Rodriguez v Diaz

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Rodriguez v Diaz 2017 NY Slip Op 32712(U) December 29, 2017 Supreme Court, New York County Docket Number: 155678/2015 Judge: Paul A. Goetz 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. [* 1] INDEX NO. 155678/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/29/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 22 HON. PAUL A. GOETZ PART _ __ J.StC;r;ce MOTION DATE _ _ __ •V• MOTION SEQ. NO. 0 {J I The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - I No(s).____/.____ __ ~otice of Motion/Order to Show Cause -Affidavits - Exhibits · - - - - - - - - Answering Affidavits - Exhibits------------------ Replying A f f i d a v i t s - - - - - . , . - - - - - - - - - - - - - - - - - - I No(s). _....;OJ.:;.,...---1No(s). _--3-=---- Vpon the foregoing papers, it is ordered that this motion Is Defendants Victor Niconor Diaz and Julio 0. Urena's motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff as a result of the October 12, 2014, accident fail to establish a serious injury threshold as defined by Insurance Law § 5102 (d) is decided as follows: Plaintiffs bill of particulars alleges injuries to his cervical and lumbar spine, headaches, vertigo and PTSD. Plaintiffs bill of particulars avers that his injuries meet the following Insurance Law § 5102 (d) criteria: dismembetment; significant disfigurement; fracture; permanent loss of use; significant limitation of use; and 90/180-day. Defendants' neurologist, Dr. Edward M. Weiland, conducted an IME of Plaintiff on October 18, 2016, During his examination of Plaintiff, Dr. Weiland found normal ranges of motion of and negative/normal objective tests for his cervical and lumbar spine. Dr. Weiland conducted a neurological 'examination of Plaintiff and found that he had a normal examination. Dr. Weiland diagnosed Plaintiff as having resolved, cervical and lumbar spine strain/sprain. Defendants' radiologist, Dr. A. Robert Tantleff reviewed MRI's of Plaintiffs cervical and lumbar spine (both taken on October 29, 2014) on October 18, 2016. Dr. Tantleff s findings on the MRI of Plaintiffs cervical spine include "chronic degenerative disease and cervicothoracic spondylosis as described with advanced discogenic changes manifested by disc desiccation, degeneration and spondylitic spurring..." as well as other markers of longstanding degenerative disc disease and no evidence of acute disc herniations and no evidence of bone marrow edema or contusion. Dr. Tantleff concludes that his findings depict "chronic, degenerative and longstanding changes, requiring years and decades to develop as presented ... [and] are consistent with [Plaintiffs] age and are not causally related Dated:----.,.---- ; 1i,/z tfao) 7 1. CHECK ONE: ..................................................................... 2. CHECI( AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ -- --- - - - - --=------ ------·---"..-':'. - ···-· - --···- _ _ _ _ _ _ _ _ _ __,J.S.C. If~ P( NON-FINAL DISPOSITION D CASE DISPOSED 0 GRANTED IN PART 0 OTHER 0 GRANTED 0 DENIED 0 SUBMIT ORDER 0 SETTLE ORDER 0 FIDUCIARY APPOINTMENT 0REFERENCE 0DONOTPOST c·=~-~-~-~· --=--·----" =-~- 1 of 4 [* 2] INDEX NO. 155678/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/29/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 22 HON. PAUL A. GOETZ .J s c PRESENT: PART _ __ Justice IHOEXHO/.[JB<fd/ MOTION DATE ·V• MOTION SEQ. NO. ' 06 / The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - Notice of Motion/Order to Show Cause -Affidavits - Exhibits I No(s)._ _ _ _ __ Answering Affidavits - Exhibits------------------ I No(s). - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is to a traumatic event ... "Dr. Tantleffs findings on the MRI of Plaintiffs lumbar spine include "advanced discogenic changes manifested by disc desiccation, degeneration and spondylitic spurring with real loss of disc at L5-S I ,markers of longstanding degenerative disease" and found no evidence of acute disc herniations and "no evidence of bone marrow edema or contusion to suggest traumatic 'Changes." Dr. Tantleff concludes that his findings depict "chronic, degenerative and longstanding [changes] requiring years and decades to develop as presented. The findings are consistent with [Plaintiffs] age and [are] not causally related to a traumatic event ... " Concerning 90/180-day, Defendants refer to Plaintiffs deposition testimony wherein he testified that after the accident he did not go to the hospital and returned to work the next day and continued to work five day work weeks thereafter. Defendants' submissions fail to eliminate triable issues of fact as to whether Plaintiff sustained a serious injury to his cervical and lumbar spine. Dr. Weiland concludes that Plaintiffs injuries to his cervical and lumbar spine are resolved strains/sprains but Dr. Tantlefff concludes that Plaintiffs injuries are the result of degeneration. These contradictory findings concerning Plaintiffs cervical and lumbar spine raise triable issues of fact for the jury to resolve (Karounos v Dou/alas, 153 AD3d 1166 [1st Dept 2017]; Johnson v Salaj, 130 AD3d 502 [1st Dept 2015]; Martinez v Pioneer Transp. Corp., 48 AD3d 306 (1st Dept 2008]). Defendants submission did not address Plaintiffs claim of PTSD. To the extent that Plaintiff is proceeding with his claim of PTSD, Defendants failed to make a prima facie showing Reys v Diaz, 82 AD3d 484 [1st Dept 2011]). Therefore, the burden does not shift to Plaintiff to submit evidence sufficient to raise an issue of fact on whether he sustained a serious injury to his cervical and lumbar spine and whether he suffers from PTSD as a result of the accident (Jackson v Leung, 99 AD3d 489 [l8t Dept 2012]; Singer v Gae Limo Corp., 91AD3d526 [181 Dept2012]). Dated: rJ 'f o/' · ----------~J.S.C. . 1. CHECK ONE; ..................................................................... D ;:) CHEC~ AS APPROPRIATE: ...........................MOTION IS: .. 0 GRANTED 0 CASE DISPOSED 0 0 DENIED 0DONOTPOST -· - - - - - - - - - - - - - -- ---- --··--···---~- • ··--· - _ •• :!'!!.. -....!!..~-=-~ --~-- 2 of 4 GRANTED IN PART 0 )a. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER ,....-. 0 - ·- - - - . NON-FINAL DISPOSITION . OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT --=---~--- 0 0REFERENCE [* 3] INDEX NO. 155678/2015 -. NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/29/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 22 HON. PAUL A. GOETZ PART _ __ J.S.C.1~stice "'DEXHO./,(J-tl(fl MOTION DATE _ _ __ •V• MOTION SEQ. NO. 06) The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits .I '::.l '·~j Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is w (..) i= :::> "' ., g c w « a:: w LL. w a::: •• >- -' !1. -i· z :c~! 0 u..· (/) ~""! t:~:! ~~ ti) < w a:: <.? w z a:: en 3:: - 0 w -' -' (/) To the extent that headaches and vertigo may be considered a serious injury, Defendants' met their prima facie burden by submitting Dr. Weiland's report with his observation that Plaintiff had a normal neurological examination (cf Pendleton v Bizzoco, 152 AD3d 711 [2nd Dept 2017]; Marshall v Marshall, 117 AD3d 805 [2nd Dept 2014]). Defendants also met their prima facie burden regarding Plaintiffs 90/180-day claim by submitting Plaintiffs deposition testimony that he returned to work the next day after the accident and continued to work five day work weeks thereafter (Cf Fathi v Sodhi, 146 AD3d 445 [1 81 Dept 2017]). Plaintiffs opposition does not raise a triable issue of fact as to Plaintiffs claims of headaches and vertigo and his 90/180-day claim. The only admissible medical evidence submitted by Plaintiff, a report by Dr. Boris Tsatskis, does not address Plaintiffs allegations of headaches and vertigo or his 90/180-day claim. However, in the event that Plaintiff proves serious injury to his cervical and/or lumbar spine or PTSD then he will be able to recover for all his claimed injuries including his claim of headaches and vertigo (Karounos v Dou/alas, 153 AD3d 1166 [1st Dept 2017] [holding "[i]f plaintiff establishes a serious injury to her cervical or lumbar spine at trial, she will be entitled to recover damages for .ally other injuries caused by the accident, even those that do not meet the serious injury threshold."]; Boateng v Yiyan, 119 AD3d 424 [1st Dept 2014]; Caines v Diakite, 105 AD3d 404 [1st Dept 2013]; Delgado v Papert Transit, Inc., 93 AD3d 457 [1st Dept 2012] [holding "[o]nee a serious injury has been established, it is unnecessary to address additional injuries to determine 0 <( z u. w :z:: 0 0 II- a:: Oo == LI. Dated:------.....-- 3f'f _ _ _ _ _ _ _ _ _ __,J.S.C. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED J:i. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER -\: 0 -~"':; "':. 0DONOTPOST ~1: ' 0 D CASE DISPOSED DENIED 0 GRANTED IN PART 0 0 --.··-.-~ - . .. ···-· - ... : -:.:. . -.....=.:.. 3 of 4 - - - . ---=--~---··· -· ·- - ~ . 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT .~;' -- -- - - - - - -=---- -- ---- -- . NON-FINAL DISPOSITION 0REFERENCE [* 4] ·r INDEX NO. 155678/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/29/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 22 HON. PAUL A. GOETZ PART _ __ J.S.C~stice d/ INDEXNo).JJBef> I MOTION DATE ·V• Q 0) MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - I No(s)._ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is whether the proof is sufficient to withstand defendants' summary judgment."]). Accordingly, based on the foregoing it is hereby ORDERED that Defendants' summary judgment motion and cross motion are GRANTED as to Plaintiffs claims of headaches and vertigo and his 90/180-day claim and DENIED as to his PTSD and cervical and lumbar spine claims of serious injury; and it is further - .. ORDERED that the parties are directed to appear for settlement conference in Part 22, at 80 Centre Street, Room 136, at 9:30 on February 20, 2018. This constitutes the Decision and Order of the Court. Dated: ~.J.S.C. /;-J/~9/17 ' , 'c::::::. 1. CHECK ONE: ..................................................................... D CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0 0DONOTPOST DENIED ~GRANTED IN PART 0 0 - ....... - . 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT =·~-,_,.--=---' --------- .. =-~- 4 of 4 ~ NON-FINAL DISPOSITION 0 REFERENCE

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