Ventura v Martinez

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Ventura v Martinez 2018 NY Slip Op 30020(U) January 8, 2018 Supreme Court, New York County Docket Number: 151387/2015 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. [*FILED: NEW YORK COUNTY CLERK 01/10/2018 11:04 AM 1] INDEX NO. 151387/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/10/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ JSC PART I Justice 22 llDEXN0$/5<f"1fzd/ ~A I /hlL-DIWS> MOTION DATE _ _ __ -v- MOTION SEQ. NO. I 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 Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 'eplylng Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - - 1No(s). _ _ _ __ Upon the foregoing papers, it Is ordered that this motion Is Defendants Abel A. Martinez and Camry Leasing, lnc.'s ("Defendants") motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff Mildred Ventura as a result of the January 26, 2014, motor vehicle accident fail to establish serious injury thresholds as defined by Insurance Law § Sl 02 (d) is decided as follows: Plaintiffs bill of particulars alleges she sustained injuries to cervical and lumbar spine and right knee. Plaintiff avers that her injuries meet the following Insurance Law § S102 (d) criteria: significant disfigurement; a fracture; permanent consequential limitation of use; significant limitation of use; and 90/180-day. Defendants' neurologist, Dr. Naunihal Sachdev Singh examined Plaintiff on February 22, 2016, and found normal ranges of motion for Plaintiffs cervical and lumbar spine, and conducted other objective tests that were negative/normal. Dr Singh concludes that Plaintiff's alleged injuries to her cervical and lumbar spine are resolved. Defendants' orthopedist, Dr. Arnold T. Berman, examined Plaintiff on March 10, 2016, and found normal ranges of motion for Plaintiffs cervical and lumbar spine and right knee and conducted other objective tests that were negative/normal. Dr. Berman concludes that Plaintiffs alleged injuries to her cervical and lumbar spine and right knee are all resolved with no residuals. Defendants' radiologist, Dr. Audrey Eisenstadt, reviewed MRl's of Plaintiffs cervical and lumbar spine (both taken on February 19, 2014) on July 1, 2016. Concerning Plaintiffs cervical spine Dr. Eisenstadt found an incidental hemangioma at CS (an accumulation of blood vessels with no Dated: JAN ll 8 20 JS _ _ _ _ _ _ _ _ _ ___,,J.S.C • 1. CHECK ONE: ..................................................................... D CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 0 3. CHECK IF APPROPRIATE: ................................................ GRANTED ~---- -- - - - - -----···-·-~- - ··-· - ••. ~~..=.. -..::..~~.... - NON-FINAL DISPOSITION DENIED 0 0 -·==-------==-~~-~·=-~-~-~-~· 1 of 4 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT ---=--·---- . 0 GRANTED IN PART 0 SETTLE ORDER 0DONOTPOST -- - - - - - - - 0 .x. 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/10/2018 11:04 AM 2] INDEX NO. 151387/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/10/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON,. PAUL A. GOETZ 22 PART .IS C. Justice INDEX N O . - - - - MOTION DATE _ _ __ •V• MOTION sea. NO. - - - The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ 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 traumatic origin), disc desiccation (drying out of discs with no traumatic etiology), bulging discs · indicating disc disease and no disc herniations or annular tears; in short, Dr. Eisenstadt perceived no posttraumatic changes. Regarding Plaintiffs lumbar spine Dr. Eisenstadt found early degenerative changes and no evidence of an osseous contusion or fracture, disc herniation or an annular tear to indicate a recent traumatic injury or one causally related to the accident. w u j::: ti) ::> ~ ~ 0 .w D! a:: w LL. w 0:: •. >- !1. _, z ..J 0 :::::> LL. ti) I- <( () w w a:: g; <.? wz a:: - ~ ..I ~ w ..I ti) <o (..) u. z 0 w i= i~ Defendants' submissions fail to eliminate triable issues of fact as to whether Plaintiff sustained serious injuries to her cervical and lumbar spine. Dr. Singh and Dr. Berman conclude that Plaintiffs injuries to her cervical and lumbar spine are resolved but Dr. Eisenstadt concludes that Plaintiffs injuries to her cervical and lumbar spine 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 [Pt Dept 2017]; Johnson v Salaj, 130 AD3d 502 [Pt Dept 2015]; Martinez v Pioneer Transp. Corp., 48 AD3d 306 [1 81 Dept 2008]) and therefore, the burden does not shift to Plaintiff to submit evidence sufficient to raise an issue of fact (Jackson v Leung, 99 AD3d 489 [I st Dept 2012]). As to Plaintiffs 90/180-day claim, Defendants merely argue that this category requires proof that Plaintiff was medically prevented from performing substantially all of her usual and customary activities for the requisite period without providing any proof that she was able to do so. Plaintiffs bill of particulars alleges she was confined to her bed for approximately three months and her home for approximately eight months and Defendants provide no evidence to the contrary. Therefore, Defendants also failed to meet their burden as to Plaintiffs 90/180-day claim. ;;: .... .:. 1'" Dated: JAN 0 8 2018 - - - - - - - - - - - ' J.S.C. ......\ I).! J.': .~:1. CHECK ONE: ..................................................................... 0 CASE DISPOSED· IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 2. CHECK AS APPROPRIATE: ...........................MOTION 0DONOTPOST 0 0 DENIED 0 0 GRANTED IN PART 0 . -· .- . - . OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT =~~=~-~-~-~· -~---·--" 2 of 4 0 NON-FINAL DISPOSITION 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/10/2018 11:04 AM 3] INDEX NO. 151387/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/10/2018 . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ -·--~· PART_2_2_ d.S.C. J'ustce I INDEX N O . - - - - MOTION DATE _ _ __ ·V• 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 - 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 0 t= "' ::I ~ g c w 0: a:: w LI. w a::. .. >- !.!?.. ..Jj z ..J ::Ii 0 *' <( 5! "' W:W a..' a:: " ' <!) w z a:: !: !!2 0 w "' <( 0 ..J ..J 0 LL - ::c z w Q ... Defendants met their prima facie burden that Plaintiff did not sustain a serious injury to her right · knee through the affirmed report of Dr. Berman who found normal ranges of motion and negative/normal test results and concluded that her alleged injury right knee was resolved (Cattouse v Smith, 146 AD3d 670 [1st Dept 2017]). In opposition Plaintiff failed to raise an issue of fact as to whether Plaintiff sustained a serious injury to her right knee. The only medical evidence submitted by Plaintiff in admissible form are the reports by Defendants doctors. . Plaintiffs hospital records may not be considered because they are not certified (CPLR 2306 [a] & 4518 [c]). The medical records may not be considered because they are "certified" and "only hospital records, and not physician office records, are admissible by certification" (Bronstein-Becher v Becher, 25 AD3d 796, 797 [2°d Dept 2006]) and the MRI reports are not affirmed (CPLR 2106 [a]). Nevertheless, if Plaintiff establishes she sustained a serious injury to either her cervical or lumbar spine, she will be entitled to recover for all her injuries, including to her right knee (Karounos v Dou/alas, 2017 NY Slip Op 06602 [1st Dept Sept. 26, 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."]). Nothing in Plaintiffs bill of particular or the parties submissions suggest that Plaintiff suffered a disfigurement that "a reasonable person would view as unattractive, objectionable, or as the subject of pity or scorn" (Sidibe v Cordero, 79 AD3d 536 [1st dept 201 O]) or a fracture (Perez Hernandez v M Marte Auto Corp., 104 AD3d 489 [1st Dept 2013] [holding contemporaneous hospital records establish fracture]) therefore, Plaintiff may proceed under the permanent consequential and significant -,1 ... ct: 0 :::s 0 LI. Dated: JAN 0 8 2018 _ _ _ _ _ _ _ _ _ __.J.S.C. 1. CHECK ONE; ............................... ...................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: ;-~3. CHECK IF APPROPRIATE: ................................................ D CASE DISPOSED 0 GRANTED 0 DENIED 0 SETTLE ORDER 0DONOTPOST -- - - - - - - - -=---·- -- ---- --·---··---~- - .. --· - ... ::""..:. .. 0 =-~--=·~-'--".·~-~· 3 of 4 ~ON-FINAL DISPOSITION 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT --=------- 0 GRANTED IN PART 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/10/2018 11:04 AM 4] INDEX NO. 151387/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/10/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: )'ION. PAUL A. GOETZ PART_2_2_ J.S.C. I Justl~e Index Number: 151387/2015 VENTURA, MILDRED INDEX N O . - - - - MOTION DATE _ _ __ VS MARTINEZ, ABEL A MOTION SEQ. NO. _ __ Sequence Number : 001 SUMMARY JUDGMENT - - Th• following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits AMwerlng Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ __ I No(s). - - - - - 1No(s). - - - - - Upon the foregoing papers, It Is ordered that this motion ts limitation of use categories as well as under her 90/180-day claim. Accordingly, based on the foregoing it is hereby ORDERED that Defendants' summary judgment motion is GRANTED as to Plaintiffs claim of serious injury to her right knee and claims under the significant disfigurement and fracture categories; and it is further ORDERED that Defendants' summary judgment motion is DENIED as to Plaintiffs claim of serious injury to her cervical and lumbar spine and under the 90/180-day category; and it is further · ORDERED that the parties are directed to appear for a settlement conference in Part 22, 80 Centre Street, Room 136 on February 20, 2018 at 9:30 AM. This constitutes the Decision and Order of the Court. Dated: ~.J.s:e. //I/J ~ JAN 08 2018 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 1. CHECK ONE: ..........................:.......................................... CASE DISPOSED ODO NOT POST 4 of 4 0 DENIED gi_ NON-FINAL DISPOSITION ~GRANTED IN PART 0 OTHER 0 0 SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE

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