Adamu v Stratus Hacking Corp.
Annotate this Case
Download PDF
Adamu v Stratus Hacking Corp. 2013 NY Slip Op 32726(U) October 24, 2013 Supreme Court, Queens County Docket Number: 23376/10 Judge: Howard G. Lane Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Present: HONORABLE HOWARD G. LANE Justice ----------------------------------------------------------ADAM ADAMU, Plaintiff, IAS PART 6 Index No. 23376/10 Motion Date August 26, 2013 -againstSTRATUS HACKING CORP. and YAKOV YAKUBOV, Defendants. Motion Cal. No. Motion Seq. No. 1 3 ----------------------------------------------------------Papers Numbered Notice of Motion-Affidavits-Exhibits............... Opposition......................................................... Cross Motion..................................................... Opposition to Cross Motion.............................. Reply.................................................................. 1-5 6-8 9-12 13-14 15-16 Upon the foregoing papers it is ordered that this motion by defendants for summary judgment dismissing the complaint of plaintiff, Adam Adamu, pursuant to CPLR 3212, on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law § 5102(d) is decided as follows: This action arises out of an automobile accident that occurred on August 17, 2008. Defendants have submitted proof in admissible form in support of the motion for summary judgment. Defendants submitted, inter alia, affirmed reports from three physicians (an independent examining neurologist, an independent examining orthopedist, and an independent evaluating radiologist), and plaintiff s own verified bill of particulars. 1 [* 2] APPLICABLE LAW Under the no-fault law, in order to maintain an action for personal injury, a plaintiff must establish that a serious injury has sustained (Licari v. Elliot, 57 NY2d 230 [1982]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851 [1985]). In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 AD2d 728 [1st Dept 1986], affd, 69 NY2d 701, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Licari v. Elliot, supra; Lopez v. Senatore, 65 NY2d 1017 [1985]). In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]). Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant's motion, to submit proof of serious injury in admissible form". Unsworn reports of plaintiff's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment (Grasso v. Angerami, 79 NY2d 813 [1991]). Thus, a medical affirmation or affidavit which is based 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 (O'Sullivan v. Atrium Bus Co., 246 AD2d 418 [1st Dept 1998]). Unsworn MRI reports are not competent evidence unless both sides rely on those reports (Gonzalez v. Vasquez, 301 AD2d 438 [1st Dept 2003]; Ayzen v. Melendez, 749 NYS2d 445 [2d Dept 2002]). However, 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 on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice (see, CPLR 2106; Pichardo v. Blum, 267 AD2d 441 [2d Dept 1999]; Feintuch v. Grella, 209 AD2d 377 [2d Dept 2003]). In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of "serious injury" as enumerated in Insurance Law § 5102(d) (Marquez v. New York City Transit Authority, 259 AD2d 261 [1st Dept 1999]; Tompkins v. Budnick, 236 AD2d 708 [3d Dept 1997]; Parker v. DeFontaine, 231 AD2d 412 [1st Dept 1996]; DiLeo v. Blumberg, 250 AD2d 364 [1st Dept 1998]). For example, in Parker, supra, it was held that a medical affidavit, which demonstrated that the plaintiff's threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a "serious 2 [* 3] injury" within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, "[a] physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations." Furthermore, in the absence of objective medical evidence in admissible form of serious injury, plaintiff s self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 AD2d 288 [2d Dept 2001]). DISCUSSION A. Defendants established a prima facie case that plaintiff did not suffer a "serious injury" as defined in Section 5102(d). The affirmed report of defendants independent examining neurologist, Edward M. Weiland, M.D., indicates that an examination of plaintiff on December 13, 2012 revealed a diagnosis of: resolved lumbosacral sprain/strain and normal neurologic examination. He opines that there is no need for further studies or treatment. Dr. Weiland concludes that: plaintiff is not disabled and he is capable of his activities of daily living and work without restrictions. The affirmed report of defendants independent examining orthopedist, Lisa Nason, M.D., indicates that an examination of plaintiff on December 13, 2012 revealed a diagnosis of: resolved alleged injury to the right shoulder, alleged injury to the lumbar spine, resolved alleged injury to the bilateral knees, and resolved alleged injury to the right ankle. She opines that there is no evidence of residuals or permanency. Dr. Nason concludes that and plaintiff can work and perform activities of daily living without restriction. The affirmed report of defendants independent evaluating radiologist, A. Robert Tantleff, M.D., indicates that an MRI of the Left Knee taken on October 2, 2009 revealed an impression of: no evidence of acute or recent injury and regional degenerative changes consistent with the individual s age. The affirmed report of defendants independent evaluating radiologist, A. Robert Tantleff, M.D., indicates that an MRI of the Right Shoulder taken on October 2, 2009 revealed an impression of: regional degenerative changes of the shoulder consistent with, and expected for the individual s age without evidence of traumatic abnormality. Additionally, defendants established a prima facie case for the category of 90/180 days . The plaintiff s verified bill of particulars indicates that he was only confined to his bed and/ or home for approximately two months following the accident and was only incapacitated from employment for approximately two months after the accident. Such evidence shows that the plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, required by the statute. The aforementioned evidence amply satisfied defendants initial burden of demonstrating that 3 [* 4] plaintiff did not sustain a "serious injury". Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law (see, Gaddy v. Eyler, 79 NY2d 955 [1992]). Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint (see, Licari v. Elliott, supra). B. Plaintiff raises a triable issue of fact In opposition to the motion, plaintiff submitted: an attorney s affirmation, a report of the Worker s Compensation Board, plaintiff s own affidavit, an affirmation of plaintiff s treating physician, Yao L. Kaledzi, MD, and a notarized affirmation of plaintiff s chiropractor, Ruth Ann Fernandez. A medical affirmation or affidavit which is based upon a physician s personal examinations and observation of plaintiff, is an acceptable method to provide a doctor s opinion regrading the existence and extent of a plaintiff s serious injury (O Sullivan v. Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1980]). The causal connection must ordinarily be established by competent medical proof (Kociocek v. Chen, 283 AD2d 554 [2d Dept 2001]; Pommels v. Perez, 4 NY3d 566 [2005]). Plaintiff submitted medical proof that was contemporaneous with the accident showing range of motion limitations (Pajda v. Pedone, 303 AD2d 729 [2d Dept 2003]). Plaintiff has established a causal connection between the accident and the injuries. The affirmation submitted by plaintiff s treating physician, Dr. Leo Kaledzi, sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident, approximately one (1) month after the accident, to support his conclusion that the plaintiff suffered from significant injuries, to wit: strained lumbar spine and right ankle sprain. Dr. Kaledzi s affirmation details plaintiff s symptoms, including lower back pain and pain in the right ankle. He further opines that the injuries sustained by the plaintiff in the accident were causally related to the motor vehicle accident of August 17, 2008. Furthermore, plaintiff has provided a recent medical examination detailing the status of his injuries at the current point in time (Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999]). The affirmation of Dr. Kaledzi sets forth the objective examination, tests, and review of medical records which were performed on July 18, 2013 to support his conclusion that the plaintiff suffers from significant injuries, to wit: lumbosacral spine dergangement, strained lumbar spine, and sprained right ankle. He further opines that the injuries are permanent in nature, chronic and causally related to the motor vehicle accident of August 17, 2008. Clearly, the plaintiff s experts conclusions are not based solely on the plaintiff s subjective complaints of pain, and therefore are sufficient to defeat the motion (DiLeo v. Blumber, supra, 250 AD2d 364, 672 NYS2d 319 [1st Dept 1998]). Despite defendants contentions, there is no unexplained gap in treatment since Dr. Kaledzi affirms that plaintiff had physical therapy two to three times a week following his initial visit through January 2010, that plaintiff continued to see him for follow up visits from that time until October 2011 and at that time, there was nothing more he could do for him since he reached maximum results from the physical therapy. 4 [* 5] Since there are triable issues of fact regarding whether the plaintiff sustained a serious injury to his lumbar spine and right ankle, plaintiff is entitled to seek recovery for all injuries allegedly incurred as a result of the accident (Marte v. New York City Transit Authority, 59 AD3d 398 [2d Dept 2009]). Also, the plaintiff has come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (Savatarre v. Barnathan, 280 AD2d 537 [2d Dept 2001]). The record must contain objective or credible evidence to support the plaintiff s claim that the injury prevented plaintiff from performing substantially all of his customary activities (Watt v. Eastern Investigative Bureau, Inc., 273 AD2d 226 [2d Dept 2000]). When construing the statutory definition of a 90/180-day claim, the words "substantially all" should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment (see, Gaddy v. Eyler, 79 NY2d 955; Licari v. Elliott, 57 NY2d 230 [1982]; Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied 96 NY2d 708 [2001]). Plaintiff includes an expert report of Dr. Kaledzi wherein Dr. Kaledzi renders an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. Dr. Kaledzi affirms inter alia, that: plaintiff was unable to perform his job at all for three to four months following the accident due to injury from the accident. As such, plaintiff s submissions were sufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed him from performing his usual activities for the statutory period (See, Licari v. Elliott, 57 NY2d 230, 236 [1982]). Therefore, plaintiff s submissions are sufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). Plaintiff s cross-motion for summary judgment pursuant to CPLR 3212 is hereby denied. Plaintiff made a prima facie showing that there is an absence of any material issues of fact. Defendant presented evidentiary, non-conclusory proof sufficient to establish the existence of material issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 1980]). Accordingly, the motion and cross motion are denied. The foregoing constitutes the decision and order of this Court. Dated: October 24, 2013 ...................................................... Howard G. Lane, J.S.C. 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
