Taylor v Nicosia

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Taylor v Nicosia 2018 NY Slip Op 34338(U) August 2, 2018 Supreme Court, Nassau County Docket Number: Index No. 605323/16 Judge: James P. McCormack 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: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 "l·• • • INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 f SUPREME COURT- STATE OF NEW YORK SUPREMECOURT-STATEOFNEWYORK PRESENT: Honorable Honorable James James P. McCormack PRESENT: McCormack . Justice Justice _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x TRIALIIAS, PART PART 23 TRIAL/IAS, NASSAU COUNTY COUNTY NASSAU ANDREW S. TAYLOR, TAYLOR, ANDREWS. Plaintiff(s ), Plaintiff(s), ._INDEX INDEX NO: 605323/16 605323/16 -against-againstMotion Submitted: Submitted: 5/21/18 Motion Motion Seq.: Seq.: 001 Motion VINCENT J. NICOSIA, NICOSIA, VINCENT Defendant(s).). Defendant(s xxx XXX x -----------'--------x following papers papers read read on these these motions: motions: The following Notice of of Motion/Supporting Motion/Supporting Exhibits Exhibits ........................................... X Notice Affirmation X Affirmation in Opposition Opposition ...............................................................x Reply Reply Affirmation Affirmation ........................................................................... X Defendant, Vincent Vincent J. Nicosia (Nicosia), moves moves this court court for an order, order, pursuant pursuant to Defendant, Nicosia (Nicosia), CPLR §3212, g3212, for summary summary judgment dismissing the complaint complaint on the the grounds grounds that that the CPLR judgment dismissing injuries sustained sustained by Plaintiff, Plaintiff, Andrew Andrew S. Taylor Taylor (Taylor), (Taylor), fail to satisfy satisfy the the serious serious injury injury injuries threshold requirement requirement of of Insurance Insurance Law§ Law g 5102(d). 5102( d). Taylor Taylor opposes opposes the motion. motion. threshold action to recover recover for personal injuries allegedly allegedly sustained sustained by Taylor Taylor in a This is an action personal injuries motor vehicle vehicle accident accident on December December 7, 2015 on Prospect Prospect Avenue Avenue in East East Meadow, Meadow, motor County of of Nassau. Taylor alleges alleges Nicosia Nicosia made made a left tum tum in front front of of him him causing causing County Nassau. Taylor [* 1] 1 of 10 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 Taylor's Nicosia's vehicle. Taylor's vehicle vehicle to hit Nicosia's vehicle. As a result result of of the accident, accident, Taylor Taylor claims claims he suffered serious serious injuries injuries . suffered commenced this action by service service of of a summons summons and complaint complaint dated dated July ....Taylor Taylor commenced this action 14, 2016. Issue was service of of an answer answer dated dated October October 7, 2016. 2016. The The case case 2016. Issue was joined joined by service certified ready ready for trial trial on November 1,2017 of issue issue was filed on January January 23, certified November 1, 2017 and a note note of 2018. 2018. of particulars, particulars, Taylor Taylor alleges, alleges, inter inter alia, herniations, right right shoulder shoulder In his bill of alia, disc herniations, injury and pain right knee knee injury injury and pain. pain. injury pain and right seeking summary summary judgement, relies upon; of In seeking judgement, Nicosia Nicosia relies upon; the pleadings; pleadings; the bill of particulars; Taylor's Taylor's deposition deposition testimony; Taylor's X-ray X-ray and MRl particulars; testimony; Taylor's MRI results; results; and the affirmed medical medical report report of of Dr. Howard orthopedic surgeon, surgeon, who who examined examined Howard Levin, Levin, an orthopedic affirmed Taylor as part part of of an independent independent medical examination (IME) (IME) on October October 24, 2017. 2017. medical examination Taylor At the the time time of of the IME, IME, Taylor Taylor complained complained of of pain pain to his neck and lower lower back. back. He neck and described pain level Levin found normal described the the pain level as a three three out out of of 10. Using Using a goniometer, goniometer, Dr. Levin found normal ranges of of motion of Taylor's Taylor's cervical cervical spine, spine, lumbar lumbar spine, spine, right right shoulder, shoulder, left shoulder, shoulder, motion of ranges right knee left knee. The results results of of all neurological neurological testing testing were were normal. normal. He noted noted no right knee and left knee. The tenderness or spasm spasm in the the cervical cervical or lumbar lumbar spine. spine. Dr. Levin Levin found found that that Taylor Taylor had tenderness had sustained a cervical cervical spine spine strain, strain, a lumbar lumbar spine spine strain, strain, a right right shoulder shoulder sprain sprain and a left sustained knee contusion. contusion. These These injuries injuries were causally related accident and all have were causally related to the accident have been been resolved. found no orthopedic orthopedic disability. disability. resolved. Dr. Levin Levin found Defendant submits Taylor's Taylor's x-rays x-ray of of the cervical cervical Defendant submits x-rays and an MRl MRI report. report. An x-ray 2 [* 2] 2 of 10 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 three days after after the accident "normal radiographs of the cervical cervical spine". spine". spine taken taken three accident found "normal radiographs of of the lumbar spine spine taken after the accident accident found "mild degenerative An x-ray x-ray of the lumbar taken three three days after found "mild degenerative disease of of the L4-L5 L4-L5 and The.rightknee.x-rayJaken three after and L5-SIlevels." L5-S 1 levels." The.right_knee.x-:rayJaken three days after disc disease the accident dislocation or opaque opaque foreign bodies. It did find joint joint accident showed showed no fracture, fracture, dislocation foreign bodies. right knee knee taken taken one month month after after the accident accident found effusions present. An :tv1R.I effusions present. MRI of of the right ""Small amount amount of of synovial synovial fluid at the level of the patellofemoral articulation. Trace level of patellofemoral articulation. Trace ""Small Hoffa's fat pad. Trace Trace fluid at the popliteus popliteus hiatus." hiatus." fluid at the inferior aspect of inferior aspect of Hoffa's Defendants also also submit submit Taylor's Taylor stated stated that after after the Defendants Taylor's deposition deposition transcript. transcript. Taylor accident he missed missed approximately approximately one half months months of of work. work. accident one and half He stated stated that, due to persistent longer do, such mow persistent back back and neck neck pain, pain, there there are certain certain things things he can no longer such as mow shovel his driveway driveway or play of his lawn, shovel play sports. sports. He went went to physical physical therapy therapy for a period period of but has had since early 2017. . time, but had no treatment treatment since early in 2017. "Serious injury" injury" is defined defined in Insurance Insurance Law "Serious Law§S SI02(d) 5102(d) as: (1) death; death; (2) fracture; (5) loss of fetus; (6) dismemberment; significant disfigurement; disfigurement; (4) (4) fracture; dismemberment; (3) significant offetus; permanent loss of of use use of of a body function or system; system; (7) permanent body organ, organ, member, member, function permanent permanent use of body organ organ or member; member; (8) significant of consequential consequential limitation limitation of of use of a body significant limitation limitation of of a body body function function or system; system; or (9) a medically impairment of use of medically determined determined injury injury or impairment of a non-permanent nature which prevents prevents the injured injured person person from performing performing substantially substantially all non-permanent nature which of the material material acts such person's activities of acts which which constitute constitute such person's usual usual and customary customary daily activities during the 180 days immediately of the for not less than than 90 days during immediately following following the occurrence occurrence of injury or impairment. impairment. injury 3 [* 3] 3 of 10 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 The issue issue of of whether claimed injury within the statutory definition definition of of The whether a claimed injury falls within the statutory serious the court which may be serious injury injury is, in the first instance, instance, a question question of of law for the court which v. decide~ 011 a summ~ry summary judgment (Lifari V. Elliot, [1982]; decide~ o~ judgme11:t motion motion (Lifari Elliot, 57 N.Y.2d}30, N.Y.2d._230, 237 [1982]; nd Dept. 2014]). Carter v. v. Adams,. 967,967 defendant seeking seeking summary summary Carter Adams, 123 AD.3d A.D.3d 967, 967 [2 nd 2014]). A defendant judgment lack of of serious serious injury initial burden of establishing establishing that injury bears bears the initial burden of that judgment based based on a lack plaintiff did not d). ((Gaddy Gaddy v. v. plaintiff not sustain sustain a serious serious injury injury as defined defined in Insurance Insurance Law Law § ~ 1502 ((d). Eyler, 955,956-57 [1997]; Young Young Mi v. Vasconex-Vallejo, Vasconex-Vallejo, 124 A.D.3d AD.3d Eyler, 79 N.Y.2d N.Y.2d 955, 956-57 [1997]; Mi Hwang Hwang v. nd Dept. nd Dept. 769,769 121 A.D.3d 637, 638 [2 [2ndDept. 769, 769 [2nd Dept. 2015]; 2015]; Datiskashvili Datiskashvili v. v. Vijungco, 121 A.D.3d 637, nd Dept. Jilani v. Palmer, 83 A.D.3d Dept. 2011]). 2014]; Jilani v. Palmer, AD.3d 786, 787 [2 nd 2011]). the summary judgment motion, motion, Nicosia Nicosia had the initial burden of As a proponent proponent of of the summary judgment had the initial burden of establishing that that Taylor did not sustain a causally causally related related serious serious injury injury under establishing Taylor did not sustain under the permanent of use use ofa ofa body organ, member, function or system, system, significant significant limitation limitation body organ, member, function permanent loss of of body function Avis Rent Rent a of use of ofaa body function or system system and 90/180-day 90/180-day categories categories (see Toure Toure v Avis Car Sys., 98 N.Y.2d N.Y.2d 345, 345, 352 [2002]). [2002]). Evidence Evidence submitted submitted in support support of of a motion motion for summary judgment must be in admissible admissible form. (Pagano (Pagano v. summary judgment must v. Kinsbury, Kinsbury, 182 AD.2d A.D.2d 268, nd Dept. 1992]; see also also Friends of Animals v. Assoc. 46N.Y.2d Dept. 1992]; Friends of Animals v. Assoc. Fur. Mfrs., Mfrs., 46 N.Y.2d 1065, 270 [2 nd [1979]; Zuckerman of New 557,563 [1980]). [1980]). A defendant defendant 1067 [1979]; Zuckerman v. v. City of New York, 49 N.Y.2d N.Y.2d 557,563 can satisfy satisfY the initial burden relying on either either the sworn sworn statements statements of of defendant's defendant's the initial burden by relying examining physician, or plaintiff's sworn testimony unsworn reports of plaintiff's examining physician, or plaintiffs sworn testimony or the unswom reports of plaintiffs own examining physicians defendant can demonstrate demonstrate that that plaintiff's own examining physicians (Id.) A defendant plaintiffs own own medical evidence does.not does not indicate indicate that plaintiff suffered suffered a serious serious injury and that that the medical evidence that plaintiff injury and .. 44 [* 4] 4 of 10 INDEX NO. 605323/2016 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/06/2018 alleged alleged injuries injuries were were not, in any event, event, causally causally related related to the accident accident (Franchini (Franchini v Palmieri, 1 N.Y.3d N.Y.3d 536, 537 [2003]). Palmieri, [2003]) . ---•• 000 0 of summary judgment, a defendant's medical expert must must specify the .'..InIn support sUP{lortof. summary ju,!gmellt, <J.efendant'~meQigalexpeI1. specify the~.. ·•••• -••-•• • -- -.•- 0 < • o _, on O ,o O •••-• 0 -- -•• - •LOO-••••••-• -•••••• - •• •••- 0 0 0 0 OOoO,O 00 0 0 •- •• •••• objective tests which the stated stated medical medical opinions opinions are based objective tests upon upon which based and, when when rendering rendering an opinion with with respect respect to plaintiff's plaintiff's range of motion, expert must compare any findings findings motion, the expert must compare opinion range of motion considered normal for the particular particular body body part part (Browdame v. to those those ranges of motion considered normal (Browdame v. ranges of nd Dept. 2006]). Further, Further, "[t]he "[t]he mere existence ofa Candura, 25 AD3d 747,748 Candura, AD3d 747, 748 [2 nd Dept. 2006]). mere existence of a bulging or herniated herniated disc disc is not evidence of of a serious serious injury injury in the absence absence of not evidence of objective objective bulging evidence of of the extent extent of of the alleged alleged physical physical limitations limitations resulting resulting from the the disc disc injury injury evidence nd Dept. AD3d 712 [2nd Dept. and its duration;; Bushwick Ridgewood Ridgewood Props. Inc., Inc., 63 AD3d duration" (Rivera (Rivera v Bushwick nd Dept. 2009]; Smeja Fuentes, 54 AD3d AD3d 326 [2nd Dept. 2008]; 2008]; see Sharma Sharma v Diaz, Diaz, 48 A.D.3d A.D.3d Smeja v Fuentes, nd Dept. nd Dept. 2005]). 442 [2nd 2008]; Kearse City Tr. Tr. Auth., [2ndDept. Dept. 2008]; Kearse v New New York City Auth., 16 A.D.3d A.D.3d 45 [2 2005]). defendant has has made made the required required showing, showing, the burden shifts to plaintiff Once the defendant burden shifts plaintiff to rebut rebut the presumption issue of of fact as to the threshold injury question. threshold serious serious injury question. presumption that that there there is no issue (Franchini v. Palmieri, Palmieri, 1 N.Y.3d N.Y.3d 537, 537 (2003]). (Franchini v. [2003]). Herein, facie burden of showing showing that Taylor did not that Taylor not Herein, Nicosia Nicosia has met met his prima primafacie burden of sustain a serious serious injury injury within meaning of of Insurance Insurance Law d) as a result of the Law §~ 5102( 5102(d) result of sustain within the the meaning subject accident accident (see Toure Toure v Avis Gaddy v Eyler, N.Y.2d 955, subject Avis Rent Rent a Car Sys., supra; supra; Gaddy Eyler, 79 N.Y.2d 956-957 [1992]). [1992]). Nicosia submitted competent competent medical medical evidence evidence establishing,prima establishing, prima 956-957 Nicosia submitted facie, alleged injuries injuries to Taylor's Taylor's cervical cervical spine, spine, lumbar lumbar spine spine right right shoulder shoulder and facie, that that the alleged right knee did not constitute serious serious injury injury under under the permanent of use of of a body body right knee not constitute permanent loss of 5 [* 5] 5 of 10 0 • - • FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 organ, member, member, function permanent consequential limitation of of use use ofa of a body body function or system, system, permanent consequential limitation organ or member member and significant significant limitation of use of of a body function or system system categories categories limitation of body function organ nd P~pt. ofInsurance Law S 5102(d). 5 I02(d). (Durand (Durand vv_ Urick, 131 131 A.D.3d pept. 2915]; oflnsura~ce Law§ A.D.3d 920 920 [2 [_2 nd 2_QJ~]; . . nd Dept. Lacombe v Castellano, A.D.3d 905 [2 nd Dept. 2015]; 2015]; Chang Min Li Livv 3511 System, Lacombe Castellano, 134 AD.3d Chang Min nd Inc., 121 121 A.D.3d AD.3d 1032 [2ndnd Dept. Dept. 2014]; 2014]; Abbott-Barish Abbott-Barish v Ahmad, Ahmad, 107 A.D.3d A.D.3d 920 [2 nd Dept. Dept. 2013]. 2013]. burden now shifts to Taylor of objective objective now shifts Taylor to demonstrate, demonstrate, by the submission submission of The burden proof of of the nature and degree degree of proof the nature of the injury, that that he sustained sustained a serious serious injury injury or there there are questions whether the. purported purported injury, in fact, is serious serious (Perl questions of of fact as to whether (Perl v Meher, 18 N.Y.3d [2011]). To satisfy serious injury, injury, a N.Y.3d 208,218-219 208, 218-219 [2011]). satisfy the statutory statutory standard standard for serious proof of of the duration plaintiff must must submit objective and admissible plaintiff submit objective admissible proof duration of of the alleged alleged injury, extent or degree degree of of the limitations limitations associated associated with alleged injury. (Dufel v. and the extent with the alleged injury. (Dufel v. nd Dept Green, 84 N.Y.2d N.Y.2d 795, 798 [1995]; Ravelo v. v. Volcy, 83 AD.3d A.D.3d 1034, 1035 [2 nd Dept [1995]; Rovelo Neither subjective pain nor nor a self-serving self-serving affidavit the plaintiff plaintiff 201 i]). Neither subjective complaints complaints of of pain affidavit of of the nd sufficient to meet (Washington v. meet this this requirement. requirement. (Washington v. Mendoza, Mendoza, 57 AD.3d A.D.3d 972, 973 [2 nd are sufficient Dept. 2008]; 2008]; see Toure v Avis Avis Rent Rent A Car Sys., Inc., supra; supra; Scheer Scheer v Koubek, Koubek, 70 N.Y.2d N.Y.2d Dept. 678,679 [1987]; Munoz 678, 679 [1987]; Munoz v Hollingsworth, Hollingsworth, 18 A.D.3d A.D.3d 278, 279 279 [l stst Dept. Dept. 2005]). 2005]). A plaintiff cannot defeat defeat a motion successfully rebut plaintiff cannot motion for summary summary judgment, judgment, and successfully rebut a prima facie showing showing that that he did not not sustain sustain a serious injury, merel>7 merely by relying primafacie serious injury, relying on documented subjective subjective complaints complaints of of pain (Uddin v Cooper, Cooper, 32 AD.3d 270, 271 [P [I"1 documented pain (Uddin A.D.3d 270,271 Dept. appeal denied denied 8 N.Y.3d [2001]). Plaintiff Plaintiff must come forth forth with Dept. 2006] 2006] Iv to appeal N.Y.3d 808 [2001]). must come with 6 [* 6] 6 of 10 / FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 objective evidence evidence of of the extent extent of of alleged alleged physical limitation resulting objective physical limitation resulting from from injury injury and must be based based upon upon a recent recent examination examination of its duration. duration. That That objective objective evidence evidence must of the nd Dept.2010]; B&P Chimney A.D.3d 978 [2 nd Dept. 2010]; Cornelius plaintiff(Sham plaintiff (Sham v B&P Chimney Cleaning, Cleaning, 71 AD.3d Cornelius v nd Dept. 2008]; Cintas Corp. 50 A.D.3d A.D.3d 1085 [2 [2ndDept. 2008]; Sharma Sharma v Diaz, supra; supra; Amato Amato v Fast Fast Cintas nd Dept. Repair, Inc., 42 A.D.3d Dept. 2007]) proof shortly after the Repair, A.D.3d 477 [2 nd 2007]) and upon upon medical medical proof shortly after subject accident accident (Perl (Perl vV Meher, subject Meher, supra). supra). "[E]ven when there is medical medical proof, additional contributory contributory factors "[E]ven when there proof, when when additional factors interrupt the chain chain of of causation causation between between the accident and the such as a interrupt the accident the claimed claimed injury injury - such gap in treatment, problem or a pre-existing pre-existing condition summary treatment, an intervening intervening medical medical problem condition - summary dismissal of of the complaint may appropriate" (Pommells (Pommells v Perez, dismissal the complaint may be appropriate" Perez, 4 N.Y.3d N.Y.3d 566, 572 function is significant consequential relates relates to [2005]). Whether a limitation [2005]). Whether limitation of of use or function significant or consequential medical significance of the the degree degree or medical significance and and involves involves a comparative comparative determination determination of qualitative nature of an injury injury based function, purpose qualitative nature of based on the normal normal function, purpose and use of of a body body part (Dufel v Green, Green, 84 N.Y.2d [1995]). part (Dufel N.Y.2d 795, 798 [1995]). To prove physical limitation respect to the limitation limitation prove the extent extent or degree degree of of physical limitation with with respect of percentage or degree degree of of the of use categories, categories, either either objective objective evidence evidence of of the extent, extent, percentage range of based on a recent recent examination, examination, limitation, limitation, or loss of of range of motion motion and its duration, duration, based must be provided sufficient description of the qualitative qualitative nature must provided or there there must must be a sufficient description of nature of of plaintiffs with an objective objective basis, correlating plaintiffs plaintiffs limitations, limitations, wi~h basis, correlating plaintiffs limitations limitations to the normal function, purpose and use use of of the system (Perl (Perl v·Meher, v Meher, supra; normal function, purpose and the body body part part or system supra; nd Dept. Estrella Geico Ins. Co., 102 A.D.3d A.D.3d 730, 731 [2 nd 2013). A mild, mild, minor minor or slight slight Dept. 2013). Estrella v Geico 7 [* 7] 7 of 10 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 . INDEX NO. 605323/2016 RECEIVED NYSCEF: 08/06/2018 $ r limitation limitation of of use is considered considered insignificant insignificant within within the meaning meaning of of insurance insurance Law Law §5102(d) Lim v Chrabaszcz, Dept. 2012]). 2012)). 95102(d) (Il (ll Chung Chung Lim Chrabaszcz, 95 A.D.3d A.D.3d 950,951 950, 951 [2ndnd Dept. judgment ~ot_ion, Further,}n Further, in order order to ~~feat defeat a summary summary judgment motion, a plaintiff's plaintiff's opposition, opposition, "to the extent extent that that it relies relies solely solely on the findings findings of of the the plaintiffs plaintiffs own own medical medical witnesses, witnesses, must be in the the form form of of affidavits affidavits or affirmations, affirmations, unless unless an acceptable acceptable excuse excuse for failure failure to must comply with with this requirement requirement is furnished." furnished." (Pagano (Pagano v. v. Kinsbury, Kinsbury, 182 A.D.2d AD.2d at 270; comply supra; New York, 49 N.Y.2d supra; see also also Zuckerman Zuckerman v. v. City City of of New N.Y.2d 557,563 557,563 ([1980]). ([1980)). Once a plaintiff plaintiff establishes establishes proof proof that that an injury injury meets meets at least least one one category category of of the Once no-fault threshold, threshold, it is unnecessary unnecessary to address address whether whether the plaintiff's plaintiff's proof proof in regard regard to no-fault other primafacie other alleged alleged injuries injuries is sufficient sufficient to defeat defeat defendant's defendant's prima facie showing showing (Linton (Linton v Nawaz, N.Y.3d 821, 821,822 [2015)). Nawaz, 14 N.Y.3d 822 [2015]). In opposition opposition to the the motion, motion, Taylor Taylor l) I) A series series of of medical medical records records and and physical physical therapy records records 2) the affirmation affirmation of of Dr. Joseph Joseph Gregorace Gregorace D.O. D.O. and and 3) an affidavit affidavit from therapy Taylor. Taylor. Initially, the the court court notes notes that that Taylor Taylor claims, claims, in his affidavit, affidavit, that that his gap gap in Initially, treatment, from from early early 2017 2017 until until around around the time time this this motion motion was was filed, was was because because he treatment, was advised advised that that he had had reached reached maximum maximum medical medical benefit benefit from from such such treatment. treatment. was However, there there is no medical medical record record supporting supporting this this assertion, assertion, nor nor does Dr. Gregorace Gregorace However, state that that in his -lengthy, lengthy, detailed, detailed, 22 page page affirmation. affirmation. The The absence absence of of support support of of that that the attempt attempt to raise raise an issue issue of of fact. (Zinger (Zinger v. v. Zylberg, Zylberg, 35 AD3d AD3d 851 [2d claim is fatal to the Dept. 2006]). 2006)). Dept. 8 [* 8] 8 of 10 INDEX NO. 605323/2016 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM ,. NYSCEF DOC. NO. 32 . RECEIVED NYSCEF: 08/06/2018 ~ The court court further further notes of Taylor's Taylor's lumbar lumbar spine spine taken The notes that that the X-ray X-ray of taken three three days after the accident accident notes notes degenerative degenerative disc disease. disease. However, However, Dr. Gregarace Gregarace does not after . address that finding~IlYWI1l.:r.eill hi~ll(fi!fi!~t_ioIl'or ~n_llny_~rl1i~.pr.iorrep()rts...Wh.ert:. there is a finding finding of of degenerative degenerative disc disc disease, disease, and and the plaintiff address it in the plaintiff fails to address there opposition papers, finding by plaintiff's experts that that the injuries injuries are causally related opposition papers, any finding plaintiff's experts causally related accident are rendered speculative. (Rashid (Rashid v. v. Estevez, AD3d 786 (2d [2d Dept. Dept. Estevez, 4477 AD3d to the accident rendered speculative. 2008]). 2008]). Further, met his prima facie showing showing that Taylor did not sustain sustain a primafacie that Taylor Further, Nicosia Nicosia has met serious injury injury under 90/180 category category set forth in Insurance Insurance Law Law 5102( 5102(d). d). serious under the the 90/180 A defendant defendant may may establish establish through through presentation of a plaintiff's own deposition deposition plaintiff's own presentation of testimony not sustain sustain an injury injury of of a non-permanent non-permanent nature nature which which testimony that that a plaintiff plaintiff did not prevented plaintiff plaintiff from from performing substantially all of of the material material acts acts which which constitute constitute prevented performing substantially plaintiff's usual and and customary customary daily daily activities activities for not less than than 90 days during during the 180 plaintiff's usual immediately following following the occurrence (Kuperberg (Kuperberg v Montalbano, AD3d 903 [2d Montalbano, 72 AD3d days immediately the occurrence Dep't. 2010]; Williamsburg Volunteer Volunteer of ofHatzolah, AD3d 664 [2d Sanchez v Williamsburg Hatzolah, inc., Inc., 48 AD3d Dep't. 2010]; Sanchez Dep't.2008]). Herein, Taylor states that that after after the the accident accident he missed one and half half months Dep't. 2008]). Herein, Taylor states missed one months of work before returning time. He further further testified pain and can of work before returning full time. testified that that he has persistent persistent pain longer do certain certain household household chores chores such such as mowing mowing the lawn lawn and and shoveling shoveling snow. snow. He no longer limitations in his recreational activities as the pain experiences prevents recreational activities pain he experiences prevents him him also has limitations sports, and has caused him him to gain gain 50 pounds. pounds. from playing playing sports, has caused "When construing construing the statutory statutory definition definition of of a 90/180-day 90/180-day claim, claim, the words words "When 9 [* 9] 9 of 10 INDEX NO. 605323/2016 FILED: NASSAU COUNTY CLERK 08/06/2018 12:10 PM NYSCEF DOC. NO. 32 "'\ -. RECEIVED NYSCEF: 08/06/2018 ,.! ~- ! 'substantially all' all' should should be construed construed to mean mean that 'substantially that the person person has been been prevented prevented from performing her usual usual activities activities to a great great extent, extent, rather rather than some slight slight curtailment" curtailment" performing her than some (Thompson v Abbasi, [I stSl Dep't. 2005]; Gaddy Gaddy vv_f,yJer.! Eyler, .. ~upraL supra). ------·-~. (Thompson A.bbasi, 15 AD3d AD3d_ 95 ~5 [l Dep't 2005]; • __... • - ••• •• - ••• - ••• • • • - 0-"'"- ._, __ ••• _ __ • _. ._ •• _. _ Furthermore, allegations of of recreation recreation and daily daily activities activities including including an Furthermore, a plaintiff's plaintiff's allegations inability objects, carry carry things, walk, sit and socialize socialize are generally inability to lift objects, things, walk, generally insufficient insufficient to AD2d 413 [2d Dep't. demonstrate demonstrate the 90/180-day 90/180-day claim claim (see Omor Omor v Goodman, Goodman, 295 AD2d Dep't. 2002]; Lauretto County of o/Suffolk, Lauretta v County Suffolk, 273 AD2d AD2d 204 [2d Dep't. Dep't. 2015]). 2015]). Taylor offered offered no credible credible medical evidence establishing establishing he was disabled, disabled, unable unable Taylor medical evidence While he to work work or unable unable to perform perform daily daily activities activities for the first 90 out of of 180 days. While complains of certain certain limitations, none of of the limitations determined, as complains of limitations, none limitations are medically medically determined, nd Dept. 2000]). required statute. (Sainte-Aime (Sainte-Aime v. v. Ho, 274 A.D.2d A.D.2d 579 [2 [2ndDept. required by the statute. 2000]). Under extant, Taylor's Taylor's submissions submissions fail to raise factual issue issue Under the circumstances circumstances extant, raise a factual as to whether injury within within any of injury whether he sustained sustained serious serious injury of the categories categories of of serious serious injury delineated ~5102 (d). delineated in Insurance Insurance Law Law §5102 Accordingly, hereby Accordingly, it is hereby ORDERED, that motion for summary summary judgment CPLR ORDERED, that Defendant's Defendant's motion judgment pursuant pursuant to CPLR ~32l2 is GRANTED GRANTED in its entirety. entirety. The The complaint complaint is dismissed. dismissed. §3212 This the decision This constitutes constitutes the decision and order order of of. Dated: August Dated: August 2,2018 2, 2018 Mineola, Mineola, N.Y. N.Y. . S. C. ENTERED ENTERED AUG O 06 6 2018 AUG 2018 , 10 NASSAU COUNTY COUNTY NASSAU COUNTY CLERK'S CLERK'S OFFICE OFFICE COUNTY [* 10] 10 of 10

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