Fabre v Roes

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Fabre v Roes 2018 NY Slip Op 34108(U) December 10, 2018 Supreme Court, Rockland County Docket Number: Index No. 031338/2017 Judge: Thomas E. Walsh II 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] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM INDEX NO. 031338/2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/10/2018 UPRCME COURT OF TH COUNTY OF RO KLA D TATE OF NEW YORK ------ ---- ---- --- ---- -- ------ -------------- ------------------------- ---- x RVT FABRE, Plaintiffs, Index # 031338/2017 Motion. # - MD DCAdj : 1/2"'/1 8 H.R. ROE , Defendants. ------------------------------------------------------------------------x Hon. Thomas E. Walsh II, J .. C. Th following papers numbered 1- 3 read on this motion by Defendant for an Order pursu nt to ivil Practice Law and Rules 32 l 2(a), granting the D fondant H. R. Ro e summary judgment di mis ing Plaintiffs claims in thei r entirety, on th grounds that Plaintiff cannot meet the statutory threshold for "serious injury" as defined by ew York State Insurance Law§ 5 102( d), as a matter of law tog ther with such other and further re li fas the Court may deem just and proper: PAPERS NUMBER Notice of Motion/Affirmation of Daniel E. O' eill, Esq./Exhibits (A -G) 2 ffirmation of Ira H. Lapp, E q. In Oppos itio n/Exh ibit Reply 3 ffirmation of Daniel E. O' ei ll, E q. The motor vehicl collision giving rise t this a tion t ok place on Dec mber 23, 20 16 on orth Rout 303 at its intersection with Ca per Hill R ad, Clarksto ·n, w Y rk. This action was comm need by the filing fa Summon and Comp laint on March 24, 2017. Issue was joined by Defendant by the filing ofa Verified Answer on April 5, 2017. Defendant ra ised five (5) affirmati ve d fense , including the lack of a eriou injur pursuant to Insurance Law 5102(d). At the out et the Court notes that a Note oflssue was fi led on June 5, 2018. Subsequently, Defendant filed the instant timely Motion of ummary Judgment with a return 1 of 6 [*FILED: 2] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM NYSCEF DOC. NO. 31 INDEX NO. 031338/2017 RECEIVED NYSCEF: 12/10/2018 date f Septem ber 14. 2018 which was timely as per the Court's dir ctive at the Compliance Confi rence held on .lune 5, 201 8. The Plaintiff file oppositi n and Defendant e-fil d a Repl y. Turning now to the a sertions in the instant motion for summ ary judgment, th Court note that in this acti n the Plaintiff' bill of particulars alleg d that she sustained th following injuri : tear of the ri ght pat liar tend n at the level f the pat llar attachment , internal deran gemen t of the right knee, cervical strain and sprain, cervical radicu lopathy, sprain and strain of th lum bar pin lumbar radiculopath , prain and strain f the left wrist, internal derangement of the I ft wrist, sprain and strain of the left humerus, internal derangem ent of the left lbO\ , lim itation of moti n and increas d pain upon motion and increas d pain upo n incl ment weather. Plaintiffs Bi ll of Particular further alleged that Plaint iff sustained a enou lllJUry a defined by Insurance Law § 5102. Plaintiff all eged that the injuries and conditions pr vented the Plaintiff from the enjoying th norm I fruits f ocial activiti the injuries re ultin, disabilities, ag ravation exa . Further, Plaintiff cont nds that rbation and involvements wer associat d with furthe r soft tissue injuri es to th areas traumatically affi cted, in luding: tearing, derangement and damage to the a ociated mu cle gr ups, li gament t ndon . cartilage, blood, tissue, epithelial tissue, all concomitant to th specific injurie and related to the spe i fie po,tions of th bod mention d her in abo e, , ith re ultant cars, h morrhag , pain, chymosis, deformity and disability; stiffness, tenderness, weakness and partial restriction and limitation of moti on, pai n on moti n and loss of u c of th abovemention d part ; atrophy anxi ty and mental angui h; all f whi h ubstantially prevented the Pl aintiff from enjoying the normal fruits of socia l acti viti s. Additionally, the Bi ll of Particular ubmits that th Plaintiff was c nfined t hi home int rmittentl as a r suit of the injuries su tained in the accident that Plaintiff was confined to bed intermittently as a re ult of injuries u tained in the accident, Plaintiff was totally disabled as a result of the acc ident and remain partial! disabled. Plaintiff admits there is no current claim for lost wages . Th Pl aintiff as exam ined b Dr. R bert H ndler at the D fi ndant r quest. In his report of that examination, Dr. Hendler states that he conducted a phy icaI examination of the Plaint iff and that he re iewed Plain ti ff s medical records. Dr. Hendl r reported: that Plaintiff was involved in a motor vehicle accident on December 23, 2016 and he was the seat-belted 2 of 6 [*FILED: 3] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM NYSCEF DOC. NO. 31 INDEX NO. 031338/2017 RECEIVED NYSCEF: 12/10/2018 driver in an automobil which truck an automobile that entered into his pathway au ing th airbags to deploy; that fi !l owing the acc ident he was taken to evaluated in th yack Hospital wh r m rg nc room x-ra ed and discharged; that .Plaintiff as se n b Brief who btain an RI f th Plaintiff's right knee wh·ch showed a subtl part ial r. Paul I. t aring of the pat Ila t nd n at th I of th patella attachment and that he tr ated Plaintiff with ph ical therap for thr 4) months. Dr. Hendler further reports h r i w d the ri fi d Bill of Particul ar , a D containing diagno tic tudies, Emergency Departmen t records of th ack Ho pita! dated D c mb r 23 , 2016 in luding x-ray reports of the left ankle left hum ru , right tibia-fibula and left wrist, office records of Dr. Paul Bri f dated from December 29, 20 16 through February 5 2018, Ir aim nt records of ProCore Physical Therapy dated from February 23 2017 through arch 24, 2017 and a MRI report of the right knee dated January 14, 2017, Rockland Di agnostic Imaging. Dr. 1lcndl er r ported that the Plaintiff was a customer service representative for an Aero Tech company at the time of the accident, but was unemployed at the time of the va luation. At the time of th minimal ach valuati n Dr. Hendler fu rther reported that the Plaintiff complain d or and pain in hi neck with no radiation of the pain into hi arn1s, no numbn weakn ss or p r th ia r ported in the upper extremities. As to the Plaintiff' low r back, Hend ler report d that th Plaintiff comp lained of intermittent aches and pain, the back pain in hi I g , no numbne Plaintifrs I rt arm, r. ith n rad iation of eakness or paresthesias in the I wer ext rem iti s. Dr. Hend ler rep rt d that th Pl ai ntiff compla ined that he had "fairly frequ nt" ach rig ht knee. a throbbing and pain in his n at ion, but no locking and buckling of his knee. in r gard t nd ler report that the Plaintiff complained of pain in th mid hum ral a· a which r ult d in him having difficulty doing certain activities of daily living. Dr. Hendl r surmi contusion t r. dditionally, that Plaintiff uffered a cervical and lumbosacral sprain, a po ibl hi ri ght kn and a possible contusion to his upper extremity, which h believe have re olvcd . In oppo iti on Plaintiff submitted the affirmed medical report of, Dr. Paul Brief, which states that he saw th Plaintiff on December 29, 2016 and again on January 12, 2017 January 17, 2017, February 2 ·1, 20 17, arch 23 , 20 17, January 16, 20 18, January 23 2018 and January 29, 2018. At the time of Dr. Brief' s init ial examination in 2016 he presented with complaints of pain 3 of 6 [*FILED: 4] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM NYSCEF DOC. NO. 31 INDEX NO. 031338/2017 RECEIVED NYSCEF: 12/10/2018 in his neck, low back and right knee. A a result of the records review and phy ical examination, Dr. Brief stated hat in his medical opinion that based on Plaintitrs conti nued right knee complaints along with the findings of partial patella tendon ruptur that the prognos is for full improvemen t of Plaintiff right kn e i guarded . Furth r, Or. Brief opin .d that th Plaintiff's complai nts a t hi back neck and ri gh t knee were direct! causally related to th motor vehicle in which the Plaintiff was involved in on December 23 2016. Additionally, Dr. Brief reported that based upon the Plaintiffs injury to his knee he deems that the Plaintiff suffers from a mild partial disability permanent, which aff ct Plaintiffs right knee. Dr. Brief contends that based upon the Plai nti ff' continued complaint regarding his right knee the MRl find ing of January 14, 2017 and x-ray findings of Januar 29 201 8 the Plaintiff ha suffered a 20% lo s of the use of his right lower xtremity. In order to be entitled to summary judgment it is incumbent upon the defendan t to demonstrate that plai ntiff did not suffer from any condition ct fined in Insurance Law §5 102(d) as a senous InJU [Healea v. Andriani 158 A.D .2d 587 (2d Dept 1990)]. the propon nt of this summary judgment motion defendant mu t make a prima facie showing of ntitl ment to judgment as a matter of law, by tend ring sufficient evidence to eliminate any mat rial issues of fact from the cas and to warrant a court to direct judgment in their favor, as a matter of law [Civil Practice law and Rules 32l2(b); Giuffrida v. Citibank Corp .. et al, 100 (2003), citing .Ah•arez v Prospect Ho p. , 68 York, 49 1 Y2d 72 Y2d 320 ( 1986)· and Zuckerman v. ew Y2d 557 (1980)]. Summary judgment will be grant d only if there is n triab le issue offact, issue finding, rather than issue determination, is the key to summary judgment, and the papers on the motion shou ld be scrutinized carefu ll y in the light most favorabl to the party opposing the r Ii r Judice v.DeAngelo 272 AD2d 583 (2d D pt 2000)]. To meet th ir ummary judgm nt burden plaintiffs mu t com forward videntiary pr of in admissible form to rai ea triable issu ith ufficient f fact as to whether Plaintiff suffered a "serious injury" within the meaning of the Insurance Law [Zoldas v. St. Louis 'ab Corp., 108 A.D.2d 378 (1st Dept. 1985), Dwyer v. Tracev, I 05 A.D.2d 476 (3 rd Dept. 1984)]. By establishing that an one of several injuri u tained in an a cid nt is a seriou injur within the meaning of Insurance Law 5102 (d, a plaintiff is entitled to k reco e1 for all injuries incurred as a re ult of the accident [Bonner v Hill, 302 A.D.2d 544 (2d Dept., 2003); O'Neill v 4 of 6 [*FILED: 5] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM NYSCEF DOC. NO. 31 INDEX NO. 031338/2017 RECEIVED NYSCEF: 12/10/2018 O' eill. 26 1 A.D.2d 459 (2d D t.. 1999 ]. In opposition to d £ ndant· ummary judgment motion Plaintiff ubmit the affirmed r p rt of" Dr. Paul Brief. Based on th medical repo1t of Dr. Brief Plaintiff argues that he, in re ponse to Defendant's motion, dem nstrated factual disputes as to Plaintiffs claim of having ustained a personal injury which r suited in permanent loss of use of a body organ, member, run tion or system, p~rmanent con quential limitation of u e of a body organ or member, significant limitation if use of a body function or system, or a medically d te1mined injury or impainn nt of a non-p 1man nt natur which pre ents the injured p r n from performing ub tantiall all of the material act hi h constitute such per on· u ual and customary dail a ti viti e for not less than ninet da s during the one hundred eighty day fi !lowing the occu rrence of the injury or impairrn nt Where as here Plaintiff'· doctor's findings are set forth in admissibl form in sworn stat ments and are based on their p rsonal exami nation and observation , the such examination and obs rvation form an acceptable ba is for that doctor's opinion r garding the existence and ext nt of Plaintiff s rang of motion limitation, and where those findin g th Defendant ' examining doctor is u r quir a trial [0 'Sullh an v. Atrium Bu. of fact ex ist that pr clud o. 246 onflict with thos of ummar j udgment and that D2d 418 ( I t Dept 1998)]. Where conflicting medical vid nc i offered on the issue of wh th r th Plaintiff's 1nJLm are permanent or significant, and varying inference may be drawn the question is one for th · jury l!vlartinez v. Pioneer Transportation Corp. , 48 AD 3d. 306 (l t Dept 2008)]. Summary jud 1 ment will be granted only if there i no triable issue of fact. Issu finding, rather than issue d t rmination, is the key to summary judgment, and the papers on th mot ion should be , rutini ed carefully in the li ght 1 111 t favorab le to the party opposing th r li ef [Judice D Angelo, 272 AD2d 583 2d D pt 2000)]. her the medical affi rmati n ubmitted create a triable i u or fact on the question of wheth r Pl ai ntiff sustained a serious inj ury, Defendant's motion sh uld b denied [Chand v. Asghar , 6 Misc.3d 1010(A), 800 .Y .. 2d 344, 2005 .Y. Slip Op. 50025(U)] and discrepancies between the competing reports of the treating physicians and the defendant 's exami ning phy ician create issues of credibility and i sues of fact that cannot be re olved on summary j udgm nt and that require a trial [Fran is v. Basic Metal, Inc . 144 5 of 6 02d 634 (2d Dept l 981 ); [*FILED: 6] ROCKLAND COUNTY CLERK 12/11/2018 08:05 AM NYSCEF DOC. NO. 31 INDEX NO. 031338/2017 RECEIVED NYSCEF: 12/10/2018 Cassagno/ v. Williamsburg Plaza Taxi. 234 AD2d 208 (1st D pt 1996)]. In arri ing at this decision th Court has re iewed e aluated and con id red all of th issue framed by the motion pap rs and the failure of the Court to specifically mention any particular issue in thi Decision and Order does not mean that it has not been considered by the Court in light of th appropriate legal authori t . Accordingly, it is hereby ORDERED that Defend ant 's Motion fi r ummary Jud ment (Moti n I ) is d ni d in it entirety; and it is further ORDERED that the parties are directed to appear for a pre-trial conference on WED ESDAY J ARY 23, 2018 at 9:30 a.m . in TAP b fore the Honorable William ood . The foregoing constitutes the Decision and Orde Dat d: Justice of the Supreme Court TO: EJ ARK & El ARK, LLP Attorn ey for Plaintiff (via e-ti le) BOE GE A ORDE, 0 Attorn y for Defendants (via e-fi le) DR TC & H RL Y, P.C. 6 of 6

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