Augello v Grechanyuk

[*1] Augello v Grechanyuk 2018 NY Slip Op 51658(U) Decided on November 7, 2018 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2018
Supreme Court, Kings County

Vincent Augello, Plaintiff,

against

Viktor Grechanyuk, Defendant.



16153/14



Attorney for Plaintiff:

Adam M. Diker, Esq.

Okun, Oddo, & Babat P.C.

8 West 38th Street, Ste. 1002

New York, New York 10018

Attorney for Defendant:

Alexander Cogbill, Esq.

Goldberg, Miller, & Rubin P.C.

767 Third Avenue, 24th Floor

New York, New York 10017
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on July 25, 2018, under motion sequence nine, by defendant Viktor Grechanyuk (hereinafter defendant or Grechanyuk) for an order pursuant to CPLR 3212 granting summary judgment in his favor and dismissing the complaint of Vincent Augello (hereinafter plaintiff or Augello) on the ground that Augello has not suffered a serious injury as defined in New York [*2]Insurance Law § 5102 (d). Augello has opposed the motion.

Notice of Motion

Supporting Affirmation

Exhibits A to G

Affirmation in Opposition

Exhibits A to F

Reply Affirmation

BACKGROUND

On November 14, 2014, the plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office. The defendant joined issue by a verified answer dated July 9, 2015. On May 24, 2018, plaintiff filed the Note of Issue.

Plaintiff's verified complaint and verified bill of particulars alleges the following salient facts. On May 4, 2014, at approximately 4:30 p.m., Grechanyuk negligently drove his vehicle in reverse and collided with a legally parked vehicle that was being operated by the plaintiff (hereinafter the subject accident). The subject accident occurred on 8th Avenue between 48th and 49th street in Brooklyn, New York and caused the plaintiff to sustain serious physical injuries.

MOTION PAPERS

Defendant's motion papers consist of an affirmation of counsel and seven annexed exhibits labeled A through G. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is a copy of defendant's verified answer. Exhibit C is a copy of plaintiff's verified bill of particulars. Exhibit D is a copy of the Note of Issue. Exhibit E is an affirmed medical report of Dr. Nunzio Saulle, pertaining to his examination of Augello conducted on June 5, 2009. Exhibit F is described as copies of inclinometer records from July 2, 2014, September 23, 2014 and January 15, 2015 purportedly taken from plaintiff's physician. Exhibit G is a copy of the deposition transcripts of the plaintiff conducted on January 11, 2017.

Plaintiff's opposition papers consist of an affirmation of counsel and six annexed exhibits labeled A through F. Exhibit A is described as the affirmed records of Dr. Ramy E. Hanna, plaintiff's treating physician. Exhibit B is described as the records of Dr. Kenneth McCulloch, pertaining to an arthroscopic surgery procedure that he performed on plaintiff's left knee on October 30, 2014. Exhibit C is an affirmation of Dr. Ramy E. Hanna dated April 27, 2018, in which he opines that the plaintiff suffered an exacerbation of a prior neck and back injury caused by the subject accident. Exhibit D is an affirmation of Dr. Kenneth McCulloch dated September 26, 2018, in which he opines, inter alia, that the subject accident caused significant and consequential damages to plaintiff's left knee. Exhibit E contains several medical imaging studies of the plaintiff's left knee, cervical spine and lumbar spine conducted in May and June of 2014. Exhibit F is an affidavit of the plaintiff dated October 17, 2018.

Defendant submitted an affirmation of his counsel in reply.

LAW AND APPLICATION

Defendant's motion seeks dismissal of the verified complaint on the basis that the plaintiff did not suffer a serious injury as defined by New York State's Insurance Law § 5102 (d). [*3]Defendant also seeks dismissal of plaintiff's claim for economic damages because plaintiff's alleged special damages has failed to surpass the basic economic loss standard set forth in by New York State's Insurance Law § 5102 (a).

Dismissal Due to No Serious Injury

In the instant action, plaintiff's complaint and verified bill of particulars alleges that due to the subject accident he sustained, among other things, a serious injury to his left knee, an aggravation of a previously dormant injury in the cervical and lumbosacral spine, as well as, post traumatic headaches.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

Insurance Law § 5102 (d) defines serious injury as:

A personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

"A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Nunez v Alies, 162 AD3d 1058, 1059 [2nd Dept 2018] quoting Grossman v Wright, 268 AD2d 79, 83 [2nd Dept 2000]). "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" (Grossman, 268 AD2d at 84). "The plaintiff in such a situation must present objective evidence of the injury" [*4](Id.).

Defendant contends, inter alia, that the plaintiff has not sustained a serious injury due to the subject accident. The defendant, however, did not submit an affidavit or affirmation of any medical experts who examined either the plaintiff or the plaintiff's medical records on the defendant's behalf. Consequently, defendant's motion contains no opinion from a medical expert regarding the cause or the extent of plaintiff's injuries caused by the subject accident (cf. Nunez v Alies, 162 AD3d 1058, 1059 [2nd Dept 2018] quoting Grossman, 268 AD2d at 83). Instead, the defendant relies on records generated in 2010, plaintiff's deposition transcript and unexplained inclinometer reports to support the motion.

In particular, the defendant has annexed, among other things, the affirmed report of Dr. Nunzio Saulle, a physiatrist, pertaining to his examination of the plaintiff on June 5, 2009 in connection with a prior motor vehicle accident that occurred on May 27, 2009. Defendant points to the fact that Dr. Saulle's report, dated July 27, 2010, found that the injuries to plaintiff's neck and lower back which were caused by that accident were permanent.

Defendant contends that if you accept Dr. Saulle's finding in 2010 that the injury to plaintiff's neck and back were permanent, and then look at the inclinometer reports taken in 2014 and 2015, you would conclude that the subject accident did not cause an exacerbation of plaintiff's neck and back injury. It is noted that Dr. Saulle's report of 2010 does not address an injury to plaintiff's knees. Nor does the defendant address plaintiff's alleged injury to the left knee in any other part of the motion.

Defendant has also included what he described as copies of inclinometer records from July 2, 2014, September 23, 2014 and January 15, 2015 purportedly taken from plaintiff's physician. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005]). The defendant neither identifies the physician who generated the records nor state how the records were obtained. Nor does the affirmation of defendant's counsel set forth the basis for counsel's knowledge that the inclinometer records are what counsel purports them to be.

However, assuming for the sake of argument that the records are admissible, defendant submitted nothing from a medical expert explaining their content. Contrary to the defendant's assertions, the records are not self explanatory. Defendant claims that the records reflect the normal range-of-motion for an individual in the cervical, thoracic and lumbar spine area and sets forth what the plaintiff's percent of loss was in each of the listed categories of range-of- motion. Defendant further argues that the percentage of loss by the plaintiff was not significant enough to amount an exacerbation.

A preexisting condition does not foreclose a finding that the plaintiff's injuries were causally related to the accident (Rodgers v Duffy, 95 AD3d 864, 866 [2nd Dept 2012]). The inclinometer reports, however, did not show the findings of plaintiff's range-of-motion and compare it to what is normal (Paul v Weatherwax, 146 AD3d 792 [2nd Dept 2017]). Furthermore, the defendant's papers failed to adequately address the plaintiff's claims set forth in the bills of particulars, namely that he sustained a serious injury to his left knee due to the subject accident (O'Shaughnessy v Sanchez, 164 AD3d 805 [2nd Dept 2018]).

For all the foregoing reasons, the defendant has failed to meet a prima facie burden of [*5]showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956—957 [1992]).

Inasmuch as the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Espinal v Shortis, 164 AD3d 1217 [2nd Dept 2018] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Dismissal of Plaintiff's Claims for Economic Damages

Defendant claims that plaintiff's bill of particulars alleges special damages for surgical, physician's and diagnostic services totaling only $40, 951.56. Defendant further contends that although plaintiff at one point claimed lost wages in the amount of $33,280.00 in the bill of particulars, he later withdrew the lost wages claim on January 11, 2017 at his deposition.

New York State Insurance Law § 5102 (a) (2) provides in pertinent part as follows:

"Basic economic loss" means, up to fifty thousand dollars per person of the following combined items, subject to the limitations of section five thousand one hundred eight of this article: (2) Loss of earnings from work which the person would have performed had he not been injured, and reasonable and necessary expenses incurred by such person in obtaining services in lieu of those that he would have performed for income, up to two thousand dollars per month for not more than three years from the date of the accident causing the injury. An employee who is entitled to receive monetary payments, pursuant to statute or contract with the employer, or who receives voluntary monetary benefits paid for by the employer, by reason of the employee's inability to work because of personal injury arising out of the use or operation of a motor vehicle, is not entitled to receive first party benefits for "loss of earnings from work" to the extent that such monetary payments or benefits from the employer do not result in the employee suffering a reduction in income or a reduction in the employee's level of future benefits arising from a subsequent illness or injury.

Plaintiff did not dispute that he withdrew his lost wages claim at his deposition. Nor did he dispute that as a result of the withdrawal of that claim, the total amount of special damages he was claiming was only $40.591.56. In fact, Plaintiff did not oppose this branch of defendant's motion seeking dismissal of his claim for economic damages. The first $50,000 of an injured plaintiff's medical expenses and lost earnings constitutes basic economic loss, which is not recoverable under New York State Insurance Law § 5102 (a) (1), (2) (see Ellis v Johnson Motor Lines, 198 AD2d 258 [2nd Dept 1993]).

Accordingly, defendant's motion seeking dismissal of plaintiff's claims for economic loss is granted.

CONCLUSION

Defendant Viktor Grechanyuk's motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint on the ground that the injuries claimed do not satisfy the serious injury threshold requirement of the New York Insurance Law § 5102 (d) is denied.

Defendant Viktor Grechanyuk's motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's claims for economic loss on the ground that [*6]pursuant to New York State Insurance Law § 5102 (a) (1) and (2) the values of plaintiff's special damages does not exceed basic economic loss is granted.The foregoing constitutes the decision and order of this Court.