Jackson v Riccio

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Jackson v Riccio 2018 NY Slip Op 34350(U) August 21, 2018 Supreme Court, Westchester County Docket Number: Index No. 50128/2017 Judge: William J. Giacomo 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: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 statutory time To commence the statutory appeals as of right period for appeals (CPLR 5513 5513 (a]), [an, you are are advised (CPLR to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM PRESENT: WILLIAM J. GIACOMO, GIACOMO, J.S.C. - - - --- - - - - -- - )( -- - -- - -- - -- -- -- -- -- -- -- - - - -- -- -- - -- -- -- -- -- -- - -- - -- -- -- -- - -- -- -- - - -- - X KIRK JACKSON, JACKSON, KIRK Inde)( No. 50128/2017 50128/2017 Index Plaintiff, Plaintiff, Sequence No. 1 & 2 Sequence against- againstRICCIO and DAKOTA DAKOTA SUPPLY SUPPLY CORP., CORP., ERIC RICCIO Defendants. Defendants. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- DECISION & ORDER ORDER DECISION )( X action to recover recover damages damages for for personal personal injuries injuries (1) the plaintiff plaintiff moves moves for for In an action partial judgment on the issue partial summary summary judgment issue of liability, liability, pursuant pursuant to CPLR CPLR 3212; 3212; and (2) the defendants move move for for summary summary judgment dismissing the complaint complaint on the ground ground that that defendants judgment dismissing plaintiff did not sustain sustain a serious serious injury injury within within the meaning meaning of Insurance Insurance Law Law 5102(d): 5102(d): plaintiff Papers Considered Considered Papers 1. 2. 3. 4. 5. 6. Notice of Motion/Affirmation Motion/Affirmation of Renata Renata Vizental, Esq./E)(hibits A-H; Notice Vizental, Esq./Exhibits Notice of Motion/Affirmation of Faizan T. Habeeb, Esq./E)(hibits A-Q; A-Q; Notice Motion/Affirmation Faizan Habeeb, Esq./Exhibits Affirmation of Renata Renata Vizental, Vizental, Esq. in Opposition/Exhibits Opposition/E)(hibits A-C; A-C; Affirmation Affirmation of Faizan Faizan T. Habeeb, Habeeb, Esq. in Opposition; Opposition; Affirmation Reply Affirmation Affirmation of Renata Renata Vizental, Reply Vizental, Esq.; Reply Affirmation Affirmation of Faizan Faizan T. Habeeb, Habeeb, Esq./Exhibits Esq./E)(hibits R-U. Reply Factual and Procedural Procedural Background Background Factual Plaintiff commenced commenced this action action to recover recover damages damages for for personal personal injuries injuries as a result result Plaintiff of a motor vehicle accident that occurred on August 24, 2016, on Railroad Avenue motor vehicle accident that occurred August 2016, Railroad Avenue in Croton-an-Hudson. The The complaint complaint alleges alleges that that the defendant defendant Eric Riccio Riccio was was operating operating Croton-On-Hudson. cement mixer mi)(er truck truck which which suddenly suddenly reversed reversed and struck struck his vehicle. a cement vehicle. Liability Liability Plaintiff moves moves for for summary summary judgment issues of liability liability arguing arguing that that Plaintiff judgment on the issues defendants were negligent by backing up the cement mi)(er without first ascertaining defendants were negligent backing cement mixer without first ascertaining whether it was was safe safe to do so. whether Plaintiff testified testified that that he was was stopped stopped at a stop sign. A cement cement truck was in front Plaintiff truck was front of making a right turn. Upon looking looking both ways, ways, plaintiff plaintiff began began to travel appro)(imately him making travel approximately [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 Jackson v. Riccio, Index Index No. 50128/2017 50128/2017 Jackson intersection and stopped. stopped. The The cement cement truck truck began began to reverse reverse and struck struck 5 mph into the intersection plaintiff's vehicle. vehicle. Plaintiff Plaintiff testified testified that that he sounded sounded his horn but did not hear hear any any back back up plaintiff's alarm from the the cement cement truck. truck. alarm Plaintiff complained complained of of pain pain to his chest, chest, shoulder, shoulder, and back. back. He was was transported transported Plaintiff ambulance to Phelps Phelps Memorial Memorial Hospital Hospital where where X-rays X-rays of of his chest, chest, shoulder, shoulder, and back back by ambulance were performed. performed. Plaintiff Plaintiff was was instructed instructed to see see his primary primary care care physician. physician. Thereafter, Thereafter, he were treated with with Dr. Emil Stracar Stracar who who prescribed prescribed physical physical therapy therapy three three times times a week. week. Plaintiff Plaintiff treated also treated treated with with Dr. Randall Randall V. Ehrlich Ehrlich for for a tear tear in his right right shoulder shoulder identified identified on an MRI. also Ehrlich performed performed surgery surgery for for the the tear tear on December December 13, 2016. 2016. Plaintiff Plaintiff continued continued to Dr. Ehrlich treat with Dr. Ehrlich Ehrlich until a month month prior prior to his deposition, deposition, in June June 2017, 2017, with with complaints complaints treat shoulder. Dr. Ehrlich Ehrlich referred referred him for for physical physical therapy. therapy. of pain in his shoulder. Plaintiff testified testified that that immediately immediately after after the the accident accident he missed missed a week week of of work. work. Plaintiff After his return return to work, work, he thereafter thereafter missed missed two two months months due due to the the surgery. surgery. Plaintiff Plaintiff After testified that that he was was not taking taking any any pain medications medications and had received received a cortisone cortisone testified injection in his back to relieve relieve pain. injection his back Defendant Eric Riccio Riccio testified testified that that he was was employed employed by Dakota Dakota Supply Supply Corp. Corp. as Defendant cement truck truck driver. driver. He was was operating operating a cement cement mixer mixer at the the time time of of the the accident accident and a cement was delivering delivering cement cement to the the MTA. After After making making the the delivery, delivery, Riccio Riccio was was stopped stopped at a was stop sign intending intending to make make a right turn turn onto onto Croton Croton Point Point Avenue. Avenue. He did not not notice notice any any stop vehicles behind behind him. After After waiting waiting a couple couple seconds seconds and looking looking both both ways, ways, Riccio Riccio vehicles proceeded to make make a right-hand right-hand turn, turn, however, however, he was was not not able able to complete complete the the turn turn due due proceeded size of the truck truck and the the angle angle of of the intersection. intersection. He turned turned about about three-quarters three-quarters to the size completely past past the the stop stop sign, stopped stopped for for a couple couple seconds seconds and then then reversed reversed of the way, completely could complete complete the the turn. Riccio Riccio testified testified that that he looked looked in his mirrors mirrors to see see if anyone anyone so he could was behind behind him prior prior to putting putting the the truck truck in reverse. reverse. He did not see see any any vehicles vehicles and was began to reverse reverse when when the the accident accident occurred. occurred. Riccio Riccio testified testified that that the the back-up back-up alarm alarm and began lights on the the cement cement truck truck were were functioning. functioning. He did not not hear hear plaintiff's plaintiff's horn horn until until after after the the lights accident. accident. opposition to plaintiff's plaintiff's motion, motion, defendants defendants argue argue that that plaintiff plaintiff failed failed to establish establish In opposition that they they were were negligent negligent as a matter matter of law. that Serious Injury Injury Serious Defendants also also move move for for summary summary judgment dismissing the the complaint complaint on the the Defendants judgment dismissing grounds that that plaintiff plaintiff did not not sustain sustain a serious serious injury injury within within the the meaning meaning of of Insurance Insurance Law grounds 5101(d). 5101 (d). October 17, 2017, 2017, plaintiff plaintiff appeared appeared for for an independent independent neurological neurological medical medical On October examination by Rene Rene Elkin, M.D.; and on October October 23, 2017, 2017, plaintiff plaintiff appeared appeared for for an examination independent orthopedic orthopedic medical medical examination examination by Bradley Bradley D. Wiener, Wiener, M.D. M.D. Defendants Defendants independent submit affirmed affirmed reports reports of of Dr. Elkin and Dr. Wiener Wiener in support support of of their their motion. motion. submit 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 Jackson 50128/2017 Jackson v. Riccio, Index Index No. 50128/2017 Dr. Elkin avers avers that that at the time time of the examination, examination, plaintiff's complaint was was plaintiff's primary primary complaint right shoulder that was worse with movement. also reported shoulder pain that was worse movement. Plaintiff Plaintiff also reported lower lower back back pain of motion forward with movement movement radiating radiating into his leg. Examination Examination revealed revealed full range range of motion on forward flexion degrees, with 50 being degrees, with 60 flexion to 50 degrees, being normal, normal, retroflexion retroflexion limited limited to 30 degrees, being degrees and left lateral lateral rotation degrees being normal, normal, right lateral lateral rotation rotation of 50 degrees rotation of 70 degrees with 80 shoulder revealed of motion BO being being normal. normal. Examination Examination of the right shoulder revealed full range range of motion on elevation degrees, with 180 There was was tenderness tenderness to elevation and abduction abduction to 90 degrees, 1BO being normal. normal. There palpation objective inflammation. shoulder examination examination was normal. palpation and no objective inflammation. The left shoulder normal. Examination forward flexion flexion to 30 Examination of the plaintiff's plaintiff's lower lower back back revealed revealed restriction restriction of forward degrees, degrees, lateral degrees, with normal normal being being 60, unable unable to retroflex, retroflex, with normal normal of 25 degrees, lateral bending was to 10 degrees degrees and to the left was was 20 degrees, degrees, with 25 being bending to the right was normal. normal. According there were were no objective objective findings findings on the neurological According to Dr. Elkin, there neurological physical for any any neurological of the accident. accident. Dr. Elkin noted physical examination examination for neurological injury injury as a result result of that in the ER on the day accident, there there were were no complaints complaints and no abnormal abnormal that day of the accident, findings cervical and lumbar lumbar spines spines which which would would mitigate strongly against against findings referable referable to the cervical mitigate strongly any acute acute injury accident. The The plaintiff's symptoms regarding the neck any injury attributable attributable to the accident. plaintiff's symptoms regarding the neck and lower were consistent cervical and lumbar sprain. The The degenerative degenerative lower back back were consistent with cervical lumbar muscle muscle sprain. changes and disc disc pathology pathology reported reported on the MRls MRls were nature and not changes were degenerative degenerative in nature caused opinion, the the degenerative degenerative changes changes would would be a caused by the accident. accident. In Dr. Elkin's Elkin's opinion, cause opined that that cause for for the observed observed restriction restriction of range range of motion motion and the pain. Dr. Elkin opined there were no objective findings for neurological injury injury that prevent plaintiff plaintiff from there were objective findings for neurological that would would prevent from functioning at his pre-accident pre-accident level without restriction. There functioning without restriction. There were were also also no objective objective findings for neurological permanency permanency or disability. findings for neurological disability. Defendants submit an affirmed affirmed report Wiener, MD. At At the time time Defendants also also submit report of Bradley Bradley D. Wiener, examination performed performed by Dr. Wiener, plaintiff complained neck of the examination Wiener, plaintiff complained of of stiffness stiffness in his neck lower back. He denied numbness or tingling noted discomfort range of and lower denied any numbness tingling and noted discomfort with range motion involving involving the right arm. Dr. Wiener's revealed motion Wiener's examination examination of the cervical cervical spine spine revealed flexion of 40 degrees, degrees, with normal normal being 50-60; extension normal of flexion extension of 30 degrees, degrees, with normal 50-60; lateral lateral rotation rotation to both the right and left side normal being being 7050-60; side of 70 degrees degrees with with normal BO; and 40 degrees normal being being 40-50. 80; degrees of tilt to both the right and left side, with normal 40-50. Wiener's examination revealed BO shoulder revealed 80 degrees degrees of of forward forward Dr. Wiener's examination of the right shoulder elevation with normal normal being being 170-180; 170-1BO; BO normal being being 170elevation 80 degrees degrees of abduction, abduction, with with normal 1BO; internal internal rotation rotation to the buttock, buttock, with normal normal being being T7. Dr. Wiener noted 10 degrees 180; Wiener noted degrees external rotation, rotation, with with normal normal being being 80-90. BO-90. There There was was no weakness weakness on resisted resisted internal internal of external rotation and mild mild restriction restriction to adduction adduction and extension. extension. Dr. Wiener Wiener noted noted that that the the plaintiff plaintiff rotation made no effort effort at performing performing the the range range of of motion motion tests. tests. Dr. Wiener's Wiener's examination examination of of the the made lumbar spine spine revealed revealed flexion flexion of 50 degrees degrees with with normal normal being being 70-90; 70-90; and 10 degrees degrees of lumbar extension, with with normal normal being being 20-30. 20-30. extension, Wiener diagnosed diagnosed the the plaintiff plaintiff with cervical cervical strain, strain, superimposed superimposed on prepreDr. Wiener existing degenerative degenerative disc disc disease; disease; lumbosacral lumbosacral strain, strain, superimposed superimposed on pre-existing pre-existing existing 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 Jackson v. Riccio, Index Index No. 50128/2017 50128/2017 Jackson degenerative disc disc disease; disease; right right shoulder shoulder arthralgia arthralgia status status post-surgical post-surgical intervention; intervention; and degenerative symptom magnification. symptom magnification. Dr. Wiener Wiener opined, opined, with with a reasonable reasonable degree degree of of medical medical certainty, certainty, that that the the plaintiff plaintiff sustain a serious serious or significant significant injury injury to the the cervical cervical spine spine as a result result of of the the motor motor did not sustain vehicle accident. accident. There There was was no evidence evidence of of a permanent permanent limitation limitation in function function or use of of vehicle the cervical cervical spine. spine. Plaintiff Plaintiff offered offered subjective subjective complaints complaints of of lower lower back back pain that that would would be the consistent with with a pre-existing pre-existing multilevel multilevel degenerative degenerative condition, condition, which which could could be consistent considered unrelated unrelated to the the accident. accident. According According to Dr. Wiener, Wiener, the the plaintiff's plaintiff's cervical cervical considered examination was was negative negative with with the the exception exception of subjective subjective complaints complaints of of discomfort. discomfort. Dr. examination Wiener Wiener opined opined that that the plaintiff plaintiff did not sustain sustain a serious serious of of significant significant injury injury or a permanent limitation limitation to the the cervical cervical spine spine as a result result of of the the accident. accident. Plaintiff Plaintiff offered offered permanent subjective complaints complaints of of lower lower back back pain consistent consistent with with a pre-existing pre-existing multilevel multilevel subjective degenerative condition, condition, unrelated unrelated to the the accident. accident. Dr. Wiener Wiener noted noted that that although although plaintiff plaintiff degenerative offered persistent persistent subjective subjective complaints complaints of of pain, upon upon distraction, distraction, the the physical physical offered examination was was essentially essentially normal. normal. Dr. Wiener Wiener also also opined opined that that plaintiff plaintiff did not sustain sustain examination serious or significant significant injury injury to the the lumbosacral lumbosacral spine. spine. He opined opined that that it is inconceivable inconceivable a serious that plaintiff plaintiff would would be capable capable of of returning returning to work work within within one one week week after after the the accident accident and that continue to work work as a car car inspector inspector and mechanic mechanic if he in fact fact had sustained sustained significant significant continue injuries to the cervical cervical and lumbar lumbar regions. regions. injuries With respect respect to the the right right shoulder, shoulder, Dr. Wiener Wiener opined opined that that there there was was no causal causal With relationship between between subjective subjective complaints, complaints, the the MRI findings findings from from October October 19, 19,2016, relationship 2016, and the accident. accident. There There was was no described described mechanism mechanism of of injury injury to the the right right shoulder shoulder and it is the biomechanically impossible impossible for for plaintiff plaintiff to have have sustained sustained significant significant internal internal derangement derangement biomechanically shoulder based based on the so-called so-called jerking motion he described. described. There There is no of the right shoulder jerking motion mechanism of of injury injury across across the the acromioclavicular acromioclavicular joint based on the the accident. accident. Moreover, Moreover, mechanism joint based time of evaluation evaluation by Dr. Ehrlich Ehrlich on April April 5, 2017, 2017, plaintiff plaintiff demonstrated demonstrated active active at the time range of of motion motion that that included included 165 degrees degrees of of forward forward elevation, elevation, 120 degrees degrees of of abduction, abduction, range passive range range of of motion motion that that was was even even greater. greater. Dr. Wiener Wiener opined opined that that plaintiff plaintiff did and passive demonstrate evidence evidence of of a causally causally related related disability disability based based on the the accident accident and would would not demonstrate capable of of work work activities activities without without restrictions. restrictions. be capable opposition, plaintiff plaintiff argues argues that that defendants defendants failed failed to demonstrate demonstrate a prima prima face face In opposition, case of entitlement entitlement to summary summary judgment. event, plaintiff plaintiff argues argues that that issues issues of of fact fact case judgment. In any event, exist. Plaintiff submits submits the the affirmed affirmed report report of Randall Randall V. Ehrlich, Ehrlich, M.D. Dr. Ehrlich Ehrlich opined opined Plaintiff that defendant's defendant's injuries injuries to his right right shoulder shoulder were were caused caused by the the accident accident and are that permanent in nature. nature. Dr. Ehrlich's Ehrlich's range range of motion motion tests tests revealed revealed forward forward elevation elevation to 110 permanent degrees with 180 being being normal; normal; external external rotation rotation to 70 degrees, degrees, with with 70 being being normal; normal; degrees internal rotation rotation to L3, normal normal and contralateral contralateral to T9; and abduction abduction to 100 100 degrees, degrees, internal normal and contralateral contralateral to 150. Dr. Ehrlich's Ehrlich's testing testing also also found found forward forward elevation elevation to 165 normal degrees, normal normal and contralateral contralateral to 180; external external rotation rotation to 70 degrees, degrees, normal normal and degrees, 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 Jackson Index No. 50128/2017 50128/2017 Jackson v. Riccio, Index contralateral to 150, limited contralateral normal and contralateral limited degrees, normal abduction to 105 degrees, contralateral to 70; and abduction spasm. by pain and spasm. Nochimson, D.O. Dr. Nochimson of Ross Plaintiff also also submitted report of Ross Nochimson, Nochimson affirmed report submitted an affirmed Plaintiff of 30 flexion of spine: flexion the lumbar of the of motion noted the limitations of range of motion of lumbar spine: of range following limitations the following noted bending side bending normal, side being normal, with 25 being degrees, degrees, with extension 20 degrees, normal; extension being normal; with 60 being degrees, with motion of range of normal. The of 18 degrees degrees and left of 15 degrees being normal. The range of motion of degrees with 25 being right of posterior normal, being 60 with degrees, with the right shoulder extension was being normal, posterior restricted to 35 degrees, was restricted shoulder extension the right external with 180 being rotation of being normal, normal, and external degrees, with of 60 degrees, abduction of degrees, abduction of 30 degrees, rotation normal. being normal. with 90 being rotation degrees with rotation of 15 degrees Dr. Nochimson Nochimson opined opined that abilities significantly significantly diminished diminished as functional abilities plaintiffs functional that plaintiff's and permanent. a result result of chronic and permanent. condition is chronic accident and his condition the accident of the Discussion Discussion facie make a prima judgment must The proponent proponent of a motion motion for summary judgment must make prima facie for summary The evidence sufficient tendering law, showing of entitlement to judgment as matter of tendering sufficient evidence to of matter a judgment showing of entitlement eliminate material issues issues of Winegrad v N. Y. Y. Univ. Med. Ctr., case (see Winegrad the case from the fact from of fact any material eliminate any New York, 49 NY2d of New 64 NY2d NY2d 851, 853 [1985]; Zuckerman City of NY2d 557, 562 [1980]). [1980]). Zuckerman v City 853 [1985]; sufficiency the regardless motion, Failure to make such showing requires denial of the motion, regardless of the sufficiency the denial requires showing such Failure make opposing papers papers (see (see Winegrad Winegrad v N. Y. Y. Univ. Med. Ctr., 64 64 NY2d NY2d at 853). 853). the opposing of the the party shifts to the the burden "Once has been been made, made, however, however, the burden shifts party showing has this showing "Once this admissible proof in admissible evidentiary proof opposing produce evidentiary judgment to produce summary judgment for summary motion for the motion opposing the require a trial of which require fact which of fact form sufficient to establish establish the the existence existence of of material material issues issues of of form sufficient City v Zuckerman see [1986]; 324 320, NY2d the action" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d [1986]; Zuckerman City the action" of hope of New NY2d at 562). Mere Mere conclusions, hope or unsubstantiated unsubstantiated expressions of conclusions, expressions New York, 49 NY2d of entitlement to of entitlement showing of facie showing prima facie defeat a prima allegations insufficient to defeat are insufficient assertions are allegations or assertions 49 NY2d at 562). summary judgment Zuckerman v New New York, 49 562). judgment (see Zuckerman summary I.I. Liability Liability Traffic Law Plaintiff argues Law 1211 (a) as a matter matter Vehicle and Traffic violated Vehicle defendant violated that defendant argues that Plaintiff was safe whether it was backing up the cement cement truck truck without ascertaining whether safe to do first ascertaining without first of law by backing so. of a driver of "[t]he driver that "[t]he Vehicle provides, in pertinent pertinent part, that Traffic Law 1211 provides, Vehicle and Traffic safety and with safety made with movement can be made such movement vehicle unless such same unless the same back the shall not back vehicle shall [a]). (Veh & Tr§ without interfering with other traffic" traffic" (Veh Tr 9 1211 with other without interfering of law by matter of judgment as a matter Plaintiff established prima facie entitlement to judgment facie entitlement established his prima Plaintiff without truck cement truck without the cement defendant backed presenting uncontroverted uncontroverted evidence backed up the that defendant evidence that presenting first ascertaining whether behind him (see (see Garcia Garcia v Verizon Verizon N. Y., Y., Inc., vehicle behind was a vehicle there was whether there first ascertaining st Law constitutes Vehicle and Traffic Dept 2004]). Traffic Law constitutes the Vehicle of the violation of 2004]). A violation [1 st Dept AD3d 339 [1 10 AD3d 201 O]; Dept 1023 AD3d DiSa/vo, negligence as a matter of law (see Vainer v DiSalvo, 79 AD 3d 1023 [2d Dept 2010]; Vainer matter of law negligence failed to raise defendants failed opposition, defendants Botero Dept 2001]). raise 2001]). In opposition, 274 [2d Dept AD2d 274 289 AD2d Erraez, 289 Botero v Erraez, 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 08/22/2018 11:47 AM NYSCEF DOC. NO. 80 INDEX NO. 50128/2017 RECEIVED NYSCEF: 08/22/2018 Jackson Index No. 50128/2017 50128/2017 Jackson v. Riccio, Index triable issue issue of of fact. Defendants' Defendants' argument argument that that the the differing differing accounts accounts of of the the accident accident a triable light the in evidence the issues of fact evidence light most most Accepting without merit. Accepting fact is without triable issues raise triable cement the cement sounded on the alarm sounded favorable non-moving party, even even if the back-up alarm the back-up the non-moving favorable to the truck as it reversed, reversed, the evidence evidence still establishes establishes that that defendants defendants violated violated VTL VTL 1211(a) 1211(a) truck by failing failing to ascertain ascertain whether whether it was was safe safe to reverse reverse the the truck. truck. II. II. Serious Injury Injury Serious from a motor motion for for summary summary judgment personal injury injury action action arising arising from motor judgment in a personal On a motion vehicle accident, accident, the the defendants defendants are required required to establish establish that that the the plaintiff plaintiff did not not sustain sustain vehicle Avis Rent serious injury injury within meaning of of Insurance Insurance Law Law 5102(d) 51 02(d) (see (see Toure Toure v Avis Rent A the meaning within the a serious 57 Elliott, v Licari [1992]; 955 NY2d 79 Car Sys., 98 NY2d 345 [2002]; Gaddy NY2d [1992]; Licari Elliott, Eyler, v [2002]; Gaddy NY2d Car NY2d 230 [1982]). 230 [19821). NY2d Defendants have have failed failed to meet meet their their prima prima facie facie burden burden of of demonstrating demonstrating that that the the Defendants as 5102(d) Law§ Insurance of meaning the within plaintiff sustain serious injury within the meaning Insurance Law 9 5102(d) injury serious a sustain not did plaintiff a result result of accident (see Toure v Avis Rent A Car Car Sys., 98 NY2d NY2d 345 [2002]; [2002]; Avis Rent subject accident the subject of the that demonstrates evidence Gaddy v Eyler, Eyler, 79 NY2d NY2d 955, 955-956 955-956 [19921). [1992]). The The evidence demonstrates that Gaddy defendants' experts experts found found significant significant limitations limitations in the the range range of of motion motion in the right defendants' shoulder and the cervical cervical and lumbar lumbar regions regions of of the plaintiff's plaintiff's spine spine (see (see Mercado Mercado v shoulder adequately failed expert Defendants' Mendoza, 133 AD3d 833 [2d Dep't 2015]). Defendants' expert failed to adequately Dep't 20151). AD3d 833 Mendoza, objectively resolved were objectively explain restrictions in the range of motion were resolved (see (see India India v of motion the range that the restrictions explain that Dept. [2d O'Connor, 97 AD3d AD3d 796 796 [2d Dep't Dep't 2012] 2012] c.f. c.f Gonzales Gonzales v Fiallo, Fial/o, 47 AD3d AD 3d 760 760 O'Connor, 2008]). 20081). facie burden, Since defendants meet their prima facie burden, it is unnecessary unnecessary to their prima failed to meet defendants failed Since sufficient were opposition in plaintiff determine whether the papers submitted by the plaintiff opposition were sufficient to the determine whether the papers submitted AD3d raise a triable triable issue issue of of fact fact (see (see Mercado Mercado v Mendoza, Mendoza, 133 AD 3d 833; Che Hong Hong Kim v raise AD3d 969 [2d Dep't Kossoff, 90 AD3d Dep't 20111). 2011]). Kossoff, of the issue judgment on the summary judgment Accordingly, plaintiff's motion motion for partial summary issue of for partial the plaintiff's Accordingly, the ); and the liability, pursuant pursuant to CPLR CPLR 3212, 3212, is GRANTED GRANTED (motion (motion sequence sequence #1 #1); the defendants' defendants' liability, motion for for summary summary judgment dismissing the complaint complaint on the the ground ground that that plaintiff plaintiff did not judgment dismissing motion sustain a serious serious injury injury within meaning of Insurance Insurance Law 5102(d) 5102(d) is DENIED DENIED (motion (motion the meaning within the sustain sequence sequence #2). The parties parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part, room 1600, The for further September 18, 18,2018, at 9:15 9:15 a.m. a.m. for further proceedings. proceedings. 2018, at on September Dated: Dated: White Plains, New New York York White Plains, August 21,2018 21, 2018 August -t~~. -~OMO,J.S.c. v. Riccio MASTER LIST LIST - WESTCHESTER/Jackson WESTCHESTER/Jackson Riccio ALPHABETICAL MASTER H: ALPHABETICAL 6 [* 6] 6 of 6

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