Stollman v Harris

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Stollman v Harris 2016 NY Slip Op 33190(U) December 31, 2016 Supreme Court, Westchester County Docket Number: Index No. 70909/2015 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 01/04/2017 04:07 PM NYSCEF DOC. NO. 60 INDEX NO. 70909/2015 RECEIVED NYSCEF: 01/04/2017 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), 5513[a]), you you are advised copy advised to to serve serve a copy of this order, of this order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME COURT OF THE STATE STATE OF NEW YORK SUPREME COURT NEW YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: SAM D. WALKER, WALKER , J.S.C. J.S.C. PRESENT: HON. HON. SAM ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x ALEXANDRA ALEXANDRA STOLLMAN, STOLLMAN, Plaintiffs, Plaintiffs, Index 70909/2015 Index No. 70909/2015 DECISION & ORDER ORDER DECISION & Seq #1 -against-againstANDREW HARRIS ANDREW HARRIS and DELORISE DELORISE M. HARRIS, HARRIS, Defendants. Defendants. ------------------------------------------------------------------------------x -------------------------------------------------------------------~----------x The following were read on the defendant's defendant's motion motion for for summary summary judgment judgment The following papers papers were seeking complaint: seeking dismissal dismissal of the the complaint: NUMBERED NUMBERED 1-11 12-19 12-19 20 20 PAPERS PAPERS Notice Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-I Affirmation Affirmation In Opposition/Exhibits Opposition/Exhibits A-G Reply Affirmation Reply Affirmation that the Based for the reasons forth below, below, it is ordered ordered that Based on the submissions, submissions, and for reasons set forth defendant's defendant's motion motion is denied: denied: Factual Factual and Procedural Procedural Background Background Plaintiff commenced commenced this recover damages personal injuries injuries allegedly this action action to recover damages for personal allegedly Plaintiff struck by a motor vehicle while while crossing crossing the street street on sustained sustained when when the plaintiff plaintiff was was struck motor vehicle the intersection Street and Riverside York Oounty, County, March March 24, 2013 2013 at the intersection of 86thth Street Riverside Drive, New New York York. Plaintiff Plaintiff alleges alleges that, that, as a result, result, she she suffered suffered serious serious injuries injuries as defined defined by New York. Insurance Insurance Law§ Law S 5102(d). 51 02(d). Plaintiff commenced commenced the the action action by filing filing a summons summons and verified verified complaint complaint on June June Plaintiff 6,2014 the Kings Kings County County Clerk. Clerk. Defendants, Defendants, Andrew Andrew Harris Harris and Delorise Delorise M. Harris, Harris, 6, 2014 with the [* 1] 1 of 7 interposed joining issue. was then then transferred interposed an answer, answer, joining issue. The The matter matter was transferred to Westchester Westchester County County by Order Order dated dated October October 8, 2015. 2015. Plaintiff Plaintiff served served a bill of of particulars, particulars, and a supplemental supplemental bill of particulars, particulars, and the parties parties participated participated in discovery discovery and took took depositions. issued a Trial Stipulation & Order, depositions. The The Court Court (Lefkowitz, (Lefkowitz, J) issued Trial Readiness Readiness Stipulation Order, directing the plaintiff issue and certificate within twenty twenty days directing plaintiff to file a note note of issue certificate of readiness readiness within days of the entry further directing for summary judgment be entry of of the the Order Order and further directing that that any any motion motion for summary judgment served sixty days served via NYSCEF NYSCEF or by mail, within within sixty days following following the filing filing of of the the note note of issue. Plaintiff timely files files the instant for Plaintiff filed the note note of issue issue and the defendant defendant now now timely instant motion motion for summary judgment, seeking dismissal dismissal of the complaint complaint based based on the claim claim that that the plaintiff plaintiff summary judgment, seeking sustained a "serious "serious injury" injury" within within the meaning meaning of New New York York State Insurance Law has not sustained State Insurance 5102( d). S§ 51 02(d). Plaintiff Plaintiff opposes opposes the motion. motion. Discussion Discussion that the party party moving moving for must make make a prima prima It is well settled settled that for summary summary judgment judgment must facie showing showing of entitlement entitlement to judgment matter of law, offering offering sufficient sufficient evidence evidence to facie judgment as a matter demonstrate issues of fact, Alvarez Alvarez v Prospect Hosp., 68 demonstrate the absence absence of any any material material issues Prospect Hasp., N.Y.2d 320, 320,508 N.Y.S.2d 923 (1986); (1986); Zuckerman Zuckerman v City City of of New New York, 49 N.Y.2d N.Y.2d 557,427 557,427 N.Y.2d 508 N.Y.S.2d N.Y.S.2d 595 (1980). (1980). The The failure failure to make make such facie showing showing requires requires the denial denial N.Y.S.2d such a prima prima facie of the motion motion regardless regardless of the sufficiency sufficiency of the opposing opposing papers, papers, Winegrad Winegrad v New New York N.Y.2d 851, 851,487 N.Y.S.2d 316 (1985). (1985). "Once "Once this 487 N.Y.S.2d this showing showing has been Univ. Med. Ctr., 64 N.Y.2d made, however, however, the burden burden shifts party opposing opposing the motion motion for summary judgment made, shifts to the party for summary judgment produce evidentiary evidentiary proof proof in admissible admissible form form sufficient sufficient to establish establish the the existence existence of of to produce material issues issues of fact fact which which require require a trial trial of of the the action" action" Alvarez Prospect Hosp., Hasp., 68 material Alvarez v Prospect 2 [* 2] 2 of 7 N.Y.2d N.Y.2d at 324, 508 N.Y.S.2d N.Y.S.2d 923, citing to Zuckerman Zuckerman v City of of New New York, 49 N.Y.2d N.Y.2d at 562, 427 N.Y.S.2d 562,427 N.Y.S.2d 595. Insurance Insurance Law §5102 95102 defines defines "serious "serious injury" injury" as a personal personal injury injury which which results results in death; death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss of of a fetus; fetus; permanent permanent loss of use of a body body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of use of a body body organ organ or member; member; significant significant limitation limitation of use of a body body function function or system; system; or a medically medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which which prevents prevents the injured injured person person from from performing performing substantially substantially all of the material material acts acts which which constitute constitute such person's person's usual usual and customary customary daily daily activities activities for not less than than ninety ninety days days during during the one hundred hundred eighty eighty days days immediately immediately following following the occurrence occurrence of the the injury injury or impairment. impairment. McKinney's McKinney's Insurance Insurance Law §5102(d) 951 02(d) In order order to recover recover under under the "permanent "permanent loss of use" category, category, the plaintiff plaintiff must must demonstrate demonstrate a total total loss of use of a body body organ, organ, member, member, function function or system, system, Oberly Oberly v Bangs Ambulance, 96 N.Y.2d Bangs Ambulance, N.Y.2d 295, 727 N.Y.S.2d N.Y.S.2d 378 (2001 (2001).). To prove prove the extent extent or degree degree of physical physical limitation limitation with respect respect to the "permanent "permanent consequential consequential limitation limitation of use of a body body organ organ or member" member" or a "significant "significant limitation limitation of use of a body body function function or system" system" categories, categories, either either objective objective evidence evidence of the extent, extent, percentage percentage or degree degree of the plaintiff's plaintiff's limitation limitation or loss of range range of motion motion must must be provided provided or there there must must be a sufficient sufficient description description of the "qualitative "qualitative nature" nature" of plaintiff's plaintiff's limitations, limitations, with an objective objective basis, correlating correlating the plaintiff's plaintiff's limitations limitations to the normal normal function, function, purpose purpose and use of the body part, Perl Perl v Meher, Meher, 18 N.Y.3d N.Y.3d 208, 936 N.Y.S.2d N.Y.S.2d 655 655 [2011]; [2011]; Toure v Avis Avis Rent Rent A Car Car Systems, Systems, Inc., 98 N.Y.2d N.Y.2d 345, 746 N.Y.S.2d N.Y.S.2d 865(2000). 865(2000). 3 3 [* 3] 3 of 7 particulars, the plaintiff plaintiff enumerated enumerated the injuries she In her bill of particulars, the list of of injuries she allegedly allegedly sustained as a result result of the the accident. accident. Accordingly, Accordingly, the plaintiff plaintiff alleges injuries she sustained alleges that that the the injuries she suffered meet meet the threshold threshold standard standard in that that they they constitute: constitute: a permanent permanent loss of suffered of use of of a body organ organ or member; member; a significant significant limitation limitation of of use of of a body body function function or system; system; or a body medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which prevented her medically which prevented performing substantially substantially all of the material material acts which which constituted her usual usual and from performing constituted her customary daily daily activities activities for for not less than ninety ninety days days during during the hundred eighty customary the one one hundred eighty days days immediately following following the the accident, accident, i.e. Le. the 90/180 90/180 injury. injury. Defendants Defendants now now argue immediately argue that that the plaintiff's injuries injuries do not satisfy satisfy this State's State's No-Fault No-Fault law "serious injury" threshold. plaintiff's "serious injury" threshold. "threshold motion", motion", the defendants defendants must must "satisfy "satisfy their prima facie burden of of On a "threshold their prima facie burden showing that that the plaintiff plaintiff did not sustain sustain a serious serious injury injury within within the meaning of Insurance showing the meaning of Insurance 95102 (d) as a result result of the subject subject accident". accident". Russo v. v. Ross, 32 A.D.3d Law §5102 A.D.3d 386, 387, N.Y.S.2d 101, 102 (2d Dep't Dep't 2006). 2006). In support support of this this position, position, the 821 N.Y.S.2d the defendants defendants rely plaintiff's Examination Examination Before Before Trial Trial ("EBT") ("EBT") transcript, transcript, independent independent medical medical upon the plaintiff's examination reports reports from from Lisa Nason, Nason, M.D., a Board Board Certified Certified Orthopedist, Orthopedist, who examination who examined examined plaintiff on January January 14, 2015 2015 and a film review review report report from from Melissa Melissa Sapan Sapan Cohn, Cohn, M.D., the plaintiff Board Certified Certified Radiologist. Radiologist. a Board settled that that the degree degree or seriousness seriousness of.an of.an injury injury may may be shown It is well settled shown in one one of of ways: either either by an expert's expert's designation designation of a numeric numeric percentage percentage of plaintiffs loss of two ways: of a plaintiffs of of motion motion or by an expert's expert's qualitative qualitative assessment assessment of plaintiffs condition provided range of of a plaintiffs condition provided that the evaluation evaluation has an objective objective basis basis and compares compares the plaintiffs limitations limitations to the that the plaintiffs normal function, function, purpose purpose and use of the affected affected body body organ, organ, member, member, function function or system. system. normal v. Avis Rent A Car Sys., 98 N.Y.2d N.Y.2d 345, 357, 746 N.Y.S.2d N.Y.S.2d 865, 774 N.E.2d N.E.2d 1197 1197 Toure v. 4 [* 4] 4 of 7 ·'the within the serious within (2002). A defendant establish that plaintiff's injuries injuries are not not serious that a plaintiff's defendant can establish (2002). affirmed of an affirmed submission of the submission meaning of New York Insurance Law§ Law S 5102(d), 5102(d), by the State Insurance York State of New meaning medical report report from from a medical medical expert expert who who has examined examined the the plaintiff plaintiff and has determined determined medical that there there are no objective objective medical medical findings findings to support support the plaintiff's plaintiff's alleged alleged claim. claim. that A.D.3d 794, 849 N.Y.S.2d Rodriguez v. v. Huerfano, Huerfano, 46 AD.3d N.Y.S.2d 275 275 (2d Dept. 2007). 2007). Rodriguez 24, 2015. Dr. instant matter, matter, Dr. Nason Nason examined plaintiff on September September 24,2015. the plaintiff examined the the instant In the degrees, with 50 of 50 degrees, flexion of Nason's examination plaintiff's cervical revealed flexion spine revealed cervical spine the plaintiff's of the examination of Nason's degrees being being normal; normal; extension extension of 60 degrees, degrees, with 60 degrees degrees being being normal; normal; rotation rotation of degrees with 45 degrees, with 80 degrees degrees being being normal, normal, and lateral lateral bending bending of 45 degrees degrees with 80 degrees, degrees being being normal. normal. There abnormalities and no evidence evidence of of muscle muscle structural abnormalities were no structural There were degrees of motion atrophy. Her examination revealed normal normal range range of motion and also revealed shoulder also the right shoulder of the examination of atrophy. Her joint. Dr. Nason tenderness to palpation palpation at the acromioclavicular acromioclavicular joint. Nason opined opined that that no no tenderness orthopedic treatment treatment is needed needed and the plaintiff plaintiff has no objective objective evidence evidence of disability. disability. orthopedic Dr. Cohn Cohn reviewed reviewed the plaintiff's cervical cervical spine spine CT obtained obtained on March March 24, 2013 2013 at the plaintiff's subluxation traumatic subluxation fracture or traumatic Lukes Hospital. Hospital. Dr. Cohn Cohn states acute fracture there is no acute that there states that St. Lukes tissues are normal. soft tissues identified, no destructive lesions are noted noted and the prevertebral soft normal. the prevertebral destructive lesions identified, Cohn states states that that there there are degenerative degenerative changes changes with osteophyte osteophyte formation, formation, disc disc space space Dr. Cohn fracture for acute narrowing at C5-6 C5-6 and C6-7. Dr. Cohn Cohn opines opines that that there there is no evidence evidence for acute fracture narrowing the traumatic related subluxation and no evidence evidence for acute acute traumatic related injury injury on the traumatic subluxation or traumatic submitted examination. submitted examination. Defendants further further contend contend that that the plaintiff plaintiff is employed employed as a TV TV commercial commercial Defendants producer and only only missed missed six weeks work as a result result of of the accident, accident, that that her her activities activities weeks of work producer was able work and she were restricted by a medical medical doctor doctor upon upon her her return return to work she was able to travel travel were not restricted 5 [* 5] 5 of 7 to Los Angeles Angeles for work work two to two and a half half months months after after the accident accident for two to three three weeks. weeks. However, However, upon upon review, and viewing viewing the facts facts in the the light light most most favorable favorable to the plaintiff, plaintiff, this Court Court finds finds that that the defendants defendants have not met their their burden burden of demonstrating demonstrating its entitlement judgment as a matter entitlement to summary summary judgment matter of law. Here Here the doctors' doctors' objective objective findings prima facie that findings do not establish establish prima that the plaintiff's plaintiff's injuries injuries do not meet meet the threshold. threshold. Defendants Defendants argue argue that that the plaintiff plaintiff only only offers offers doctors' doctors' affirmations affirmations from from 2013 2013 and does does not offer offer any recent recent physician's physician's affirmation. affirmation. However, However, Dr. Nason's Nason's report report states states that that there there are no prior prior injuries injuries or medical medical problems, problems, and provides provides no opinion opinion as to the plaintiff's plaintiff's shoulder shoulder injury injury in relation relation to the accident. accident. Defendants Defendants offer offer no opinion opinion as to the plaintiff's plaintiff's shoulder shoulder injury, which which occurred occurred in 2013 2013 after after the accident accident and if such injury injury was was proximately proximately caused caused by the accident. accident. The The Court Court finds finds the defendants' defendants' affirmations affirmations to be insufficient insufficient to demonstrate demonstrate that that the the plaintiff plaintiff did not sustain sustain a serious serious injury injury as defined defined by Insurance Insurance Law §5102(d). ~5102(d). Since Since the Court Court finds finds that that the defendants defendants have have not met met their their burden, burden, the Court Court need need not address address the the sufficiency sufficiency of of the plaintiff's plaintiff's papers. papers. With With regard regard to any alleged alleged 90/180 90/180 injury, the defendants defendants have have met met their their prima prima facie burden. burden. Plaintiff Plaintiff has not submitted submitted any medical medical evidence evidence to show show that that she was was prevented prevented from from performing performing substantially substantially all of the material material acts which constituted her her usual usual and which constituted ·. customary customary daily daily activities activities for not less than ninety ninety days days during during the one hundred hundred eighty eighty days immediately immediately following following the the accident. accident. Secorv. Secorv. O'Dell, 136 A.D.2d A.D.2d 618, 618,523 NY.S.2d 863 (2d 523 N.Y.S.2d Dep't Dep't 1988). 1988). That That part of the defendants' defendants' motion motion is therefore, therefore, granted. granted. 6 [* 6] 6 of 7 Accordingly, Accordingly, the defendant's defendant's motion motion is granted granted in part part and denied denied in part. The The parties parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part on February February 7, 7,2017 2017 at 9:15a.m. in 1600. 1600. 9:15a.m. The The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of the Court. Court. Dated: White Plains, Plains, New New York York White December 31, 31,2016 December 2016 ~JL.~Jl. ~ --------- SAM D. WALKER, WALKER, JSC JSC HON. SAM 7 [* 7] 7 of 7

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