Kruithoff v Brady

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Kruithoff v Brady 2012 NY Slip Op 32418(U) September 11, 2012 Supreme Court, Suffolk County Docket Number: 10-3636 Judge: Ralph T. Gazzillo 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] INDEX NO. 10-3636 CAL. NO. 11-01918MV SUPREME COURT - STATE OF NEW YORK T.A.S. PART 6 - SUFFOLK COUN I Y PRESENT: Hon . RALPH T. GAZZILLO Acting Justice of the Supreme Court Plaintiff, - against - DOViALD . BRADY, ART FLEET LT and I JEJ FRFY R. WEBB, 2-9- 12 MOTION DATE ADJ. DATE 5-3 1-12 Mot. Seq. # 001 - MG;CASEDISP f f 002 - XMD DAVIS & FERBER, LLP Attorney for Plaintiff 1345 Motor Parkway, Suite 201 Islandia. Nl:w York 1 1749 BELLO & LARKTN Attorney for Defendants Brady & Ari Fleet I,T 150 Motor Parkway. Suite 405 Nauppauge, New York 11788 RICHARD T. LAU & ASSOCIATES Attorney for Defendant Webb 300 Jericho Quadrangle, P.O. Box 9040 Jericho, New York 1 1753 IJpon the following papers numbered 1 to 45 read on this motion and cross motion for suininaiy judgment, Notice of Motion: Order to Show Cause and supporting papers 1 - 14 ,Notice of Cross Motion and supporting papers 15 - 27 ; Answering Affidavits and suppoi-ting papers 28 - 41 ; 42 -43 , Replying Affidavits and supporting papers 44 - 45; Other _,- ( 2 I t IS, ) ORDERED that the motion by defendant Jeffrey Webb for an order granting summary judgment in his favor on the coiiiplaint is granted: and it i s ORDERED that the Court, sua sponte, dismisses the complaint ,aid the cross claim against .T defendants Donald Brady and Ari Fleet T, ; and it is further ORDERED that the cross motion by defendants Donald Brady and Ari Fleet L.T. for an order granting suiiimarj judgment in their favor on the complaint and the cross claim is denied, as moot. Plaintiff Michael Kruithoff coinrnenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident that occurred on the Long Island Expressway, near exit 53, 111 tlic Town of Islip on April 7, 2009. The accident allegedly happened when a vehicle driven by defendant 1effi-q Webb struck the rear of a vehicle owned by defendant Ari Fleet L.T. and driven by defendant [* 2] K rui 117 off 1 Brady Index No. 10-3636 Page No. 2 Donald Brady as it was stopped on the roadway due to heavy traffic. The force of the collision allegedly propelled Brady s vehicle into the rear of plaintiffs vehicle, which was stopped in front of Brady s vehicle due to traffic. By his bill of particulars, plaintiff alleges he suffered various injuries as a result of the collision, including an acetabular labrum tear. cervical and lumbar strains, cervical and lumbar radiculopathy, and a bulging disc at level 1,3-L4. Plaintiff, who is employed as an electrician, further alleges hc was unable to work for approximately two months due to his injuries. In his answer to the complaint, Webb interposes a cross claim for contribution against Ari Fleet and Brady. Webb now moves for sumniary judgment in his favor on the ground that plaintiff is precluded by Insurance Law $5104 from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law $5102 (d). Webb s submissions in suppxt of the motion include copies of the pleadings and the bill of particulars, a transcript of plaintiffs deposition testimony, magnetic resonance ~magmg (MRI) reports prepared in April 2009 concerning plaintiff s cervical spine and left hip, and a sworn medical report prepared by Dr. Michael Katz. At Webb s request, Dr. Katz, an orthopedic surgeon, conducted an independent examination of plaintiff in May 201 1 and reviewed various medical reports and records relating to plaintiff s alleged injuries. Also submitted in support of the motion are copies of records rclated to plaintiffs treatment at the emergency department of Good Samaritan Hospital on the date of the accident, as well as records related to medical treatment provided to plaintiff by the emergency department of Huntington Hospital following a work-related accident in January 20 11. Ari Fleet and Brady cross-move for summary judgment disinissi ng the complaint and the cross claim against them. T n addition to alleging that plaintiff executed a stipulation discontinuing the action against them, Ari Fleet and Brady (hereinafter collectively referred to as the Brady defendants) argue that thcy are cntitled to summary judgnient in their favor on the cross claim, as the deposition testimony shows Webb s negligence was the sole proximate cause of the subject motor vehicle accident. In support of the cross motion, the Brady defendants submit, among other things, copies of the pleadings; transcripts of the deposition testimony of plaintiff, Brady and Webb; and a stipulation, dated August 28, 201 1, discontinuing f plainti T s claim against the Brady defendants. Although lie does not dispute the allegation that he executed a si.ipulation discontinuing his claims against Ari Fleet and Brady, plaintiff opposes both motions, arguing that defendants submissions are insufficient to demonstrate entitlement to summary judgment against him as a matter of law. Alternatively, plaintiff asserts the evidence submitted in opposition raises triable issues as to whether he suffered injury u-ithin the lirnitation of use category or the 90/180 category of Insurance Law 5 5102 (d). Plaintiffs submissions in opposition to the motions include his own affidavit, the sworn report of Dr. Gregory Lieberrnaii. and sworn MFU reports concerning his left hip and lumbar spine. It is for the court to deterniine in the first instance whether a plaintiff claiming personal injury as a result of a motor vehicle accident has established a prima facie case that he or she sustained serious injury and may maintain a common law tort action (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 119821; Tipping-Cestari 1 Killzenny, 174 AD2d 663, 571 NYS2d 525 [2d Dept 1991I). Insurance Law 5 5 102 (d) defines serious injury as a personal iiijuiy which results in death; dismemberment; significant disfiguremcnt: a fracture; loss of a fetus; perinanent loss of use of a body organ, member, function or system; perinanent 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 [* 3] Kruitlioff T; Rrady Index No. 10-3636 Page No. 3 which prevents tlie injured person froin 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 cighty days immediately following the occurrence of the injury or impairment. A defendant seeking summary judgiiient on the ground that a plaintiffs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff 14 did not sustain a serious injury (see Toure v Avis RentA Car Sys., 9 . NY2d 345, 746 NYS2d 865 120021; Gaddy v EyZer, 79 NY2d 955,582 NYS2d 990 [1992]). When a defendant seeking summary judgment based on the lack of a serious injury relies on the findings of i,he defendant s own witnesses, those findings must be in admissible form, i.e..affidavits and affirmations, and not unsworn reports to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692). A defendant also may establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragnle v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 20011; Torres ~Miclzeletti, AD2d 519, 208 61 6 NY 32d 1006 [3d Dept 19941; Craft v Brantuk, 195 AD2d 438,600 NYS2d 251 [2d Dept 19931; Pugano v Kingsbury, 182 AD2d 268, 587 NYS2d 692). Once a defendant meets this burden, the plaintiff must present proof in admissible form which creates a material issue of fact (see Gaddy v Eyler, 79 NY2d 955.582 NYS2d 990; Pagano v Kingsbury, 182 AD2d 268,587 NYS2d 692; see generally Zuckerman v Citp qfNew York, 49 NY2d 557,427 NYS2d 595 [1980]). Webb s submissions established a prima ¬acie case that plaintiff did not suffer serious injury to his lumbar spine or left hip within the significant limitation of use category (see Hayes v Vasilios, 96 AD3d 1010.947 NYS2d 550 [2d Dept 20121; Frederique v KrapL 86 AD3d 533,926 NYS2d 170 [2d I k p t 201 11. Stqffv Yshua, 59 AD3d 614, 874 NYS2d 180 [2d Dept 20091; Rodriguez v HueTfano, 46 AD3d 794,849 NYS2d 275 [2d Dept 20071; Kearse v New York City Z r. A d z . , 16 AD3d 45,789 NYS2d 28 1 [2d Dept 2005l). The medical report of Dr. Katz states that plaintif f presented at tlie May 201 1 examination with the complaint of soreness in his left hip when he stands. It states, in relevant part, that plaint iff exhibited full movement in his cervical and lumbar regions, as well as in his left hip, and provides the nieasurenicnts taken during range of motion testing and the normative values for such joint functions. It states that plaintiffs gait was normal, that therc was no evidence of par;ivertebral muscle spasm, that his motor strength and reflexes were normal, and that various clinical tests to assess spine pathologies were negative. It also statcs that there was no evidence of hip contractures or crepitation, and no evidence of inflammation of the trochanteric bursa. Dr. Katz concludes that plaintiff suffered cervical and lumbosacral strains and a left hip contusion as a result of the accident, and that such (conditionshave resolved. He further concludes that plaintiff is not disabled and is capable of performing his work as an electrician on a full-time basis and without any restrictions. Relying on plaintiffs own jeposition testimony that he missed lcss than two months of work following thc accident, Webb also established, prima racie, that plaintiff did not suffer injury within the 90/180 category through plaintiffs depositicln testimony (see Ped v Meher, 18 NY3d 208.936 NYS2d 655 [201 I]: Cmdia v Umonia Cab Corp., 6 AD3d 641,775 NYS2d 546 [2d Dept 20041: r f Ar+mr v Singh, 90 AD3d 686,934 NYS2d 240 [2d Dept 201 11). The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Ejder, 79 NY2d 955, 582 NYS2d 990). Plaintiffs submissions in opposition to the motions are insufficient to defeat summary judgment. Significantly, Dr. Lieberman s repoi-t states that at the initial exaniination on April 29. 2009. plaintiff reported pain in the lumbar spine and in tlie hip and groin areas. and that he had muscle [* 4] kuithoff I Brady Index No. 10-3636 Page No. 4 spasms and diminished movement in the lumbar region. It states, in relevant part, that at the first followup examination conducted in May 2009, plaintiff walked with a norma I gait, exhibited normal range of motion in his lumbar spine and hips, and had no radicular symptoms. It states that at the second follow-up examination, conducted on May 29, 2009, plaintiff again complained of pain in the groin area and had diminished rotation and lateral bending in his lumbar region, and that he diagnosed plaintiff as suffering from a hip contusion, groin strain, aiid a bulging disc. Furtherinore. the report states that plaintiff suffered a lower back and hip injury as a result of a woi*k-relatedaccident, and that a labral tear and disc bulges revealed by subsequent MRI examination show a labral tear and disc bulges caused by such accident. It states that an examination of plaintiff conducted in February 20 12 revealed diminished rotation and diminished lateral bending in the lumbar region, and normal radicular symptoms. However, in the conclusion portion of the report, Dr. Lieberman states that plaintiff suffers from a moderate to severe partial disability, and that the disc bulges and labral tear to his hip were caused by the subject accident. not a degenerative condition. A plaintiff claiming injury witliiii the limitation of use categories inust substantiate his or her complaints of pain with objective medical evidence showing tlie extent or degree of the limitation of movement caused by tlie illjury and its duration (see Ferraro v Ridge C ar Serv., 49 AD3d 498, 854 NYS2d 408 [2d Dept 20081: Mejia v DeRose. 35 AD3d 407,825 NYS2d 772 [2d Dept 20061; Laruffa v Yui Ming Lau. 32 AD3d 996, 821 NYS2d 642 [2d Dept 20061; Cerisier v Tlzibiu, 29 AD3d 507, 815 NYS2d 140 [2d Dept 20061). To prove significant physical limitation, a plaintiff inust present either objective quantitative evidence of the loss of range of inotion and its duration based on a rece i t examination of the plaintiff or a sufficient description of the qualitative nature o f plaintiffs limitations. with an objective basis, correlating plaintiffs limitations to tlie iiornial function, purpose and use of tlie body part (see Perl v Meher, 18 YY3d 208.936 NYS2d 655; Toure v Avis RentA Car Systms, Inc., 98 NY2d 345,746 NYS2d 865; Rovelo v Volcy, 83 AD3d 1034,921 NYS2d 322 [2d Dept 201 11). Thus, Dr Lieberman s report, wliicli contains neither a quantitalive nor a qualitative assessment of plaintiffs hinitations in his lumbar spine and hip, is insufficient to raise, a triable question as to whether plaintiff suffered an injury within the limitatioii of use category (see I inyanoJf v Kuna, AD3d -, 949 NYS2d 203 [2d Dept 20121; Travis v Batchi, 75 AD3d 41 1, 905 NYS2d 66 [ I st Dept2010], affd Perl v Meher, 18 NY3d 208, 936 NYS2d 655; Sinzanovskiy v Barbaro, 72 AD3d 930, 899 NYS2d 324 [2d Dept 20101; Tajilor v Flalzerty, 65 AD3d 1328, 887 NYS2d 144 [2d Dept 201391; c t Johnson v Cristino, 91 AD3d 604, 936 NYS2d 275 [2d Dept 20121). The report also fails to explain tlie inconsistencies of Dr. Lieberman s own findings (see McLoud v Reyes, 82 AD3d 848,919 NYS2d 32 [2d Dept 201 11; Vasquez v John Doe # I , 73 AD3d 1033,905 NYS2d 188 [2d Dept 20101). Further, the MRI reports submitted by plaintiff are insufficient to raise a triable issue, as the existence of bulging discs and torn tendons, ligaments or cartilage i s not evidence of a serious injury absent objective evidence of the extent of the alleged physical limitation caused by such injury and its duration (see Solis v Silvagni, 82 AD3d 1349, 91 8 NYS2d 260 [3d Dept]. It. denied 17 NY3d 715,933 NYS2d 655 [2011]; Lozusko v MilIer, 72 AD3d 908,899 NYS2d 358 [2d Dcpt 201 01; Magrid IJ Lincoln Seris. Corp., 60 AD3d 1008, 877 NYS2d 127 [2d Dept 20091; Skvartsmnn I4ldinnn, 47 AD3d 700, 849 NYS2d 600 [2d Dept 20081). Finally, plaintiff failed to submit competent medical evidence that the injuries lie allegedly sustained due to the accident rendered hiin unable t o perform substantially all of his normal daily activities for at least 90 days of the 180 days immediately following the accident (see Mensalz v Badu, 68 AD3d 945, 892 NYS2d 428 [2d Dept 20091; Henzsley v T/ Entura, AD3d 1097. 857 NYS2d 642 [2d Dept 2008]), and his affidavit failed to raise a triable issue as 50 11 [* 5] Kruithoff v Brady Index No. 10-3636 Page No. 5 to whether he suffered a serious injury (see Shvartsman v ViCdman,47 AD3d 700, 849 NYS2d 600; Sainte-Aime v Hu, 274 AD2d 569, 712 NYS2d 133 [2d Dept 20001). Accordingly, Webb s motioii for summary judgment dismissing the complaint based on plaintiffs failure to meet the serious injury tlvesliold is granted. Further, having determined that plaintiffs injuries do not meet the serious injury threshold, the Court, sua sponte, grants summary judgment dismissing the complaint and the cross claim against the Brady defendants (CPLR 32: 2[b]). Dated: A.J.S.C. X FTNAL DISPOSITION -FINAL IDISPOSITTON

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