Angel v Bouslihim

Annotate this Case

Download PDF

Angel v Bouslihim 2018 NY Slip Op 30059(U) January 16, 2018 Supreme Court, New York County Docket Number: 151343/2015 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 01/16/2018 10:42 AM 1] INDEX NO. 151343/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY f'ION. PAUL A. GOETZ J.S.C. PRESENT: PART 22 Justice ,>(JIJVEL- ¥ 1 ooLS°/J'~~J.{ N}c._dl£ INDEX -v- MOTION DATE _ _ __ c;(.>-..5 LI ;())(la I s ;<J(h., C}d ]/ MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _.._/_____ I No{s). ---":i"---1No(s). _ __..,3.&..-__ Upon the foregoing papers, it is ordered that this motion Is Defendants Sam Bouslihim and Dimitrios Mouroulis's ("Defendants") motion for summary judgment pursuant to CPLR 3212 on the grounds that the injuries allegedly sustained by Plaintiff Nicole Angel as a result of the October 3, 2014, motor vehicle incident fail to establish serious injury thresholds as defined by Insurance Law § 5102 (d) is decided as follows: Plaintiffs bill of particulars alleges she sustained injuries to her right foot (tear of the lateral plantar plate attachment and synovitis). Plaintiff avers that her injuries meet the following Insurance Law § 5102 (d) criterfa:· a fracture; permanent loss of use; permanent consequential limitation of use; significant limitation of use; and 90/180-day. Defendants met their prima facie burden that Plaintiff did not sustain a serious injury to her right foot through the affirmed report dated June 23, 2016, of their orthopedic surgeon, Dr.1. Serge Parisien who found normal ranges of motion and negative/normal test results for Plaintiffs right foot and concluded that her alleged injury to her foot was resolved (Cattouse v Smith, 146 AD3d 670 [1st Dept 2017]). In opposition Plaintiff submits affirmations from two podiatrist. Defendants object arguing that a podiatrist is not authorized to affirm pursuant to CPLR 2106 because podiatrists are not medical doctors. However, Defendants cite no appellate authority in support of their argument and the Court found none. Without more evidence from movants on this issue, the Court is unable to find that podiatrists are not medical doctors and therefore, not permitted to affirm under CPLR 2106. Plaintiffs podiatrists are Dr. Rock G. Positano and Dr. Erica Papathomas. Dr. Positano first Plaintiff on October 13, 2014 and he noted swelling of her right foot and impared ranges of B~OOljned · JAN 12 20_1a 1. CHECK' ONE: ..................................................................... ; ~~ 0 0 0 CASE DISPOSED 2. CHECKASAPPROPRIATE: ...........................MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ J.S.C. 0 0DENIED 0DONOTPOST 1 of 4 0 - ·- ..... - -~----- .. OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT . 0 GRANTED IN PART 0 SETTLE ORDER NON-FINAL DISPOSITION 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/16/2018 10:42 AM 2] INDEX NO. 151343/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PAUL A. GOETZ J.S.C. PRESENT: PART Justice 22 """' . -·:~~; j:•,, INDEX N O . - - - - - .~ MOTION DATE _ _ _ __ •V• $0 0--6'L//J)lf1 MOTION SEQ. N O . - - - - The following papers, numbered 1 to _ _ , were read on this motion tolfor - - - - - - - - - - - - - - I No(s) . _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Ahswering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ No{s). - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ No(s). - - - - - - I 1 Upon the foregoing papers, it is ordered that this motion ls motion and diagnosed her with "sesamoiditis of the right foot and a plantar plate injury and neuroma." Dr. Positano recommended ice and heat treatments and states Plaintiff was unable to tolerate physical therapy and/or massage treatments. He also recommended that Plaintiff continue wearing the boot she was given in the emergency roo!Il after the incident and continued to monitor her over the next two years. Dr. Positano notes that Plaintiff still cannot tolerate physical therapy and/or message treatments and that she no longer wears the boot but he ordered orthotics for her shoes that she continus to use with metartarsal pads for stal:Silization of her right foot. Dr. Positano concludes that Plaintiffs "continuing edema, tenderness and difficulty performing certain activities are consistent with [her] injuries." Dr. Papathomas first saw Plaintiff on June 23, 2016, and states that Plaintiff told her that she had only resumed fifty percent of her normal activities. Dr. Papathomas noted that Plaintiff was using orthotics and metatarsal pads. Dr. Papathomas's examination of Plaintiffs right foot revealed edema with painful ranges of motion and she diagnosed a right foot contusion. Dr. Papathomas recommended elevation and cold and warm compresses in addition to the orthotics with metatarsal pads. Dr. Papathomas ordered an MRI and discussed surgery with Plaintiff and states Plaintiff opted to continue with conservative treatment at the time. Dr. Papathomas's November 17, 2016, examination of Plaintiff revealed right foot edema with painful ranges of motion. Plaintiffs radiologist, Dr. John t. Rigney affiirms that he reviewed an MRI of Plaintiffs right foot taken on October 6, 2016, and it shows a partial tear of the plantar plate of the hallux laterally and synovitis and joint effusions of the metatarsophalangeal articualtion of the hallux as well as the second through fifth digits and small neuromas of the second and third web space. Dr. Rigney concludes that Plaintiffs right foot injuries are traumatic in nature and causally related to the October 3,_ _ _ _ _ __,J.S.C. 2014, incident. Dated:_______ _____ JAN 12 2018 ;;J- 'f ~ 1. CHECK ONE: ............................... :..................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 GRANTED --·--··-·-~- . ··-· - ... i:-..:.. -..:..:..~..::--· - -· 0 DENIED ·- 2 of 4 0 0 NON-FINAL DISPOSITION 0 GRANTED IN PART 0 SETTLE ORDER ODO NOT.POST ... - - - - - - - --="'--·- -- ---- 0 CASE DISPOSED OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/16/2018 10:42 AM 3] NYSCEF DOC. NO. 50 .. :,, ""'·=~,l:~·~;,.1 INDEX NO. 151343/2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ RECEIVED NYSCEF: 01/16/2018 ;t! :. .:r .'. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PAUL A. GOETZ J.S.C. PRESENT: PART_2_-2_ I Justice INDEX N O . - - - - MOTION DATE _ _ __ •V• MOTION SEQ. 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 - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is Dr. Rigney further concludes that the plantar plate tear, joint effusions, synovitis and the neuromas, are serious, significant and permanent injuries to Plaintiffs musculoskeletal system. Plaintiff also submits a December 16, 2014, affirmed report Dr. Joseph C. Cole who performed a physical medicine and rehabilit~tion/acupuncture examination. Dr. Cole notes that the examination of Plaintiffs right foot. was limited because Plaintiff was wearing a surgical boot which she did not remove for the examination. Dr. Cole made no other observations concerning Plaintiffs right foot and diagnosed her with tear at the plantar aspect. Dr. Cole indicates that he did not review any of Plaintiffs medical records. ····~~·:·~t~· Li hi D::: ,.... ...J •• ~ ..J z :::i 0 u. <C I- "' Ow w a::: 5; <:> wz i a::: ~ 0 w -' -' (/) <o u. 0 zw :c - ... 0 ~ i Plaintiff did not raise an issue of fact as to whether she suffered a fracture in her right foot because she did not submit a contemporaneous x-ray taken in the emergency room showing a fracture (Cf Frias v Gonzalez-Vargas, 147 AD3d 500 [1st Dept 2017]). In addition, Plaintiffs experts did not set forth any findings of limitations in range of motion in Plaintiffs right foot; in the absence of such evidence their conclusory opinions are insufficient (Hernandez v Cepedes, 141 AD3d 483 [ 1•1 Dept.2016]) and Plaintiff cannot demonstrate she suffered a serious injury (Cattouse v Smith, 146 AD3d 670 [1st Dept 2017]). Moreover, Dr. Rigney's findings of, inter alia, a partial tear of the plantar plate, without any evidence of limitations caused by the tear and other pathologies is insufficient to raise a triable issue of fact (Green v Domino's Piazza, LLC, 140 AD3d 546 [181 Dept 2016]; Mulligan v City of NY, 120 AD3d 1155 [181 Dept 2014]). Defendants also met their prima facie burden as to Plaintiffs 90/180-day claim by relying on her deposition testimony that she was not confined to her bed or home as a result of the accident. (Cf Fathi v _ _ _ _ _ _ _ _ _ __,J.S.C. Dated:------:'0 ...~.-· ~~:~- JAN 12 2018 ~ 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 SETTLE ORDER ·;.~\1,. CHECK ONE: ........................................................................ CASE DISPOSED 0DONOTPOST -· -- - - - - - -="---- -- ---- -----···---~- . ··-· - _.,::""...:.. _ _::.~...:..··" .. -· ·- 3 of 4 0 DENIED 0 0 GRANTED IN PART 0 0 NON-FINAL DISPOSITION OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 01/16/2018 10:42 AM 4] NYSCEF DOC. NO. 50 INDEX NO. 151343/2015 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PAUL A. GOETZ J.S.C. PRESENT: PART Justice INDEX N O . - - - - MOTION DATE _ _ __ •V• MOTION SEQ. NO. - - - The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause Answering Affidavits - Affidavits - Exhibits Exhibits _ ___._ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it Is ordered that this motion Is Sodhi, 146 AD3d 445 [181 Dept 2017]). In opposition, Plaintiff relies on her deposition testimony that she wore a boot on her right foot for four to five months, used crutches for two months after the accident and then a cane through January, 2015. Plaintiff further testified that she works as a freelance production manager and had to stop traveling for her work, she still wares orthopedic inserts and is restricted in the types of shoes she can wear. This testimony is sufficient to raise an issue of fact on Plaintiffs 90/180day claim (Cf Ferna_ndez v Duran, 2011 NY Misc LEXIS 5140, 2011 NY Slip Op 32836[0] [SC NY Co 2011]; Costleigh v Lucas, 2008 NY Misc LEXIS 9609; 2008 NY Slip Op 32485 [U] [SC Nassau Co 2008]). w (J t= :::> .., "' ~ 0 w « a:: w Accordingly, based on the foregoing it is hereby LL w a: ~ ti)' ..J z l:h: ORDERED that Defendants' summary judgment motion is GRANTED as to Plaintiffs claim of injury to right foot under the fracture, permanent loss of use, permanent consequential limitation of use and significant limitation of use categories; and it is further ~erious fl) :::> 0 ~f.~ t:,;! §: ORDERED that Defendants' summary judgment motion is DENIED as to Plaintiffs 90/180-day claim; and it is further ~· 0 w _, (/) ..J <O (,) LL z ~ 0 I- t= a: ~o "'" 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. LL JAN 12 2018 1. CHECK ONE: ................................................................t•••••• 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 ~ NON-FINAL DISPOSITION CASE DISPOSED 0 GRANTED SETTLE ORDER 0DONOTPOST 4 of 4 - ·- IJQ'GRANTED IN PART 0 OTHER 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE DENIED --- . -~-·-·--

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.