Anderson v Singh

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Anderson v Singh 2019 NY Slip Op 34211(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. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 To commence the statutory statutory time for for appeals as of right right (CPLR (CPLR 5513[a]), 5513[a]), you are advised to serve a copy of this order, with with notice notice of entry, upon all parties. SUPREME COURT OF THE YORK SUPREME COURT THE STATE STATE OF NEW NEW YORK WESTCHESTER WESTCHESTER COUNTY COUNTY PRESENT: PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. -----------------------------------------------------------------------x ---------~-------------------------------------------------------------x MAXINE ANDERSON and HEATHER MAXINE BENT BENT ANDERSON HEATHER BENT-TAMIR, BENT-TAMIR, Plaintiff, Plaintiff, DECISION DECISION & ORDER ORDER Index Index No. 58229/2016 58229/2016 Seq.# Seq. # 9 -against-against- GURMEET SINGH, BERNARD GURMEET SINGH, SINGH, NISHAN NISHAN SINGH, BERNARD MORCHELES, MORCHELES, and JOHN JOHN DOES DOES 1-5 (hereinafter (hereinafter. . "JOHN "JOHN DOE") DOE") a fictitious fictitious name name for for the individuals individuals or . entities entities Which hired, hired, employed employed or otherwise otherwise contracted contracted with Defendant(s) Defendant(s) at the time time of the subject subject incident incident and is responsible responsible by way way of vicarious vicarious liability, liability, respondeat respondeat superior superior or otherwise otherwise for the acts and omissions alleged herein and/or and/or negligently negligently repaired, repaired, omissions alleged herein managed, managed, maintained. maintained. controlled, controlled, entrusted, entrusted, and/or and/or owned owned the subject subject vehicles vehicles described described below below and whose identity involved involved in the the subject subject incident incident and whose identity is presently presently known known only only to the Defendant(s), Defendant(s), Defendants. Defendants. ------------------------------------------------------------------------x ------------------------------------------------------------------------x The following papers papers were were read and considered considered in deciding deciding the the present present motion: motion: The following Notice Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-J Affirmation in Support Affirmation Support Affirmation in Opposition/Exhibits Affirmation Opposition/Exhibits A-I Reply Affirmation Reply Affirmation Reply Affirmation/Exhibits Reply Affirmation/Exhibits A-D A-D Supplemental Affirmation Opposition/Exhibit A 11 Supplemental Affirmation in Opposition/Exhibit 1-12 13 13 14-23 14-23 24 25-29 25-29 30-31 Normally, the the Court Court will not consider consider the arguments arguments made made in a supplemental supplemental Normally, opposition (sur-reply), (sur-reply), as such such is not permitted permitted by the CPLR. CPLR. However, However, this this Court Court will opposition consider the supplemental supplemental opposition, opposition, to the extent extent that that it addresses addresses any late filing filing of the consider opposition and the movant's movant's allegations allegations of falsehoods falsehoods perpetuated perpetuated by Bent-Tamir, Bent-Tamir, since since opposition 1 of 12 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 Upon the foregoing foregoing papers papers it is ordered ordered that that the the motion motion is DENIED. DENIED. Upon FACTUAL AND PROCEDURAL BACKGROUND BACKGROUND FACTUAL AND PROCEDURAL The plaintiffs, plaintiffs, Maxine Maxine Bent Bent Anderson Anderson and Heather Heather Bent-Tamir Bent-Tamir ("Bent-Tamir'') (UBent-Tamir") The commenced this this action action on May 7, 2015 2015 in New New York York County, County, to recover recover monetary monetary commenced damages for for alleged alleged injuries injuries sustained sustained in a motor motor vehicle vehicle accident accident that that occurred occurred ~m ~>n damages th December 8, 2013 2013 at or near near the intersection intersection of 12th Avenue West 57thth Street Streetiriin December Avenue and West New York York City. At the time time of the accident, accident, the plaintiffs plaintiffs were were passengers passengers in a taxi New operated by the defendant, defendant, Gurmeet Gurmeet Singh Singh and owned owned by the the defendant defendant Nishan Nishan Singh, Singh, operated such taxi was struck in the rear by a vehicle vehicle owned owned and operated operated by the defendant, defendant, and such was struck Bernard Morcheles Morcheles ("Morcheles"). (UMorcheles"). Bernard Decision and Order Order entered entered on May 19, 2016, 2016, the New New York York Supreme Supreme Court Court By Decision transferred venue to Westchester County. Then, on or about October 20, 2016, Fiduciary Insurance Company of America A/S/Q Maxine Bent-Anderson commended' a subrogation action (Index No. 19203/2016) ,: in Queens County against Bem~rd Morcheles, with regard to the same accident, seeking reimbursement for Addltional Personal Injury Protection benefits paid to or on behalf of Maxine Bent-Anderson. ·By Decision 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 join actions for for the motion join the actions purposes of of discovery discovery and trial. purposes Morcheles now now files files the instant instant motion motion for for summary summary judgment pursuant to CPLR CPLR Morcheles judgment pursuant 3212, seeking seeking dismissal dismissal of of Bent-Tamir's Bent-Tamir's complaint complaint on the the ground ground that that she did not 3212, Court takes takes such such allegations allegations very very seriously. seriously. The The Court Court accepts accepts all papers papers asUmely as timely the Court deems the explanations explanations provided provided for for any untimeliness untimeliness of of partial partial pape·rs, papers, to to be filed and deems adequate. · adequate. 2 of 12 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 I: II II !I sustain a serious injury a~ defined under New 'r;ork 'r1orkInsurance Law 99 5102(d). Insurance Law§§ Ii In support support of the motion, Bent-Tamir Bent-Tamir relies upon an IME report, her deposition deposition iil ''!! ' transcript, transcript, medical records and MRI reports, th~ police report, an attorney's attorney's affirmation affirmation 1 and copies of the pleadings. Morcheles Morcheles arg ar~iues Bent-Tamir's injuries do not ues that Bent-Tamir's 'I'/ II,1 "' constitute constitute a serious injury under Insurance Law§ LaW 9 5102(d) and her alleged injuries are !~ !i not causally related to the collision that occurred on December December 8, 2013. Morcheles Morcheles :1 asserts that Bent-:Tamir Bent..Tamir did not sustain a permanent permanent loss of use of a oody organ, ,;Ii member, function function or system; or a permanent, qonsequential qonsequential limitation of use of a body II 11 or member; or significant significant limitation of yse of a body function organ or function or system; or a ·, " i!i! medically medically determined determined injury or impairment impairment of, of: a non-permanent non-permanent nature which would II Ii qualify her under the 90/180 day rule. qualify ,\ ,I 11 Gurmeet Gurmeet Singh and Nishan Singh ("th~ ("thl? Singhs") filed a separate separate motion for ;i summary judgment on the issue of liability. Ho~ever, summary judgment Ho~ever, in the event event this Court does not !i!~ grant that motion, the Singhs have also filed an affirmation affirmation in support Morchelesi support of Morcheles; I II . motion to dismiss dismiss Bent-Tamir's Bent-Tamir's complaint complaint on i[the lithe ground that she did not ~ustain, sustain' serious injury as defined by Insurance Insurance Law§ Law 9 5t02(d). 5102(d). II ", a . In In opposition, opposition, Bent-Tamir Bent-Tamir submits submits a phy~ician's affirmation, affirmation, medical records, ER I!Ii .' records and deposition deposition transcripts. transcripts. Bent-Tamir :;argues ,!argues that Morcheles Morcheles failed to sustain ili aa his evidentiary evidentiary burden of disproving disproving that Bent-Tamir Bent-Tamir sustained sustained a serious serious injury as Ii I~ result of the December December 8, 2013 accident. Alternatively, Bent-Tamir raises a question of Alternatively, Bent-Tamir ,I,1 ''ii ' fact as to whether whether she suffered suffered a serious injury. injurY. The opposition opposition further further argues that the ,,! iI treating orthopedist orthopedist raises questions questions of fact as to whether whether Bent-Tamir Bent-Tamir sustained. sustained, a :1:! 3 of 12 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 permanent consequential limitation and/or a significant permanent consequential limitation and/or limitation in her her right shoulder significant limitation shoulder and lumbar lumbar spine, spine, due due to loss of of motion. motion. The filed a verified verified bill of particulars The plaintiff plaintiff filed particulars alleging result of of the alleging that, that, as a result accident, accident, she sustained sustained serious serious personal personal injuries injuries including including but not limited limited to injuries injuries to her head, cervical cervical spine, spine, shoulders, shoulders, and lumbar lumbar spine, spine, including including bulging bulging and herniated herniated discs, as well well as pain, tenderness, tenderness, restriction discs, restriction of of motion, motion, restriction restriction of of use and weakness weakness of of the affected affected body body parts; parts; and aggravation aggravation and/or and/or exacerbation exacerbation of of normal normal preexisting preexisting degenerative changes changes and/or degenerative pre-existing injuries. injuries. and/or pre-existing Discussion Discussion "[T]he "[T]he proponent proponent of a summary summary judgment motion must must make make a prima prima facie facie judgment motion showing judgment as a matter showing of of entitlement entitlement to judgment matter of law, tendering sufficient evidence\o evidence\o tendering sufficient demonstrate absence of any material demonstrate the absence material issues issues of fact" fact" (see (see Alvarez Prospect Hosp., Hasp., Alvarez v Prospect .. . '. . 68 NY2d The failure failure to make NY2d 320, 324 [1986]). [1986]). The make such such a prima prima facie showing requires requires the facie showing denial sufficiency of the op.posing denial of the the motion motion regardless regardless of of the sufficiency opposing papers, papers, (see Win egra d (see Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851 [1985]). [1985]). "Once "Once this this showing showing has been been made, made, however, however, the the burden burden shifts shifts to the the party party opposing the summary judgment opposing the motion motion for for summary produce evidentiary proof i~ admissible judgment to produce evidentiary proof admissible form sufficient form sufficient to establish establish the existence existence of material material issues issues of fact require a trial of fact which which require the Alvarez v Prospect the action" action" (see Alvarez Prospect Hosp., Hasp., 68 NY2d at 324, citing citing to Zuckerman Zuckerman v City of of New New York, 49 NY2d NY2d at 562). The The non-moving non-moving party party must must lay bare bare all of of the the facts facts at its disposal disposal regarding regarding the issues issues raised raised in the motion motion (see Mgrditchian Mgrditchian v Donato Donato, , '141 141 AD2d 513 [2d Dept AD2d Dept 1988]). 1988]). 4 of 12 [*FILED: 5] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 Insurance Law Law §5104(a) S5104(a) provides provides in pertinent pertinent part that: that: Insurance Notwithstanding any other other law, in any action action by or on Notwithstanding behalf of a covered covered person person against against another another covered covered person person behalf for personal personal injuries injuries arising arising out of negligence negligence in the use of for operation of a motor motor vehicle vehicle in 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, or for for basic basic economic economic loss 10ss....(McKinney's a serious .... (McKinney's Insurance Law S5104[a]) Insurance Law §5104[a]) ·. Insurance Insurance Law Law §5102(d) S5102(d) defines defines "serious "serious injury" injury" as personal injury injury which which results results in death; death; dismemberment; dismemberment; a personal significant disfigurement; disfigurement; fracture; loss of of a fetus; fetus; significant a fracture; permanent loss of use of of a body body organ, organ, member, member, function function or permanent system; permanent permanent consequential consequential limitation limitation of body system; of use of a body organ or member; member; significant significant limitation limitation of of use of of a body body organ function or system; system; or a medically medically determined determined injury injury or function inipairment of a non-permanent non-permanent nature nature which prevents the impairment which prevents injured person person from from performing performing substantially substantially all of of the injured material acts which which constitute constitute such person's person's usual usual and material customary daily daily activities activities for for not less than ninety ninety days days during during customary the one one hundred hundred eighty eighty days days immediately immediately following following the the the occurrence injury or ::impairment. ;~impairment. (McKinney's (McKinney's occurrence of the injury Insurance Law §5102[d]) S5102[d]) Insurance "The determination determination of of whether whether [a] plaintiff plaintiff sustained sustained a serious serious injury injury within within the "The meaning of the statute statute is, as a rule, a question question for for the jury," N.Y.Prac., New New York York jury." (31 N.Y.Prac., meaning Insurance Law§ Law S 32:32 32:32 [2015-2016 [2015-2016 ed.]; see also, Toure v Avis Rent A Car Car Systems, Systems, Avis Rent Insurance [2002]). "[O]n "[O]n a motion motion for for summary summary judgment defendant has the Inc., 98 NY2d 345 [2002]). judgment the defendant burden to show show that that the plaintiff plaintiff has not sustained sustained a serious serious injury injury as a matter matter of law" burden (Id.). (Id.). The degree degree or seriousness seriousness of an injury injury may may be shown shown in one one of two ways: ways: either either The by an expert's expert's designation designation of a numeric numeric percentage percentage of a plaintiff's plaintiff's loss of range range of 5 of 12 ",:" [*FILED: 6] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 motion or by an expert's qualitative qualitative assessment assessment of a plaintiff's plaintiff's condition provided that , , the evaluation objective basis and compares evaluation has an objective compares the plaintiff's plaintiff's limitations limitations to the normal function, purpose and use of the affected body organ, member, function or Avis Rent Rent A Car system (see (see Toure v Avis Car Sys., 98 NY2d 345, 357 [2002]). A defendant defendant ,1, York can establish establish that a plaintiff's plaintiff's injuries are not serious within the meaning of New York State Insurance Insurance Law§ Law S 5102(d}, 5102(d), by the submission submission of an affirmed affirmed medical report from a examined the plaintiff plaintiff and has determined determined that there are no medical expert who has examined .,objective objective medical findings findings to support support the plaintiff's plaintiff's alleged claim (see Rodriguez Rodriguez v Huerfano, Huerfano, 46 AD3d 794 [2d Dept 2007]). 8ent-Tamir did not suffer suffer death, dismemberment, dismemberment, significant significant In this case, Bent-Tamir disfigurement, or loss of a fetus. Therefore, Therefore, those categories categories of Insurance La~ Law~§ disfigurement, of the Insurance 5102(d) can be eliminated. eliminated. Bent-Tamir 8ent-Tamir alleges that she sustained sustained a fracture, permanent permanent permanent consequenUal consequential loss of use of a body organ, member, function or system; a permanent significant limitation limitation of use of a body limitation of use of a body organ or member; significant system or a medically medically determined determined injury or impairment impairment of a non-perrrian~~t non-perrl1an~~t function or or system substantially all of the material material acts which nature which prevented her from performing substantially g constitute her usual and customary customary daily activities for not less than ninety ninety days days'du'rih constitute du'rihg immediately following the occurrence occurrence of the injury or the one hundred eighty days immediately impairment. Morcheles Morcheles argues that 8ent-Tamir did Bent-Tamir not sustain 'any any injuries corresponding to those categories categories and that bulging discs, sprains sprains and strains and tears corresponding are not serious serious injuries. Dr. Richard Weinstein Weinstein performed performed an independent independent medical Dr. Rene Elkin and Dr. medical 6 : 6 of 12 . '. : -~ '- ; -,;: . ; .... ' [*FILED: 7] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 i~ !I " examination on Bent-Tamir Bent-Tamir on May 7, 2018 2018 and May 9, 2018 2018 respectively respectively and examination ,f'r submitted reports reports of of their their conclusions. conclusions. Dr. Elkin EI~in performed performed range range of of motion motion testing, testing, submitted " i~ visual inspection, inspection, self-determination self-determination and ~se ilise of a goniometer. goniometer. She She reported reported range using visual Ii, ' :~ motion within within the normal normal range range in all testing;: testing~~Dr. reported no objective objective findings findings of motion Dr. Elkin reported 11 ; . -I !I " 11 Ii for any structural structural neurological neurological injury injury attributable! attributable! to the subject subject accident accident and no objective objective for II 11 findings for for cervical cervical or lumbar lumbar radiculopathy radiculopathy or: or cervical cervical myelopathy. myelopathy. Dr. Elkin reported reported findings iII ,: " that Bent-Tamir's Bent-Tamir's accident accident related related symptoms symptoms are musculoskeletal musculoskeletal in etiology etiology and that I Ii consistent with cervical cervical and lumbar lumbar muscle muscle spr~in spr~in and that that there there is no accident accident related related consistent ·: " neurological explanation explanation for for her lower lower back back pain. neurological !!II 1!!! stated that that the MRI of the cervical cervical spine spine revealed revealed mild degeneratiye degeneratiye Dr. Elkin stated :i,i , !'" changes, as evidenced evidenced by disc disc bulging bulging at C5-C6 C5-C6 and C6-C7, C6-C7, which which cannot cannot be attributed attributed changes, I I:I! " accident with any any degree degree of medical medical cei'.tainty. ce~ainty. She stated stated that that it is unlikely unlikely that that to the accident jj degenerative changes changes would would explain explain th'.~ th:~ persistence persistence of of her symptoms, symptoms, the the nonnonthe mild degenerative !I 11 "" resolution of symptoms and her reported reported li~itations. li~itations. Dr. Elkin states states that that there there are resolution of her symptoms ' I '' objective findings findings for for neurological neurological injury injury resu!ting resulting from from the the accident accident that that would impact no objective would impact I~ . ' Bent-Tamir's ability ability to function function at her pre-acd:ident pre-ac<!:ident level without without restrictions restrictions and there on Bent-Tamir's there objective findings findings for for neurological neurological perma'hency perma'nency or disability. disability. are no objective II 11 :i:~ Weinstein also also performed performed range of 'motion :motion testing testing by visual visual inspection inspection ard ard Dr. Weinstein goniometer. He reported reported range range of moUon motion within within the normal normal range range in all testing. testing. use of a goniometer. reported range range of motion motion within within the n4rmal n~rmal range range in all testing. testing. Dr. Weinstein Weinstein He also reported , concluded that that Bent-Tamir's Bent-Tamir's cervical, cervical, lumbar lumbar and right shoulder shoulder sprains sprains are resolv~d. resolved. concluded !~~ . ,1 I Dr. Weinstein Weinstein stated stated that that Bent-Tamir Bent-Tamir does does not not 7 7 't · . ~equired any any further further treatment treatment in relation relation "; 'I . -!! 7 of 12 [*FILED: 8] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 accident and has no disability disability and can work work full duty duty without without restrictions. restrictions. Dr. to the accident Weinstein opined opined that, based based on the the medical medical records, records, the cervical cervical sprain sprain and shoulder shoulder Weinstein sprain were were causally causally related related to the accident, accident, but that that any lower lower back back injury injury is unrelated unrelated sprain accident. to the accident. review and viewing viewing the facts facts in the light light most most favorable favorable to Bent-Tamir, Bent-Tamir, this Upon review Court finds finds that that Morcheles Morcheles has made made a prima prima facie facie showing showing of entitlement entitlement to judgment judgment Court matter of law with with respect respect to Bent-Tamir Bent-Tamirsuffering permanent loss of of use of ofaa suffering a permanent as a matter body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of use of a body body organ organ or member; member; significant significant limitation limitation of:! of:!use body function function or system; system; or a body use of a body ,, " medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which which prevents prevents medically injured person person from from performing performing substantially substantially all of the material material acts which which constitute constitute the injured person's usual usual and customary customary daily daily activities activities for for not less than than ninety ninety days days during during such person's one hundred hundred eighty eighty days days immediately immediately following following the the occurrence occurrence of the injury injury or the one impairment. impairment. The IME's IME's of Bent-Tamir Bent-Tamir showed showed no range range of motion motion deficiencies deficiencies and revealed revealed The the cervical, cervical, lumbar lumbar and shoulder shoulder sprains sprains to be all resolved. resolved. "A defendant defendant who who SUt:>rhlts suhrh1ts admissible proof proof ttiat ttiat the plaintiff plaintiff has a full range range of motion, motion, and that that she or he suffers suffers admissible from no disabilities disabilities causally causally related related to the motor motor vehicle vehicle accident, accident, has established establish'ed from aa prima facie facie case case that that the plaintiff plaintiff did not sustain sustain a serious serious injury injury within within the the meaning meaning of prima Insurance Law§ Law 9 5102(d) 5102(d) (see Kearse v New New York City Transit Authority, Insurance Authority, 16 AD3d AD3d 45 II " ', :! Dept 2005]). 2005]). Further, Further, the evidence evidence reveale,d revealed that that Bent-Tamir's Bent-Tamir's alleged alleged injuries injuries did [2d Dept prevent her from from performing performing substantially substantially all of the material material acts acts which which constituted constituted not prevent 8 8 of 12 [*FILED: 9] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 iii i III , J her usual usual and customary customary daily daily activities activities for for not less less than than ninety ninety days days during during the the ohe ohe her I'i, i 1 1 hundred eighty eighty days days immediately immediately following following her alleged alleged injury injury.. hundred • opposition, Bent-Tamir, Bent-Tamir, by her her attJrney, attdrney, argues argues that that Morcheles Morcheles failed failed ito In opposition, sustain his evidentiary evidentiary burden burden of of disproving disproving ,Ithat Bent-Tamir sustained sustained a fractured fractured jthat Bent-Tamir sustain !!I ; sacrum and coccyx coccyx as a result result of of the the subject subject accident. acCident. Alternatively, Alternatively, the the attorney attorney argues argues sacrum Iil · 1 i . that there there is an issue issue of of fact fact with regard regard to Bert-Tamir's Be;int-Tamir's injuries, injuries, in that, that, Dr. Jonathan Jonathan that ! /! Ii, Gordon noted noted a fractured fractured sacrum sacrum and cocyx, cocyx, which which satisfies satisfies the the serious serious injury injury threshold threshold Gordon .,i: Ii; I' under under Insurance Insurance Law Law § 9 5102(d). 5102(d). The The attorney attorney also also argues argues that that Dr. Gordon Gordon raises raises . ~:1 ;!l .' '1 questions of of fact fact as to whether whether Bent-Tamirlsustained Bent-Tamir II sustained a permanent permanent consequential consequential questions ' !II ' limitation and/or and/or a significant significant limitation limitation with with no~ed noted loss of of motion motion in 2013-2014 2013-2014 and:in and. in limitation ;i ~Ii ! 2019 in her her right shoulder due to a rotator rotator cl!Jff c~ff tear tear resulting resulting from from the the collision, collision, tier her 2019 shoulder due jI - !Ii:: cervical spine, spine, and lumbar lumbar spine. spine. cervical i Gordon first first treated treated Bent-Tamir Bent-Tamir on December. 2013 through through March March 17, Dr. Gordon December. 26, 2013 !I \i1 !!I 1\ ; j . i~ i 2014 and then then examined examined her her in May May and Junel2019. Juneii2019. During During his examinations examinations in 201'3_ 2014 201;3,I ' III . 2014 and in 2019, 2019, Dr. Gordon Gordon also also performed! performed: range range of of motion motion testing testing on Bent-Tarpir Bent-TalTlir 2014 II ' j I " I using a goniometer goniometer to measure measure and found found rimge r'~nge of of motion motion limitations limitations in the the right using '. !II: : shoulder, and cervical cervical and lumbar lumbar spine. spine. He concluded, concluded, within within a reasonable reasonable degree degree ·of 'of shoulder, -IIII ,': medical certainty, certainty, that that the the subject subject accident accident wa~ a substantial substantial causative causative factor factor of of BentBertmedical i~ . ! I: ii " - .i;l Tamir's torn torn rotator rotator cuff cuff and an aggravation/eiacerbation aggravation/e~acerbation of of a pre-existing pre-existing condition;in condition" in Tamir's !l \ j ' ~I' f her right right shoulder. shoulder. Dr. ·Gordon Gordon also also conclude~ concluded, that that the the restriction restriction in motion motion of of Be~tBenther ~:~ ' . . : i I Tamir's right right shoulder, shoulder, constitutes constitutes a a permanentronsequential permanent::consequentiallimitation of use use of of a body body Tamir's limitation of II • organ or member member and/or and/or a significant significant limitation limitation !of :!ofuse of a body body function function or system system and use of organ 9 9 9 of 12 I, t· 1 [*FILED: 10] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 absent absent surgical intervention, intervention, her condition has reached maximum maximum medical improvement improv~mellt and any further treatment would only be palliative. further treatment 'i Dr. Dr. Gordon Gordon also opined that the accideht accident was a substantial substantial causative causative factor.of factor of Bent-Tamir's Bent-Tamir's fractured sacrum and cocyx, and her bulging discs, which caused caused significant restriction in the range of motion of her cervical spine and a substantial substantial and significa.n,t Dr. Gordon opined that the overall condition of limitation of use of her cervical spine. Dr. Bent-Tamir's Bent-Tamir's cervical spine has reached maximum medical improvement improvement and any further further treatment treatment would only be palliative. Dr. Dr. Gordon opined the same for Bent-Tamir's Bent-Tamir's lumbar spine. Here, the Court finds that Bent-Tamir Bent-Tamir has produced produced evidentiary evidentiary proof proof in admissible fact. · Ali Ari admissible form sufficient sufficient to establish establish the existence existence of material material issues of f~ct.' evaluation of competing competing evidence evidence (the battle of ofthe the experts), falls within the province of evaluation the trier of fact at trial, and it is not appropriate appropriate for the Court to dismiss dismiss the complaint complaint on . ,. . . summary judgment, Dietrich v. v. Puff Ruff Cab Corp. 63 AD3d 778 [2d Dept a motion for summary judgment, Dietrich i 2009]; Duffel Duffel v. v. Green, Green, 84 NY2d 795 [1995]; Lopez Lopez v. v. Sanatore, Sanatore, 65 NY2d 1017 [1'9$5]'; [1'9$5]'; 2009]; , ' Mercafe Clearing, Clearing, Inc. v. Chemical Bank, 231 [1st Dept 1995]; Kaiser Kaiset Mercafe v. Chemical Bank, 216 AD2d 231 v. Edwards, 98 AD2d 825 [3d Dept 1983]; Slack Slack V. v. Crossetta, Crossetta, 75 AD2d 809 [2d Dept Edwards, 1980]). admissible form, ' Further, as to claims that medical records were not in admissible a plaintiff "may rely on unsworn reports and uncertified uncertified medical records if they were plaintiff submitted by defendants defendants ... ...or physicians who who submitted or were referenced in the reports of physicians ' . examined pl~intiff pl~intiff on their behalf behalf and [defendants] [defendants] submitted submitted the reports of of th~ir th~ir examined (Siemucha v Garrison, Garrison, 111 111 AD3d 1398 [4th Dept 2013]). Also, the results' results' df tif experts'" (Siemucha 10 10 of 12 [*FILED: 11] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 '. ,l report are referred referred to in the affirmed affirmed medical medical report report of Bent-Tamir's Bent-Tamir's examining exam'ining the MRI report Orthopedic Surgeon therefore, Bent-Tamir Bent-Tamir and her treating treating physician physician properly p'rOpe~iy Orthopedic Surgeon and therefore, submitted and relied on the MRI report report in opposition motion (Zarate (Zarate v McDonald, McDonald, submitted opposition to the motion 31 AD3d AD 3d 632 632 [2d Dept Dept 2006]). 2006]). 31 With regard regard to the fracture fracture of Bent-Tamir's Bent-Tamir's sacrum sacrum and coccyx, coccyx, the bill of With particulars includes includes fractures fractures generally generally as an injury injury and Morcheles' Morcheles' attorney particulars attorney was provided with the the note note of the fractured sacrum and coccyx. coccyx. Further, Further, the Court Court finds finds that that fractured sacrum provided limitations in the range range of motion motion found found by Dr. Gordon, Gordon, caused caused by the bulging bulging discs discs the limitations sprains and strains, strains, create create issues issues of fact. fact. Furthermore, Furthermore, issues issues of of credibility credibility are to and sprains left to the finder of fact fact at trial and not to be resolved resolved by the Court Court on a summary summary be left finder of judgment motion (Zarr (Zarr v Riccio, AD2d 734 734 [2d Dept Dept 1992]). 1992]). judgment motion Riccio, 180 AD2d Additionally, the the Court Court does does not find the plaintiff's plaintiff's lack of of treatment treatment since 201:4,'t6 since 2014, to Additionally, reason to deny deny the the motion, motion, since since D_r. Dr Gordon Gordon accounts accounts for for this be a reason this in his re~br(by report by stating that that Bent-Tamir's Bent-Tamir's injuries injuries have reached reached their their maximum maximum medical medical improvement improvement stating further treatment treatment would would only only be palliative. palliative. and any further Bent-Tamir did not oppose oppose that that part part of the motion motion asserting asserting that that she did did not Bent-Tamir sustain impairment impairment of a non-permanent non-permanent nature nature which prevented her frOm performing perfo~mikg which prevented her from sustain . - ... substantially substantially all of the the material material acts which which constitute constitute her usual usual and customary customary daily daily activities for for not less than than ninety ninety days days during one hundred hundred eighty eighty days days immediately immediate'ly activities during the one following the the occurrence occurrence of the injury injury or impairment. impairment. To sustain sustain this this category, category,aplairitiff a plaintiff following must present present objective objective evidence evidence of "a medically medically determined determined injury injury or impairment impairment of a must non-permanent nature" nature" (see (see Toure v Avis Car Systems, Systems, Inc., 98 NY2d 345, 357 3$7 non-permanent Avis Rent Rent A Car 11 11 11 of 12 ;', [*FILED: 12] WESTCHESTER COUNTY CLERK 12/18/2019 11:24 AM NYSCEF DOC. NO. 547 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 [2002]). Curtailment Curtailment of of recreational recreational and household household activities activities is insufficient insufficient to meet meet the the [2002]). burden (Omar (Omar v Goodman, Goodman, 295 295 AD2d AD2d 413 413 [2d Dept Dept 2.002]). 2002]). Therefore, Therefore, that that part part of of the burden motion is granted. granted. motion Accordingly, based based upon upon the the foregoing, foregoing, it is Accordingly, ORDERED that that the the defendants' defendants' motion motion for for summary summary judgment GRANTED in ORDERED judgment is GRANTED part and DENIED DENIED in part. The The parties parties are directed directed to appear appear before before the the Settlement Settlement part Conference Part Part in Courtroom Courtroom 1600 1600 on January January 14, 2020 2020 at 9:15 9:15 a.m. Conference The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of of the the Court. Court. The Dated: White White Plains, Plains, New New York York Dated: December ,.1, 2019 j"1, 2019 December ~<.P.~ SAM D. WALKER, WALKER, J.S.C. J.S.C. , HON SAM 12 12 of 12

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