Lamarre v Sullivan

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Lamarre v Sullivan 2019 NY Slip Op 34538(U) December 16, 2019 Supreme Court, Rockland County Docket Number: Index No. 030618/2018 Judge: Sherri L. Eisenpress 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. INDEX NO. 030618/2018 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 12/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------x HERBIE LAMARRE, DECISION/ORDER Plaintiff, Index No. 030618/2018 -against (Motions #2, #3 and #4) BRIAN SULLIVAN, NANCI S. SULLIVAN, and EDMONDE S. DELVA, Defendants. -------------------------------------------------x HON. SHERRI L. EISENPRESS, A.J.S.C. The following papers, numbered 1- 12, were read in connection with Defendant Edmonde S. Delva's Notice of Motion for summary judgment and dismissal of the Complaint against him, pursuant to CPLR Sec. 3212, on the ground that he bears no liability for the automobile accident at issue (Motion #2); Defendants Brian Sullivan and Nanci S. Sullivan's (collectively "Sullivan") Notice of Motion for summary judgment and dismissal of the action, on the ground that the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d) (Motion #3); and Defendant Edmonde S. Delva's Notice of Cross-Motion for summary judgment and dismissal of the action because the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d) (Motion #4): NUMBERED PAPERS [* 1] NOTICE OF MOTION ( #2)/AFFIRMATION IN SUPPORT/EXHIBITS A-H 1-2 NOTICE OF MOTION (#3)/AFFIRMATION IN SUPPORT/EXHIBITS A-J 3-4 AFFIRMATION IN OPPOSITION BY DEFENDANT DELVA TO MOTION #2 5 AFFIRMATION IN OPPOSITION TO MOTION #2 BY PLAINTIFF/EXHIBITS A-H 6 NOTICE OF CROSS-MOTION(#4)/AFFIRMATION IN SUPPORT 7-8 AFFIRMATION IN REPLY (#2) 9 1 of 9 INDEX NO. 030618/2018 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 12/18/2019 (#3 and #4)/ PLAINTIFF'S AFFIRMATION IN OPPOSITION TO MOTIONS EXHIBITS A-N 10 AFFIRMATION IN REPLY (#3) 11 AFFIRMATION IN REPLY (#4) 12 Liabil ity to recove r damag es Plaint iff comm enced the instan t matte r on Febru ary 2, 2018, April 29, 2015, at the interse ction for person al injurie s arising out of an autom obile accide nt on Count y of Rockland. Plaint iff of Route 9W and Wests ide Avenu e, in the Village of Haver straw, dant Edmond Delva, which was was a passe nger in the vehicl e owned and operat ed by Defen Sulliva n and owned by Defen dant struck in the rear by a vehicl e operat ed by Defen dant Brian Lamar re testifie d that the accide nt Nanci S. Sulliva n. At his exami nation before trial, Plaint iff , at which point she steppe d on occurr ed when Delva was driving and the light became yellow rear-e nded her. Defen dant Brian her brakes to stop for the red light and the car behind her co-def endan t's vehicle . As they Sulliva n testifie d that he was traveli ng north on 9W behind Sulliva n assum ed the Delva vehicl e came to the subjec t interse ction, the light turned yellow and Delva testifie d that when she saw was going to go throug h the light but it did not. Defen dant l." Defen dant Sulliva n struck the the light turn red, she "stopp ed in front of the light like norma impac t as heavy . rear of her vehicle when she was stoppe d and described the ish his or her claim The propo nent of a summ ary judgm ent motion must establ in its favor as a matte r of law, or defens e suffici ent to warra nt a Court directi ng judgm ent mater ial issues of fact. Giuffri da v tender ing suffici ent eviden ce to demon strate the lack of z v Prospect Hosp., 68 N.Y.2d 320 Citiba nk Corp., et al., 100 N.Y.2d 72 (2003 ) (citing Alvare withou t regard to the suffici ency (1986 ). The failure to do so requir es a denial of the motion 250 (2d Dept 2003) . Howev er, once of the oppos ing papers. Lacag nino v Gonzalez, 306 A.D.2d oppos ing the motion to produc e such a showin g has been made, the burden shifts to the party ial questi ons of fact requir ing trial. eviden tiary proof in admis sible form demon stratin g mater 2 [* 2] 2 of 9 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 INDEX NO. 030618/2018 RECEIVED NYSCEF: 12/18/2019 ions or unsubs tantiate d Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000) . Mere conclus raise a triable issue. Gilbert allegat ions unsupp orted by compe tent eviden ce are insuffic ient to v. City of New York, 49 Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988) ; Zucker man N.Y.2d 557 (1980) . g vehicle It is well-se ttled that a rear- end collisio n with a stoppe d or stoppin the moving vehicle, unless creates a prima facie case of liability with respect to the operat or of adequa te, non-ne gligent the operat or of the moving vehicle can come forward with an 854 N.Y.S.2d 420 (2d Dept. explan ation for the acciden t. See Smith v. Seskin, 49 A.D.3d 628, 2002)] . Furthe r, when 2008); Harris v. Ryder, 292 A.D.2d 499, 739 N.Y.S.2d 195 (2d Dept. or she is bound to mainta in the driver of an automo bile approa ches anothe r from the rear, he and to exercise reasonable a reason ably safe rate of speed and control over his or her vehicle, driver of a motor vehicle care to avoid collid ing with the other vehicle. VTL § 1129(a ) (''The pruden t, having due regard shall not follow anothe r vehicle more closely than is reasonable and of the highwa y."); Taing v. for the speed of such vehicles and the traffic upon the conditi on must mainta in safe Drewe ry, 100 A.D.3d 740, 954 N.Y.S .2d 175 (2d Dept. 2012). Drivers imposes on them a duty to distanc es betwee n their cars and cars in front of them and this rule v. Phillips, 261 A.D.2d 269, be aware of traffic conditi ons, includin g vehicle stoppages. Johnson 271, 690 N.Y.S.2d 545 (l5t Dept. 1999). prima facie In the matter at bar, the Defend ant Delva has establi shed his red light when it was struck entitle ment to summa ry judgm ent as his vehicle was stoppe d at a ndant Sulliva n to come in the rear by the Sulliva n vehicle. It is then incumb ent upon co-defe "A claim that the driver of forward with a non-ne gligent explan ation for the rear end collision. to rebut the presum ption the lead vehicle made a sudden stop, standin g alone, is insuffic ient d 317 (2d Dept. 2013). of neglige nce. " Robayo v. Aghaab dul, 109 A.D.3d 892,89 3,971 N.Y.S.2 light turn yellow but Here, Defend ant Sulliva n acknow ledged that he saw the traffic control This does not constit ute though t that Delva would run throug h the light before it turned red. 3 [* 3] 3 of 9 INDEX NO. 030618/2018 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 12/18/2019 a non-negligent excuse, as it is entirely foreseeable that a driver would come to a stop in response to a yellow traffic control signal before entering an intersection. Accordingly, Defendant Delva has established her entitlement to summary judgment and dismissal of the Complaint and cross-claims against her. No-Fault Threshold Plaintiff alleges that as a result of the accident, he sustained an acute tear in the left rotator cuff supraspinatus; exacerbation and paresthesia of the left shoulder and upper arm; bicep tendinitis impingement and sprain of cuff, undersurface tear; acute lumbar spine strain with aggravation, exacerbation of prior lumbar herniation of L4-5 and prior lumbar disc bulge at L3-4; acute cervical sprain and strain with aggravation and exacerbation of preexisting cervical sprain/strain and intermittent headaches. Plaintiff underwent extensive treatment to his left shoulder and underwent surgery on January 20, 2016. The Sullivan Defendants timely move to dismiss the complaint for failure to meet the serious injury no-fault threshold. Defendant Delva cross-moves for summary judgment with respect to the no-fault threshold, however, that motion was filed approximately 15 days after the Court ordered deadline, and is not actually a cross-motion, as Plaintiff has not moved against Delva. As Defendant Delva offers no explanation for the late filing, particularly since it managed to timely file a summary judgment motion with respect to liability, her untimely summary judgment motion will not be considered and is denied. In support of the Sullivan Defendants' motion, they submit several affirmed medical reports of radiological film reviews of Dr. F. Traflet, M.D. With respect to a review of Plaintiff's cervical MRI taken on June 3, 2015, Dr. Traflet finds no evidence of a herniated disc and concludes that there are no cervical MRI finds causally related to the traumatic event of April 29, 2015. Dr. Traflet also reviewed Plaintiff's March 8, 2012 lumbar MRI and notes an "old-appearing disc herniation" at L4-5 and a mild chronic-appearing annular bulging at L3-4 and L5-Sl. He then states that these 2012 lumbar MRI findings precede the subsequent 4 [* 4] 4 of 9 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 INDEX NO. 030618/2018 RECEIVED NYSCEF: 12/18/2019 trauma tic event of April 29, 2015. Dr. Traflet also reviewe d Plaintif f's April 14, 2016 MRI. compa rison of Plaintif f's Defend ant asserts that Dr. Traflet conducted a direct side-by side that the latest image did lumbar spine MRis from March 8, 2012 and April 14, 2016 and found review of the April 14, 2016 not reveal any new herniat ed discs or bulging annulu s" there is no by Dr. Traflet regard ing a MRI annexe d to the moving papers and no sworn statem ent made compa rison. er. He Lastly, Dr. Traflet reviewe d Plaintif f's June 3, 2015 MRI of his left should should er of long-st anding opines that there are chronic degene rative change s in_ the left e chronic degene rative duratio n . Dr. Traflet goes on to state that "such finding typical ly produc are seen in this case." He tendino sis of the supras pinatus and mild adjace nt bursitis , which y related MRI finding s to finds no post-tr aumati c abnorm alities in any of the images or causall x-ray stated that there the trauma tic event of April 29, 2015. His review of a Januar y 26, 2015 e the trauma tic event were mild chronic degene rative changes in the left should er which preced of April 29, 2015. prior Additio nally, defend ants point out that Plaintif f had at least two that based upon the MRI acciden ts in which he injured the same parts of his body. They argue ny, he has not sustain ed a reviews of Dr. Traflet , and Plaintif f's examin ation before testimo "seriou s injury" under the no-fau lt thresho ld. are certifie d In opposi tion thereto , Plaintif f submit s some medica l records which from Allonce Family includin g the Nyack Hospital emerge ncy room records and records includin g the records from Chirop ractic P.C. Other records are submit ted are not certifie d, nd Recovery Physical Northe ast Orthop edics (which contain the operat ive report) , Rockla d medica l report of Dr. Therap y PLLC, and Lee Fle ischer, MD. Plaintif f also submit s the affirme medica l records and · Scott Gottlie b M.D., dated March 21, 2019. Dr. Gottlie b reviewed various not in admiss ible form and examin ed Plaintif f, howeve r, many of the records relied upon were signific ant range of motion were not relied upon by moving defend ants. Dr. Gottlie b finds should er pain is causall y limitati ons in Plaintif f's left should er, and opines that Mr. Lamarr e's 5 [* 5] 5 of 9 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 INDEX NO. 030618/2018 RECEIVED NYSCEF: 12/18/2019 related to the accident which occurred on April 29, 2015. His report, however, does not address Plaintiff's prior accidents and/or injuries to his left shoulder. In reply, the Sullivan Defendants contend that Plaintiff fails to oppose that portion of the motion which was to dismiss the 90/180 day no-fault category. Additionally, they contend that those records not certified and not in admissible form must be disregarded by this Court and cannot form the basis of the expert's opinion. Lastly, Defendants contend that because Dr. Gottlieb's medical report does not address Plaintiff's prior injuries to his left shoulder, Dr. Gottlieb's opinion as to causation is speculative and fails to set forth a triable issue of fact. In order to be entitled to summary judgment it is incumbent upon the defendant to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a serious injury. Healea v Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554 (2d Dept 1990). A defendant can meet his burden on summary judgment by relying upon an affirmed medical report of a radiologist who has reviewed the plaintiff's magnetic resonance imaging films relevant to the subject accident and opines that they show preexisting degenerative changes, with no abnormalities causally related to the accident. Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 (2d Dept. 2011). In the instant matter, the submission of Dr. Traflet's medical reports based upon his rev iew of Pla intiff's radiological studies are sufficient to sustain Defendants' burden on summary judgment. The reports find no injuries causally related to the subject accident in Plaintiff's cervica l and lumbar spine or in his left shoulder, and finds any abnormalities to be pre-existing. Once the moving party's burden is met, plaintiff must come forward with sufficient evidentiary proof in admissible form to raise a triable issue of fact as to whether the plaintiff, suffered a "serious injury" within the meaning of the Insurance Law. Zoldas v St. Louis Cab Corp., 108 A.D.2d 378, 489 N.Y.S.2d 468 (1st Dept 1985); Dwyer v Tracey, 105 AD2d 476, 480 N.Y.S.2d 781 (3d Dept. 1984). One way to substantiate a claim of serious injury is 6 [* 6] 6 of 9 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 INDEX NO. 030618/2018 RECEIVED NYSCEF: 12/18/2019 through an expert's designation of a numeric percentage of a plaintiff's loss of range of motion, i.e., quantitatively. McEachin v. City of New York, 137 A.D.3d 753, 756, 25 N.Y.S.3d 672 (2d Dept. 2016). However, an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. Id. While the Court of Appeals held in Perl v. Meher, 28 N.Y.3d 208, 216, 936 N.Y.S.2d 655 (2011), that a plaintiff is not required to demonstrate contemporaneous numerical measurements of range of motion, the Court nonetheless noted that a contemporaneous doctor's report is important to proof of causation since an examination by a doctor years later cannot reliably connect the symptoms with the accident. Id. See also Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 (1 st Dept. 2012)(Court of Appeals decision in Perl v. Meher did not abrogate the need for at least a qualitative assessment of injuries soon after an accident.) Certified medical records may be considered for the purpose of demonstrating that plaintiff sought medical treatment for his claimed injuries contemporaneously with the accident and continuing for a significant period of time thereafter. Vishevnik v. Bouna, 147 A.D.3d 657,659, 48 N.Y.S.3d 93 (1 st Dept. 2017). In the instant matter, the records from Allonce Family Chiropractic, which are certified, sufficiently demonstrate contemporaneous medical findings with respect to the subject accident. However, Plaintiff has nonetheless failed to establ ish a triable issue of fact as to causation. While Dr. Gottlieb opines that Plaintiff's limited mobility and pain in his left shoulder is causally related to the subject accident, he fails to address Plaintiff's prior accident and injury to the same left shoulder. Where a physician's report makes no mention of a plaintiff's preexisting injuries to the same part of the body, it lacks probative value and is speculative. Laurent v. McIntosh, 49 A.D.3d 820,854 N.Y.S.2d 228 (2d Dept. 2008); Shelly v. McCutcheon, 121 A.D.3d 1243, 995 N.Y.S.2d 247 (2d Dept. 2014); Varveris v. Franco, 71 A.D.3d 1128; 898 7 [* 7] 7 of 9 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 INDEX NO. 030618/2018 RECEIVED NYSCEF: 12/18/2019 N.Y.S.2d 213 (2d Dept. 2010). In Cornelius v. Cintas Coro., 50 A.D.3d 1085, 1087, 857 N.Y.S.2d 637 (2d Dept. 2008), the Court held that the physician's conclusions that Plaintiff sustained "significant limitations" in the cervical and lumbar regions of his spine and his left knee as a result of the subject accident, were speculative, in light of the fact that the doctor never acknowledged plaintiff's prior accident, and never addressed the findings of the defendants' examining radiologist who concluded that plaintiff suffered from degenerative conditions in those body parts that predated the accident. Likewise, in the matter at bar, Dr. Gottlieb fails to address the prior accidents or the findings of defendants' radiologist of pre-existing conditions in Plaintiff's lumbar and cervical spine and left shoulder. Accordingly, Plaintiff has failed to demonstrate triable issues of fact as to the categories of "permanent consequential limitation" and "significant limitation." Lastly, plaintiff has failed to allege that he was disabled for the minimum duration necessary to state a claim for serious injury under the 90/180 day category. His allegation that he missed several months of work after the surgery is insufficient, as the surgery took place outside the 180 days window, coupled with his failure to submit medical evidence which documents that he was prevented from performing "substantially all" of his usual and customary activities for the requisite period, See Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 (1 st Dept. 2010), is insufficient to sustain his burden upon summary judgment. Accordingly, it is hereby ORDERED that Defendant Edmonde S. Delva's Notice of Motion ( #2) for summary judgment and dismissal of the complaint liab ility is GRANTED in its entirety and the action is hereby dismissed against her; and it is further ORDERED that Defendants Brian Sullivan and Nanci S. Sullivan's Notice of Motion (#3) for summary judgment, for failure to meet the serious injury threshold, is GRANTED, and the action is dismissed; and it is further and it is further 8 [* 8] 8 of 9 INDEX NO. 030618/2018 FILED: ROCKLAND COUNTY CLERK 12/18/2019 11:52 AM NYSCEF DOC. NO. 105 . RECEIVED NYSCEF: 12/18/2019 . ORDERED that Defendant Edmonde S. Delva's Notice of Motion (#4) for summary judgment, for failure to meet the serious injury threshold, is DEN IED. The foregoing constitutes the Opinion, Decision & Order of the Court on Motions #2-4 Dated: New City, New York December 16, 2019 HON.S TO: All Parties (bye-file) 9 [* 9] 9 of 9

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