Rodriguez v R.W. Bozel Transfer, Inc.

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Rodriguez v R.W. Bozel Transfer, Inc. 2019 NY Slip Op 33214(U) October 28, 2019 Supreme Court, New York County Docket Number: 156791/2017 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 10/29/2019 11:46 AM NYSCEF DOC. NO. 38 INDEX NO. 156791/2017 RECEIVED NYSCEF: 10/29/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART IAS MOTION 22 Justice --------------------------------------------------------------------------------X INDEX NO. JOSE RODRIGUEZ, MOTION DATE Plaintiff, MOTION SEQ. NO. 156791/2017 08/07/2019 002 -vR.W. BOZEL TRANSFER, INC.,AND, RUSSELL WALTERS JR DECISION + ORDER ON MOTION Defendant. -----------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28,29,30,31,32, 33,34, 35,36, 37 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ORDERED that defendants R.W. Bozel Transfer, Inc. and Russell Lee Walters, Jr.'s motion for summary judgment, pursuant to CPLR 3212 to dismiss plaintiff, Jose Rodriguez's Complaint is denied. Before the Court is defendants' motion for an Order pursuant to CPLR §3212 granting summary judgment in favor of defendant on the grounds that plaintiff has failed to demonstrate that plaintiff has suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law. Plaintiff opposes the motion. This matter stems from a motor vehicle incident which occurred on January 11, 2017, when defendants' vehicle rear-ended plaintiff's vehicle while it was stopped on the westbound Cross Bronx Expressway at or near Park Avenue, in the County of Bronx, City and State ofNew York in the County of Ridgefield, State of New Jersey, which allegedly led to the serious injury of plaintiff. Defendants' motion, for summary judgment, pursuant to CPLR 3212, against plaintiff on the issue of "serious injury" as defined under Section § 5102(d) of the Insurance Law is denied. 156791/2017 RODRIGUEZ, JOSE A vs. R.W. BOZEL TRANSFER, INC., AND Motion No. 002 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 10/29/2019 11:46 AM NYSCEF DOC. NO. 38 INDEX NO. 156791/2017 RECEIVED NYSCEF: 10/29/2019 "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" (Winegradv New York University Medical Center, 64 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"]). Defendants allege that plaintiff has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendants allege that the injuries plaintiff is seeking relief for are not causally related to the underlying accident and are a result of degenerative and preexisting changes. Defendants submit the IME report of Dr. Jonathan S. Garay in support of their motion (Mot, Exh G). In his April 23, 2019, report, Dr. Garay opined based on review of plaintiffs medical records and an Independent Medical Examination of plaintiff on November 28, 2018, that plaintiffs "current complaints and any future medical needs are due to the unrelated and preexisting scoliosis and degenerative disease and are unrelated to the accident" (id). Dr. Garay concludes that plaintiff did not suffer any causally related impairment (id). Dr. Garay noted that 156791/2017 RODRIGUEZ, JOSE A vs. R.W. BOZEL TRANSFER, INC., AND Motion No. 002 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 10/29/2019 11:46 AM NYSCEF DOC. NO. 38 INDEX NO. 156791/2017 RECEIVED NYSCEF: 10/29/2019 plaintiff had degenerative changes in the cervical spine, preexisting scoliosis in the lumbar spine and that plaintiffs left shoulder was not injured. Thus, defendants have made a prima facie showing of entitlement to summary judgment on the issue of serious injury and the burden now shifts to plaintiff. In opposition, plaintiffs responding medical submissions raise a triable issue of fact as to plaintiffs alleged degenerative injury to the lumbar spine. In Rosa v Delacruz, 32 NY3d 1060, 2018 N.Y. Slip Op. 07040 [2018], the Court of Appeals found that where a plaintiffs doctor opined that tears were causally related to the accident, but did not address findings of degeneration or explain why the tears and physical deficits found were not caused by the preexisting degenerative conditions, plaintiff failed to raise a triable issue of fact as it "failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident" (See id.) Here, plaintiff submits an opinion from his doctor which addresses the findings of loss of range of motion to the left shoulder (Affin Op, Exh A). Plaintiff submits the September 14, 2017, report of Dr. Igor Rubinshteyn who examined plaintiff on September 1, 201 7, and found restrictions in plaintiffs left shoulder (id). Dr. Rubinshteyn demonstrated the restriction in plaintiffs range of motion by listing the normal range of motion and the restricted range of motion of plaintiff (id, at 3). While plaintiffs opposition does raise an issue of fact as to the left shoulder, plaintiffs physician does not address the cervical spine degenerative condition and preexisting scoliosis in the lumbar spine alleged by defendants. Thus, plaintiff has failed to raise an issue of fact as to defendants' assertion that plaintiff has not suffered a serious injury to the cervical spine and 156791/2017 RODRIGUEZ, JOSE A vs. R.W. BOZEL TRANSFER, INC., AND Motion No. 002 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/29/2019 11:46 AM NYSCEF DOC. NO. 38 INDEX NO. 156791/2017 RECEIVED NYSCEF: 10/29/2019 lumbar spine. Defendant's motion is granted in part solely as to plaintiffs cervical spine and lumbar spine and is denied in part as to plaintiffs left shoulder. Accordingly, it is ORDERED that the branch of defendants' motion for summary judgment, pursuant to CPLR 3212 to dismiss plaintiff, Jose Rodriguez's Complaint is denied; and it is further ORDERED that the branch of defendants' motion for summary judgment, on the grounds that plaintiff allegedly has not sustained a "serious injury" as defined in 5102 and 5104 of the Insurance Law, is granted in part solely as to the cervical spine and lumbar spine and denied in part as to the left shoulder; and it is further ORDERED that all parties appear for an Early Settlement Conference at 11 :00 AM on November 1, 2019, with Samuel Wilkenfeld in room 106of80 Centre Street; 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. ()) 10/28/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ADAM SILVERA, J.S.C. ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 156791/2017 RODRIGUEZ, JOSE A vs. R.W. BOZEL TRANSFER, INC., AND Motion No. 002 4 of 4 D OTHER D REFERENCE Page4of4

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