Carey v Almonte

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Carey v Almonte 2018 NY Slip Op 34320(U) September 19, 2018 Supreme Court, Rockland County Docket Number: Index No. 035627/2016 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. INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 UPR ECO R OF TH STATE OF COUNTY OF ROCKLAND EW YORK ----- -- ----------------------------------- ------------------ -- ----------x JILLlA REY, Plaintiff. DECISIO & ORDER [ n d ex o. ~ D.35 t:;.( 7/.:9-0 /~ otion. 3 - MD Motion 4 - MD C-N dj: 12/19/ 18 -against- TE, TE RLO . ALM T TE TIRE CORP. , and JASON HERNANDEZ Defendants. -------- --- --- --------- ----- ----- ----- ----------- -------- ----- ----------x Hon . Thomas E. Walsh II, J. . C. Th follow ing papers numbered I - 3 read on this otice of otion (Motion #3) b Defendant CARLO M. A MO TE and EASTER ST T TIRE ORP. for an Order pursuant to Civil Practice Law and Rules § 3212 for summary judgment due to Plaintiff to meet th threshold limits tb failure ew York Stat Insuran e Law, S tions 5 102 and 5104 ; and also considered in connection with a Notice of Motion (Motion #5) by Defendant CARLOS M. LMO TE and TE T TE TIRE CORP for an Order pur uant to 22 YCRR 202 .1 7 and 202.21 striking this acti on from the trial calendar and vacating Plaintiff's tion ote of l sue and tatement of Readiness on th ground that the a tion is n t r ad fo r trial in that all necessary or proper prelim inary proceedings hav not been complet d severe ly prejudicing movant 's trial preparation and further an Order ext nding th time of the Defendant to move for urnmary judgment: MBER Notice of Motion (Motion #3)/ Affirmati on of Andrea E. Ferruci, Esq ./ Exhibit ( -G) [* 1] otice of Motion (Motion #5)/Affi rmation of Jennifer L. Devenuti , Esq. / Exhibit ( -H) 2 Affirmation of Antonio Marano, Esq. in Opposition (Mot ion #3)/Exh ibits (A-0) 3 1 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 Th.is acti n arises from a three (3) ar accident on arch 25 , 2015 on Hav rstraw Road near the inters ction with Lim Kiln Road in Wesley Hill . Plaintiff filed and served the ummons and Complaint on December 20 20 16. Issued was joined by co-D fi ndant LMO TE and ASTE T TE TI - ORP., with the fi ling fan Ansv er. Defendant H R A DEZ joined issue upon filing of an answer on February 17, 2017. Defi ndant H A D fi I d a motion for summary j udgrnent as to liability on May 1 2017, which wa d nied by the und rsigned by Decision and Order dated eptember 25 , 2017. p cifically, Def ndant HERNANDEZ's previous motion was denied as premature since none of the parties to th action had been depos d before th motion wa fil d. Defendant HE A DEZ submitted the in tant motion for summary j udgment a to liability on his behalf after all partie depositions w r completed. Plaintiff fi led a Note oflssue on April 27, 2018. Defendants ALMO TE and A T R TATE TI CORP. filed the instant otice of M tion ( otion #3) seeking summary judgment due to Plaintiff' failure to meet the thre ho ld limit et by ew York tate In surance Law §§ 5 I 02 and 5104. Subsequently, Defendan ts ALMO T ~ and TE STATE TIRE C RP. filed a tice of Mot ion ( otion ~) seeking to vacate the ot of Issue. DEFEND T'S MOTION FOR MMARY JUDGME T (MOTlO #3) In the in tant action Plaintiff wa turning left and states that h was at a complete stop when h r vehicle was strnck b a vehicle dri en by D fi ndant JA According to Defendant H R DEZ. DEZ his vehicle was struck in the rear by a van driven by D fendant CARL S ALMO T (vehicle owned by D fendant EA T ST T TIRE CORP .. In thi s action plaintiff' s bill of particulars alleges that she su tained the f Ilowing injuries: LS-SI broad-based po terior di c bulge and c ntral annular tear, Ll-L2 disc bulge scoliosi s of the thoraco lum bar sp ine, the disc bulg effaces the epidural fat ventra l to the left SI intraspinal n rve root, SI radiculopathy low back pain and pain rad iating down both legs sev re lumbar pa in and pain radiating down both leg , s [* 2] lling and effu ion, se er pain with any use of mo 2 of 10 vere lumbar pain, tenderness, sorenes , ment of the lumbar spin INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 restriction with all plan s of range of motion of the lumbar spine, C5-6 and C6-7 di c bulg , severe erv ical pain, t nd m ss soreness swelling and effusion, severe pai n ,.vith any u e or mo ement of th c rv ica l spine s ere restriction with all planes of rang of motion f the cer ica l pine. p t-tr umatic arthritis, head pain and severe and intractab l h ada h Plaintiff Bill of Part icular further alleges that Plaintiff sustained a eri u injur a d fined b In ·uran e law permanent lo 5102 in that Plaintiff sustained a personal injur hi hr ult din of u e of a body organ m mber, function or system, permanent c n equ ntial limitation of u e fa b dy organ or member significant limitation if u e of a body unction or y-tem or am dically det rmined injury or impairment of a non-pennanent nature wh ich prevents th injur d per on from performing substantially all of the material acts which constitute such person' usual and customary daily activities for not less than ninety days during the on hundr d eighty days following the occurrence of the injury or impairment. On Oct b r 9,2017 the Plaintiff was examined by Dr. Loren Rosenthal at the requ st of the De~ ndant. In hi s affirmed report of that examination, Dr. Rosenthal stat s that she conducted a phy ical examination of the Plaintiff and that she reviewed Plaintiff's medical record . Dr. Ro enthal r ports: that Plaintiff was involved in a motor vehicle accident on March f 25 , 20 l 5 while h r v hicl wa stopped and her vehicle was rear-ended· there wa n I con ciou ne . but Plaintiff did inform the doctor that she had "c rvical wh ipl ash . Dr. Ros ntha l repo11s that Plain iff pr ent d to Good Samaritan Hospital on March 25 20 15 and di charg d the am a . Dr. Rosenthal furthe r reports she re iewed medical record , a deli n ated n the third diagnos a rd ) page of her report . he further provided the foll wing fi (5) ( l ) c rv i al-thoracic scoliosis, which has been present prior to th accid nt of 03/25/20 15 , (2) low ba k pain without clinical evidence of radiculopathy, L 1-L2 di c bulg p r RJ r port, (3) h adaches, resolved (4) left Sl nerve root impingement per MRI report without clinical videnc o radiculopathy and (5) C5-C6 and C6-C7 disc bulge , per RJ report. Dr. Rosenthal's findings were that there were no objective findings of cervical or lumbar radiculopthay that the Plaintiff has a full range of motion to the cervical and lumbar spine a congenital condit ion, levoscoliosis, which was pre-existing and not re lated to the instant accident, no evidence of an acute traumatic injury to the spine, no clinical evidence of teno is or impingement and mu lti-level degenerative disc disease which was pre-existing and unrelated to [* 3] 3 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 the accident. dditionally, Dr. Ro enthal tat s that there is no objective ev idence of a di ability the Plaintiff is performing her u ual and customary activities of daily life with no restrictions and no objecti On evidence of perman nc or re idual effec t. ctober 20 201 7 the plaintiff was examined by Marc A. Berezin, M.D . at the request o f the Defe ndant. In his affirmed report of that examination, Dr. Berezin state that he conducted a physica l exami nation of the Plaintiff and that he revi wed the B ill of Partic ulars, em rgency room record s from Good Samaritan Hospital 3/25/15, a spinal survey from April 9, 2015 and handwritt n not s from Dr. Such ff fro m priJ, ay, June, Jul ctober, vember 2015 and D cember 2012 . Dr. Berezin not d the handwritten notes were not cl ar and difficult to read . Dr B rezin rep rts: that Plaintiff su tained injuries secondary to a motor vehicl acc ident a she was the driver of a car wh ich was stopped and struck in the rear end. T he Plaint iff inform d Dr. Berezin that her car did not hit any other obj ects and that he was brought by ambulance to Good amaritan Hospita l du to immed iate nec k pain follo · ing the accid nt. Dr. Berezin impression/diagnosis was ( 1) cervical st[r]ain an d(2) lumbar strain. Additionall y, Dr. B rezin r ported that the MRI tudies did not reveal vidence of traum atic findings. Demonstrated disc bulges that are not traumatic findings , de generative changes and di c bulging that are consistent with deg n rative process and not traumatic. Further, Dr. Berezin tates that the findin gs of coliosis i not a contributing factor to Plaint iff complaints. Dr. Berezin ' onclusion was that there was no objective vidence of disabil ity or permanency and he observed no objective vidence of ne uro logic changes. On December I , 20 I 7 th Plaintiff was examined by Arthur Fruauff, .0 . at th request of the D fi ndant. In his affirm ed report of that examination, Dr. Fruauff states that he conducted a physical xamination of the Plaintiff and h reviewed RI perfi m1ed at Hud on all Rad iology Associates on July l , 2016. Dr. Fruauff reports that upon review of the a orementioned RI hi impr s ion is that the Plainti ff has cong nital I ft coliosis of th thorac ic/ lumbar spine and degenerative di sc di sease with a secondary di ffus bu lging di sc and mall posterior annu lar tear at LS- 1. As a result, Dr. Fruauff stat that there are no fi nd ings w hi ch are e ondar t the subj ct accident. T he Plaintiff te tified at hi examination before trial and stated therein , in releva nt ubstance, th at : she pr ented to [* 4] ood Samaritan Ho pita] ia ambu lance aft r the accid nt with 4 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 complaints of a headache and back pain (no neck complaints at that time), that he was examined and provided anti -i nfl ammatorie and told to take it asy and get some rest, ' tha t she sought further medical treatment with her primary care physician the next day complaining of lower ba k and neck pai n, that she wa instructed to continu anti-inflam matoreis and r turn if pain pe r istsed. According to P laintiff's EBT he sought tr atment from Dr. Suchoff a chiropractor ten ( I 0) days after the accident for neck and back pain- began treatm rit with Dr. Suchoff m luding stret he an d pre ur twice aw k for six ks. the one a week for ix weeks and th n once ev ry two weeks for six weeks - treating for a total of eight en we ks. The Plainti ff also testified that prior to the accident she was diagnosed and treated for scolios is. Plaintiff t stified she mi d six da s from work a a result of th accid nt and hen sher turned she n ed d assistanc with her wo rk for a month. The affirmed medical r port of, Dr. Lawrence uchoff, state that he saw the Plaintiff m st r cent! on Ma · 31 20 18 and that h continue to have significant restriction in her cervical spine which restrict h r motion and significant cervical pain and restrict i n. Further Dr. Suchoff states that in his proD sional opini on based upon the most r cent examination of the Plaintiff she ha us tained a p rmanent, c n equenti al and signi ficant limitation of h r cerv ical spin which is directly related to the subj ect motor vehicle accident. He continue stating her prognosis is poor and ther i a direct caus and effect r lationship b tween Plaintiffs current condition and th ubject ac ident. In order to be entitled to summary judgment it is incumbent upon the d ~ ndant to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a erious injur [Healea v. Andriani 1 A. D. 2d 587 (2d Dept 1990)]. As the proponent f thi s summary judgment motion defendants must make a prima faci e hawing of entitlement to j ud ment as a matter of law, b tendering ufficient ev id nee to eli minate any mat ria l issue of fact from the ca e and to warrant a court to direct judgm nt in their favor, as a matter of la [Civil Practice Law and Rules § 3212(b); (200"), citing Alvarez v. Pro ·peel Hosp., 68 York, 49 Y2d 557 (1 980)]. iu{frida v. itihank Corp., et al, 100 NY2d 72 Y2d 320 1986); and Zuckerman,. Citv of ew u.mmary judgment will b granted only if there i n triable i u of fact , issue finding , rather than issue determination , is the key to ummary judgment, and the pap rs on the m tion should b scrutini zed carefully in the light mo t favorable to the part [* 5] 5 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 opposing the relief [Judice v.DeAngelo , 272 D2d 583 (2d Dept 2000)]. To meet their ummary judgment burd n plaintiffs must come fo rward with sufficient ev identiary proof in ad mi s ib le form to raise a triable issue of fact as to whether Plaintiff suffered a "serious injury' within the meaning of the In urance Law [Zoldas v. t. Louis Cab Corp. , 108 .O.2d 378 (lstD pt. 1985) Dwver v. Tracey, 105 A.D .2d 476 (3rd Dept. 19 4)]. By e tablishing that any on f everal inj uries u tain d in an accident i a ri ou injury within th meaning of Insuran ce Law 5102 (d), a plaintiff i entitled to seek recov ry for all injuries incurred as a result of the accident [Bonner v Hill, 302 A.D.2d 544 (2d Dept. 2003); O'Neill v O'Neill, 261 A.D.2d 459 (2d Dept., 1999)]. In opposition to defendant's summary judgm nt motion Plaintiffs ubmit the affirmed report of Dr. Lawrenc uchoff. Based on the m dical report of Dr. a r n uchoff Plainti ff argues that she in r po n e to Defendant 's moti n, d monstrated factual di sputes as to Plaintiff claim of having sustatn d a personal injury which re ulted in permanent lo of use of a body organ , member, function or system, permanent consequential limitation of use of a body organ or member, significant limitation if use of a body function or system, or a medically determined injury or impairment of a non-permanent natur wh ich prevents the injured per on from p rforming substanti a lI a ll of the material act customary dai ly acti iti hi h constitute such per on· usual and for not less than ninet da s during the one hundr d eighty days following the occurrence of the injury or impairment Where as her Plaintiff's doctor ' s findings are set forth in admissib le fo rm in sworn statements and are bas d on their personal examination and observati on , the uch examination and observation form an acceptable basis for that doctor s opin ion regarding the existence and xtent of Plaintiff s ran of motion limitation, and , , here those findin g c nfl ict with tho e of th D fo ndant s examining doctor issues of fa t xist that preclude summary judgmeryt and that require a trial [0 'Sullivan v. Atrium Bus Co., 246 AD2d 418 (I st Dept 199 )l Where conflicting medical evidence is offered on the issue of whether the Plaintiffs inj uries are permanent or significant, and varying inference may be drawn the question is one for th jury [Martinez, Pioneer Trans portation orp., 48 AD 3d. 306 ( I t D pt 2008)]. Summary · udgment, ill b gran ted only if there is no triab le i sue of fact. Issue finding , rather than issue d termination i the k y to ununary judgment, and the papers on the motion hould be [* 6] 6 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 scrutin ized carefully in the light mo t favorable to the party opposing the relief [Judice vD Angelo, 272 AO2d 583 (2 nd Dept 2000)]. Where the medical affirmations submitted create a triable issue of fact on the question of wheth r Plaintiff su tained a serious injury, Defendant's motion should bed nied [Chand v. Asghar . 6 Misc.Jct I 01 0(A), 800 .Y . .2d 344 2005 .Y. lip Op. 50025( )] and discrepancies betw en the competing report of the treating phy icians and th defendant ' exami ning physicians create i su s of credibility and issue of fac t that cannot be resolv don summary j udgrn nt and that r quire a trial [Francis v. Basic Metal, In c , 144 Cassagnol v. Williamsbur~ Plaza Taxi, 234 D2d 634 (2d Dept 1981 ); D2d 208 (1st Dept 1996) . In arriving at this decision the Court has rev iewed, evaluated and considered all of the 1ssu framed b the emotion pap rs and the fa ilure of the Court to specifi ally mention an 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 authority. Th Cou11 ha before it an unopposed motion to vacat the on pril 27 20 I 8 a ote of Issue filed by plaintiff rting that the in tant acti n is not read G r trial ba d upon the exi t nee of as cond action which is the result of the sam ubject accid nt. That action has been filed and erved as of February 8, 2018 under Index # 30715/2018 and is current ly a igned to Judge Thor n in Rockland upreme C urt. Defendant AL O T and EAST TATE TIRE CORP. argue that they appeared on the related action before Judge Thorsen on Apri l 23, 20 I 8 and the Plaintiffs (as directed by th undersigned) fi led a Apri l 7. 2018. A cording to D fi ndants ALM T ote of Issue in th instant action on and EA TERN ST ~ TIRE CORP. th two actions arise from a sing le common accident and the is ue in both are the ame, as are the parties and witnesses but discovery has not b Defenda nt seek to vacate the n completed in the second act ion. The ote of Issue in th instant ca e fi r the purpo e of completing ry in the second action and allowing it t "catch up" o that no parti Pursuant to uffer prejudi e. iviL Practice Law and Rules § 3402(a) pr vides that a note of issue may be filed t any time aft r the issue i joined or forty (40) days aft r service of th summons [* 7] 7 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 irre pective of the joind r of i sue and must be a compani d b the item r qui red in 22 202.21 (a). The purpose of a certificate of readine YCRR is to certify that all discovery is com plete, waived or not required and that the act ion is ready for trial. 22 NYCRR · 202.21 (b) . A c rtificate of readi ness or inarily or closures further discovery. [ Blond II v. Malone 9 1 AD2d 120 I (4th Dept); Niagara Falls Urban Renewal Agency v. Pomerv Real Estate Corp., 74 AD2d T 4 (4th Dept 1980)]. After a pur uant to 22 ote ofI u is fil d there are two (2) methods to obtain furth r disc! sure : (1) YCRR § 202 .2 l(d) and 22 NYCRR 202.21 (e). Pursuant to 22 Y RR§ 202.21 (d): Where unusual or unanticipated circumstance develop subsequent to the filing of a note of issue and c rtificat of readiness which require additional pretrial proceedings to prev nt substantia l prejudice he court, upon motion upported by affida it, may grant p rmission to conduct uch necessary proceedings. Pur uantto22 YCRR 202.2 l (e)pro ides: [w]ithin 20 days after ervice of a note of issue and certificate of readiness any party to the action or special proceeding may move to vacate th note of issue upon affidavit showing in what r spects the case i not ready or trial and th court ma vacate the note of issue if it appears that a material fact in the c rtificate of r adiness is incorrect, or that th certificat of readines fails to comply with the requir m nts of thi ection i one material respect. Therefore, where additional discovery is ought mor than twenty (20) days after the fi Iing of the n te of issu the moving party is required to dem nstrate unusual or unanticipated circum tance and sub tantial prejudic absent th additional di covery. [Blinds to Go (US). Inc. v. Times Plaza Development, L.P., 111 AD3d 775 (2d Dept 20 l 3)]. Accordingly, a motion e king furth r pretrial pr eedings after a note of issue and rtificate fr adines has been fil d is only grant d upon a showing of th movant of good cause or the presence of unu ual and unanticipated circumstances subsequ nt to the filing of the note of issue· nd certificate of r adiness. [ 0. awonvi . rigorian, 2 0 D400 (2d Dept 199 ); Davididan b Davididan v. County o(Na · au, 152 AD2d 617 (2d Dept 1989)]. Absent a finding of the trial court of"unusual or unantic ipated circum tances" th Court does not have dis r tion to sua sponte acate a field not of issue. [* 8] 8 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 Vacatur oft/re The ote of l sue pursuant to 22 NYC RR 202.21 (e) o urt notes that the Defenda nts have made th ir application to vacate th ue in the in tant action pursuant to 22 of its filing . The YCRR 202 .2 1(e) ithin twenty (2 0) da ote of of the date ote of Issue was fil ed on April 27, 2018. Additionally Defendan ts submit that intended t fi le a mot ion for a joint triaJ, but at the pre-motion confi rence be fore the th undersigned on April 25 , 201 8 the pa11ies were d irected to try to corn pl te discovery in the se ond action b fore seeking to move for a joint tri al. The D fendant r li ed on 22 YCRR 202 ._ l(e) as th basis ofth ir argument. Defendants contend that in a circumstance in which there is a fa lse statement in the certificate of read iness regardi ng outstanding requ t for discovery that th action should be strick n from th calendar. The Defendan ts have fa il ed to provide an argument as to th false statement contained wit hin the certificate of readiness which would warrant a vacatur of the filed in the in tant action. s such, the Court declines to vacate the ot ot oflssue f Issue and Certificate of Readiness in the instant action pur uant to 22 NYCRR 202.2l(e). Accordingly, it is hereby ORD ERED that D fe ndants Motion for ummary Judgment ( ntirety; and it is further tion tt 3) i deni ed in it ORDERED that D fendants Motion to Vacate the Note of Issu (Motion #5) is denied it ntirety; and it is forth r ORD ERED that the parties are directed to appear for a pre-trial conference on WEDNESDAY DECEMBER 19, 2018 at 9:30 a.m. in TAP before the Honorable William h The foregoi ng con stitutes the Dec ision and Order o Dated: Cit , "tft1' Yo rk eptember 2018 e 1-J--, HON. THOMAS E. WALSH, II Justice of the Supreme Court T : [* 9] 9 of 10 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 09/19/2018 04:31 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/19/2018 To: JOS EPI G. D LL, SQ. DELL & DEA PLLC Attorney for Plaintiff (via e-file) JA ES A. ROG RS , SQ. WILSO , B VE CO BOY, Attorn y for Defendant J O (via e-file) DEBORAH S. REED , Q. PICCIA O & SCA ILL, P. Anome for Defendant C RLO (v ia e-fi le) • P.. OZZ HER . L T and TE T TE TIRE ORP. I ,. 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