Chenault v Cruz

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Chenault v Cruz 2014 NY Slip Op 31440(U) May 30, 2014 Supreme Court, New York County Docket Number: 108354/09 Judge: Arlene P. Bluth 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] SCANNED ON 6/4/2014 SUPREME COURT OF THE STATE OF NEW YORK HON. ARLENE P. BLUTH NEW YORK COUNTY Index Number : 108354/2009 PARr2l CHENUAL T, WANDRA VS CRUZ, WYANNIE INDEX N O . - - - - - Sequence Number : 004 MOTION DATE _ _ __ SUMMARY JUDGMENT MOTION SEQ. NO. - - - The following papers, numbered 1 to ....5:_., were read on this motion to/for _ . _.8._.--=S_·_) _ _ _ _ _ _ __ _ I No(s). I .2.. I No(s). _3"-----I No(s). _.t....._,......_ _____ s- ~e of M~·on/~der Showi...Cause -Affidavits - Exhibits to "I~ , ¢Non... <rv\ nswermg Pl. 1da its - Exhlbits . · Replying Affid~vih! Upop the fore~()ing papers, it is ord~red that this m°'ti?n·!~ tt,,l)t\S· ~· µ- · rr. &:4pc>v~~,~ (')OS'° a_"'<f DECIDED INACCORDANqEJA'ITti . .· ... ACCOMPANYINGDEClSIONICi"f{DJ;R'' JUN 04Znt4 COUNTY CLERK'S OFFICE NEW YORK ,J.S.C. Dated: HON. ARLENE P. BLUTH 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 CHECK IF APPROPRIATE: ................................................. 0 SETTLE ORDER .... ~NON-FINAL DISPOSITION 1. CHECK ONE:..................................................................... 2. 3. 0 DO NOT POST DENIED irR'T~D IN PART 0 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 22 -------------------------------------------------------~------x Motion Seq 04 and 05 Wandra Chenault, Index No. 108354/09 Plaintiff, ·-against- DECISION AND ORDER Wyannie Cruz, Martha Suriel and Erika McDavid, Hon. ARLENE P. BLUFTH, JSC Defendants. and 3 other cases consolidated for joint trial -----------------------".'------------------------~----x Il E D JUN 0 42014 Motion sequence numbers 04 and 05 are consolidated for joint di~tmir.CLERK'S OFFICE NEW YORK Defendant/third-party plaintiff McDavid's motion and second third-party defendant Jamerson's cross-motjonfor summary judgment dismissing the complaint and all cross-claims on the grounds that plaintiff has not demonstrated that her injuries meet the serious injury threshold pursuant to Insurance Law§ 5102(d) (seq 04) are both denied. The branch of defendants/second third-party defendants Cruz and Suriel's motion for the same relief is also denied; the branch seeking to dismiss the claims against them on the grounds that plaintiff has not established that they were liable for this accident (seq 05) is granted without opposition, and the complaint and all cross claims are dismissed as against defendants Cruz and Suriel. Plaintiff was involved in a motor vehicle accident on July 9, 2006. In her verified bill of particulars dated June 7, 2010, plaintiff claimed she sustained cervical and lumbar spine injuries as a result of this accident (exh J to moving papers-seq 04,.para. 8). In her verified suppl~mental bill of particulars dated December 28, 2011, plaintiff Page 1 of 5 [* 3] claimed additional injuries including aggravation/exacerbation of a prior injury to the lumbar spine, left shoulder and right hip (exh K to moving papers-seq 04). Serious Injury To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a "serious injury" (see Rodriguez v Goldstein, 182 AD2d 396 [1992]). Such evidence includes "affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Shinn v Catanzaro, 1AD3d195, 197 [1 51 Dept 2003], quoting Grossman v Wright, 268 AD2d 79, 84 [1st Dept 2000]). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiff's injury was caused by a pre-existing condition and not the accident (Farrington v Go On Time CarServ., 76 AD3d 818 [1st Dept 2010], citing Pomme/ls v Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summary judgment under the 901180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v Mah/ah, 2009 NY Slip Op 43 [1st Dept]). However, a defendant can establish entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiff's own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id.). Once the defendant meets his or her initial burden, the plaintiff must then Page 2 of 5 [* 4] demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 AD3d at 197). A plaintiff's expert may provide a qualitative assessment that has an objective basis and compares plaintiff's limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiff's loss of range of motion (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiff's expert must address causation (see Valentin v Pomilla, 59 AD3d 184 [1st Dept 2009]; Style v Joseph, 32 AD3d 212, 214 [1st Dept 2006]). In support, movants annex the affirmed report of Dr. April, a neurologist, who performed motor, cranial nerve, sensory and mechanical examination of plaintiff on February 8, 2012, and determined that she had a normal exam. Movants also submit the affirmed report of Dr. Toriello, an orthopedist, who examined plaintiff's cervical and lumbosacral spine, right and left shoulders, elbows, wrists and hands on February 15, 2012, and stated as his impression "evidence of a resolved low back sprain". Significantly, neither of defendants' doctors' reports addressed plaintiff's claim of injury to her right hip set forth in her verified supplemental bill, and none of the defendants submitted any other doctor's report addressing this claimed injury. It is not disputed that the supplemental bill was served on December 28, 2011, weeks before both of defendants' doctors' exams. Both movants attach plaintiff's supplemental bill and refer to it in their moving affirmations as part of their discussion of serious injury (seq. 04-para. 14, seq 05, para. 8). The Court notes that in the conclusion of sequence 05 (para. 46), movants asserted that none of the injuries set forth in the original bill Page 3 of 5 [* 5] qualify as serious injuries within the meaning of the Insurance Law, but did not mention any of the injuries set forth in the supplemental bill, specifically the right hip. Clearly movants were on notice of the plaintiff's claim regarding her right hip; nevertheless, this injury was not addressed in the moving papers. Therefore, the Court finds that movants have not met their prima facie burden as to plaintiff's claim that she sustained an aggravation/exacerbation of a prior injury to the right hip as a result of this accident, and it is unnecessary to determine whether the papers plaintiff submitted in opposition were sufficient to raise a triable issue of fact. Thus, the motions and cross-motion for summary judgment dismissing the complaint and all cross-claims on the grounds that plaintiff has not demonstrated that his injuries meet the serious injury threshold pursuant to Insurance Law§ 5102(d) are all denied. See Singer v Gae Limo Corp., 91 AD3d 526, 937 NYS2d 39 (1st Dept 2012). Liability The branch of defendants/second third-party defendants Cruz and Suriel's motion for summary judgment dismissing the complaint and all cross-claims against them on the grounds that plaintiff has not established that they were liable for this accident (seq 05) is granted without opposition, and the complaint and all cross claims are dismissed as against Cruz and Suriel. None of the parties opposed this relief. Accordingly, it is ORDERED that the complaint and any cross-claims are dismissed as against Cruz and Suriel (seq 05); the motions and cross-motion seeking to dismiss the Page 4 of 5 ............. ~~-------------- [* 6] complaint on the grounds that plaintiff did not sustain a serious injury are denied. This is the Decision and Order of the Court. Dated: May 30, 2014 New York, NY HON. ARLENE P. BLUTH, JSC HON.ARLE NE l' aLU'T\-\ . F ~ l ED JUN 0 4 Z0\4 COUNTY CLERK'S OFFICE NEW YORK Page 5 of 5

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