNTY CLERK" OfFICE

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