Gonzalez v Gleason

[*1] Gonzalez v Gleason 2018 NY Slip Op 51483(U) Decided on September 4, 2018 Supreme Court, Ulster County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 4, 2018
Supreme Court, Ulster County

Raquel Gonzalez, Plaintiff,

against

Ashley Lynn Gleason and Laura A. Lombardi, Defendants.



17-1760



Christopher P. Ragucci, Esq.

Counsel for Plaintiff

O'Connor & Partners, PLLC

11 Market Street

Poughkeepsie, New York 12601

Paul G. Hanson, Esq.

Counsel for Defendants, movant

Law Offices of Jennifer Adams

1 Executive Boulevard — Suite 280

Yonkers, New York 10701
Lisa M. Fisher, J.

This matter involves a motor vehicle accident occurring on January 5, 2016, wherein Plaintiff was a seatbelted driver a car which was rear-ended by the car operated by Defendant Ashley Lynn Gleason (hereinafter "Gleason") and owned by Defendant Laura A. Lombardi (hereinafter "Lombardi"). Plaintiff commenced this personal injury action seeking damages for her alleged injuries. Defendants move for summary judgment on the alleged grounds that Plaintiff has not sustained a serious injury pursuant to the insurance law. Plaintiff submits opposition, and Defendants submit a reply.

Motion DENIED. "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission" (CPLR R. 3212 [b] [emphasis added]). Here, Defendants' motion failed to attach the complaint. Not only is this true in the paper version received by chambers, but Defendants' sent a courtesy copy via e-mail to chambers with their scanned version on May 7, 2018 which similarly lacked the complaint. Inasmuch as Defendants failed to submit a copy of the complaint—the most basic pleading to attach to a summary judgment motion—the Court declines to entertain the summary judgment motion.

Notwithstanding, upon review of the motion it is clear that Defendants' failed to meet [*2]their moving burden as to Plaintiff's claim of 90/180. Defendants did not attach Plaintiff's deposition testimony and Defendants' attorney affidavit is without personal knowledge of the facts so as to constitute admissible evidence on a motion for summary judgment. Nor did Defendants' IME doctor, Robert C. Hendler, M.D., opine that there was no 90/180. Whereas even if Defendants did meet their burden, Plaintiff's opposition did attach Plaintiff's deposition testimony wherein she outlined many of the activities she still cannot achieve including basic grocery/food shopping (carrying bags in, unpacking bags), limitations with household chores, social activities (hosting barbeques), and issues with maintaining her employment due to pain.

Moreover, given the stark contrast in Dr. Hendler's opinion that there are no range of motion restrictions or actually any injuries casually related to the subject motor vehicle accident, and the findings of Plaintiff's treating physician Luis Mendoza, M.D. which reported thoracic and lumbar range of motion restrictions between 27% and 50%, which the relevant case law has found limitations above 20% to defeat a motion for summary judgment (see Garner v Tong, 27 AD3d 401 [1st Dept 2006] [finding 25% in lumbar range sufficient]; Ferguson v Budget Rent-A-Car, 21 AD3d 730 [1st Dept 2005] [finding range of motion loss percentages ranging between 25 and 50% sufficient]; Mazo v Wolofsky, 9 AD3d 452 [2d Dept 2004] [finding 20% restriction to range of motion sufficient]), it is clear that issues of fact and credibility warrant preclusion of summary judgment. To the apparent extent that Defendants take issue with Plaintiff's use of Dr. Mendoza, the Court finds such insinuation quite bold given Defendants' equally if not more infectious use of Dr. Hendler for defense.

Since the record demonstrates a serious injury as to Plaintiff's 90/180, she may be entitled to recover for any and all the injuries proximately caused by the subject accident. (See Linton v Nawaz, 14 NY3d 821, 822 [2010] ["Since plaintiff established that at least some of his injuries meet the 'No Fault' threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment."]; see also Mulligan, 120 AD3d at 1156; Rubin v SMS Taxi Corp., 71 AD3d 548, 549—50 [1st Dept 2010] ["Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied."].)

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendants' motion is DENIED, with prejudice, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: September 4, 2018

Catskill, New York

E N T E R :

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

1) Notice of motion, dated May 5, 2018; affirmation in support, of Paul F. Hanson, Esq., with annexed exhibits, dated May 5, 2018;

2) Attorney affirmation in opposition, of Christopher P. Ragucci, Esq., with annexed exhibits (including affidavit of Luis Mendoza, M.D.), dated June 25, 2018; and

3) Affirmation in reply, of Paul G. Hanson, Esq., dated June 28, 2018.