Dubovaya v Tinizhanay

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Dubovaya v Tinizhanay 2018 NY Slip Op 32252(U) September 11, 2018 Supreme Court, Kings County Docket Number: 505782/13 Judge: Debra Silber 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: 1] KINGS COUNTY CLERK 09/12/2018 09:46 AM NYSCEF DOC. NO. 68 INDEX NO. 505782/2013 RECEIVED NYSCEF: 09/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : PART 9 SOFIYA DUBOVAYA and YELENA DUBOVAYA, DECISION I ORDER Plaintiffs, -againstJAIME R. TINIZHANAY, AMBOY BUS CO. INC. and DMITRIY GRINSHPUN, Index No. 505782/13 Motion Seq. No. 6, 7 Date Submitted: 6/14/18 Cal No. 15, 16 Defendants. Recitation, as required by CPLR 2219{a), of the papers considered in the review of defendant Dimitriy Grinshpun's motion for summary judgment and defendants Jamie R. Tinizhanay and Amboy Bus Co. Inc. 's motion for summary judgment. Papers Doc. No. /NYSCEF Doc. Notices of Motion, Affirmations and Exhibits Annexed ... . Affirmation in Opposition and Exhibits Annexed ............. . Reply Affirmation ............................................................ . 1-11 1 32-43 46-55 53-56 67 Upon the foregoing cited papers, the Decision/Order on these motions is as follows: This is a personal injury action arising out of a motor vehicle accident. Defendant Dimitriy Grinshpun moves (seq 6) and defendants Jamie R. Tinizhanay and Amboy Bus Co. Inc. move (seq 7) separately for summary judgment dismissing the plaintiffs' complaint, pursuant to CPLR Rule 3212, on the ground that plaintiffs did not sustain "serious injuries" as defined by Insurance Law§ 5102(d). On September 28, 2010, at the intersection of 1" Avenue and East 201h Street in 1 Moiton Sequence 6 was filed by prior counsel for Grinshpun, who had opted out of efiling, so it was not efiled. 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 09/12/2018 09:46 AM NYSCEF DOC. NO. 68 INDEX NO. 505782/2013 RECEIVED NYSCEF: 09/12/2018 Manhattan, plaintiffs Sofiya Dubovaya and Yelena Dubovaya were passengers in a vehicle driven by defendant Dmitriy Grinshpun. His vehicle. came into contact with a vehicle driven by defendant Jaime R. Tinizhanay and owned by defendant Amboy Bus Co. Inc. PlaintifYelena Dubovaya is the wife of defendant Grinshpun. She was a front seat passenger and Sofiya Dubovaya, Yelena's mother, was a back seat passenger. The plaintiffs' bill of particulars alleges that Sofiya sustained multiple disc herniations, a possible torn labrum of the left shoulder and a torn meniscus in the left knee as a result of the accident. She received epidural injections and arthroscopic left knee surgery. The bill of particulars alleges that Yelena sustained a disc bulge at C4-5, for which she received epidural injections, right shoulder joint effusion and right knee traumatic chondromalacia. Defendants have made a prima facie showing of their entitlement to summary judgment by showing that neither plaintiff sustained "serious injuries" as a result of this accident, that their strains and strains are resolved and their current ranges of motion are normal. (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Dr. Pierce J. Ferriter, an orthopedist who examined both plaintiffs found that they both had normal ranges of motion and concluded that their sprains/strains had resolved, with no objective evidence of a causally related disability (see Mee/y v 4 G's Truck Renting Co., 16 AD3d 26, 30 [2d Dept 2005]). Yelena testified that she was confined to her bed and home after the accident, but she was 39 weeks pregnant on the date of the accident and delivered her baby without any complications shortly after the accident (Exhibit Fat 21). Although she missed several months of 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 09/12/2018 09:46 AM NYSCEF DOC. NO. 68 INDEX NO. 505782/2013 RECEIVED NYSCEF: 09/12/2018 work, she was on a planned maternity leave (Exhibit F at 30). She testified that she cut back on her hours after returning to work, but it was not medically required. (Exhibit Fat 32) (see Sougstad v Meyer, 40 AD3d 839, 840 [2d Dept 2007] ["Although the injured plaintiff also claimed to have missed seven months of work following the accident, he failed to tender sufficient objective medical evidence relating his inability to work to the injuries allegedly sustained in the subject accident"]). Sofiya testified that she was unemployed at the time the accident (Exhibit Hat 7-8). In opposition, plaintiffs have both overcome the motion and raised a triable issue of fact, based upon the affirmations of Leon Reyfman, MD (see White v Dangelo Corp., 147 AD3d 882 [2d Dept 2017]; Young Chan Kim v Hook, 142 A.D.3d 551, 552 [2d Dept 2016]; Khaimov v Armanious, 85 A.D.3d 978, 978-79 [2d Dept 2011]; Duarte v Ester, 247 AD2d 356, 357 [2d Dept 1998])). He examined Sofiya most recently on March 14, 2018, finding significant limitations in the range of motion in her shoulder and lumbar spine. He states she has sustained lumbar disc displacement, caused by the September 28, 2010 accident, which is permanent, and she has a significant and serious loss of function in her lower back which constitutes a permanent partial disability. Similarly, Dr. Reyfman last examined Yelena on March 14, 2018 and found significant limitations in the range of motion in her cervical spine, with a diagnosis of cervical disc displacement caused by the September 28, 2010 accident, which is permanent, and that she has a significant and serious loss of functional capacity in her neck, which constitutes a permanent partial disability. Accordingly, it is 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 09/12/2018 09:46 AM NYSCEF DOC. NO. 68 INDEX NO. 505782/2013 RECEIVED NYSCEF: 09/12/2018 ORDERED that the motions are denied. This constitutes the decision and order of the court. Dated: September 11, 2018 ENTER: Hon. Debra Silber, J.S.C. Hon. Debra Silber Jl!'lllcll Supreme eourt 4 4 of 4

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