Ortega v Rucci
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Ortega v Rucci 2018 NY Slip Op 34115(U) September 21, 2018 Supreme Court, Westchester County Docket Number: Index No. 53027/2017 Judge: Terry Jane Ruderman 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] WESTCHESTER COUNTY CLERK 09/24/2018 04:22 PM NYSCEF DOC. NO. 30 INDEX NO. 53027/2017 RECEIVED NYSCEF: 09/24/2018 commence the statutory statutory time time f~r for appeals appeals as ofright of right To commence (CPLR 5513[a]), 5513(a]), you you are advised advised to serve serve a copy copy ·.. . (CPLR of this order, order, with with notice notice of of entry, entry, upon upon all parties. of parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY -------------------------------------------------------------------------------)( -------------------------------------------------------------------------------x JOSE ORTEGA, ORTEGA, JOSE DECISION AND AND ORDER ORDER DECISION Plaintiff, Plaintiff, Sequence NO.1 Sequence No. 1 Inde)( No. 53027/2017 53027/2017 Index -against-againstSYLVIA RUCCI, RUCCI, SYLVIA Defendant. Defendant. ------------------------------------------------------------~------------------)( -------------------------------------------------------------------------------x RUDERMAN, J. RUDERMAN, following papers were considered considered in connection connection with with defendant's defendant's motion motion for The following papers were summary judgment dismissing the complaint: complaint: summary judgment dismissing Numbered Numbered 1 2 Papers Papers . Notice of Motion, Motion, Affirmation, Affirmation, Exhibits E)(hibits A-G A-G Notice of Affirmation Affirmation in Opposition Opposition Plaintiff Plaintiff Jose Jose Ortega Ortega commenced commenced this this action action on March March 7, 2017 2017 to recover recover for personal personal injuries sustained sustained when when he was was struck struck by a vehicle vehicle operated operated by defendant defendant Sylvia Sylvia Rucci. Rucci. The The injuries complaint alleges alleges that that on on March March 19, 19,2015, was a pedestrian station parking 2015, plaintiff plaintiff was pedestrian at a gas station parking lot complaint located at 3911 Crompond Crompond Road, Road, in the Town Town of of Yorktown, Yorktown, County County of of Westchester, Westchester, when when he was was located struck as he was walking, walking, and and that that as a result result of of defendant's defendant's negligence, negligence, he sustained sustained severe, severe, struck serious and permanent injuries. serious permanent personal personal injuries. Defendant now now moves moves for an order order granting granting summary summary judgment, pursuant to CPLR CPLR 3212, 3212, judgment, pursuant Defendant dismissing the complaint, complaint, based contention that that plaintiff not sustain sustain serious serious injury injury as dismissing based on the contention plaintiff did not . L , I . that term term is defined defined by Insurance Insurance Law Law §S 5102. 5102. Plaintiff Plaintiff opposes. opposes. that 1 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 09/24/2018 04:22 PM NYSCEF DOC. NO. 30 INDEX NO. 53027/2017 RECEIVED NYSCEF: 09/24/2018 Analysis . Analysis movant on a summary summary judgment motion ~ust ~ust make make a prima showing of of prima facie showing A movant judgment motion entitlement to judgment asaa matter matter of of law, providing sufficient evidence evidence to eliminate eliniinate any entitlement judgment as providin~ sufficient material issue issue of of fact from from the case (see Winegrad Winegrad v N Y Univ. Med. Ctr., 64 NY2d851, NY NY2d85 l, 853 material City of of New 49NY2d 557, 557,562 [1980]). Since Since summary summary judgment [1985]; Zuckerman Zuckerman v City New York, 49NY2d 562 [1980]). judgment is a drastic drastic remedy, remedy, it should should not not be _granted granted where where there there ·is is any doubt doubt as to the existence existence of of a triable triable ' ' issue (Rotuba (Rotuba Extruders Ceppos, 46 NY2d 223 [1978]). The The burden movant is a heavy heavy issue Extruders v Ceppos, NY2d 223(1978]). burden on the movant must be viewed viewed in the light light most favorable to the non-moving (Jacobsen one, and the facts must most favorable non-moving party party (Jacobsen City Health Corp., 22 NY3d [2014]). v New New York City Health & Hosps. Hosps. Corp., NY3d 824 [2014]). Defendant has the initial initial burden of presenting competent evidence evidence to prove that plaintiff presenting competent prove that plaintiff Defendant burden of not sustain sustain a serious serious injury injury within within the me~ing me~ing of ofInsurance Law S 5102(d) 5102(d) (see Gaddy Gaddy v did not Insurance Law§ Elyer, 79 NY2d [1992]). If If defendant defendant does does not meet meet this this pri~a NY2d 955 [1992]). pri~a facie burden burden it is unnecessary for the Court Court to determine determine whether whether any papers submitted in opposition opposition are sufficient sufficient unnecessary papers submitted raise.a triable triable issue issue of of fact (see Silan Silan v Sylvester, Sylvester, 122AD3rd 122AD3rd 713 [2d Dept Dept 2014]; 2014]; Artis to raise·a Artis v Lucas, AD3d 845 [2d Dept Dept 2011]). 2011]). Lucas, 84 AD3d defendant can can establish establish that that a plaintiff sustain serious serious injury injury within within the meaning meaning A defendant plaintiff did not sustain of the Insurance Insurance Law Law by the submission submission of of an affirmed affirmed report report from a medical medical expert expert who who has of examined the plaintiff determined that that no objective objective medical medical findings findings support support the the examined plaintiff and has determined plaintiffs alleged claims claims (see Rodriguez 46 AD3d AD3d 794 [2d Dept Dept 2007]). 2007]). In support support plaintiffs alleged Rodriguez v Huerfano, Huerfano, 46 of the instant instant motion, defendant submits submits the affirmed affirmed report report of of orthopedic orthopedic surgeon surgeon Louis Louis D. of motion, defendant Nunez, M~D., who who conducted conducted an Independent Independent Medical Medical Examination Examination of of plaintiff March 4, Nunez, M.D., plaintiff on March . ' ' . ·-· 2016. Dr. Nunez opined, inter inter alia, that that plaintiff suffered a myofascial myofascial strain strain of of the the cervical cervical and 2016. Nunez opined, plaintiff suffered 22 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 09/24/2018 04:22 PM NYSCEF DOC. NO. 30 INDEX NO. 53027/2017 RECEIVED NYSCEF: 09/24/2018 lumber spine, spine, but but that that the the con4ition condition had had resolved. resolved. However, However, he also also found found 4efendant defendant has has lumber · "significant "significant restricted restricted range range of of motion motion of of the the lumbar lumbar spine." spine." Defendant also also submits submits the.affimied the affirmed report report of of neurologist neurologist Elliot Gross, Gross, M.D., who who opined Defendant Elliot M.D., opined . . . that the plaintiff suffered no neurological neurological disability disability due to the the accident accident in question. question. However, However, he that plaintiff suffered stated "[l]f "(I]fthe history provided the claimant claimant is accurate accurate then then subsequent subsequent complaints complaints are also stated the history provided by the related to the the accident accident of of record." record." Both Both .doctors doctors opined opined there there was was evidence evidence of of "symptom "symptom related embellishment." embellishment." Both Both doctors doctors also also note note that that past past medical medical history history indicate·s indicates there there were were no injuries injuries prior to the the accident accident of of March March 19, 19,2015. prior 2015. Also Also included included among among defendant's defendant's submissions submissions are plaintiff's plaintiffs medical medical records, records, including including the report report of of Dr. Stanley Stanley Holstein, Holstein, who who examined examined plaintiff plaintiff on March March 24, 24,2015, and who who opined opined the 2015, and after conducting conducting his examination examination that that plaintiff was "totally "totally disabled" disabled" at that that time time and and that that his after plaintiff was functional disabilities disabilities were were caused caused by the March MarchJ9, 2015 automobile automobile accident. accident. MRis MRIs of of the functional 19, 2015 cervical and lumbar lumbar spine spine were were performed, and revealed revealed the presence of disc disc herniations. herniations. On a cervical performed, and presence of .... \ •"'\ follow-up visit visit to Dr. Holstein Holstein on December December 22, 22,2015, limitations in his his lumbar lumbar range range of of motion motion follow-up 2015, limitations were noted, noted, as well well as other other positive test results, results, and Dr. Holstein Holstein concluded concluded that that plaintiff plaintiff was was were positive test partially disabled disabled and that that his limitation limitation and functional functional disabilities disabilities were were causally causally related related to the partially accident. accident. Further, evaluation evaluation by orthopedist orthopedist Louis Louis C. Rose, Rose, M.D., M.D., who who examined examined plaintiff plaintiff on April April Further, 8,2015, August 26, 26,2015, and December December 30, 30,2015 submitted with withdefendant's motiort. 8, 2015, August 2015, and 2015 is also submitted defendant's motiort. Rose reported reported injury injury to plaintiffs Wrists... plaintiff's wrists Dr. Rose Finally, the the submissions submissions on the the motioh motion include include plaintiff's plaintiffs deposition, deposition, in which which he asserted asserted Finally, all inability inability to wo~k work for a year· year after after the the accident, accident, due due to pain pain in his back, back, and and further, further, that that he still still an 3 3 of 5 [*FILED: 4] WESTCHESTER COUNTY CLERK 09/24/2018 04:22 PM NYSCEF DOC. NO. 30 INDEX NO. 53027/2017 RECEIVED NYSCEF: 09/24/2018 lifting, such cannot lift heavy heavy things things or perform perform certain certain work work involving involving heavy. heavy lifting, such as patio patio cannot construction. construction. judgment as a Defendant's submissions submissions on the the motion motion fails to establish establish her her entitlement entitlement to judgment Defendant's Insurance matter of of law law on the issue issue of of whether whether plaintiff plaintiff sustained sustained a serious serious injury injury as defined defined in Insurance matter material issues the existence Law S5102(d). Specifically, Specifically, defendant's defendant's submissions submissions establish establish the existence of of material issues of of Law §5102(d). of a non-permanent fact as to whether whether plaintiff plaintiff suffered suffered a medically medically determined determined injury injury of non-permanent nature nature which prevented prevented him him from from performing performing substantially substantially all of of the material material acts acts which which constituted constituted his which hundred eighty the one ninety days than ninety usual and customary customary daily daily activities activities for not less than days during during the one hundred eighty not less usual and immediately following following the the occurrence occurrence of of the the injury injury or impairment. impairment. days immediately . Defendant does does not not refute refute that that plaintiff plaintiff did not not return return to work work for approximately approximately a year year Defendant that in their note that after the accident. accident. In fact, both Independent Medical Medical Examiners Examiners note their reports reports that that both Independent after plaintiff had had not not worked worked since since the the incident. incident. · Furthermore, Furthermore, while while both both the the Independent Independent Medical Medical plaintiff Examiners found found evidence evidence of of symptom symptom embellishment, embellishment, that that is squarely squarely a credibility credibility issue issue and and is Examiners motion. judgment motion. not decided in the context of of a summary summary judgment the context properly decided not properly Finally, defen?ant's defen?ant's argument argument that that the 90/180 90/180 claim claim must must be dismissed dismissed on the the ground ground that that Finally, plaintiff failed failed to seek seek treatment treatment related related to the accident accident more more than than 90 days after after the accident, accident, is plaintiff that on For instance, not defendant's submissions. submissions. For instance, defendant defendant acknowledges acknowledges that on based on defendant's warranted based not warranted 2015 incident, November 3, 2015, 2015, more more than than 90 days days following following the the March March 19, 19,2015 incident, plaintiff plaintiff sought sought November.3, oflower back treatment at the emergency room room complaining complainingoflower back pain pain relating relating to the injuries injuries allegedly allegedly the emergency treatment caused by the accident. accident. caused 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 09/24/2018 04:22 PM NYSCEF DOC. NO. 30 INDEX NO. 53027/2017 RECEIVED NYSCEF: 09/24/2018 Therefore, Therefore, upon upon review, review, and viewing viewing the the evidence evidence in the the light light most most favorable favorable to the the plaintiff, defendant plaintiff, defendant has has failed failed to meet meet her her burden burden of of demonstrating demonstrating entitlement entitlement to summary summary judgment as a matter judgment matter oflaw. of law. Accordingly, Accordingly, it is ORDERED judgrnentis ORDERED that that defendants' defendants' motion motion for summary summary judgment is denied; denied; and it is furt:her further ORDERED ORDERED that that defendant defendant shall shall serve serve this decision decision and and order, order, wi(h with notice notice of of entry entry . thereof, thereof, on plaintiff plaintiff within within seven seven days days of of the date hereof; hereof; and it is further further ORDERED that that the the parties parties appear appear in the Settlement Settlement Conference Conference Part Part on Tuesday,· Tuesday, ORDERED November 13, 2018 at 9:15 ',a.m. a.m. at the 111 Dr. Martin November 13,2018 the Westchester Westchester County County Supreme Supreme Courthouse, Courthouse, Martin . . Luther New York 0601 for Luther King King Jr., Boulevard, Boulevard, White White Plains, Plains, New York l10601 for the the scheduling scheduling of of a trial. This This constitutes constitutes the the Decision Decision and Order Order of of the Court. Court. ) ~) ·~ HO.T.JAN . J.s.c. HO . T JAN ~ ~UDERMAN, i.S.c. Dated: Dated: White White Plain¾,f Plain}.lewew York York September ,,2018 2018 September 5 5 of 5
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