Pellicier v Martinez

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Pellicier v Martinez 2019 NY Slip Op 31249(U) May 3, 2019 Supreme Court, New York County Docket Number: 154671/2016 Judge: Adam Silvera 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: 1] NEW YORK COUNTY CLERK 05/07/2019 03:34 PM NYSCEF DOC. NO. 84 INDEX NO. 154671/2016 RECEIVED NYSCEF: 05/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 22 ·---·------X TERESA PELLICIER, INDEX NO. 154671/2016 Plaintiff, MOTION DATE 11/09/2018 -vMOTION SEQ. NO•. ---=0.=..:03=--- DIONICIO MARTINEZ, ALLEN ROBINSON Defendant. DECISION AND ORDER ------- x HON. ADAM SILVERA: The following e-filed documents, listed by NYSCEF document number (Motion 003) 51, 52, 53, 54, 55, 66,67,68,69, 70, 71, 77, 79,80 JUDGMENT-SUMMARY were read on this motion to/for Upon the foregoing documents, it is ORDERED that defendant's motion for summary judgment and to dismiss plaintiffs complaint is denied. Before the court is defendant Allen C. Robinson's motion for an Order pursuant to CPLR §3212 granting summary judgment in favor of defendants to dismiss the Complaint of plaintiff Teresa Pellicier for failure demonstrate that plaintiff has suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law. The suit at bar stems from a motor vehicle collision which occurred on April 5, 2015, when a vehicle operated by defendant Dionicio Martinez and carrying plaintiff passenger Teresa Pellicier was struck by a vehicle operated by defendant Allen C. Robinson which allegedly resulted in the serious injury of plaintiff. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 154671/2016 PELLICIER, TERESA vs. MARTINEZ, DIONICIO Motion No. 003 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 05/07/2019 03:34 PM NYSCEF DOC. NO. 84 INDEX NO. 154671/2016 RECEIVED NYSCEF: 05/07/2019 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City ofNew York, 49 NY2d 557, 560 [1980]). In order to satisfy their burden under Insurance Law § 5102(d), a plaintiff must meet the "serious injury" threshold (Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 352 [2002) [finding that in order establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury, plaintiff must establish the existence of either a "permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system"]). The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986)). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 [1st Dep't 1990)). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence (See Ugarriza v Schmieder, 46 NY2d 471, 475-476 [1979)). Here, defendant alleges that plaintiff did not sustain a serious injury. In support of their motion defendant attaches the affirmed medical reports of Dr. Arnold Berman and Dr. Melissa Sapan Cohn (Mot, Exh F & G). Defendant notes that plaintiff testified she had prior neck complaints and prior neck surgery (Pellicier Dep at 27-28). Plaintiff testified that she had a plate and four screws put in her neck prior to the accident in a 2014 surgery (id at 29). Further, 154671/2016 PELLICIER, TERESA vs. MARTINEZ, DIONICIO Motion No. 003 2 of 4 Page2of4 [*FILED: 3] NEW YORK COUNTY CLERK 05/07/2019 03:34 PM NYSCEF DOC. NO. 84 INDEX NO. 154671/2016 RECEIVED NYSCEF: 05/07/2019 plaintiff testified that she had no recollection of being confined to her bed or home following the underlying automobile accident of April 5, 2015 (id at 85-86). Dr. Berman examined plaintiff on December 28, 2017 and stated in his affirmed medical report that plaintiff had normal ranges of motion in the cerVical, thoracic and lumbar spine (Mot, Exh E). Further, Dr. Berman stated that plaintiff had resolved cervical sprain with no aggravation or exacerbation of the prior discectomy performed in 2014 due to pre-existing degenerative disc changes (id). Dr. Sapan Cohn performed an independent radiological review of a cervical spine MRI performed on plaintiff about four years before the underlying accident and found degenerative changes at C5-6 (Mot, Exh F). Defendants have made a prima facie showing of entitlement to summary judgment and the burden shifts to plaintiff to raise an issue of fact. In opposition, plaintiff attaches her medical records from the day of the accident at Mt. Sinai St. Luke's Emergency Department, treatment records from Apollo Physical Therapy, and records of her treatment with neurologist Dr. Arie Hausknecht (Aff in Op, Exh A, B & C). A certified copy of the chart from plaintiff's initial evaluation at Apollo Physical Therapy on July 31, 2015, records that plaintiff suffered from a reduced range of motion to the cervical spine and recommended that plaintiff undergo physical therapy twice weekly (id, Exh B). Plaintiff treated with Dr. Hausknecht on August 4, 2015 where she reported that she had a prior history of cervical spine surgery in 2014 and that she had been feeling well up until the time of the underlying accident and thereafter her symptoms had been aggravated (id., ,5). Dr. Hausknecht found a decrease in motion to the cervical spine, noted that plaintiff has diffuse degeneration and examined MRI' s of plaintiff's cervical spine from before the accident in addition to MRI's of plaintiff's cervical spine from the day following the accident (id., ,6). Dr. Hausknecht opined "with a reasonable degree of medical certainty that the motor vehicle 154671/2016 PELLICIER, TERESA vs. MARTINEZ, DIONICIO Motion No. 003 3 of 4 Page 3of4 [*FILED: 4] NEW YORK COUNTY CLERK 05/07/2019 03:34 PM NYSCEF DOC. NO. 84 INDEX NO. 154671/2016 RECEIVED NYSCEF: 05/07/2019 accident of April 5, 2015 was a substantial cause of patient's condition'; (id., ,7). At a follow up appointment on September 1, 2015, Dr. Hausknecht noted that plaintiff continued to have a restriction of mobility in the cervical spine (id., ,10). In conclusion, upon several examinations and reviews of plaintiff's MRls, x-rays, CT scans, and other medical records, Dr. Hausknecht concludes that the accident caused aggravation of her prior neck condition and underlying degenerative joint disease (id., ,17). Plaintiff's Doctor's affirmation sufficiently explains that her current condition is causally related to the accident and explains why plaintiff's physical deficits were not caused by her degeneration and preexisting injuries (See Rosa v Delacruz, 32 NY3d 1060, 2018 N.Y. Slip Op. 07040 [2018]). Thus, plaintiff has raised an issue of fact precluding defendant's motion for summary judgment on the issue of serious injury. Accordingly, it is ORDERED that defendant's motion for summary judgment to dismiss plaintiff's Complaint on the grounds that plaintiff allegedly has not sustained a "serious injury" as defined in 5102 of the Insurance Law is denied; and it is further ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendants with notice of entry. This constitutes the Decision/Order of the Court. ADAM SILVERA, J.S.C. CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 154671/2016 PELLICIER, TERESA vs. MARTINEZ, DIONICIO Motion No. 003 4 of 4 D OTHER D REFERENCE Page4of4

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