Bertram v DeCicco
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Bertram v DeCicco 2011 NY Slip Op 32875(U) October 24, 2011 Supreme Court, Suffolk County Docket Number: 07-38897 Judge: Emily Pines 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] SHUW] FIJllM ORDEK fNDEXNo. CAL. No 07-38897 11-00528MV SUPREME COURT - STATE OF NEW YORK IAS. PART 46 - SUFFOLK COUNTY PRESENT: lion. EMILY PINES Justice orthe Supreme Court MOTION DATE 4-28-11(#002) MOTION DATE 6-23-[ [ (#003) AD!. DATE 8-25-[ I Mot. Seq. 1/002 - MD # 003 - MD ---------------------------------------------------------------X PAUL BERTRAM, Plaintiff, LITMAN & LITMAN Attorney for Plaintiff 209 Glemnore Street East Williston, New York 11596-1415 - against M[CHAEL C. DECICCO, Defendant. CARCAGNO & ASSOCIATES Attorney for Defendant 80 Broad Street, Suite 1203 New- York, New York 10004 ---------------------------------------------------------------X Upon the following papers numbered I to 25 read on these motions to vacate note of issue and for summarv judgment; Notice of Motion! Order to Show Cause and supporting papers (002) I - 15 (003) 14-21 ; Notice of Cross Motion and supporting papers _: Answering Affidavits and supporting papers 22-23: 24-25 ; Replying Affidavits and supporting papers _, Other _, (and !lllei Itelllillg eOllllsel ill 3t!ppUll alid eJppd~ed to tile IIlotiol"l) it is, ORDERED that motion (002) by the defendant, Michael C. Decicco, pursuant to 22 NYCRR §202.21 and CPLR 3124 and 3126 (2) for an order striking the plaintiff's note of issue and certificate of readiness is denicd~ and it is further ORDERED that motion (003) by the defendant Michael C. Decicco pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain an injury within the threshold imposed by Insurance Law §5102 (d) is denied. This negligence action arises out of a motor vehicle accident which occurred on December 15. 2004 at Middle Country Road and Martin Street. Coram. New York. when the vehicle operated by the plaintiff Paul Bertram. was struck in the rear by a truck operated by the defendant Michael Decicco. Pursuant to 22 NYCRR §202.21 (e) a motion to vacate the note of issue for lack of readiness must be filed within twenty days of the note being filed (Schroeder v IESI NY Corp., 24 AD3d 180.805 NYS2d 79 [1st Dept 20051). The instant motion was served by the defendants on March 22, 2011. The note of issue was l'iIed on March 18, 2011. Accordingly, defendants' motion to vacate the Note of Issue is timely in that it was filed within twenty days of the Jiling ofthc Note ofIssue. /;;a [* 2] Bertram v DecIcco Index No. 07-38g97 Page NO.2 Whcn a parry moves to vacate the note of issue within twenty days follov\/ing its service, 22 NYCRR 202.21 (e) provides that the court may grant vacatur upon a showing that the case 1$ not ready for trial and a material bct in the certificate of readl11ess is meorrec! (Weiss et al v Finkelstein. Af.D. et aI, 200() NY Sltp Op S] S02U. ] 2 Misc 3d ] 1891\. 824 NYS2d 767, 2006 NY Misc Lexus 2085 [Nassau Count yD· !lere. it is determined that the defendant j~liled to show that a material fact IJ1the certificate of readiness is lllcorrect. The defendant seeks to vacate the Note of Issue on the basis that the plaliltitT failed to provide discovery prevwusly demanded. The Prelllllinary Conference order of August 27, 2009 set forth that the plaintiff was to provide medical records and j-I1PPA compliant authorizations for all health care providers. diagnostic testing and films including MRI's and CT scans, x-rays, and authorizations for employment records [()r t\<liO years prior to the accident. At the plamtit'f's December 1, 2010 deposition, the defendant orally demanded authorizations for the plaintiJrs no fault records and for the records of Dr. Kelly, Middle Island Physical Therapy. These same authonzations were then requested by letter dated February 24, 2011. In addition, by letter dated December 7, 20] O. the defendant set forth that the demands served on or about February 5, 2009 remain outstanding. However. a copy of said demand was not prOVided to this court. The plaintiff opposes this motion on the basis that on September 30, 2009 the bill of particulars, police report. l11edicals, HIPPA compliant authorizations and po\ver of attorney pursuant to Public Health Law § ] g were provided to the defendant's counsel. The plmntifffurther responded by providing the name and address of the nOll-party witness, Antonio Notaro, along with statements by the defendant. The defendant was further advised that there were no collateral sources other than no-falltt, and that the p1aintilfhad not yet retal11edany experts. Thc Next Generation radiology/MRl report was provided, as well as authorizations for plaintiff's employment records. the no-J~ntlt file. and the records of James Kelly, D.O., Next Generation Radiology, and ivlather lIospitaL all dated September 30, 2009. Based upon the foregoing, it is determined that the defendant has not established that a material fact in the certiJ-icatc ofreadiness is Il1correcl. There is no discovery outstanding as the plainti ff has complied with the defendant's demands. Accordingly, motion (002) by the defendant for an order vacating the note of issue is demed. In motion (003), the defendant seeks summary judgment disrnissll1g the complaint on tbe basis that the plaintitTdid not sustain a serious injury as set forth in Insurance Law §5102 (d). By \vay of his bill of particulars, the plaintiff alleges that as a result of the accident. he sustained a herniated foraminal disc at L3-4 which impinges on the exiting letl L3 nerve root. The proponent of a summary judgment motion must make a prirna faCie showing of entitlement 10 .Judgment as a matter of Jaw, tendenng sufficient evidence to eliminate any material issues of fact from the case (Friends Animals II Associated Fur Mfn.. 46 NY2d ] 065,416 NYS2d 790 [1979]). To grant summary .Judgment it must clearly appear that no rnateria! and triable issue of fact is presented (Sillman v Twentieth Centlll:JI-Fox Film Corporatioll. 3 NY2d 395, 165 NYS2d 498[1957]) The movant has the mitiaJ burden of proving entitlement to summary judgment (Winegmd v N. Y. U. illedicaJ Center, 64 NY2d 85], 4N7 NYS2d 316 11985]). failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Wil1egrad v IV. Y. U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment must proffer evidence in admissible form .. and must "show facts sufficient to require a trial of any issue of hlct" (ePI ,R (~r [* 3] 15el1ramv Decicco Index No 07-38897 Page NO.3 3212[b]: Zuckerman v City (~fNew York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing pat1y must assemble. lay bare and reveal his proof in order to establish that the matters set f(:)[thin his pleadings are real and capable of being established (Castro v Liber(v Bus Co., 79 AD2d 1014,435 NYS2d 340 r.2d Dept 198Il). Pursuant to Insurance Law § 5102 (d), ,. ·lsJerious injury' means a personal injury which results m death: dismemberment: significant disfigurement: a fracture; loss or a ictus; permanent loss of use of a body orgml, member. function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body tll11ctionor system; or a medical determined injury or impairment of a non-permanent nature which prevents the injured person hom performing substantially all of the material acts \vhich constitute such person's usual and customary daily activities for not less than ninety days dunng the one hundred eighty days Immediately follo\-ving the occurrence of the injury or impairment." The term ··significant," as it appears in the statute, has been defined as "somethmg more than a minor limitation of use," and the term "substantially all" has been construed to mean "that the person has been clll1aI1ed from performing his usual activities to a great extent rather than some slight curtailment (Licari r Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint on the basis the plamtiff did not suffer a senous injury as ddined by Insurance Law § 5102 (d), the initial burden is on the defendant to "present evidence in competent form, showing that plaintiff has no cause of action" (Rodriquez v Goldstein, 182 AD2d 396. 582 NYS2d 395, 396 [1st Dept 1992]). Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima/ode case that such serious injury exists (DeAngelo v Fidel Corp. Services, Inc .. 171 AD2d 588, 567 NYS2d 454, 455 [1st Dept 1991]). Such proof, in order to be in competent or admissible form. shall consist of affidavits or affirmations (Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). The proof must be vievled in a light most favorable to the non-moving party, here the plamti fr (Cammarere v Villanova, ]66 AD2d 760, 562 NYS2d 808, 810 [3d Dept 1990]). In order to recover under the "permanent loss of use" category, a plaintilTmust demonstrate a total loss of use of a body organ, member, function or system (Ober(v v Bangs Ambulallce Iuc., 96 NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential lImitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sunicient descnption of the "qualitative nature" of plaintiff's limitations, with an objective basis, corrclatmg plamtitT's limitations to the normal function, purpose and use of the body part (Tollre v A vis Relit A Car Systems, Illc .. 98 NY2d 345, 746 NYS2d 865 [2000]). A minor, mild or slight limitation of use is conSidered inSignificant within the meaning of the statute (Licari v Elliott. supra). In support of this motion. the defendant has submitted, inter alia, an attorney's affirmation; copies of the pleadings and plaintiffs bill of particulars; an unsigned copy orthe transcript of the examination before trial of the plaintiff dated December 1.2010, and the sworn reports of Sanford R. We11,M.D., P.c. dated February 8, 2011 concerning hiS llldcpcndent orthopedic examination of the plaintift: and Edward M. Weiland, M D dated February I I, 201lconcerning his independent neurological examination of the plaintiff. The defendant failed to subnllt, as required by CPLR 3212, copies of the medical records and MRl reports upon which his experts base their opinions (see Friends of Animals )'Associated Fur Mfrs., supra). In Dr. Wen's report concerning his orthopedic examination of the plaintiff": he failed to set forth the [* 4] Bertram v Dt:t:icco Index No. 07-38897 Page NO.4 objective method employed to obtain the range of motion measurements or the plaintiffs' lumbar spine, such as the goniometer. inclinometer or anhroidal protractor (see. Martin v Pietrzak. 273 AD2d 36 L 709 NYS2d 591 [2d Dept 20001: Vomero v Gronrolls. 19 Misc3d 1109A. 859 NYS2d 9071Nassau County 2008]), leaving it to this court to speculate as to how he determined such ranges of motions when examining the plaintiff (Rodriguez v Schickler. 229 A02d 326, 645 NYS2d 31 1151Ocpt 1996], Iv denied 89 NY2d 810.656 NYS2d 738 [l997J). Additionally. Dr. Weiland has set fonh a vanation in the normal range of motion values for flexion of the lumbar spine as 70 to 90 degrees. leaving it to this Coun [0 speculate as to how the variations in the ranges or motion arc relative to his findings. and as to the actual value for the range of motion is (see, Hypolite v Internatiollal Logi.\·tic.\·MllIllIgemellt, IIlC., 43 AD3d 461. 842 NYS2d 453 l2d Oept 20071; Somers v Macpherson, 40 I\D3d 742. 836 NYS2d 620 [2d Oept 2007}; Browdame v CallduTll. 25 AD3d 747, 807 NYS2d 658 r2d Dept 20061: see also. Rodriguez v Schickler, 229 AD2d 326. 645 NYS2d 31 [1st Dept 19961. . 1\' denied 89 NY2d 810. 656 NYS2d 738 [1997]). When a nomlal reading for range of mOlion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate (see Sailllloval v Salliek, 78 AD3d 922, 923, 911 NYS2d 429 12d Oept 20101; see also Lee v M & M Auto Couch, Ltd., 2011 NY Slip Op 30667U, 2011 NY Mise Lexis 1131 [Sup Ct. Nassau County 2011 J). . Moreover. it is noted that the defendant's examining neurologist, Dr. Weiland, set forth a different normal range of motion value for lumbar lateral flexion against which he compared his findings, as compared to the normal range of motion for lateral flexion set forth by Dr. Wert. Dr. Weiland indicated that the normal range of motion for lateral tlcxion is 25 degrees, whereas Dr. Wert stated it was 30 degrees. Dr. Weiland Jailed to set forth his findings with regard to examination of the plaintiff for lumbar rotation. Thus, this court is left to speculate as which range of motion for the lumbar spine lateral flexion is correct, Dr. Weiland's findings for rotation. or if the plaintiff was examined for the same. Disc herniation and limited range of motion based on objective findings may constitute evidence of serious injury (JallkolVsky v Smith, 294 AD2d 540, 742 NYS2d 876 [2d Dept 2002]). Here, the reports of Dr. WCli and Dr. Weiland do not rule out the herniated disc a1 L3-4, or that the herniated dise does not impinge on the eXIting lcft 1.3 nerve root in plaintiff's lumbar spine. In that such injury may constitute evidence or senous llljury based upon objective findings, the defendant has fuiled to establish that Mr. Bertrand did not sustain a serious injury. Dr. Weiland set forth in his report that he read the MRI report orthe plaintiffs lumbar spine of January 10,2005. and comments that if the history obtained from the cl<lim3nt is correct, then there is a causal relationship wit.h regards to the claimant's subje,ctlve complaints. Dr. Weiland docs not comment on causation relative to the herniated disc. Although Dr. Weli states that the herniated disc at L3-4 predates the subject accident. he bas set forth no basis for his opinion. Based upon the foregoing. the defendant bas raised factual issues in the moving papers which pr~cJlIdc summary judgment on tbe issue of whether the plainti1f sustained a serious injury within the meaning of Insurance Law § 5102(d). Further. defendant's examining physician did not examine the plaintiff during the statutory period of 180 days follmving the accident. thus rendering the defendant' s physician's affidavli insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintifhvas unable to substantially perform all or the material acts which constituted his usual and customary daily activities for a period in excess of90 days during the 180 days inuncdiately following the accident (Bhmchard JI Wilcox, 283 AD2d 821. 725 NYS2d 43313d Oept 2001]; see. Uddin v Cooper, 32 A03d 270, 820 NYS2d 44 [1st Oept 2006]; Toussaint v Claudio, 23 AD3d 268, 803 NYS2d 564 [1st Dept 2005J), and the experts offer no opinion with regard to this category of serious inJUry. Neither physician related his findings to this category of serious [* 5] Bertram v Deucco fndex No 07-38897 Pagc No.5 inJury tor this pcnod of time immediately following the subJect accident (see DelaylUiye v Caledonia Limo & ellr Service, Inc .. 6] AD3d 814, 877 NYS2d 438 [2d Dept 2009]). Thus, the defendant has failed to demonstrate entItlement to summary judgment on this category of inJury_ These factual Issues raised in defendant's moving papers preclude summary .Judgment. The defendant has hliled to satisfy his burden of establishing, prima facie, that plaintiff did not Sllstam a "senolls ll1.1ury"\vnhlll the meamng of Insurance Law 5102 (d) (see, Agathe v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006]): see a/so, Walters v PtllHlIHIStllssiou, 31 AD3d 439, 819 NYS2d 48 [2d Dept 2006]). Inasmuch as the moving party has failed to establish prima facie entitlement to judgment as a matter oflaw in the first instance on the issue of "serio LIS injury" within the meaning of Insurance Law § 5102 (d), it is unnecessary to consider whether lhe opposing papers were sufficient to raise a triable issue of fact (see, Yong Deok Lee v Singh, 56 AD3d ()62. 867 NYS2d 339 [2d Dept 2008"]); Krayn II Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 200TI; Walker v Village o/Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]), as the burden has not shined to the plaintiff Accordingly, motion (003) by defendant for dismissal of the complamt on the basis that the plainti fr did not suiTer a serious injury as defined by Insurance Law §5102 Cd)is denied. Dated: :C!::-+-:L\- I C\ 'I J i L__.__ ._
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