Anderson v Singh

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Anderson v Singh 2019 NY Slip Op 34210(U) December 17, 2019 Supreme Court, Westchester County Docket Number: 58229/2016 Judge: Sam D. Walker 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] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 546 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 commence the statutory To commence the statutory time time for for appeals appeals as of of right right {CPLR (CPLR 5513[a]), 5513[a)), you you are are advised advised to to serve serve a copy copy of of this this order, order, with with notice notice of all parties. of entry, entry, upon upon all parties. SUPREME COURT THE STATE STATE OF NEW YORK SUPREME COURT OF THE NEW YORK WESTCHESTER COUNTY WESTCHESTER COUNTY WALKER, J.S.C. PRESENT: PRESENT: HON. HON. SAM D. WALKER, -----------------------------------------------------------------------x -----------------------------------------------------------------------x MAXINE MAXINE BENT BENT ANDERSON ANDERSON and HEATHER HEATHER BENT-TAMIR, BENT-TAMIR, Plaintiff, Plaintiff, DECISION & ORDER DECISION & ORDER Index Index No. 58229/2016 58229/2016 Seq.# Seq. # 12 -against-against- GURMEET SINGH, BERNARD GURMEET SINGH, SINGH, NISHAN NISHAN SINGH, BERNARD MORCHELES, and JOHN JOHN DOES DOES 1-5 (hereinafter MORCHELES, (hereinafter "JOHN "JOHN DOE") DOE") a fictitious fictitious name name for the individuals individuals or entities entities which which hired, hired, employed employed or otherwise otherwise contracted contracted the subject incident Defendant(s) at the time time of the with Defendant(s) subject incident vicarious liability, and is responsible responsible by way way of vicarious liability, respondeat respondeat superior superior or otherwise otherwise for for the acts and omissions omissions alleged alleged herein herein and/or and/or negligently negligently repaired, repaired, managed, managed, maintained, maintained, controlled, controlled, entrusted, entrusted, and/or and/or owned owned the subject subject vehicles vehicles described described below below and involved involved in the subject subject incident incident and whose whose identity identity is presently presently known known only only to the Defendant(s), Defendant(s), Defendants. Defendants. ______________________________________________________ --------~---------x ------------------------------------------------------------------------x ' the present The considered in deciding The following following papers papers were were read and considered deciding the present motion: motion: Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-N Notice Memorandum of Law/Exhibits Law/Exhibits o-q, 2-1-2-4 2-1-2-4 Memorandum Affirmation A-P Affirmation in Opposition/Exhibits Opposition/Exhibits A-P Reply Affirmation/Exhibits Affirmation/Exhibits A-H Reply 1-16 1-16 17-21 22-38 22-38 39-47 39-47 Upon the the foregoing foregoing papers papers it is ordered ordered that the motion motion is GRANTED. GRANTED. Upon that the FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND The plaintiffs, plaintiffs, Maxine Maxine Bent Bent Anderson Anderson ("Anderson") ("Anderson") and and Heather Heather Bent-Tamir Bent-Tamir The ("Bent-Tamir") commenced commenced this this action action on May May 7, 2015 2015 in New New York York County, County, to recover recover ("Bent-Tamir'') 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 546 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 monetary damages damages for for .alleged alleged injuries injuries sustained sustained in a . motor motor vehicle vehicle accident accident that that monetary Avenue and West West 57thth occurred on December December 8, 8,2013 near the the intersection intersection of of 12thth Avenue 2013 at or near occurred Street in New New York York City. At At the the time time of of the the accident, accident, the the plaintiffs plaintiffs were were passengers passengers in a Street operated by the the defendant, defendant, Gurmeet Gurmeet Singh Singh and owned owned by the the defendant defendant Nishan Nishan taxi operated Singh, and and such such taxi was was struck struck in the the rear rear by a vehicle vehicle owned owned and operated operated by the Singh, defendant, Bernard Bernard Morcheles Morcheles ("Morcheles"). (UMorcheles"). defendant, Decision and Order Order entered entered on May May 19, 2016, 2016, the the New New York York Supreme Supreme Court Court By Decision transferred venue venue to Westchester Westchester County. County. Then, Then, on or about about October October 20, 2016, 2016, transferred Fiduciary Insurance Insurance Company Company of of America America A/S/O AlSIO Maxine Maxine Bent-Anderson Bent-Anderson commenced commenced a Fiduciary subrogation action action (Index (Index No. 19203/2016) 19203/2016) Queens County County against against Bernard Bernard subrogation in Queens Morcheles, with with regard regard to the the same same accident, accident, seeking seeking reimbursement reimbursement for for Additional Additional Morcheles, Personal Injury Injury Protection Protection benefits benefits paid to or on behalf behalf of of Maxine Maxine Bent-Anderson. Bent-Anderson. By Personal Decision and and Order Order dated dated and entered entered on December December 7, 2018, 2018, this this Court Court granted granted a Decision motion to transfer transfer the the subrogation subrogation action action to this this Court Court and and join the actions actions for for the motion join the purposes of of discovery discovery and trial. purposes Morcheles now now files files the the instant instant motion motion for for summary summary judgment pursuant to CPLR CPLR .Morcheles judgment pursuant ·nrit 3212, 3212, dismissing dismissing Anderson's Anderson's complaint complaint with with prejudice prejudice on the the ground ground that that sh~ she did didiiot .) sustain a serious serious injury injury as defined defined by Insurance Insurance Law§ Law S 5102(d). 51 02(d). sustain Discussion Discussion "[T]he proponent proponent of of a summary summary judgment motion must must make make a prima prima facie faCie "[T]he judgment motion showing of of entitlement entitlement to judgment of law, ten~ering tendering sufficient sufficient evidence evidence to showing judgment as a matte~ of demonstrate the the absence absence of of any any material material issues issues of fact" fact" (see Alvarez Prospect Hosp.·, Hosp., demonstrate Alvarez v Prospect 68 NY2d NY2d 320, 324 324 [1986]). [1986]). The The failure failure to make make such such a prima prima facie facie showing showing requires requires the the . o'. , 2 of 5 ',:' ~:, . . ··... : [*FILED: 3] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 546 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 denial of the the motion motion regardless regardless of of the sufficiency sufficiency of of the the opposing opposing papers, papers, (see (see Winegrad Winegrad denial New York Univ. Med. Ctr., 64 NY2d 851 [1985]). [1985]). v New "Once this this showing showing has been been made, made, however, however, the the burden burden shifts shifts to the the party party "Once opposing the the motion motion for for summary summary judgment produce evidentiary evidentiary proof proof in admissible admissible opposing judgment to produce form sufficient sufficient to establish establish the the existence existence of of material material issues issues of of fact fact which which require require a trial trial of of form action" (see (see Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d at 324, citing citing to Zuckerman Zuckerman v City City the action" Alvarez v Prospect of New New York, 49 NY2d NY2d at 562). 562). The The non-moving non-moving party party must must lay bare bare all of of the the facts facts at its of disposal regarding regarding the the issues issues raised raised in the motion motion {see (see Mgrditchian Mgrditchian v Donato Donato, , 141 disposal AD2d 513 [2d Dept Dept 1988]). 1988]). AD2d Insurance Law Law §5104{a) 951 04(a) provides provides in pertinent pertinent part part that: that: Insurance ;: Notwithstanding any any other other law, in any any action action by or on Notwithstanding behalf of of a covered covered person person against against another another covered covered person person behalf for personal personal injuries injuries arising arising out out of of negligence negligence in the the use use of of for operation of of a motor motor vehicle vehicle in this this state, state, there there shall shall be no operation recovery for for non-economic non-economic loss, except except in the the case case of of right to recovery serious injury, injury, or for for basic basic economic economic loss 10ss....(McKinney's a serious .... {McKinney's Insurance Insurance Law Law §5104[a]) 951 04[a]) Insurance Law Law §5102(d) 951 02(d) defines defines "serious "serious injury" injury" as Insurance personal injury injury which which results results in death; death; dismemberment; dismemberment; a personal significant disfigurement; disfigurement; fracture; loss loss. . of of a fetus; fetus; significant a fracture; permanent loss loss of of use use of a body body organ, organ, member, member, function function or permanent system; permanent permanent consequential consequential limitation limitation of of use of of a body body system; member; significant significant limitation limitation of of use use of of a body body ·.organ organ or member; function or system; system; or a medically medically determined determined injury injury or function impairment of a non-permanent non-permanent nature nature which which prevents prevents the impairment injured person person from performing substantially substantially all of the the injured from performing material acts which constitute such person's usual and material which constitute such person's usual customary daily daily activities activities for notless ninety days days during · customary for not less than than ninety during the one one hundred hundred eighty eighty days days immediately immediately following following the the occurrence injury or impairment. impairment. (McKinney's of the injury (McKinney's occurrence 3 of 5 ·:·:_- [*FILED: 4] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 546 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 Insurance Law §5102[d]) S5102[d]) Insurance The Court Court has already already referred referred to the physicians physicians and other other experts experts who who The submitted reports. reports. Therefore, Therefore, it will not repeat repeat those those opinions opinions and. and conclusions. conclusions. The The submitted Court has also opined opined as to the admissibility admissibility of the plaintiffs' plaintiffs' documentation documentation submitted submitted in Court support of of their their motion motion and has previously previously decided decided that that Dr. Nelson's Nelson's affidavit affidavit is in support admissible form form and will be considered considered by this Court. Court. admissible The Court Court previously previously granted granted Anderson's summary judgment motion with regard regard The Anderson's summary judgment motion sustaining a medically medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent to her sustaining nature which which prevented prevented her from from performing performing substantially substantially all of of the material material act~ which which nature constitute her usual usual and customary customary daily daily activities activities for for not less than than ninety ninety days days during during. .. constitute hundred eighty eighty days days immediately immediately following following the occurrence occurrence of the injury injury or the one hundred impairment. Therefore, Therefore, the the Court Court will not address address that that category category again. again. Anderson impairment. Anderson also alleges that that she sustained sustained a permanent permanent consequential consequential limitation limitation of use of of a body body ·organ 'organ alleges member and/or and/or a significant significant limitation limitation of use of a body body function function or system. system. or member review and viewing viewing the facts facts in the light light most most favorable favorable to Anderson, this Anderson, this Upon review Court Court finds finds that that Morcheles Morcheles has failed failed to make make a· a prim primaa facie facie showing showing of entitlement entitlement to judgment matter of law with respect respect to those those categories categories of .serious serious injury. Both Dr. judgment as a matter Weinstein showed showed significant significant restrictions restrictions in Anderson's range of motion motion Elkin and DL Weinstein Anderson's range using a goniometer. goniometer. Dr. Weinstein Weinstein summarily summarily states states that that Anderson's complaints of pain Anderson's complaints . using subjective, but but provides provides no explanation explanation for for her restrictions restrictions in his testing testing using the· the' are subjective, goniometer and Dr. DL Elkin makes makes an equivocal equivocal statement statement that that the range range of motion motion goniometer 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 546 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 restrictions may may be a result result of the pre-existing pre-existing degenerative degenerative spondylosis spondylosis of Anderson's restrictions Anderson's lumbar spine._ spine., The The physicians physicians also also do not address address Anderson's allegations of lumbar Anderson's allegations exacerbation of her pre-existing pre-existing conditions conditions and did not discuss discuss her her MRl's. MRI's. Since Since the exacerbation Court has found found that that Morcheles Morcheles has not met met his burden, burden, the Court Court need need not address address the Court sufficiency of the affirmation affirmation of Howard Howard Baum, 8aum, M.D. and Anderson's opposition. sufficiency Anderson's opposition. Accordingly, based upon upon the foregoing, foregoing, it is Accordingly, based ORDERED that that Morcheles' Morcheles' motion motion for for summary summary judgment DENIED. The ORDERED judgment is DENIED. parties are directed directed to appear appear before before the Settlement Settlement Conference Conference Part in Courtroom Courtroom parties January 14, 2020 2020 at 9:15 9:15 a.m. 1600 on January The .foregoing ,foregoing shall shall constitute constitute the Decision Decision and Order Order of of the Court. Court. The Dated: White White Plains, Plains, New New York Dated: York 2019 December December 2019 /7· /7' '/ ~ Jl. WALKER, J.S.C. J.S.C. HON. SAM D. WALKER, 5 5 of 5

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