Jones v Uptown Caterers, Inc.

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Jones v Uptown Caterers, Inc. 2013 NY Slip Op 30646(U) March 15, 2013 Sup Ct, Suffolk County Docket Number: 47014/2099 Judge: William B. Rebolini 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] SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRES EN I: WILLIAM B. REBOLINI Justice Index No.: 47014/2009 Larou .lories, Plain tiff, -againstUptown Caterers, Inc., Jonathan Weigelt, William Scliwartz, Taiiiia J . Hardy and Edward Hardy, Jr., Defendaiits. Attoiiieys [See Rider Aniiexed] Motion Sequelice No.: 005; MD Motion Date: 10/12/12 Submitted: 2/13/13 Motion Sequence No.: 006; MD Motion Date: 10/12/12 Submitted: 2/13/13 Upon the followiiig papers numbered 1 to 24 read upon these iiiotions for summary jtidgiiient: Notice of Motion and supporting papers (005), 1 - 10; (006) I 1 - 20; Answcriiig Affidavits and supporting papers, 21 - 22; Replying Affidavits and supportiiig papers, 23 - 24; it I S ORDERED that motion (005) by the defendants, Uptown Caterers, Inc. and Jonathan M. cigclt, fbr suiiimary judgment 011 the basis that the plaintiff, Laron Jones, lias iiot sustained a scriot~s injury as defined by Iiisurance Law 6 5102, is denied; and I t is further 0R D ERED that 111ot i o i i (006) by tli e defendaiit , W i 1li ani Scliw artz , for summary j Lid gm en t on the basis that tlie plaintiff, Laron Jones, has iiot sustained a serious injury as defined by Insurance I A U $ 5 102, is clcnicd. In this action, the plaintiff, Laron Jones, seeks dainages for iiijuries alleged to have been \iistainccl on September 9,2009, on Wellwood Avciiuc at or near tlie intersection with Piiielawn hitraiicc. 111Babylon, New Yorl<,111 this multi-car cliain collision accident. It is alleged that tlie fiont ciid or tliv L chicle opcratcd by defeiidant William Schwartz made coiitaci with tlie rear-end of tlie \ cliiclc oper,ited by defendant Jonathan Weigelt. The fi-ont cnd of the vehicle operated by Joiiatlian Ll c,igelt made contact with the rear-end of tlie vehicle operated by defeiidaiit Edward Hardy. The front of tlic H ~ d vehicle then made contact \.citIi the rear-end of the plaintiffs vehicle. y [* 2] 1 pto\vii Caterers, et al. So.: 4701412009 Page 2 .loiic.\ \. IiitIe\ 1Wiilc motion (006) was served on September 28, 2012, beyond the 120 days from filing the hotc ot Issue, dated May 16, 2012, as proscribed by CPLR 3212, and such untimeliness has been aclcnowledged by counsel for William Schwartz, this motion is considered as it contains issues identical to those raised by motion (005) with respect to whether or not the plaintiff sustained a serious 1iijLii-y as defined by Insurance Law 6 5102 (d) (Brill v City ofNew York, 2 NY3d 648, 781 NYS2cl 261 [ 0 4 ) 20]. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issucs of fact from the case. To grant summaryjudgment it must clearly appear that no material and triable issue of fact is presented (Frieizels ofAninzals v Associated Fzcr Mfrs., 46 NY2d 1065, 416 NYS2d 700 [1979]; Sillniarz v Twentietli Cerztcrry-FoxFilm Corporation, 3 NY2d 395, 165 NYS2d 498 [ 19571). The movant has the initial burden of proving entitlement to summary judgment ( W inegrezd v N. Y. U. Medical Center, 64 NY2d 85 1,487 NYS2d 3 16 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Wiiiegrcrd v N. Y.U. Medical Center, szipr-u). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summaryjudgment, must proffer evidence in admissible form ...and must show facts sufficient to require a trial of any issue of fact (CPLR 3212[b]; Zirckernzarz v City ofiyew York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set rol-th i n h i s pleadings are real and capable ofbeing established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 19811). Pursuant to Insurance Law lj 5 102 (d), [s]erious injury means a personal iiijury which results in death; dismemberment; significant disfigurement; a fracture; loss o r a fetus; permanent loss of LISC of ;I body organ, member, fuiiction or system; permanent coiisequential limitation of use of ; body oigan or member; significant limitation of use of a body function or system; or a medically i detei-mined iiijiiry 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 impair~iient.~ The ten71 significant, as it appears i n the statute, has been defiiied as something more than niinor limitation of use, and the tenn substantially all has been construed to mean that the person has heen curtailed ii-om performing his L ~ S Lactivities to a great extent rather than sonic I ~ ~ slight curt,iiImcnt (Licari v Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]). c~ On a motion for siinimary judgment to dismiss a complaint for failure to set forth a prima I:,Icie case 01 serious iiijury as defined by Insurance Law 0 5 102 (d), the initial burden is on the de l eiidaiit to present evidence i n competent fomi, showins that plaintiff has no cause of action (Rodriquc::v Golcisteirr, 182 AD2d 396.582 NYS2d 395,396 [ 1 st Dept 19921). Once the defendant lis:; met thc burden, the plaintiff must tlien, by competent proof, establish a p m i n jcicie case that siich sel-io~is iiiji1i-yexists (DeArrgelo v Fidel Cory. Services, Inc., 171 AD2d 588, 567 NYS2d 454, [* 3] ,Jones v. I1ptown Caterers, et al. Index No.: 47014/2009 Page 3 45.5 jlst Dept 19911). Such proof, in order to be in competent or admissible form, shall consist of affidavits or affii-iiiatioiis (Pagano v Kingsbiiry, 182 AD2d 268, 587 NYS2d 692 [2d Dept 19921). The proof must be viewed in a light most favorable to the iion-moving party, here the plaintiff (Crriirntarwe v Villanova, 166 AD2d 760, 562 NYS2d 808, 810 [3d Dept 19901). I n order to recover under the permanent loss of use category, a plaintiff must deiiioiistrate a total loss of use of a body organ, member, fuiiction or system (Oberly v Barzgs Ambulance Izc., 96 KY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the peimanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or systern categories, either a specific percentage of the loss of range of niotioti must be ascribed or there must be a sufficient description of the qualitative nature of plainti fi s limitations, with an objective basis, correlating plaintiffs limitations to tlie normal fiinction, purpose and use of tlie body part (Toure v Avis Rent A Car Systems, Im.,98 NY2d 345, 746 NYS2d S 6 5 [ 0 0 ) A minor, mild or slight liinitation ofuse is considered insignificant within 20]. the meaning of the statute (Licari v Elliott, supvn). By way of the partially legible verified bill ofparticulars, the plaintiff alleges that as a result oft he sub-lectaccident, the following injuries have been sustained: herniated disc at C3-4 impinging upon the anterior aspect of the spinal cord; herniated disc at C4-5 abutting the anterior aspect of the spinal cord; cervical spine sprain; bulging discs at L4-5 and L5-SI impinging upon the anterior aspect of tlie spinal cord; and lumbar spine sprain. 111 support of motion (005), the defendants have submitted, inter alia, an attorney s afti tination; copies of tlie summons and coinplaint, aiiswers served by Uptown Caterers and Weigelt with cross claim asserted against the co-defendants, and William Schwartz with cross claims asserted agiiist cci-defendants, each cross claim for judgment over; plaintiffs bill of particulars; signed I-epoi-tsof Marc Cheriioff, M.D. concerning his independent orthopedic examiliation of the plaintiff dated March 19, 2012, and Steven W. Lastig, M.D. dated March 19, 2012 concerning his independent radiological review of the plaintiffs lumbar MRI and cervical MRI, both on September 10, 2009; aiid the transcript of the examination before trial of Laroii Jones dated A~igiist 201 1. 9, I n support of motion (006), the defendants have submitted, inter alia, an attorney s ,iffiriii,itioii, copies ofthe siiinmoiis and complaint, answers served by Uptown Caterers and Weigelt \\ i t h cioss cl,iiiii issei-ted against the co-dcfeiidants, aiid William ScliwartL with cross claim dsserted ,igciinst co-dcfcndants. each cross claim for jiidgineiit over, and the answer served by the Hardy de teiidmts \\ tthoiit a cross claim; plaintiff s bill ofparticulars, signed reports of A Robci-t TantlefT, M D dcitcd April 23,201 0 concerning his independent radiological reviews ofthe plaintiff s lumbar VIR1 inti c e r iccll MRI, both of September 16, 2009; and the transcript of the examination before ~ ti-i il of Idaroii Jones dated August 9, 201 1 . Defendants incorporate by reference those c\hibits c i itlcntiary submissions submitted 111 support of motion (005). Hascd upon review and consideration of tlie evidentiary submissions in tnotioiis (005) a d (000). i s determined that the moving defendants have failed to establish prima facie entitlement it [* 4] ,lone+v. I.ptown Caterers, et al. Index So.: 47014/2009 Page 4 to siinini;iry judginent on the basis that the plaintiff did not sustain a serious injury as defined by Insurancc Law $ 5102 (d). Noiic of the expert physiciaiis have submitted copies of their respective curriculuin vitae to qualify as experts in this action. None of the medical records or diagnostic studies reviewed by Marc Chcriiot f, M.D. have been provided in support of the moving defendants expert opinion. Although the plaintiff had MRIs taken of his neck and lower back, and EMG and NCV studies conducted, Dr. Chernoffdid not coininelit or rule in or out those findings contained in the initial reports, leaving this court to speculate as to the same. Neither Dr. Tantleff nor Dr. Lastig have submitted the copies of the reports prepared by the plaintiffs treating physicians concerning the initial MRI studies of the plaintiff s cervical aiid lumbar spine, which films the defendants experts reviewed. Expert testimony is limited to facts in evidence (see Allen v Uli, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 20 111; Marzuillo v Isonz, 277 AD2d 362,716 NYS2d 98 [2d Dept 20001; Stririgile v Rotliniaiz, 142 AD2d 637,530 NYS2d 838 [2d Dept 19881; O Slzea vSarro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841; Horitbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomltins County 20021). The plaintiff underwent EMG and NCV studies, however, defendants examining physicians have not ruled out that the cited left sensory median neuropathy at the wrist and right C5 cervical radiculopathy are causally related to the accident, and no report from an examining neurologist coiicerning these neurological injuries and complaints has been submitted by the defendants (see Broivtlanzr v Curidurn, 25 AD3d 747, 807 NYS2d 658 [2d Dept 2006]), thus, raising factual issues leaving this court to speculate as to whether or not the plaintiffsustained such neurological injuries and il they were proximately caused by the subject accident. While Dr. Chernoff set forth his range of motion findings concerning the plaintiffs cervical spiiic and lumbar spine, he has failed to include the range ofinotion for cervical aiid lumbar: flexion, bilateral rotation aiid bilateral flexion, leaving this court to speculate as to his findings. Dr. Chernoff diagnosed the plaintiff as having cervical and lumbar sprains-resolved, however, he does not coinnient as to whether or not the cervical disc herniations and lumbar disc bulges are causally related to thc subject accident. Dr. Lastig set forth the findings upon his review of the plaintiffs Iumbai-spine as mild sniooth disc bulging at the L4-5 level, however, Dr. Chernoff set forth that the lumbar MRI report of September 16, 2009 rcvealed disc bulges at L4-5 and L5-S1, raising factual issiies bctwcen the two interpretations, precluding summary j udgment. Dr. Chciiioff noted that the p1,iintiff s c c n ical MRI revealed subligamentous posterior disc herniations at C3-4 and C4-5, whereas, I h . Lastig diagnosed mild smooth posterior disc bulging at the C3-4, 4-5, 5-6 and 6-7 disc spa c cs, c reat 1 n g f i i rther factual issues, precl iidi ng sum in ary j udgiiient . Additional 1y, D r. Tant leff set Ibrtli i n his radiological review of the plaintiffs cervical MRI study of September 16, 2009, that at ( 3 -3,4-5 and 0-7, there are minimal focal disc protrusions, most pronounced at C4-5 and to a lesser extent at C3-4, howcver, he does not classify such protrusions either by measurenicnt or by iioiiiiiiatioii as either bulging or herniated. Dr Tantleff s differing opinion, likewise, precludes the craiit 1 ns (7 f s urn in ary j udgmen t . c [* 5] ,loner v. I1ptown Caterers, et al. Index No.: 47014/2009 Page 5 The defendants experts have offered no opinion as to whether the plaintiffwas incapacitated fi-om substantially perfoniiiiig the activities of daily living for a period of ninety days in the 180 days (see hllowiiig the accident, and they did not examine the plaintiff during that statutory period Bl~~irchcird NWcox, 283 AD2d 821, 725 NYS2d 433 [3d Dept 20011; see Uddirz v Cooper, 32 v AD3d 270, 820 NYS2d 44 [lst Dept 20061; Tozissairzt v Clazidio, 23 AD3d 268, 803 W S 2 d 564 [ 1 st Dept 20051; Delayltuye v Caledoizia Limo & CarService, Iizc., 61 AD3d 814, 877 NYS2d 438 [:2d Dept 20091). The plaintiff, a then thirty-four year old laboreddriver with Babylon Town, was out of work for a year and a half after the accident, and was treated with physical therapy for approximately six months following the accident. At the time of the accident, he also had part-time seasonal employment with DeGenaro s Landscaping, which he could no longer do following the accident. Prior to September 9,2009, he had no conditions or injuries relative to his neck or back, and since the accident, has not re-injured those parts of his body. Based upon the foregoing, the defendants have failed to establish prima facie entitlement to s~iiiiiiiary judgiuent as to either category of injury defined in Q 5102 (d). Inasmuch as the moving parties have failed to establish their prima facie entitlement to judgment as a matter of law in the first instance on the issue of serious injury within the meaning of Iiisurance Law $ 5 I02 (d) as to either category o f inj ury, it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue offact (see Yorzg Deok Lee vSirzglz, 56 AD3d 662,867 NYS2d 339 [2d Dept 20081); Krayiz v Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 20071; Walker v Village of Ossiizirzg, 18 AD3d 867, 796 NYS2d 658 [2d Dept 20051). Accordingly, motions (005) and (006) for summary judgment dismissing the complaint 011 the basis that the plaintiff did not sustain a serious injury as to either category of injury defined in Insurance Law 8 5 102 (d) are denied. HON. WILLJAM B. REBOLINI, J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION [* 6] RIDER -ornev for P 1ai l i t i ff: -4t t Siben S: Siben, LLP 90 East Main Street Bay Shore, N Y 11706 ,4t tom ey for Defendants &town Caterers, Inc. and Joiiatiian Weiwlt: Nicolini, Paradise, Ferretti & Sabella, PLLC 1 13 Old Country Road, Suite 500 Mineola. N Y 11 501 Attorney for Defendant William Schwartz: Law Offices of Robert P. Tusa 898 Vetemis Memorial Hwy., Suite 320 Hauppaugc, NY 1 1788 Attorney for Defendants Taniia J. Hardy and Edward Hardy, Jr.: Martin, Fallon & Mulle, Esqs. IN) East Carver Street Huntington, N Y 1 1743 Clerk of the Court

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