Nace v Darden

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Nace v Darden 2018 NY Slip Op 34322(U) April 30, 2018 Supreme Court, Dutchess County Docket Number: Index No. 50263/16 Judge: Maria G. Rosa 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. 2016-50263 FILED: DUTCHESS COUNTY CLERK 05/02/2018 10:10 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/01/2018 SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF DUTCHESS DUTCHESS COUNTY Present: Present: Maria G. Rosa Rosa Hon. Maria Justice Justice THERESA NACE, THERESA NACE, DECISION AND AND ORDER ORDER DECISION Plaintiff, Plaintiff, Index Index No. 50263/16 50263/16 -against-againstNICOLE DARDEN, NICOLE C. DARDEN, Defendant. Defendant. following papers were read on defendant's defendant's motion motion for summary summary judgment: The following papers were judgment: NOTICE OF MOTION NOTICE MOTION AFFIRMATION SUPPORT AFFIRMATION IN SUPPORT EXHIBITS A - N EXHIBITS AFFIRMATION IN OPPOSITION OPPOSITION AFFIRMATION AFFIDAVIT IN OPPOSITION OPPOSITION AFFIDAVIT EXHIBITS EXHIBITS A - E AFFIRMATION AFFIRMATION IN REPLY REPLY EXHIBIT EXHIBIT A This This is a negligence negligence action action in which which plaintiff plaintiff seeks seeks to recover recover damages damages for injuries injuries allegedly allegedly sustained in an August August 11, 2015 motor motor vehicle vehicle accident. accident. Defendant Defendant moves moves for summary summary judgment sustained judgment asserting asserting that that plaintiff plaintiff did not sustain sustain a serious serious injury injury within within the meaning meaning of of New York Insurance Insurance New York Law §5102( S5102( d). That That statute statute defines defines a "serious "serious injury" injury" in relevant relevant part Law part as: injury which which results results in ... ...permanent of use of of a body organ or [A] personal personal injury permanent loss of body organ member, function function or system; system; permanent consequential limitation limitation of of use of of a body member, permanent consequential body organ or member; member; significant significant limitation limitation of of use of of a body function or system; system; or a body function organ medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent nature which medically nature which prevents injured person substantially all the material material acts which which prevents the injured person from performing performing substantially constitute such such person's person's usual usual and customary customary daily activities activities for not less than than ninety ninety constitute during the one hundred hundred eighty eighty days immediately immediately following following the occurrence occurrence of ofthe the days during injury or impairment. impairment. NY Law §5102(d). S5102(d). injury NY Ins. Law [* 1] 1 of 5 FILED: DUTCHESS COUNTY CLERK 05/02/2018 10:10 AM NYSCEF DOC. NO. 35 INDEX NO. 2016-50263 RECEIVED NYSCEF: 05/01/2018 burden initial burden of serious defendant moving summary judgment serious injury injury has the the initial alleging a lack of judgment alleging moving for summary A defendant within injury serious a sustained of putting forth evidence showing that the plaintiff has not sustained serious injury within the plaintiff of putting forth evidence showing that shifts burden shifts showing, the burden aprimafacie showing, meaning of ofthe such aprimafacie makes such defendant makes If the defendant No-Fault Law. If the No-Fault meaning physician affidavits sworn of submission to the plaintiff to defeat the motion through the submission of sworn affidavits or physician through motion defeat plaintiff serious injury. of serious affirmations claim of support the claim that support affirmations that injury" as of her injury" proof of provide "objective To demonstrate "serious injury" "objective proof must provide plaintiff must injury" a plaintiff demonstrate a "serious NY2d Rent a Car Systems, Avis Rent "subjective complaints alone alone are not sufficient." Toure Toure v. Avis Systems, Inc., 98 NY2d not sufficient." "subjective complaints injury, serious a of proof medical 345 (2002). objective medical proof of serious offers objective plaintiff offers where a plaintiff even where However, even (2002). However, accident and between the accident of causation chain the when additional contributory factors interrupt chain of causation between interrupt factors contributory additional when complaint the of dismissal claimed such as a pre-existing condition, summary summary dismissal of complaint may be pre-existing condition, injury, such claimed injury, NY3d 566, 572 (2005). appropriate. Pommells Perez, 4 NY3d Pommells v. Perez, appropriate. injury to serious injury sustain a serious Defendant plaintiff did not sustain that plaintiff showing that facie showing prima facie made a prima Defendant has made submission of through the submission Law through No-Fault Law her and left of the No-Fault of meaning of within the meaning knee within left knee neck and back, neck her back, the and action another action plaintiffs pleadings filed in this and another testimony, pleadings deposition testimony, records, deposition medical records, plaintiff's medical medical independent neurological and orthopedic detailed expert reports prepared after orthopedic neurological independent medical after prepared detailed expert reports alleges she which examinations. alleges she accidents in 2010 and 2013 in which car accidents prior car Plaintiff was in prior examinations. Plaintiff injuries since such injuries treatment for such medical treatment sustained neck and back injuries. Plaintiff undergoing medical Plaintiff was undergoing back injuries. sustained neck vehicle motor 2015 August 11, of the August the 2010 accident and was taking motor vehicle accident. accident. time of Percoset at the time taking Percoset 2010 accident trauma of complaints Center Medical Following accident was treated at Vassar Brothers Medical Center for complaints of trauma Brothers Vassar treated she accident the Following or dislocation fracture, acute an of evidence to her left knee. X-rays of the left knee revealed no evidence of acute fracture, dislocation knee revealed X-rays of her left discharged. In compress and discharged. cold compress with a cold area with acute pathology. She was advised treat the area advised to treat bony pathology. acute bony injuries County seeking Ulster County 2016 commenced a negligence action in Ulster seeking damages damages for injuries negligence action plaintiff commenced 2016 plaintiff particulars from of particulars verified bill of accident. A verified allegedly vehicle accident. motor vehicle October 24, 2013 motor sustained in an October allegedly sustained action. this action. particulars in this of particulars bill of asserts in her bill that action identifies identifies the identical identical injuries plaintiff asserts injuries as plaintiff that action imaging resonance imaging Magnetic resonance injuries. Magnetic knee injuries. Plaintiff back and left knee neck, back same neck, exact same the exact claims the Plaintiff claims mild and spondylosis posterior and anterior ("MRI") of her cervical spine on October 12, anterior posterior spondylosis mild found 2015 October ("MRI'') ofher cervical spine C6-C7 at bulging C6-C7 mild bulging to moderate stenosis at C5-C6, anterior spondylosis spondylosis and mild C5-C6, and anterior canal stenosis central canal moderate central indicates that specifically MRI that of report with borderline central stenosis. However, report of that MRI specifically indicates the However, stenosis. canal with borderline central testified Plaintiff 2013. November no change Plaintiff testified performed in November prior MRI performed compared to a prior observed compared change was observed pain a intermittent pain swollen, she only suffered at her deposition deposition that her left knee was no longer longer swollen, suffered intermittent left knee further has Defendant walking. by affected couple of of times walking. Defendant further not affected k11ee was not that her knee week and that times a week couple performed examinations performed physical examinations memorializing physical submitted treatment Mendoza memorializing records from Dr. Luis Mendoza treatment records submitted make continues to make plaintiff continues that plaintiff state that reports state between September 2015 and June 2017. 2017. These These reports and June between September right back and right upper back shoulders and upper right and left shoulders complaints neck, right pain to her neck, severe pain moderate to severe of moderate complaints of report the Finally, accident. vehicle motor 2013 upper extremities as a direct result of her October motor vehicle accident. Finally, report October direct result of her upper extremities of the examination of medical examination independent medical of surgeon who conducted conducted an independent orthopedic surgeon defendant's orthopedic of defendant's mild back to 201 dating back records dating plaintiff of her medical medical records 20111 found a mild review of with a review conjunction with plaintiff in conjunction that concluded but concluded that knee but limitation spine and the left knee lumbar spine thoracic and lumbar cervical, thoracic motion in the cervical, of motion limitation of plaintiff suffering from a cervical, thoracic and lumbar lumbar spine spine sprain sprain which which were were superimposed superimposed cervical, thoracic plaintiff was suffering a left sustained plaintiff that concluded upon a pre-existing injury but had resolved. He similarly concluded that plaintiff sustained similarly resolved. upon pre-existing injury but 2 [* 2] 2 of 5 FILED: DUTCHESS COUNTY CLERK 05/02/2018 10:10 AM NYSCEF DOC. NO. 35 INDEX NO. 2016-50263 RECEIVED NYSCEF: 05/01/2018 upon his review based upon knee sprain sprain that that was was superimposed superimposed upon degenerative change change based review pre-existing degenerative upon a pre-existing knee resolved. He found had also resolved. of an x-ray and MRl such condition condition had found no objective objective that such but that report but MRI report x-ray and of were knee were left knee her left that any ongoing findings of of cervical ongoing symptoms symptoms to her radiculopathy and that lumbar radiculopathy cervical or lumbar findings accident. vehicle accident. motor vehicle 2015 motor the 2015 due to a pre-existing pre-existing degenerative condition and not not attributable attributable to the degenerative condition Defendant's neurologist neurologist examined examined plaintiff September 2017 2017 and reported reported a normal normal plaintiff in September Defendant's radiculopathy, neurological examination. He found found no objective objective evidence evidence of of cervical cervical or lumbar lumbar radiculopathy, neurological examination. earlier contrast to an earlier normal in contrast was normal 20, 2015 was noting November 20,2015 from November ("EM G") from electromyography ("EM that electromyography noting that EMG from December December 2013 which which revealed revealed evidence evidence of of a cervical cervical radiculopathy radiculopathy stemming stemming from EMG plaintiff motor vehicle vehicle accident. accident. He concludes concludes that that any exacerbation exacerbation that that may may have have occurred occurred plaintiffss 2013 motor accident was temporary found no objective objective evidence evidence or limitations limitations from a temporary and found from the 2015 accident testimony plaintiffss deposition with plaintiff conjunction with neurological standpoint. The foregoing evidence evidence in conjunction deposition testimony The foregoing neurological standpoint. stating that that her her only only limitation limitation following following the accident accident was an inability inability to lift her her grandchildren, grandchildren, clean clean stating plaintiff that showing facie prima a much as she used vacuum is sufficient sufficient to demonstrate demonstrate prima facie showing that plaintiff used to and vacuum as much permanent under the permanent vehicle accident motor vehicle suffer a serious serious physical injury from the subject subject motor accident under physical injury not suffer did not 5102 §5102. Law Insurance of categories day 90/180 significant consequential consequential limitation limitation or 90/180 categories of Insurance Law 9 . or significant Plaintiffs submissions submissions are insufficient insufficient to create create a material material issue issue of of fact as to whether whether she Plaintiffs upon her affidavit, motion relies suffered a serious serious injury. injury. Plaintiffs Plaintiffs opposition opposition to the the motion relies upon affidavit, medical medical suffered through 2015 18, August commencing records and records of treatment with Dr. Luis Mendoza commencing August 18,2015 through the Mendoza Luis with treatment of records records plaintiff asserts While plaintiff present, current condition. condition. While asserts her current report as to her narrative report 2018 narrative March 2018 including a March present, including that she is suffering suffering from neck neck and back back injuries injuries causally causally related related to the accident accident and Dr. Mendoza's Mendoza's that reports reflect reflect a limitation limitation in range range of of motion motion for her neck, neck, back back and and upper upper extremities extremities which which he reports attributes to the August accident, Dr. Mendoza Mendoza fails to adequately adequately address address vehicle accident, motor vehicle August 11, 2015 motor attributes Significantly, problems. plaintiffs pre-existing neck and back condition and other medical problems. Significantly, his medical other back condition plaintiffs pre-existing neck include any motion, fails to include judgment motion, March 18 report, summary judgment defendant filed its summary after defendant prepared after report, prepared 2018 March 20 neck for treatment of history his and discussion of plaintiff s two prior motor vehicle accidents history of treatment neck and accidents vehicle prior motor discussion of plaintiffs back injuries attributed attributed to those those accidents. accidents. At the end of of the report, report, in entirely entirely conclusory conclusory fashion, fashion, back injuries vehicle motor 2010 injuries neck Dr. Mendoza apportions twenty percent of plaintiff s neck injuries to the 2010 motor vehicle plaintiffs of percent twenty apportions Mendoza motor percent to the 2015 motor thirty percent vehicle accident motor vehicle accident, fifty percent accident and thirty the 2013 motor percent to the accident, 2013 the to percent sixty accident, 2010 the to vehicle accident, twenty percent of back injuries 2010 accident, sixty percent injuries back her of percent twenty accident, vehicle accident and twenty twenty percent percent to the 2015 accident. accident. He then then attributes attributes one hundred hundred percent percent of of her left accident range of the range knee injury to the August 2015 accident. accident. Assuming of findings findings and and Dr. Mendoza's Mendoza's Assuming the August 2015 knee injury back, he neck and back, reported sufficient to show show an objective objective degree degree of of limitations limitations on the neck records are sufficient reported records concerning evidence concerning persuasive evidence defendant's persuasive fails to proffer proffer sufficient sufficient evidence counter the defendant's evidence to counter percentages various causation and pre-existing pre-existing injuries. injuries. Dr. Mendoza's Mendoza's statement statement apportioning apportioning various percentages to causation three different different motor motor vehicle vehicle accidents accidents is not supported supported by any substantive substantive analysis. analysis. He fails to the three back injuries neck plaintiffs for records reference acknowledge the plaintiffs neck and and back injuries treatment records numerous treatment the numerous reference or acknowledge vehicle motor vehicle 2015 motor the 2015 causation to the dating attribute any causation not attribute that do not present that the present 2015 to the August 2015 from August dating from accident. vehicle motor 2013 the to exclusively accident. Instead, these records attribute injuries exclusively motor vehicle accident. injuries the accident. Instead, these records attribute facie showing prima facie conclusory statement statement as to causation causation is insufficient insufficient to defeat defeat a prima showing that that a A conclusory NY3d 536 plaintiffs alleged injuries injuries are degenerative degenerative or pre-existing. Franchini v. Palmieri, Palmieri, 1 NY3d pre-existing. See Franchini plaintiffs alleged (2003). (2003). 3 [* 3] 3 of 5 ,------ ~-_._-----~----------------------------- FILED: DUTCHESS COUNTY CLERK 05/02/2018 10:10 AM NYSCEF DOC. NO. 35 INDEX NO. 2016-50263 RECEIVED NYSCEF: 05/01/2018 knee alleged left knee her alleged whether her Plaintiff of fact as to whether issue of material issue establish a material Plaintiff also fails to establish vehicle accident. motor vehicle injury constitutes constitutes a serious serious injury injury or was causally causally related accident. related to the 2015 motor injury accident vehicle accident motor vehicle prior to the 2015 motor Plaintiff injuries prior knee injuries have left knee that she did not have assertion that Plaintiff'ss assertion connection 2, 201 7 filed in connection February 2,2017 dated February particulars dated is in direct of particulars verified bill of contradiction to a verified direct contradiction vehicle motor 2013 24, October her from deriving with October motor vehicle County deriving Ulster County action in Ulster injury action personal injury her personal with her sustained a she sustained accident she that accident that in that accident. states that expressly states particulars expressly of particulars bill of verified bill That verified accident. That motion of ofrange loss and meniscus injury, pain swelling, instability of range of motion to her left knee. As her instability swelling, and pain meniscus injury, direct contradiction motion is in directcontradiction judgment motion summary judgment affidavit defendant's summary opposition to defendant's submitted in opposition affidavit submitted avoid attempt to avoid feigned attempt that it is a feigned finds that court finds to her statement, the court verified statement, filed verified previously filed her previously of fact. issue of material issue raise a material evidence to raise summary competent evidence constitute competent not constitute does not and does judgment and summary judgment that she resolved and that had largely knee injury that her knee Moreover, deposition plaintiff injury had largely resolved testified that plaintiff testified her deposition Moreover, at her injury establish a serious insufficient to establish pain is insufficient knee pain only suffered intermittent serious injury Intermittent knee pain. Intermittent intermittent pain. only suffered nd nd Dept 1993). AD2d 780 (2 Dept Antieri, 190 AD2d within McHaffie v. Antieri, Insurance Law. See McHaffie of the Insurance meaning of within the meaning objective resulted in an objective condition resulted new condition Particularly, her new that her evidence that there is no evidence where there here, where Particularly, as here, Mendoza's of Dr. Mendoza's one of Every one bend. Every measured quantified limitation walk or bend. ability to walk her ability limitation on her measured or quantified motor week after the subject records examination of of her knee approximately one week subject motor knee approximately dating from his examination records dating Plaintiff extremities. Plaintiff lower extremities. of the lower joints of vehicle motion to all joints of motion range of normal range accident found a normal vehicle accident accident. since knee further fails to demonstrate a lack of consistent treatment for her knee since the 2015 accident. As demonstrate lack of consistent treatment further undisputed preher undisputed that her assertion that plaintiff conclusory assertion than a conclusory other than anything other offer anything failed to offer plaintiff has failed and fails to accident vehicle motor existing neck and back injuries were exasperated by the 2015 motor vehicle accident exasperated were back injuries existing neck Insurance of the Insurance meaning of within the meaning establish serious injury injury within constitutes a serious injury constitutes knee injury her left knee that her establish that is Law, it judgment is granted ORDERED that summary judgment granted and this action action is motion for summary defendant's motion that defendant's ORDERED dismissed. dismissed. Court. of the Court. order of The decision and order constitutes the decision foregoing constitutes The foregoing Date: Date: :30 , 2018 April April:30 ,2018 Poughkeepsie, York New York Poughkeepsie, New ENTER: ENTER: ~~ J.S.C. ROSA, l.S.C. MARlA MARIA G. ROSA, 4 [* 4] 4 of 5 FILED: DUTCHESS COUNTY CLERK 05/02/2018 10:10 AM NYSCEF DOC. NO. 35 INDEX NO. 2016-50263 RECEIVED NYSCEF: 05/01/2018 Basch & Keegan, Keegan, LLP Basch Clinton A Avenue 307 Clinton venue Kingston, NY Kingston, NY 12402 Keane & Bernheimer, Bernheimer, PLLC PLLC Keane Columbus A Avenue, Suite 1100S 400 Columbus venue, Suite 00S Valhalla, NY Valhalla, NY 10595 Scanned to the E-File E-File System System only Scanned Pursuant to CPLR CPLR §5513, 95513, an appeal appeal as of of right right must must be taken taken within within thirty thirty days after after service service by a Pursuant party appellant of of a copy of of the judgment order appealed appealed from and written written notice notice of of its party upon upon the appellant judgment or order except that that when when the appellant appellant has served served a copy of of the judgment order and written written notice notice judgment or order entry, except of its entry, the appeal appeal must must be taken taken within within thirty thirty days thereof. thereof. of 5 [* 5] 5 of 5

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