Lim v Baldeo

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Lim v Baldeo 2020 NY Slip Op 32483(U) June 16, 2020 Supreme Court, Bronx County Docket Number: 23551/2017E Judge: Mary Ann Brigantti 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] BRONX COUNTY CLERK 06/25/2020 03:20 PM INDEX NO. 23551/2017E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/25/2020 1 ~~~=~~~~~~~~-:~~~:_::~_:_:::( E~:~~g:::~~~mi F ~ REBECCA LIM, ~~,.,..-.r"" 'Ji4#.-.1 Plaintiff, -againstDEODATH BALDEO, ADI HACKING CORP., and "JOHN DOE," Decision and Order Present: Hon. Brigantti Defendants. -----------------------------------------------------------------x Recitation, as required by CPLR 2219 (a), of the papers considered m review of Defendants ' motion to dismiss the complaint: Numbered Papers Notice of Motion, Affirmation in Support, Exhibits Thereto ......................................... . Affirmation in Opposition and Exhibits Thereto .. . Reply Affirmation ........... ........................... .. 1 2 3 Motion decided as follows: The defendants DEODATH BALDEO and ADI HACKING CORP. (collectively, "defendants") move for an Order pursuant to CPLR 3212, granting summary judgment and dismissing the complaint filed by the plaintiff REBECCA LIM ("plaintiff') against the defendants for the plaintiffs failure to meet the serious injury threshold requirement of section 5102 (d) ofNew York In surance Law. In this summary judgment motion, defendants argue that plaintiff did not sustain a serious injury within the meaning in New York Insurance Law section 5102 (d) . In support of their contention, defendants submitted the affirmation ofradiologist Dr. Michael Setton, who reviewed the February 7, 2017, pre-surgery MRI of plaintiffs right knee. According to Dr. Setton, other than minimal joint fluid with a miniscule cyst, the MRI reflected no abnormality in the knee. Dr. Setton opined that plaintiff s cruciate and collateral ligaments were intact and that there was no traumatic injury related to the subject accident. In further support of the motion, defendants submitted an affirmation of orthopedist Dr. Thomas P. Nipper. On January 17, 2018, Dr. Nipper examined plaintiff, who complained only of pain to her right knee. Upon examination, Dr. Nipper found that plaintiff had normal range of motion in her right knee. Dr. Nipper also found that Plaintiff, who testified that she injured her neck and back as a result of this accident (Pl. EBT at 57), had normal range of motion in her cervical and lumbar spine. Although defendants did not submit any evidentiary proof with respect to plaintiff s alleged shoulder or left foot injuries, defendants were not required to present medical 1 1 of 4 [*FILED: 2] BRONX COUNTY CLERK 06/25/2020 03:20 PM NYSCEF DOC. NO. 40 INDEX NO. 23551/2017E RECEIVED NYSCEF: 06/25/2020 evidence with respect to those body parts because plaintiff made no complaints about those body parts when Dr. Nipper examined her (Fludd v Pena, 122 A.D.3d 436 [l st Dept 2014]). Moreover, plaintiff testified at her depos ition that she only injured her right knee, neck, and back as a result of the subject accident - which defeats her claims with respect to her shoulders and left foot (Pl. EBT at 57; see also Fludd, 122 A.D.3d 436, citing Thomas v City of New York, 99 A.D.3d 580 [1 st Dept 20 12], Iv denied 22 N.Y.3d 857 [2013]). Accordingly, defendants' submissions established that plaintiffs injuries to her right knee, cervical, and lumbar spine, have resolved, and do not constitute either a "permanent consequential" or "significant limitation" category of injury (see Tejada v LKQ Hunts Point Parts, 166 A.D.3d 436, 436-437 [I st Dept 2018] ; N.Y. Ins. Law § 5102 [d]). In addition, defendants demonstrated that plai ntiffs alleged right knee injury is unrelated to this accident, thus, shifting the burden to plaintiff to adequately address the issue of causation (see Bianchi v Mason, 179 A.D.3d 567 [1st Dept 2020], citing Blake v Cadet, 175 A.D.3d 1199, 1199-1200 [1st De pt 2019]). The Court notes that while none of defendants' doctors examined plainti ffs head for her alleged headaches, both the Court of Appeals and First Department have held that headaches do not qualify as a "serious injury" (see Licari v Elliott, 57 N.Y.2d 230, 239 [1 982] ("We do not believe the subjective quality of an ordinary headache falls w ithin the o bjective verbal definition of serious injury"]; Ceruti v Abernathy, 285 A.D.2d 386 [1 st D ept 200 I] ["headaches--do not constitute 'permanent loss of use of a body organ, member, functio n or system' or 'significant limitation of use of a body function or system ' under Insurance Law § 5 102 (d)"]). In opposition to the motion, plaintiff submitted the affirmed report of Dr. Fred Lee, who recently examined plaintiff on November 19, 20 19. Dr. Lee reviewed plaintiffs medical records, including her right knee arthroscopic surgery which took place approximately two months after the subject accident on March I 0, 2017. Dr. Lee concluded that plaintiff's rig ht knee injury was causally related to the subject accident. However, Dr. Lee only found a minimal five-degree limitation in plaintiff's right knee, which is insufficient to meet the category of a "permanent consequential" or "sig nificant limitati on." Nevertheless, plaintiff additionally submitted the affi rmed no-fault IME of Dr. David Manevitz, who examined plaintiff w ithin approximately three mo nths of the subject accident. Upon examination, Dr. Manevitz found, among other things, pain and significant range of motion limitations in plaintiff's right knee, passively and actively. While Dr. Manevitz stated that these measurements were "self-limited," he further notes that he did not perform Lachman ' s anterior drawer test o r McMurray's test, "due to pain," and he concluded that plaintiff was capable of performing only light duty with minimal standing or walking. He diagnosed Plaintiff with, among other things, "resolving" status post-right knee surgery, and he noted the necessity for further treatment. This report thus indicates that Plaintiff had continuing limitations in the knee following surgery, months after the accident, which raises an issue of fact as to whether she suffered a "significant limitation" as a result of the subject accident (see Neil v Tidani, 126 A.D.3d 58 1, 581-582 [ 1st Dept 20 15]; Collazo v Anderson, 103 A.D.3d 527, 528 [I st Dept 2013]; Salman 2 2 of 4 [*FILED: 3] BRONX COUNTY CLERK 06/25/2020 03:20 PM NYSCEF DOC. NO. 40 INDEX NO. 23551/2017E RECEIVED NYSCEF: 06/25/2020 v Rosario, 87 A.D.3d 482, 484 [1st Dept 2011]; see also Vasquez v Almanzar, 107 A.D.3d 538, 539-540 [1st Dept 2013]; Holmes v Brini Tr. Inc., 123 A.D.3d 628, 628-629 [1 st Dept 2014] [signifi cant limitations found "six months follow ing" accident]; Bianchi, 179 A.D.3d 567 [plaintiff raised issue of fact as to "s ignificant limitation" but not " permanent consequential" limitation due to gap in treatment] ; compare Hayes v Gaceur, 162 A.D.3d 437, 438 [1 st D ept 2018], citing Perl v Meher, 17 N.Y.3d 208, 218 [2011 ]). If the trier of fact determ ines that Plaintiff sustained a serious injury to her right knee at trial, plaintiff may recover damages for her cervical and lumbar sp ine even though those body parts do not satisfy the serious injury threshold (Bonilla v Vargas-Nunez, 147 A.D.3d 461 , 462 [1 st Dept 2017], citing Rubin v SMS Taxi Corp. , 71 A.D.3d 548, 549-550 [! st Dept 2010]). Although Dr. Lee did not directly address the issue of plaintiff s alleged right knee degeneration, by ascribing plaintiff s injuries to a different, yet equally plausible, explanation the accident - Dr. Lee's opinion was suffic ient to raise an issue of fact as to causation (Moreira v Mahabir, 158 A.D.3d 5 18, 519 [ I st Dept 20 18] [citations om itted]). Contrary to defendants' contention, plaintiff s so-called gap in treatment beginning approximately one year after the subject accident is not dispositive with respect to whether plaintiff suffered a "significant limi tation" as a result of the subject accident (see Morales v Cabral, 177 A.D .3d 556, 557-558 [1 st Dept 20 19] [gap in treatment defeated permanent injury but not s ignificant]; Blake, 175 A.D.3d at 1200 [same]). With respect to plaintiffs "90/ 180-day" injury cla im, defendants sufficiently established their entitlement to dismissal of this c laim by subm itting plaintiffs deposition transcript wherein plaintiff admitted that she was confined to bed and home for a total time of approxim ately two weeks (Pl. EBT at 59, 66). Accordingly, Plaintiff has no v iable "90/ 180 day" injury claim (see Ortiz v Boamah, 169 A.D.3d 486, 489 [1 st Dept 20 19], c iting Mitrotti v Elia, 9 1 A.D.3d 449, 450 [Ist Dept 201 2]). Finally, there is no evidence on this record that pla intiff sustained a "total loss of use" of any body part, and therefore, the c la im that she sustained a "permanent loss of use" of any body part is dismissed (see Swift v New York Tr. Auth., 115 A.D.3d 507, 509 [I st Dept 201 4]). Accordingly, it is hereby, ORDERED, that defendants' motion is granted to the extent that plaintiffs c laim that she suffered a "90/ 180 day " injury as a result of this accident is dismissed, and it is further, ORDERED, that plaintiff's claim that she sustained a serious injury to her cervical and lumbar spine is dismissed, and it is further, ORDERED, that plaintiff's claim that she sustained any injury to her shoulders or left foot is dismissed, and it is further, 3 3 of 4 [*FILED: 4] BRONX COUNTY CLERK 06/25/2020 03:20 PM INDEX NO. 23551/2017E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/25/2020 ORDERED, that plaintiffs claim that she sustained a "permanent loss of use" of any body part is dismissed, and it is further, ORDERED, that the remaining branches of defendants' motion are denied. This c stitutes he Decision and Order of this Court. I YANN BRIGANITJ 1. CHECK ONE............................................ D CASE DISPOSED IN ITS ENTIRETY 2. MOTION IS............................................. . D GRANTED 3. CHECK IF APPROPRIATE ..................... D SETTLE ORDER APPEARANCE D DENIED ..,P GRANTED IN PART D SUBM IT ORDER D FIDUCIARY APPOINTMENT 4 4 of 4 jil CASE STILL ACTIVE D OTHER D SCHEDULE D REFEREE APPOINTMENT

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