Johnson v Rong Zhong Weng

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Johnson v Rong Zhong Weng 2018 NY Slip Op 30012(U) January 4, 2018 Supreme Court, New York County Docket Number: 160979/2013 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. [*FILED: NEW YORK COUNTY CLERK 01/08/2018 03:06 PM 1] INDEX NO. 160979/2013 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 01/08/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 2_ _ 2 HON. PAUL A. GOETZ PART_ J.s.c~ :Justice · INDEX No./~bc}f MOTIONDA~ -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 C ~ Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). INo(s). Jf: ;z.... 3 4 ~ INo(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is Defendants American United Transportation II, Inc. and Arturo Quituizaca's ("American United Defendants") motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff Gregory P. Johnson as a result of the February 12, 2011, accident fail to establish a serious injury threshold as defined by Insurance Law § 5102 ( d) and Defendant Rong ZhonG Weng's cross-motion seeking t~e same relief on the same grounds and adopting the arguments and evidence submitted by the American United Defendants are decided as follows: Plaintiffs bill C1f particulars alleges injuries to his cervical and lumbar spine and head (headaches), and PTSD. Plaintiffs bill of particulars avers that his injuries meet the following Insurance Law § 5102 (d) criteria: permanent loss of use; permanent consequential limitation of use; significant limitation of use; and 90/180-day. Defendants' neurologist, Dr.Jean-Robeert Desrouleaux, conducted an IME of Plaintiff on February 19, 2015, During his examination of Plaintiff, Dr; Desrouleaux found normal ranges of motion of and negative/normal objective tests for his cervical and lumbar spine. Dr. Desrouleaux conducted a neurological examination of Plaintiff and found that he had a normal examination. Dr. Desrouleaux diagnosed Plaintiff as having resolved, alleged cervical and lumbar spine strain/sprain and that Plaintiffs alleged head injury with headaches was resolved. Defendants' radiologist, Dr. Mark Decker reviewed MRI's of Plaintiffs cervical spine and brain (both taken on March 3, 2011) on April 15, 2014. Dr. Decker's findings on the MRI of Plaintiffs cervical spine include three longstanding disc bulges with no herniations or fractures that are not causally related to the accident and no evidence to suggest a traumatic injury was sustained. Dr. Dated: (!tf 9) 1. CHECK ONE; ..................................................................... 2. CHECKAS APPROPRIATE: ..................... ,..... MOTION IS: .,3, CHECK IF APPROPRIATE: ................................................ _ _ _ _ _ _ _ _ _ __,J.S.C. D c:io1sPoseo 0 GRANTED 0 DENIED 0 0 =~~-~·,~-~-~-~· 1 of 4 0 GRANTED IN PART 0 SETTLE ORDER 0DONOTPOST ~NON-FINAL DISPOSITION _...=______ .. OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT _ 0 0REFERENCE 1 [*FILED: NEW YORK COUNTY CLERK 01/08/2018 03:06 PM 2] INDEX NO. 160979/2013 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 01/08/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART d .. S.C.J~st/ce INDEX 22 No./-btJ9:f?kcJ? MOTION DATE _ __,__( •V• tJ 0 MOTION SEQ. NO. 7 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 - 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 Decker's findings on the MRI of Plaintiffs brain include "no hemorrhage or intracranial lesion" and no "mass effect, midline shift or extra axial collection." Dr. Decker concludes that there is "[n]o evidence to suggest that a traumatic injury was sustained [by Plaintiff to his brain/head]," w. Defendants' submissions fail to eliminate triable issues of fact as to whether Plaintiff sustained a . serious injury to his _cervical spine. Dr. Desrouleaux concludes that Plaintiffs injury to his cervical spine is resolved strains/sprains but Dr. Decker concludes that Plaintiffs injury to his cervical spine are long standing and not causally related to the accident. These contradictory findings concerning Plaintiffs cervical spine raise triable issues of fact for the jury to resolve (Karounos v Dou/alas, 153 AD3d 1166 [1st Dept 2017]; Johnson v Sala}, 130 AD3d 502 [l st Dept 2015]; Martinez v Pioneer Transp. Corp., 48 AD3d 306 [1st Dept 2008]). u· ~ ~ "";) g c ~ ~ w a:: '.::i ;;; 5 g ~ ~ (,,) w w a:: ffi ~ 5: wS a:: - Ul ~' ~ "' ...J zl ~ 01.,_ j::i.' o== f2 Defendants met their prima facie burden that Plaintiff did not sustain a serious injury to his lumbar spine by Dr. Desrouleaux report finding normal ranges of motion and negative/normal test results and resolved strains/sprains (Cattouse v Smith, 146 AD3d 670 [1st Dept 2017]). 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 lumbar spine and whether he suffers from PTSD as a result of the accident (Jackson v Leung, 99 AD3d 489 [1st Dept 2012]; Singer v Gae Limo Corp., 91 AD3d 526 [l"t Dept 2012]). To the extent that headaches may be considered a serious injury, Defendants' met their prima 1. CHEC:::: .~.~.~. .~. ~. ~ .'. ~. . . . . . . . . . . . . . . . ~ C::::2SEO 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 ------·---··---~-. ···-· - ... ::!".:.. •• 0 DENIED 0 -=·~-~-~·~· =~~- 2 of 4 0 NON-FINAL DISPOSITION GRANTED IN PART 0 SETTLE ORDER 0DONOTPOST -· --- - - - - ---=------- J.S.C. OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT ---=------- . 0 0 REFERENCE __ . -·~ , i [*FILED: NEW YORK COUNTY CLERK 01/08/2018 03:06 PM 3] INDEX NO. 160979/2013 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 01/08/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART HON. PAUL A. GOETZ.. J.S c 22 INDEX NO. PRESENT: /b0 91?/to)j Justice I MOTION DATE _ _ ___,~ .y. MOTION SEQ. NO. ( /6 7 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 - 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 facie burden by submitting Dr. Desrouleaux's report with his observa,tion that Plaintiff had a normal neurological examination and Dr. Decker's findings on the MRI of Plaintiffs head that there was no evidence of a traumatic injury (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 Plaintiff.s deposition testimony that he was not confined to his home after the accident and he returned to work less than two months after the accident (Cf Fathi v Sodhi, 146 AD3d 445 [l •1 Dept 2017]). In opposition, Plaintiff failed to raise an issue of fact as to whether he suffered a serious injury as a result of the accident to his lumbar spine and head and as to his 90/180-day claim. Plaintiff submits an October 18, 2016, affirmation from Plaintiffs emergency medicine and internal medicine physician, David H. Delman. Dr. Delman does not address Plaintiffs alleged injury to his lumbar spine and indeed a March 1, 2011, affirmed report from Dr. Delman observes regarding Plaintiffs lumbar spine "[r]ange of motion reveals no pain or tenderness." Dr. Delman's October 18, 2016 affirmation also does not address Plaintiffs alleged injury to his head/headaches. Regarding Plaintiffs 90/180-day claim Plaintiff argues that Defendants failed to meet their burden because they base their application on a doctor's findings upon an examination conducted years after the accident. But, as noted above, Defendants seek dismissal of Plaintiffs 90/180-day claim not based on their doctors' findings but based on Plaintiffs own deposition testimony. Therefore, Plaintiff has failed to raise an issue of fact concerning his allegations of serious injury to his lumbar spine and head and as to his 90/180-day claim. However, in the event that Plaintiff proves serious injury to his cervical spine or PTSD then he will be Dated:------- JAN 0 4 2018 6f0 ;£1. CHECK ONE: ..............................:...................................... _ _ _ _ _ _ _ _ _ __,J.S.C. 0 0 0 GRANTED SETTLE ORDER 0 DO NOT POST 0 CASE DISPOSED -><.:; '2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 3 of 4 0 DENIED ·0 -· ·- - ...... OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT - ·- - - - . ---=-------- .. 0 GRANTED IN PART 0 0 NON-FINAL DISPOSITION 0 REFERENCE -·- -·,~; ·• [*FILED: NEW YORK COUNTY CLERK 01/08/2018 03:06 PM 4] NYSCEF DOC. NO. 137 INDEX NO. 160979/2013 RECEIVED NYSCEF: 01/08/2018 ·SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY HON. PAUL A. GOETZ J.S.C. PRESENT: PART_2_2_ Justice aw ' _:J • » ; • ;44 ~1'J/Jsc:J;J INDEXNo./tf6.&/f •/, MOTION DATE _ _ __ w£1·.JCr ----....;;2P 5Wt f A4 . . . . MOTION SEQ. NO. 4 ¥ ·1$ HP-:+§} b.§ # iOd J !)L The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ __ I No(s). - - - - 1No(s). - - - - - - Upon the foregoing papers, It Is ordered that this motion Is able to recover for all his claimed injuries including his claim of injuries to his lumbar spine and head (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 any 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]nce a serious injury has been established, it is unnecessary to address additional injuries to determine 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 serious injury to his lumbar spine and head/headaches and as to his 90/180-day claim and DENIED as to Plaintiffs cervical spine and PTSD 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. /_t..1;;.__ . . .~r_ . oated: _I 1. CHECK ONE: ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ D CASE DISPOSED ~NON-FINAL DISPOSITION 0 GRANTED 0 DENIED ~GRANTED IN PART 0 OTHER 0 SUBMIT ORDER 0 SETTLE ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE 0DONOTPOST 4 of 4

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