Decatus v City of New Rochelle

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Decatus v City of New Rochelle 2019 NY Slip Op 34662(U) December 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 65844/2016 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: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 commence the the statutory statutory To commence time for for appeals appeals as of of right right time (CPLR 5513[a]), 5513[a)), you you are are (CPLR advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: ·--------------------x -----------------------------------------------------------------------x DONALD DECATUS, DECATUS, DONALD DECISION & ORDER ORDER DECISION Plaintiff, Index No. 65844/2016 65844/2016 Plaintiff, Index Seq. #11 Seq.# -against. -againstTHE CITY CITY OF NEW NEW ROCHELLE, ROCHELLE, NEW NEW ROCHELLE ROCHELLE THE SANITATION, THE THE DEPARTMENT DEPARTMENT OF PUBLIC PUBLIC SANITATION, WORKS and ROMEL ROMEL C. JAMES, JAMES, WORKS Defendants. Defendants. ------------------x ------------------------------------------------------------------------x The following following papers papers were were read and considered considered in deciding deciding the the present present motion: motion: The Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-J Notice Affirmation in Opposition/Exhibits Opposition/Exhibits A-H A-H Affirmation Reply Affirmation/Exhibit Affirmation/Exhibit K Reply 1-12 13-21 22-23 22-23 Upon the the foregoing foregoing papers papers it is ordered ordered that that the the rriotion motion is DENIED. DENIED. Upon FACTUAL AND AND PROCEDURAL PROCEDURAL BACKGROUND BACKGROUND FACTUAL The plaintiff, plaintiff, Donald Donald Decatus, Decatus, commenced commenced this this ~ction action on October October 19, 2016, 2016, to The recover monetary monetary damages damages for for alleged alleged injuries injuries sustained sustained in a motor motor vehicle vehicle accident accident recover that occurred occurred on August 2015 at or near near the the intersection intersection of of North North Avenue Avenue and that August 11, 2015 Rochelle Place, Place, New Rochelle, New New York. York. The The plaintiff plaintiff alleges alleges that, that, at the the time time of of the the Rochelle New Rochelle, accident, he was was driving driving a taxi on North North Avenue, Avenue, intending intending to make make a left left turn turn onto onto accident, Rochelle Place, Place, when garbage truck vehicle from behind. behind. Rochelle when a garbage truck hit his vehicle The defendants, City of New New Rochelle, Rochelle, i/s/h/a i/s/h/a The The City of New New Rochelle, Rochelle, New The defendants, Rochelle Sanitation Sanitation and The The Department Department of Public Public Works, Works, and Romel Romel C. James, James, by Rochelle [* 1] 1 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 their attorney, attorney, now now file the the instant instant motion motion for for summary summary judgment pursuant to CPLR CPLR their judgment pursuant 3212, seeking seeking dismissal dismissal of ofthe complaint on the basis basis that that the the plaintiff plaintiff did not not sustain'a sustain 'a 3212, the complaint serious injury injury as defined defined under under New New York York Insurance Insurance Law§§ Law 99 5102(d). 51 02(d). serious support of of the the motion, motion, the the defendants defendants rely upon, upon, inter inter alia, the the plaintiff's plaintiff's 50-h In support and deposition deposition testimony, testimony, MRI reports, reports, an IME report, report, an attorney's attorney's affirmation affirmation and copies of of the the pleadings. pleadings. The The defendants defendants argue argue that that the the plaintiffs plaintiff's injuries injuries do not copies constitute constitute a serious serious injury injury under under Insurance Insurance Law§ Law 9 5102(d) 5102(d) and and his alleged alleged injuries injuries are not causally causally related related to the the collision collision that that occurred occurred August August 11, 2015. 2015. They They assert assert that that the the not plaintiff did not sustain sustain a permanent permanent loss of of use of of a body body organ, organ, member, member, function function or plaintiff system; or a permanent, permanent, consequential consequential limitation limitation of of use of of a body body organ organ or member; member; or system; . . : '. significant limitation limitation of of use use of of a .body body function function or system; system; or a medically medically determined determined significant injury or impairment impairment of of a non-permanent non-permanent nature nature which which would would qualify qualify her her unde(the under ;the injury 90/180.day 90/180 day rule. opposition, the the plaintiff, plaintiff, by his attorney, attorney, submitted submitted a physician's physician's report, report, medi6~i m~dic~1 In opposition, records, ER records, records, MRl's MRl's and PT records. records. The The attorney attorney argues argues that that the the defe defendants records, ndahts 0 failed to meet meet their their prima prima facie facie burden burden of of showing showing that that the the plaintiff plaintiff did not not sustain~ sustain a failed . .. - serious injury injury within within the the meaning meaning of of Insurance Insurance Law Law § 9 5102[d], 5102[d], as a result result of of the the August August serious 2015 accident accident and failed failed to prove prove that that the the plaintiff plaintiff did not not suffer suffer a permanent permanent 2015 . . .. consequential limitation limitation or significant significant .limitation .limitation of of use of of a body body function function or system. system. The The consequential plaintiff further further asserts asserts that burden plaintiff that the defendants defendants failed failed to meet meet their their prima prima facie facie burden regarding the the absence absence of causation. causation. The plaintiff asserts, however, that raisesti"iable The plaintiff asserts, however, that he raises triable regarding issues of fact fact that that he sustained sustained serious injuries to his cervical lumbar spine issues serious injuries cervical spine spine and lumbar spine [* 2] 2 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 and the question of whether disc satisfies satisfies the serious serious injury threshold is a question of whether a bulging bulging disc injury threshold question fact for jury. Further, the plaintiff argues that that differences differences in doctors' doctors' question of fact for the jury. Further, the plaintiff argues opinions for a jury jury determination. determination. opinions on causation, causation, are to be left for alleges that, as a result the accident, accident, he The plaintiff's The plaintiff's bill of particulars particulars alleges result of the sustained spine: diffuse diffuse disc disc sustained serious serious personal personal injuries injuries including including head injury; lumbar lumbar spine: of the cervical cervical spine spine and mild bulges cervical spine: spine: straightening straightening of bulges at L2-3 through through L4-5; cervical curvature spine with convexity convexity to the the right, posterior posterior central central disc disc curvature of the cervical cervical spine protrusion disc bulges bulges at C4-5 C4-5 and C7-T1, C7-T1, right right posterolateral protrusion at C3-4, diffuse diffuse posterior posterior disc posterolateral I to right foraminal foraminal disc disc protrusion protrusion at C5-6. Discussion Discussion "[T]he of a summary summary judgment judgment motion facie "[T]he proponent proponent of motion must must make make a prima prima facie showing judgment as a matter tendering sufficient sufficient evidence evidence t6 to showing of entitlement entitlement to judgment matter of law, tendering demonstrate of fact"(see fact" (see Alvarez Alvarez v Prospect Prospect Hosp., Hosp., demonstrate the absence absence of any material material issues issues of 68 NY2d 320, 324 [19861). The failure failure to make such a prima facie showing showing requires [1986]). The make such prima facie requires the denial of the sufficiency sufficiency of the opposing opposing papers, denial of the motion motion regardless regardless of papers, (see Winegrad Winegrad [1985]). v New New York Univ. Med. Ctr., 64 NY2d 851 [1985]). "Once showing has been made, the burden burden shifts shifts to the party "Once this this showing made, however, however, the party opposing the the motion motion for produce evidentiary proof in admissible admissible opposing for summary summary judgment judgment to produce evidentiary proof form sufficient sufficient to establish material issues issues of fact require a trial of fact which which require form establish the existence existence of material the action" action" (see (see Alvarez Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d at 324, citing citing to Zuckerman Zuckerman v City City the 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 a(it~ of its disposal regarding regarding the the issues issues raised raised in the the motion motion (see Mgrditchian Mgrditchian v Donato Donato, , 141 disposal [* 3] 3 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 AD2d Dept 1988]). 1988]). AD2d 513 [2d Dept that: Insurancee Law Law 951 04(a)) provides provides in pertinen pertinent t part part that: §5104(a Insuranc any action Notwithstanding any other other law, in any action by or on tanding any Notwiths covered person another covered against another behalf of person against person covered person of a covered behalf the in ce for personal l injuries injuries arising arising out out of negligen negligence the use of of for persona operationn of a motor motor vehicle this state, state, there there shall shall be no no vehicle in this operatio of case of the case except in the right to recovery recovery for non-economic nomic loss, except for non-eco right ey's (McKinn .... serious injury, or. or for basic econom economicic loss 10ss....(McKinney's for basic a serious Insurancee Law §5104[a 95104[a])]) Insuranc "serious injury" defines "serious Insurancee Law Law 951 02(d)) defines injury" as §5102(d Insuranc dismemberment; death; dismemberment; a persona personal l injury results in death; which results injury which fetus; of a ·fetus; loss fracture; a significant fracture; of disfigurement; significant disfigurement; function , member function or permanentnt loss of use of of a body body organ, organ, member, or permane body of use of limitation system; permanent consequential limitation of of a body ential consequ nt permane system; of a body of use of organ member;; significant limitation of body significant limitation organ or member injury ed function system; or a medicall medicallyy determin determined injury or or function or system; the prevents which nature impairment of a non-permanent nature which prevents the anent non-perm of ent impairm the substantially all of ng sllbstantially injured person person from performing of the from performi injured and usual such person's material acts acts which constitutee such person's usual which constitut material during days during ninety than less not customary daily activities for not less than ninety days for activities daily ry customa the following tely immedia the one hundred eighty days immediately following the the one hundred eighty days ey's impairment. (McKinn occurrence the injury injury or impairment. (McKinney's ce of the occurren ]) §5102[d Insurance Law 951 02[d]) Insurance Law the within the serious injury sustained a serious "The plaintiff sustained injury within whether [a] plaintiff of whether determination of "The determination York jury." (31 N.Y.Prac meaning of of the statute is, as a rule, a question question for for the the jury." N.Y.Prac.,., New New York the statute meaning A Car Rent A Avis Rent Insurancee Law§ Law 9 32:32 32:32 [2015-20 [2015-2016 see also, Toure v Avis Car Systems Systems,, 16 ed.]; see Insuranc the defendant has the defendant judgmen t the summary judgment Inc., 98 NY2d 345 [2002]). "[O]n motion for has the for summary "[O]n a motion 345 [2002)). 98 NY2d Inc., of law" matter of serious injury burden to show that that the the plaintiff plaintiff has not sustaine sustainedd a serious injury as a matter law" to show burden (/d.). (Id.). ways: either two ways: one of shown in one The injury may may be shown of two either of an injury seriousness of or seriousness degree or The degree [* 4] 4 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 by an expert's expert's designation designation of a numeric numeric percentage percentage of a plaintiffs plaintiff's loss of range of motion or by an expert's qualitative qualitative assessment assessment of a plaintiffs plaintiff's condition condition provided that the evaluation evaluation has an objective basis and compares compares the plaintiffs plaintiff's limitations limitations to the normal function, purpose and use of the affected body organ, member, function function or system (see Toure v Avis Avis Rent Rent A Car Car Sys., 98 NY2d 345, 357 [2002]). A defendant defendant York can 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), by the submission submission of an affirmed affirmed medical report from a medical expert determined that there there are no expert who has examined examined the plaintiff plaintiff and has determined objective medical findings findings to support support the plaintiff's plaintiff's alleged claim (see (see Rodriguez Rodriguez v Huerfano, 46 AD3d 794 [2d Dept 2007]). In· this case, the plaintiff did not suffer death, dismemberment, significant disfigurement, a fracture, or loss of a fetus. Therefore, those categories of the Insurance Law § 5102( d) can be eliminated. The plaintiff alleges that he sustained a permanent .., ' - :· loss of use of a body organ, member, function or system; a permanent consequential limitation of use of a body organ or member; significant limitation of use of a· body function or system or a medically determined injury or impairment of a non-permanerlt nature which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. impairment. The defendants that the plaintiff plaintiff did not sustain sustain any injuries corresponding corresponding defendants argue that categories and submitted submitted the affirmed affirmed report of Shanker Shanker Krishnamurthy, Krishnamurthy, M.O'., M.P:, to those categories 5 ',. 5 [* 5] 5 of 8 ·,,· .. :!• "'"'.,' \.' -------~.,...;::--------------------~\) INDEX NO. FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 65844/2016 RECEIVED NYSCEF: 01/06/2020 who performed New York State Licensed Licensed and Board Board Certified Certified Orthopedic Orthopedic Surgeon, Surgeon, who performed an York State a New independent orthopedic orthopedic evaluation evaluation on the plaintiff plaintiff on February February 20, 2019. 2019. Dr. independent Krishnamurthy stated that that he performed performed all measuremen measurementsts using using a goniometer, goniometer, He hy stated Krishnamurt spasm, tenderness, no spasm, lordosis, no tenderness, of lordosis, examined finding no loss of spine, finding cervical spine, the cervical examined the lateral (normal 30), lateral degrees (normal forward extension 30 degrees 45), extension (normal 45), degrees (normal flexion 40 degrees forward flexion the degrees (normal flexion (normal 40, right right and left lateral lateral rotation rotation 70 degrees (normal 80), the degrees (normal flexion 30 degrees extremity, the upper deficits in the spurling negative, there neurological deficits upper extremity, were no neurological there were was negative, test was spurling test the· lumbar motor, sensory reflexes. An examination examination of of the' lumbar spine spine revealed revealed no loss of of or reflexes. sensory or motor, lordosis, forward degrees (normal (normal 90), extension extension 15 degrees degrees (normal (normal 30, flexion 80 degrees forward flexion lordosis, was was negative, lateral flexion degrees (normal (normal 40), straight leg raise raise was negative, the flip test test was 40), straight flexion 25 degrees lateral symhletrid normal and symh,etrid were normal negative and neurologic neurologic in the lower extremities reflexes reflexes were lower extremities negative and equal bilaterally. equal bilaterally. ·, ' " the plaintiff, evaluating the and evaluating the records Krishnamurthy reviewing the records and plaintiff, after reviewing opined, after hy opined, Dr. Krishnamurt the Insurance described under that plaintiff did not not sustain injury as described under the Insurance serious injury any serious sustain any the plaintiff that the _·-,:. i1.",:. . ,'. . ,! ,I show does not the MRI does that the states that doctor states The doctor Law, as aa result result of not show accident. The subject accident. the subject of the eit~er th~ any evidence evidence of of acute acute injury injury and does does not show show any any significant significant pathology, pathology, in ineit~er any 'h1s the plaintiff's cervical or the lumbar region. region. He avers avers that plaintiff's prognosis prognosis is good good arid and :h~ :h~'h~S that the the lumbar cervical received treatment treatment since since June June 2016. 2016. not received rad16logic the radl610gic reviewing the after reviewing report after Krishnamurthy supplemental report submitted a supplemental hy submitted Dr. Krishnamurt . I • • the pre~ioLls opinion in the change his opinion studies previous reason to change was no reason there was that there stated that studies and stated report. report. this favorable to Bent-Tamir, Upon review review and light most most favorable Bent-Tamir, this the light facts in the the facts viewing the and viewing Upon 6 [* 6] 6 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 INDEX NO. 65844/2016 RECEIVED NYSCEF: 01/06/2020 Court finds finds that that the the defendants defendants have failed failed to make make a prima prima facie facie showing showing of entitlement entitlement Court matter of law with respect respect to the the plaintiff plaintiff suffering suffering a permanent permanent loss lass of to judgment judgment as a matter body organ, organ, member, member, function function or system; system; permanent permanent consequential consequentiallimitationof limitation of use of a body body organ organ or member; member; significant significant limitation limitation of of use use of a body body function function' or use of a body or system; ora medically determined determined injury injury or impairment non-permanent nature nature system; or a medically impairment of a non-permanent which prevents prevents the injured injured person person from performing performing substantially substantially all of the material material acts which which constitute constitute such person's usual usual and customary customary daily activities for not less less than which such person's daily activities for not than ninety days days during during the one one hundred hundred eighty eighty days days immediately immediately following following the occurrence occurrence of ninety injury or impairment. impairment. the injury Upon review review and viewing viewing the facts facts in the the light light most most favorable favorable to the plaintiff, this the plaintiff, this Upon Court finds that the defendants have failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to the plaintiff suffering a serious injury. The plaintiffs MRI report revealed disc bulges and the IME revealed ra~ge of motion deficiencies in the plaintiff's cervical and lumbar spine, which the defendant's physician failed to address and stated in a conclusory manner that the plaintiff's injuries were not caused by the accident and have been resolved. The conclusion· of ttie defendants' examining examining orthopedist orthopedist was was blied by the the findins findins of limitations limitations in range range of defendants' motion in the the plaintiff's plaintiff's cervical cervical and lumbar lumbar spine spine (Jenkins (Jenkins v Miled Miled Hacking Hacking Corp., 43 motion AD3d 393 [2d Dept Dept 2007]). 2007]). AD3d However, with regard regard to any claims claims of alleged alleged injuries injuries that that prevented prevented the plairitiff However, the plaintiff from performing performing substantially substantially all of the material material acts which which constituted constituted his usual from usual and customary daily daily activities activities for for not less than than ninety ninety days days during during the one hundred hundred eighty eighty customary the one 7 [* 7] 7 of 8 " ,."-,, INDEX NO. 65844/2016 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:57 AM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 01/06/2020 days immediately immediately following following his alleged alleged injury, such is denied. denied. The The defendant defendant days demonstrated through through the plaintiff's plaintiff's testimony testimony that that he did not sustain sustain an injury injury in this demonstrated category. Further, Further, to sustain sustain impairment impairment of a non-permanent non-permanent nature nature which prevented which prevented category. from performing performing substantially substantially all of the material material acts acts which which constitute constitute his usual usual and him from customary daily daily activities activities for for not less than than ninety ninety days days during during the one one hundred hundred eighty eighty customary days immediately immediately following following the occurrence occurrence of the injury injury or impairment, impairment, a plaintiff plaintiff must must days present objective objective evidence evidence of "a medically medically determined determined injury injury or impairment impairment of a present non-permanent nature" nature" (see Toure v Avis Rent A Car Car Systems, Systems, Inc., 98 NY2d 345, 357 non-permanent Avis Rent [2002]). Curtailment Curtailment of of recreational recreational and household household activities activities is insufficient insufficient to meet meet the [2002]). burden (Omar (Omar v Goodman, Goodman, 295 295 AD2d AD2d 413 413 [2d Dept Dept 2002]). 2002]). The The plaintiff plaintiff testified testified that that he burden missed six weeks weeks of work work and then then was was cleared cleared by his physician physician to return return to work work and missed offer any medical medical evidence evidence to support support a claim claim that that he was was unable unable to perform perform did not offer substantially all of his usual usual and customary customary activities activities under under this this category. category. substantially Accordingly, based upon upon the foregoing, foregoing, it is Accordingly, based ORDERED judgment is DENIED. ORDERED that that the defendants' defendants' motion motion for for summary summary judgment DENIED. · The The parties parties are directed directed to appear appear before before the Settlement Settlement Conference Conference Part Part in· in coJrtrodrri CoJrtrobrri February 18, 2020 2020 at 9:15 9:15 a.m. 1600 on February 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 Dated: York December 31,2019 31,2019 December no ()UA,t .. QUA .J:_. Jl.~~ HON SAM D. WALKER, WALKER, J.S.C. J.S.C. HON 8 [* 8] 8 of 8 \. • , 'i

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