Hallett v Town of Islip
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Hallett v Town of Islip 2019 NY Slip Op 34764(U) February 7, 2019 Supreme Court, Suffolk County Docket Number: Index No. 16-612890 Judge: Joseph Farneti 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. 612890/2016 FILED: SUFFOLK COUNTY CLERK 02/08/2019 11:38 AM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/08/2019 SHORT FORM ORDER 0 INDEXNo, 16,:.612890 CAL. No. 18"00224MV SUPREME COURT- STATE OF NEW YORK LA.S. PART 37 ., SUFFOLK COUNTY PRESENT: Hon. MOTION DATE JOSEPH FARNETI Acting.Justice Supreme Court· 6-14-18 ADJ. DATE 9'-6-18 Mot. Seq.# 003 -MG; CASEDISP ------------· ------ .. -.---- ·---.. ------ ·-------· ----- . --------X DEBRA A [IALLETT. [ Plaintiff; - against - COSTANTINO &COSTANTINO, ESQS. Attorney for Plaintiff 632 Merrick Road Copiague, New York 11 726 CREEDON & GIL, PC Attorney for Defendant . TOWN OF ISLIP and LIAM MILLIGAN, 24 Woodbine Avenue, Suite 8 Northport, New York 11768 Defendant. --------- .----------- .. ------- .--.---------------------------X Upon the following papers numbered 1 to . 25 read on this motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers..l..:..!.::!._; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 15-23 ; Replying Affidavits and supporting papers 24-25 ; Other_; it is, ORDERED that the motion by defendants Town oflslip and Liam Milligan seeking sunimary judgment dismissing the complaint is ,granted. Plaintiff Debra Hallett commenced this action to recover. damages for injuries she al iegedly sustained as a result of amotor vehicle accident. that occurred at the· intersection· of Vcterans. Me,norial Highway and Johnso.n Avenue in the.Tbi'll oflslip .on June 4, 2015. It is alleged that the accident occurred whei1 a truck owned by defe1tdru:1t T o.wn of Islip and operated by defendant Li am Milligan struck the rear-end of the vehid e plaintiff was riding in as a back seat _passenger while: it was. stopped at a red traffic light on Veter3;ns M(!morial Hospital. At the time ofthe accident, defendant Milligan was operating the truck in the course of his empkiytnent with. the Town of Islip. By her bill ot particulars, plaintiff alleges~ a11;1ong oJher things, that sbe sustained various personal injuries and c:onditions as a result ofthe. subj cct colli si ort, including sciatica of the left leg and disc bulgiiig at levels L4 tbru ugh S 1. [* 1] 1 of 5 -~----------------------··-···---··-····-··--···-··--···--··-······-···-·····-··--········-······ FILED: SUFFOLK COUNTY CLERK 02/08/2019 11:38 AM NYSCEF DOC. NO. 62 INDEX NO. 612890/2016 RECEIVED NYSCEF: 02/08/2019 Hallett v Tmvn of lsUp· Index No. 16-612890 Page2 Defendants now move for sumrhary judg·ment on the basis that the injtities plaintiff alleges to have sustained as a result of the subject accident fail to meet the serious injury threshold requirement of Insurance Law§ 5102 (dJ. In support. ofthcmotion, defendants submit copies of the pleadings, . plaintiffs· General Municipal Law § 50~h hearing and deposition transcripts; uncertified copies of plaintiffs medi(;aL records concerning the injuries at issue, and the sworn medical report of Dr. Michael Winn and Dr. Jean-Robert Desroulcaux. At defendants' Tequest, Dr. Winnperformed an independent radiological reviev,i of the magnetic resonance imagines ("MRI") films of plaintiffs lumbar spine taken· onJune 30,2015. Also at defendants; request, Dr. Desrouleaux conducted an independent neurological examination of plaintiff on January 8, 2018. Plaintiff opposes the motion on the !,rtounds that defendants failed to make a p,·ima facie case, and that the evidence submitted ih opposition demonstrates that she sustained inj mies within the "limitations of use· and the ''90/ l 8o;• categories of the Insurance Law as a result of the subject.accident. In opposition to the motion, plaintiff submits her own affidavit, the sworn medical report of Dr. Daniel Kohane, and the· affidavit of Dr, Paul· Bebermah. It is weHRestablished that the "legislative intent underlying the No.;Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Du/el v Green, 84 NY2d 795, 798, 622 NYS2d900 [1995]; see Toure vA-vis Re11t A Car Sys., 98 NY2d 345, 746 NYS2d 865[2002]). Therefore, the determination of whether or not ap lairitiff has sustained a "serious injury" is to· be made by the court in the first instance (see Licariv Elliott, 57 NY2d 230, 455NYS2d 570 [1982]; Porcano v Lehma11, 255 AD2d 430,680 NYS2d 590 [2d Dept 1988]; Nolan vFord, 100 AD2d579, 473 NYS2d 516 [2d Dept 1984], qf['d 64 NY2d 681, 485 NYS2d 526 [ 1984 ]). Insurance Law § 5102 (dJ defines a "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a.fetus; permanent loss ofuse ofa body organ, member, function or system; permanent consequential limitation of use of a body organ. or member; significant limitation ofuse·of a body function or system; or a medically determined injmy or impairment ofanon:-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's 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· impainnent." A clefondantsecking summary judgment on the ground that a plaintiffs negligence claim is barred underthe No-Fault Insurance Law bears the initial burden of establishing aprimafacie case that the plaintiff did not sustain a "setfous injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 l\lY2d 955, 582 NYS'.2d 990 [l 992]). When a defendant seeking summary judgment based on thC: lack ofserious injury relies ()11 the findings ofthe defendan:t·s own witnesses, "those fj11dings must be in adtitissi ble formi [such as J, affidavits and a:ffirh1ations; anci no tun.sworn reports~• to demonstrate entitli;:ment to judgment as a matter of law (Paga110 v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 1992]); A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testirt1ony and medical .reports and records prepared by the plairiti ff' s av.in. physfoians (see Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Grossman v.Wright, 268AD2d 79, 707 NYS2d2:33 [2d Dept 2000]; Vignola v Varrichio, 243 AD2d464,, 662 NYS2d 831 [2d Dept 1997]; Torres v.Micheletti, 208AD2d 519;616 NYS2d 1006 [2d Dept 19941). Ortce a defendant has met this burden, the plaintiff inusfthen -submit objec:Jive an<,i admissible prtmf of the 11atti.te and degree of the [* 2] 2 of 5 INDEX NO. 612890/2016 FILED: SUFFOLK COUNTY CLERK 02/08/2019 11:38 AM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/08/2019 Hallett v To¼n oflslip" Index No. 16-612890 Page3 alleged injury in order to meet the threshold of the statutory standard for "serious injury"· under New York's No-Fault Insurance Law (see Dufel v Gree11,supra; Totna(Je11e v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4thDept 2003]; Paga110 v J(fngshury, supra). I-Iere, defendant, through the submission of plaintiff's deposition transcript and competent medical evidence, has established a primafacie case of entitlement to judgment as a matter of law that plaintiffdid not sustain a setious injury within the meaning oflnsurancc Law§ 5102 (d) (see Toure v Avis Rent A Car Sys., supta; Delesus· v Cruz; 73 AD3d539, 902 NYS2d 503 [lst Dept 20 I OJ; Dunbar v Prahovo Taxi, ln.c., 84 AD3d 862, 921 NYS2d 911 [2dDept 20111; Chery vlmies; 62 AD3d 742, 879 NYS2d 170 [2d Depf2009l). Defendant's examining orthopedist, Dr. Desrouleaux, used a goniometer to test plaintiffs ra11ges of lliotion in her spine; set forth his specific findings; and compared those finqings to the normal ranges (see Martin v Portexit Corp., 98 AD3d 63, 948 NYS2d 21 [I stn~pt 2012]; Staffv Yslma, 59 AD3d 614, 874NYS2d 180 [2d Dept 2009]; DeSulmev Stanya, 12 AD3d 557, 785 NYS2d 477 [2d Dept 20041). Dr. Desrouleaux states in his medical teport that an examination of plaintiff reveals full range of motion in her spine, that there was no evidence of muscle spasms, or tenderness upon palpation of the paraspinal muscles, that sensory tesfi ng of the upper and lower extremities is intact, and that there Was no evidenceofatrophy of the intrinsic muscles. Dr. Desrouleaµx states that the straight leg raising test is negative; that plaintiff's muscle strength is 5/5, and that there was no observation ofantalgic gait or limp. DL Desrouleaux opines that plaintiff suffers from pre"ex'istingJu.mbar degenerative disease, and that the exacerbation of such condition that she experienced as a resul tof the accident has reso lvcd. Dr. Desrouleaux further states that plaintiff docs riot have an orthopedic disability causally related to the subject accident, that she has reached maximum medical improvement and does not reg uire any additional orthopedic treatment, that her prognosis is good, and that sheis capableofworkingwithout restrictions. Likewise, defendant's expertradiologist, Dr. Winn, states in his medical report that a review of plaintiffs MRI films of her lumber spine shows a nonnalMRI of the lumbar spine without any evidence ofdisc bulges or herniations, and that there are no findings on the examination that are causally related to the subject accident.. . . Furthermore, reference to plaintiff's own deposition testimony sufficiently refutes the allegations that·she sustained injuries within·the limitations of l1se Categories and within the 90/180 category of the Insurance Law (see Pryce v Nel$Oll, 124 ADJ d 85 9, 2 NYS3 d 214 [2d dept 2015]; Knox v Lenn ii, a11, 65. AD3d 615; 884 NYS2d 171 [2d Dept 2009]; Rico vFiguetoa 1 48 AD3d 778, 853 NYS2d 129 [2d Dept 2008]). Plaintiff testified ala.General Municipal Law§ .50-h heating and an examination before trial that atthe time: of the accident she was unemployed and that she was in the process of search fog for employment. Yet; she .also. testified that the injui:ies she sustained in the accident did 11ot prevent her from continuing to search for employment within the technology industry or-eventually accepting employment as an assistant project manager at Compu.t~r Assodates, and performing the required duties of the posit1on witl1out restri'ctiohs. She testified that foliowing the accident she was.diagnosed with psoriatic.atihritis, and that, although the accident did not cause the arthritis; it did aggravate h. Plaintiff further testified that. she ceased all medical treatment for the injuries she sus.tained iri the. subject accident in January 20L6, and that she currently does not have any medical appointments scheduled for trcatmcrit .related to any injuries sustained in the .accic:l.ent. 3 of 5 [*----------------------·-··--•--·----3] FILED: SUFFOLK COUNTY CLERK 02/08/2019 11:38 AM NYSCEF DOC. NO. 62 INDEX NO. 612890/2016 RECEIVED NYSCEF: 02/08/2019 Hallett v Town of Islip·· Index No. 16-612890 Page4 Therefore, defendants shifted the burden to plaintiff to corrte forward with evidence in admissible form to raise a material triable issue.of fact as to whether she sustained an injury within the meaning of the Insurance Law (see Pominells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005J; see generally Zuckerman v City of New York, 49 NY2d 557,427 NYS2d595 [1980]). A plaintiff claiming a signiijcant limitation of use ofa body function.or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Ca,·Serv., 49 AD3d 498; 854 NYS2d 408 [2d Dept 2008]; Mejia v DeRose,35 AD3d407, 825 NYS2d772 [2d Dept 20D6]; Laruf/av Yui Ming Lau, 32AD3d 996,821 NYS2d 642 [2dDept 2006];Kearsev New York City Tr. Auth;, 16 ADJd45, 789NYS2d28I [2d Dept 2005]). ''Whether a limitation of use or functicin is 'significant' or 'consequential' (Le. important .. .), relates to medical significance and invo Ives a comparative determination of the degree or q ual itati ve nature of an injury based on the normal function, purpose and use of thf! body pair (D11/el v Green, supra at 798). To prove the. extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree ofthe limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" ofplaihtiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Melter, 18 NY3d208, 936NYS2d 655 [2011]; Toure .vAvis Rent A CarSystems; Inc,;supraat 350; see also Valera v Singh, 89 AD3d 929, 923 NYS2d 530 [2d Dept 201 l]; Rovelo v Volcy, 83 AD3d 1034; 921 NYS2d 322 [2d Dept 2011 ]). A minor, mild or slight limitation of use is considered . insignificant within the meaning ofthe statute (see Licari v Elliott, supra). However_, evidence of contemporaneous range of II1otion limitations is not a prerequisite to recovery (,\'Ce Per/v Melter,supra; Paulino v Rodriguez. 91 AD3d 559, 937 NYS2d 198 [1st Dept20l2]). In opposition, the evidence submitted by plaintiff failed to raise a triable issue of fact as to whether.she sustained an injury to the lumbar region ofher spine within the.limitations of use categories ofthe Insurance Law (see Di1tka vOdiernO; 145 AD3d 661, 43 NYS3d409 [2d Dept 2016J; BoettclteYv Ryder Tr;uck Rental, Inc., 133 AD3d 625, 19 NYS3d 86 [2d Dept 2015] Krerimerman v Sttmis, 74 AD 3d 7 5 3, 902 NYS2d 180 [2d Dept 201 O]). A plaintiff is required to present noi1coi1cl ust.H)' expert evidence sufficient to support a finding not only thatthe alleged injury is Within theserious injury threshold of Insurance Law§ 5102 (d), but also that the injury was casually related to the subjec:t accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see.Vale11tin vPomilla, 59 AD3d 184,. 873 NYS2d SJ? [1st Dept 2009]). Of significance, plaintiff has failed to. submitany evidence establishing that she sustained significant range of motion ·. limitations in hi;;r Ium bar spine based upon a re~ent examination (see Sukalic v Ozone, l 36 AD 3d 101 8, 26 NYS3d 18 8 [2d Dept 2016]; Seit illi,tg v Labra4or, 13 6 AD3d 8 84, 2 5 N YS3d 3 31 [2d Dept 2 016]; Estrella v GEICO Ins. Co., l02AO3d 730, 959N'YS2d 210 [2d Dept2013]). Moreover, the sworn medical reports of plaintiffs physi~ians• fail to address the findings of defendants' examining experts that plaintiff suffered frotii a longstanding and degenerative disc disease in her lumbar ~pine, wllich ,vas notcaused by the subject accident (see Jo/11i v Linden, 124 AD3d 598i 1 NYS3d 274 [2d Dept 2015]; /11zalaco v Co11salvo., I 15 AD3d 807, 982 NYS2d 165 ·[2d Dept 2014]; Faulkner v Stei11ma11, 28 AD3.d 604, 813 NYS2d 529 [2d Dept2006]). Therefore; pfointiff's physicians' opinions that the injuries to her luni bar spine were caused· by the su:bj ett accident• are rendered speculative. and are without pro badve value (see Giraldo v Mandimiti, 24 AD3d 419, 8.05 NYS2d 124 [2d Dept200SJ; LQrtl,e v Adeyeye, 306 [* 4] 4 of 5 INDEX NO. 612890/2016 FILED: SUFFOLK COUNTY CLERK 02/08/2019 11:38 AM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/08/2019 Hallett v Town oflslip · Index No. 16-612890 Pages AD2d 252, 760 NYS2d 530 [2d Dept 2003]; Ginty v MacNaniara, 300AD2d 624, 751 NYS2d 790 [2d Dept 20021). Futhermore, plaintiffs self-serving affidavit failed to raise a triable issue of fact as to whether she sustained a serious injury under the rio.,.fault statute (see Stre11k v Rodas, 111 AD3d 920; 976 NYS2d 151 [2d Dept2013]; Leebe1· v Ward, 55 AD3d 563, 865 NYS2d 614 [2d Dept2008]). Thus, plaintiff has proffered insufficient medical evidence to demonstrate that she sustained an injury within the limitation:s·ofuse categories (seeLicari vEl/iott,supra;Altv KhaiJ; 50 AD3d 454,857 NYS2d 71 [1st Dept 20081). Finally, plaintiff failed to produce any objective medical evidence to s1,1bstantiate the existence of a11injmy which limited her usuaLand t:t\stomary daily activities for at least90 of the first 180 days immediately following the subject accident (see Catalano v Kopmmm, 73 AD3d 963, 900 NYS2d 759 [2d Dept 20 l OJ; Haber v Ullah; 69 AD3d 796, 892 NYS2d 531 [2d Dept 201 OJ). Accordingly, defendants' motion for summaiy judgment· dismissing the complaint is. granted. Dated: February 7, 2019 Actmg.Tustlce Supreme Court X FINAL DISPOSITION [*---·-""""-·~---·---------5] 5 of 5 NON-FINAL DISPOSITION
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