Lindstadt v Broderick

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Lindstadt v Broderick 2017 NY Slip Op 30630(U) January 25, 2017 Supreme Court, Suffolk County Docket Number: 14-11150 Judge: Joseph Farneti 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] ~HI IR I fl 1R;.1 CJRDER TNDEX CAL. 14-11150 o. I<>-00507:vrv 1 0. SUPREME COURT - STATE OF ~EW YOR . I. A . . PART 37 - .'UFFOLK COUNTY PRESE N T: Hon . JOSEPI l FARNETI Acting Justice Supreme Court MOTT DA E O 8-16-1 6 I 1- 17- 16 ADJ. DATE Mot. Seq. # 00 - MD ---------------------------------------------------------------)( LYNN A. LINDST ADT, Plaintiff. MICHAEL F. ERROTTA. ESQ. Attorney fo r P aintiff 215 East Main Street. uite 203 Huntington. w York 11743 - aga inst - KELLY, ROD -: & KELLY, L.L.P. CA ROL A. BRODERICK, D efendant. Attorney for D fendant 330 Old Count ·y Road, Suite 305 Mineola, New 'ork 11501 ---------------------------------------------------------------)( Upon the following papers numbered I to __1]_ read on this motion for summar\ judgment. etc. : otice of~ lotion Order to Show Cause and supporting papers I - 15: 1 otice of Cross Motion and suppordng papers _ : Answering Affidavits and supporting papers 16 - 25 : Replying Affidavits and supporting papers 26 - 27 ; Other A report of Dr. ·adine O'Ne il I _: (a11d :lfter hear i11g eou11sel in support arrd opposed to the 111otio11) it is, 1 ORDERED tha t the motion by defendant for. umong other things, s 1mmary judg ment dism issing the complaint on the ground that plaintiff did not s ustain a "seri ous injury'' s defi ned in Insurance Law ~ 5102 (d) is denied . fY This is an action to reco\·er damages fo r personal injuries sustained plaintiff when her vehic le collided with a vehicle owned and operated by defendant. The accident all,gedly occurred on June 2-L 2013, in a parking lot at the Tanger Factory Outlet Center at or near its inte section with Tanger Drive, in R iverhead , New York. By her bill of particulars, pla intiff alleges that. as a ·esult of the subject accident, s he sustained var ious injuri es and conditions including a bulging disc at C3 C4. grade 1 s pondylolisthesis at C7-TI and L4-L5. grade 2 spondylolisthesis at LS -S 1. nd thoracic and lumbar radiculopathy. The compliance conference v\'as held on March 3. 2016. 0 o r about March 17, 2016. plaintiff se1Ted an amended bill of particulars claiming out-of-pocket expe1 ses for personal aid and a sistance. 1 Subsequently. a note of issue was filed. 1 Although labeled as ··supplemental.'' it is. in reality, an amend d bill o l·parriculars because it see ks a new catego ry of damages w hich was not set o ut in th origi na l. bill. [* 2] 1.instadt ,. Broderick Index No . 14-1 1150 Page '.2 Defendant now mo,·es for, among other things, summary judgment ismissing the complaint on the ground that plaintiff did not sustain a .. seri ous injury.. as defined in Inst ranee La,,· ~5102 (d). Law § 5102 (d) defines "serious injury'' as "a personal in 't1ry which results in death: dismemberment: significant disfi gurement: a fracture: loss or a fetus: perm ncnt loss of use or a body l) rgan. member, Cunction or system: permnnc nt conseq uen tia l li mitation or 1 of a body orga n ur sc member: significam limitation of use of a body function or system: or a me ically c.ktcrrnincd injury or impairment of•: non-perm.anent na~ure which prevents the injured person tr· per1~r~1.ing _substantially 01:1 v1 all of the matena l acts wh ich const itute such perso n's usual and customary atly act1 t1es tor not Jess than ninety days during the one hundred eighty days immediately fol lowin the occurrence of the injury or impairment." J nsurance Jn order to recover under the ·'permanent loss of use·' category, pl intiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v B mgs Ambulance. 96 Y2d 295. 727 NYS2d 378 [200 1]). To prove the extent or degree of phys ical l'mitation with respect to the ..permanent consequential limitation of use of a body organ or member" o ·a ··significant limitation or use of a body function or system" categories. e ither a specific percentage f the loss of range of motion must be ascribed. or there must be a suffi c ient description of the "qualitati e nature" of p la inti ffs limitations. with an objective basis. correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Melter, 18 NY3 d 208, 936 NYS2d 655 [20 11 ]). A minor, mild or slight limitation of use is considered insignificant ,:vi thin the mean ing of tl e statute (Licari v Elliott, 57 NY2d 230. 455 ·ys:zd 570 (19821). On a motion for summary judgment. the defendant has the initial urden of making a prima facie showing. through the submission of e,·idence in admissible form. thf t the injured plaintiff did not sustain a "serious injury" wi thin the meaning oflnsurance Law § 5 102 (d ~ (see Gadf(y v Eyler, 79 Y2d 955. 582 NYS2d 990 [19921: Akhtar v Santos. 57 AD3d 593, 869 YS2d 220 (2d Dept 2008)). The defendant may satisfy this burden by submitting the plaintiffs deposE·tion testimony and the affirmed medical report of the defendant's own exam ining physician (see oore v Edison , 25 AD3d 672, 81 l NYS2d 7'24 [2d Dept 2006]: Farozes v Kamran , 22 AD3d 458. 02 NYS2d 706 [2d Dept 2005]). The failure to make such n 1wimofacie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. ~ed. Ctr.. 64 NY2d 85 1. 853. -t.87 Y 2d 316 f 1985]: Boone v Ne w York City Tr. Autlt .. 263 A D2d 4S3. 692 NYS2d 73 I I2d Dept 1999]). On December 14. 2015, approximately two years and six months a ter the subject accident, defendant ·s examining ne urologist, Dr. Mathew· Chacko. examined plainti f and performed certain orthopedic and neurological tests, including the strajght leg ra ising test. D ·.Chacko fou nd that the result of the straight leg raising test was positi\·e. Dr. Chacko also performed rar ge of motion testing on plaintiffs cervical and lumbar regions, using a goniometer to measure his -~oint movement. Dr. Chack o found that plainti ~l had range of motion rest~ictions: 30 degrees o.f 1lex ion 50 degrees _ n?nnal ), degrees of extension (60 degrees normal). 4.) degrees of left rotalion and 6 degrees of nghl rotation (80 degrees normal), and 25 degrees of lateral flexion (45 degrees normal) in er cerYical spine and 30 3? [* 3] Linstndt ,. Broderick Ind~:-. '.\lo . l-+-11150 Page 3 or degrees 0f tlexio n ( 60 degrees norma l ). I 0 degrees extension ( 25 degree normal). and I 0 degrees lal\.!ral tlc:\.ion (25 degrees normal) in her lumbar spine. or On December 28. 2015. mo,·ing defendants· exam ining orthopcdis. Dr. Edward Toridlo. examined plaintiff and performed certain orthopedic and neurological rest . including the straight leg raising test. Tinel' s test. Phalen· s test. and Finkelstein·s test. Dr. Toriello found that all the test resu lts were negative or normal. Dr. Toriello also performed range of motion test ng on plaintiff's cervical and lumbar regions, shoulders. e lbows. wrists and hands. using a goniome e r a nd inclinometer to measure her joint move ment. D r. Torie llo found thal p la intiff had range o l mot ion restrictions: 28 degrees of flexion (50 degrees nonnal). and 30 degrees of extension (60 dee rces normal). 30 degrees left rotation and 45 deg rees of right rotation ( 80 degrees nomrnl) in her cerv·cal spine a nd 30 degrees or leil rotation (70 degrees nom1al) in her lumbar spine. Dr. Toriello found th t plaintiff exhibited normal joint function in her cervical lateral fkxion and lumbar flexion. extension. I teral fkxion. and right rotation. or On March 26. 2016. defendant's examining radiologist. Dr. Michae Winn. reviewed two X-ray exam inations of plaintiiTs lumbar and thoracic spines, performed on July 3 , 2013, and four M RI examinations of her right ankle. lw11bar spine, cervica l spine, and right kne . performed on March 1, 2006 . October 9. 2013. September 30, 2013, and January 29. 2015 respecti' e ly. Dr. Winn found that there were degenerative disc disease in plaintiffs cervical, lumbar and thor cic regions. With regard to the right knee, Dr. Winn found that there were some complex degenerative ears in the medial meniscus. As to an alleged preexisting condition. there is only Dr. Winn· s conclusory oration. itself insufficient to establish that the plaintitrs pain might be chronic and unrelated to the acci ent (see Pomme/ls v Pere:. 4 Y3d 566. 797 NYS2d 380 [2005] : Linton v N mvaz. 62 AD3d 434, 879 N S2d 82 [1st Dept 2009J). Moreover. Dr. Winn ·s X-ray and MRr reports were not paired with a suffici 'nt medical report of a n orthopedi st or neurologist who examined the p la inti ff (cf Toure v Avis Ren A Car SyJ. , 98 Y2cl 345. 746 NYS2d 865 [2002]). Here. the defendant failed to make a pri111afacie showing that the pl in tiff did not sustain a serious injury \Nithin the meaning oflnsurance Law§ 5102 (d) (see Reitz v eagate Trucki11g, !11c., 71 A03d 975. 898 '.\!YS2cl 173 (2d Dept 2010)). Dr. Chacko and Dr. Toriello ound substantial range or motion restrictions in plaintiffs cerYical and lumbar regions (see J ean v Nel York City Tr. A utll .. 8_5 w A03d 972. 925 >IYS2d 657 [2d Dept 20 1 1]: R eitz v Seagate Trucking, Inc, suprn) . Moreover. while Dr. Toriello found that plaintiff exhibited normal joint function in her cervi a l lateral flex ion and lumbar fl ex ion. extension, and la teral flex ion, Dr. Chacko found that plaintiff had s gnificant restriction in those regions. The con fl icting medical opin ions of the experts raise issues of ere i bility to be resolved by a jury (see Romano v Persky, 117 AD3d 814 , 985 YS2d 633 [2d Dept 20 I ·1: /(a/pakis v County of N assau. 289 AD2d 453. 735 NYS2d 427 [2d Dept 2001)). The reports of r. Chacko, Dr. Toriello, and Or. Winn. therefore. ar~ insufficient to establish a pri111ofacie case that plairitiff did not sustain a seriou injury \.vi thin the meaning of Insurance Law§ 5102 (d). Inasmuch as dcfc nclanL failed to meet her pri111uj(rcie burden. it is ur necessary to consider w hether the papers submitted by plaintiff in opposition lo the motion were s 1 ie nt to raise a triable: ffic [* 4] Linstadt v Broderick Index No. 1-1-- 11150 Page -J. issue of fact (see 1 llcftlillia11 1• N upara110. 61 f\03d 943. 879 l'\YS2c.I 152 [~<l Dept 2009] : Yo ng Deak Lee vSi11glt . 56 f\D3d 662. 867 NYS2cl 339 f2d Dept 20081). Accordingly the branch of defcndnnt"s motion fo r summary j udgment on the issue or serious injury is den ied. Defendant also seeks an order granting leave to amend her anS\Yer t assert the affirmative defenses of failure to state a cause of action and lack of standing on the grol ncl chat plaintiffs out-ofpocket expenses \\·ere allegedly claimed for personal aid and assistance for er husband. ,,·ho is not a party of thi s action. Generall y. leave to amend a plcoding --shall be freely gi en'' (CPLR 3025 Jbll. unless the proposed amendment is palpab ly insufftc ient as a matter or law. c evo id or merit. or vvou ld prejudice or surprise the opposing party (s<'t' 1 Ha/rlomulo v Ne wport Garde1 s. foe.. 91 AD3d 73 1. 937 YS2d 260 f2d Dept 2012]: L ariviere 1• New York Ci(v Tr. A utlt .. 82 AD3 1165. 920 NYS'.2d 231 I2d Dept 2011]; Gitlin v Chirinkin . 60 AD3d 901. 875 YS2d 585 [2d Dept 2 09]). "The legal sufficiency or merits of a proposed amendment to a pleading will not be exam ined unle s the insufficiency or lack of me rit is clear and free from doubt" (Sample v L evada. 8 AD3d 465. 467-46 . 779 NYS2d 96 [2d Dept 2004]). Here. the proposed affirmative defense of failure to state a cause of clion and lack of standing arc palpably insufficient or patently devoid of merit (see Reese 11 Jahfm C01 tr.. 120 AD3d 1399. 993 YS2d 151 [2d Dept 2014]: M arcum, LLP v S ilva. 117 AD3d 9 17. 986 S2d 508 f2d Dept 2014 J: Ferriola v DiMarzio, 83 AD3d 657. 658. 9 19 NYS2d 871 [2d Dept 201 l J), ince an alleged seriously inj ured automobile accident victim. as plaintiff in this action, is allowed to lead for basic economic loss recovery (see Insurance Law § 5104 [a), [c]: Dietrick v Kemper Ins. Co.. 76 NY2d 248, 557 NYS2d 301 [ 1990]; Licari 11 E lliott. supra). Accordingly, the branch of motion by defe dant for leave to amend her answer to assert the affirmative defenses of failure to state a cause of action r nd lack of standing is denied. Jn addition. defendant seeks an order, pursuant to CPLR 321 1 (a) (7)1, dismi ssing the complaint 1 against her. Under CPLR 32 I I (a) (7), the Court is limited to examining the pleading to determine whether it states a cause of action (see Gugge11/teimer 11 Ginzburg , 43 NY2d 268. 401 YS2d 182 [ 1977]). In examining the sufficiency of the pleading. the Court must accepf the facts alleged therein as true and interpret them in the light most favorab le to the plaintiff (see Pacifiic Carlton Dev. Corp. v 752 Pac~fic, LLC, 62 AD3d 677, 878 NYS2d 421 [2d Dept 2009J; Gj o11/elwj v 308 AD2d 471 . 764 YS2d 278 I2d Dept 20031). On such a motion. the Courrs sole inq uiry is.thethcr the fac ts alleged in the complaint fit \,vithin any cognizable legal theory. not whether there is evrenti ary support for the complaint (see Leon v 1 llfarti11ez. supra: /11tematio11al Oil Field S upp(l' Ser vs. Corp. v Fadeyi. 35 AD3d 3 Tl. . 825 t YS2d 730 [2d Dept 2006)). Here. defendant's evidence faiJed to negate the facts pleaded by plaintiff that she spent out-of-pocket expenses relating her injuries from the ubjcct accident ( Guggenheimer v Ginzburg, supra). Accordingly, the branch of the motiorl pursuant to CPLR 32 1 1 (a) (7) to dismiss the complai nt for fa ilure to state a cause of action i. denied. fat, Since no willful and contumacious conduct \\"aS established by defe~dant. her application for an order striking the amended bill of particulars as Lo the out-of-pocket expens s claim also is denied. The striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing [* 5] Linstadt v Broderick f nJe:-. Nu. 1-t-11 150 Page 5 rhal the failure to comply with disco,·ery demands was \\"illful and contuma ·ious (s~e Kiili 1• Pfeffer. 94 . Y2cl 118. 700 NYS2d 87 [1999] :Alicin o i· R ocll dale l'il., Ille.. 142 AD3 I 937. J7>!YS3cl 557 [2d Dept 20 16 I: A rpi110 I ' F. J. F. & Sons Elec. c0 .' In c.. I 01 A [)3d 10 I . 959 N YS2d n [1d Dept 1011 I). Finally. clefonclant requests an order vacating the note of issue and s riking the action from the trial cukndar. claiming that discovery of the alleged out-of-pocket expense· has not been complded. Detenclanl also seeks to compel plai nt[ff to respond to discovery demands r garding her claim for out-ofpocket issues. The Uniform Rules for Trial Courts (22 NYCRR) § 202.2 l (~)p rovides. in relevant parl. that wi th in 20 days after service of a note of issue and certificate of rcacl inc, s. any party to the action may move lo vacate the note of issue " upon affidavit showing in what respe ·ts the case is not ready for trial. and the court may vacate the note of issue if it appears that ::i material act in the certificate of readiness is incorrect. " A party seeking additional discovery after cxpirntio of the 20-day period pro\'ided in 22 YCRR 202.21 (e), however. must show "unusual or unanti ipated circumstances de,·elop[ed) subsequent to the filing of the note of issue and certificate of re diness which require additional pretrial proceedings to preYent substantial prejudice·· (22 YCR 202.21 [d]; see Utica Mut. Ins. Co. v P.M.A. Corp. , 34 AD3d 793. 826 YS2d 138 [2d Dept 20061: A udiovox Corp. v B e11ya111i11i. 265 AD2d 135. 707 Y 2d 137 [2d Dept 2000)). Here. delendanf s motion for an order vacating the note of issue \\'a not served within 20 days of the ti ling of the note of issue. that is. by March 22. 2016. Instead, the affirmation of service of the motion is dated .I uly l 2 , 20 16. and defendant failed to demonstrate that unu ual or unanticipated circumstances developed after plaintiffs filing of the note of issue. and that she will be substantially prejud iced if additional pretrial disclosure is not permitted (see Tirado v Mi fer, 75 AD 3d 153, 90 1 NYS2cl 358 [2d Dept 20 1OJ; Silverberg v Guzman, 6 1 AD3d 955. 878 NY 2d 177 [2d Dept 20091; A udiovox Corp. v B enyamini, supra). In addition, defendant's attorney fail d to submit an affirmation demonstrating that a good fa ith effort was, in fact, made to resolve the d iscl sure issue raised in this motion as required by 2:2 NYCRR 202.7 (a) (see Nlirouer v City of Ne w Yo k . 79 AD3d 1106. 9 15 NYS2d 279 f2d Dept 2010]; Natoli v 1 l1i/azw. 65 ADJd 1309. 886 NYS2d 05 [2d Dept 2009] ; Ti11 e v Courtvie w Own ers Corp. , 40 AD3d 966. 838 NYS2d 92 f2d Dept 2007]; Diel v Rosenfeld, 12 AD3d 558. 784 NYS2d 37912d Dept 2004]). Thus. the branch of defendant's mofon for an order vacating the note of issue and compelling plaintiff to submit to further discovery as to th out-of-pocket expenses claim is denied. Defendant's remaining claims have been considered and ar v;ithout merit. Dated: January 25. 2017 . , oseph ·ameti cting Justic Supreme Court FINA L DISPOSITION X NON-FINAL DISPO ' ITION

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