Koshy v Murabito

Annotate this Case

Download PDF

Koshy v Murabito 2020 NY Slip Op 34782(U) February 3, 2020 Supreme Court, Westchester County Docket Number: Index No. 59740/2018 Judge: Terry Jane Ruderman 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 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 To commence commence the statutory statutory time time for appeals appeals as ofright of right (CPLR (CPLR 5513[a]), 55 13[a]), you you are advised advised to serve serve a copy copy of of this this order, order, with notice notice of of entry, entry, upon upon all parties. parties. SUPREME NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER ---------------------------------------~-------------------~--------)( ------------------------------------- -------------------~--------x SUNIL SUNIL KOSHY, KOSHY, Plaintiffs, Plaintiffs, DECISION DECISION and and ORDER ORDER -against-against- Motion Sequence Sequence No. 1 Motion Inde)( No. No. 59740/2018 5974012018 Index CHRISTOPHER MURABITO MURABITO and TOWN TOWN OF CHRISTOPHER HARRISON, HARRISON, Defendants. Defendants. ------------------·----------------· ------------------~----------------------------------~--------------)( ------·---------- --------------x RUDERMAN, J. RUDERMAN, The following following papers papers were were considered considered in connection connection with with the motion motion by defendants defendants for The summary judgment dismissing the complaint: complaint: summary judgment dismissing Papers Papers Notice of Motion, Motion, Affirmation, Affirmation, Exhibits E)(hibits A - K, and Notice of Memorandum Memorandum of of Law Law Affirmation in Opposition, Opposition, Exhibit Exhibit 1I - 4 Affirmation Reply Affirmation, Affirmation, Exhibit E)(hibit L, Memorandum Memorandum of of Law Law in Reply Reply Reply Numbered Numbered 1 2 3 This This is an action action for personal personal injuries injuries allegedly allegedly sustained sustained in a motor motor vehicle vehicle collision collision that that occurred occurred on June June 2; 2017 2017 at approximately appro)(imately 9:50 9:50 p.m. p.m. at the the intersection intersection of of Westchester Westchester Avenue_ Avenue and Bryant Bryant Avenue, Avenue, in the Town Town of of Harrison Harrison in Westchester Westchester County, County, between between a vehicle vehicle driven driven by plaintiff plaintiff Sunil Sunil Koshy Koshy and a police police car driven driven by defendant defendant Police Police Officer Officer Christopher Christopher Murabito Town of Murabito and owned owned by the Town of Harrison Harrison Police Police Department. Department. Plaintiff Plaintiff was was driving driving on Bryant venue, with Bryant A Avenue, with the green green light light in his favor, favor, when when defendants' defendants' police police car, car, with with emergency emergency lights lights activated, activated, proceeded proceeded westbound westbound on Westchester Westchester Avenue Avenue through through a red red light light and and struck struck plaintiff's plaintiff's vehicle, vehicle, flipping flipping it onto onto its driver's driver's side. Defendants Defendants have have established established that that Officer Officer \ 1 I I lI' J 1 of 9 j [*FILED: 2] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 time. the time. Murabito engaged in an emergency emergency operation operation at the was engaged Murabito was where room, where Plaintiff emergency room, Hospital emergency Plains Hospital White Plains the White ambulance to the taken by ambulance was taken Plaintiff was went to an he complained complained of of pain After x-rays x-rays were were take11:, taken, he was was released. released. He went right foot. After pain in his right right shoulder, back and pain in his back urg~nt facility three complaining of of pain and right shoulder, and and three days later, complaining urgent care facility pain underwent additional x-rays of his back, Subsequently, severe severe pain neck left leg and left foot. Subsequently, back, neck x-rays of underwent additional July 26, Oh on July Chong Dh orthopedist Dr. Chong gradually consulted orthopedist knee, and he consulted left knee, his left developed in his gradually developed on MRI on an MRI prescribed an Oh prescribed 2017 pain and pain. Dr. Dh knee pain. left knee and left thoracic pain of his thoracic evaluation of 2017 for evaluation plaintiff knee. his left knee. plaintiffss his the and the An MRI on August 7, 2017, and August 7,2017, Hospital on Westchester Hospital Northern Westchester performed at Northern was performed MRI was defendants as an MRI electronically signed signed by Dr. Chimere Chimere Mba-Jones, and submitted submitted by defendants Mba-Jones, and report, electronically MRI report, of area of findings: "There exhibit "There is a small small area following in its findings: includes the following motion, includes present motion, the present exhibit to the trochlea, likely margin of signal hyperintensity hyperintensity involving involving the the anterolateral anterolateral margin of the the lateral lateral trochlea, likely focal T2 signal No additio~al break. No reflecting a contusion/trabecular contusion/trabecular fracture. There is no evidence evidence for cortical cortical break. additional fracture. There reflecting both defendants' fracture is identified." identified." This This language language in the MRI MRI report discussed by both defendants' report is discussed fracture orthopedic expert expert and and plaintiff orthopedist, and plaintiff establish the relies,,,. on it to establish plaintiff relies treating orthopedist, plaintiffss treating orthopedic r. claim. presence injury claim. serious injury of his serious purposes of fracture, for purposes of a fracture, presence of which he 2017. The Plaintiff followed up with Dh on August August 30, 2017. The next next date on which with Dr. Oh Plaintiff followed 9, 2018. returned Dh was May 9,2018. was on May returned to Dr. Oh 2018. June 22, 2018. This action action was commenced by filing filing a summons summons and complaint complaint on June was commenced This been filed. Discovery has been issue has of issue note of plaintiffs note complete and plaintiffs Discovery is complete now moving summary judgment dismissing the the complaint, complaint, defendants defendants argue argue that that judgment dismissing moving for summary In now proceeding accident occurred occurred during during the emergency operation, and that that proceeding operation, and of an emergency performance of the performance the accident argue past light did not applicable "reckless disregard" standard. standard. Defendants Defendants argue "reckless disregard" the applicable violate the not violate red light the red past the 2 2 of 9 [*FILED: 3] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 in the alternative that plaintiffs plaintiffs injuries injuries do not meet meet the serious serious injury injury threshold, threshold, relying relying on the alternative that neurologist and orthopedist orthopedist who who conducted conducted independent independent medical medical examinations, examinations, as reports of reports of the neurologist of an orthopedist orthopedist who who provided provided treatment treatment to plaintiff. plaintiff. well as on the report well report of plaintiff observes that defendants' defendants' evidentiary evidentiary submissions submissions fail to establish establish In opposition, opposition, plaintiff observes that that officer engaged vehicle's siren. He further further emphasizes emphasizes Murabito's Murabito's deposition deposition that the officer engaged the vehicle's of his vehicle vehicle while while he was was driving driving on testimony that not estimate speed of testimony that he could could not estimate the speed of impact; impact; moreover, moreover, although although Murabito Murabito stated stated that that he Westchester Avenue or at the the time time of Westchester Avenue decelerated once once he noticed decelerated noticed a tractor tractor trailer trailer enter enter the intersection intersection from Bryant Bryant Avenue A venue southbound, the southbound, the video video from the dashboard dashboard camera camera fails to establish establish that that the police police car car decelerated approached the red light. Regarding Regarding the serious serious injury injury threshold, threshold, plaintiff plaintiff decelerated as it approached contends that satisfied with contends that the requirement requirement is satisfied with the evidence evidence establishing establishing a fracture, fracture, specifically, specifically, a focal trabecular trabecular fracture of the lateral lateral trochlea trochlea within within his left left knee, knee, as well well as cervical cervical and and lumbar lumbar fracture of spine disc derangement derangement and bilateral spine bilateral ankle ankle internal internal derangement. derangement. Analysis Analysis Emergency Exemption Emergency Exemption emergency vehicle' vehicle' engaged engaged in an 'emergency 'emergency operation' operation' is "[T]he driver of "[T]he driver of an 'authorized 'authorized emergency exempt from certain 'rules of of the road' 11'04" (Pollak (Pollak v exempt certain 'rules road' under under Vehicle Vehicle and Traffic Traffic Law Law §S 1104" Maimonides Criscione v City City of Maimonides Med. Ctr., 136 AD3d AD3d 1008, 1008 [2d Dept Dept 2016], 2016], quoting quoting Criscione ofNew New [2001]). "The manner NY2d 152, 156 [2001 ]). "The manner in which which an operator operator of of an authorized authorized York, 97 NY2d emergency vehicle vehicle operates operates the vehicle emergency vehicle in an emergency emergency situation situation may may not not form form the basis basis for civil liability liability to an injured injured third third party party unless unless the the operator operator acted acted in reckless reckless disregard disregard for the the . civil of others" others" (Pollak (Pollak v Maimonides, supra, citing citing Vehicle Vehicle & Traffic Traffic Law Law § S 1104 [[e]). "The Maimonides, supra, e]). "The ..safety safety of 'reckless disregard' disregard' standard standard requires requires proof proof that that the [operator] [operator] intentionally intentionally committed committed an act of of 'reckless 3 3 of 9 [*FILED: 4] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 make it . great as to make was so great that was risk that an unreasonable obvious risk known or obvious of a known disregard of character in disregard unreasonable character highly follow" (id. at 1008-1009). 1008-1009). would follow" harm would that harm probable that highly probable Vehicle of Vehicle exemption of emergency exemption the emergency Plaintiff rely on the not rely may not defendants may that defendants suggests that Plaintiff suggests However, not been activ~ted. had notbeen and Traffic S 1104, 1104, because car's siren siren had activated. However, police car's the police because the Law§ Traffic Law ,, ·1 " I lights and lights sirens and both sirens when both only when apply only exemptions apply notably, the exemptions that the provides that statute provides although the statute notably, although vehicle "an authorized activated, that explicitly makes exception for "an authorized emergency emergency vehicle makes an exception provision explicitly that provision are activated, the on the failure on any failure Therefore, any operated Law§S 1104 [c]). Therefore, Traffic Law (Vehicle & Traffic vehicle" (Vehicle police vehicle" operated as a police immaterial operation is immaterial emergency operation performing an emergency part while performing sirens while activate its sirens car to activate police car of a police part of Deno v Law §S 1104 Traffic Law and Traffic to the 1104 (see Dena Vehicle and of Vehicle exemption of emergency exemption the emergency of the applicability of the applicability omitted]). citations omitted]). and citations marks and Belliard, [internal quotation quotation marks 2018] [internal Dept 2018] 602, 603 [1st Dept AD3d 602, Belliard, 165 AD3d reckless disregard the reckless The addressed here applying the disregard standard, standard, whether, applying here is whether, issue to be addressed The issue reckless not act "in did not Murabito did defendants "in reckless defendant Murabito law, defendant of law, matter of that, as a matter established that, have established defendants have unreasonable disregard for the safety safety of of others, others, by "intentionally "intentionally committ[ing] committ[ing] an act of of an unreasonable disregard probable highly probable make it highly great as to make character was so great that was risk that obvious risk known or obvious of a known disregard of character in disregard Law Traffic Law Vehicle & Traffic AD3d at 1008-1009; that 1008-1009; Vehicle Maimonides, 136 AD3d (Pollak v Maimonides, follow" (Pollak would follow" hclITI1 would that harm of grant of reversed a grant Court reversed the Court 2008]), the Dept 2008]), AD3d 858 [2d Dept Bustamante, 55 AD3d Britt v Bustamante, e]). In Britt §S 1104 [[e]). that established that defendants established the defendants "[w]hile the that "[w]hile summary explaining that defendants, explaining the defendants, judgment to the summary judgment was engaged vehicle, was plaintiffs vehicle, the plaintiffs Bustamante, car which struck the engaged in which struck police car operating a police was operating who was Bustamante, who vehicle, lights on his vehicle, turret lights the turret activated the and activated an emergency collision and of the collision time of the time operation at the emergency operation of ... the affidavit the plaintiff issue of of fact by submitting submitting the affidavit of ... an an eyewitness eyewitness to the triable issue raised a triable plaintiff raised nor lights on, nor emergency lights overhead emergency occurrence, have its overhead not have 'police car did not the 'police that the stated that who stated occurrence, who the stop not stop did not police officer were sirens activated,' activated,' [and] it was officer did stop for the stop that the police undisputed that was undisputed were the sirens obstructed partially obstructed was partially intersection was sign of the intersection view of that his view and that question and intersection in question sign at the intersection 4 4 of 9 [*FILED: 5] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 hedges" (Britt (Britt v Bustamante, Similarly, here, by hedges" Bustamante, 55 AD3d AD3d at 859). Similarly, here, while while defendants defendants established established a prima prima facie facie right r~ght to relief relief with with evidence evidence that that Murabito Murabito was was operating operating a police police car with with activated activated emergency lights lights while engaged in an emergency of the the collision collision with with emergency while engaged emergency operation operation at the the time time of plaintiff svehicle, plaintiffs vehicle, a triable triable issue issue of of fact was raised raised based based on evidence evidence submitted submitted by plaintiff plaintiff as whether Murabito Murabito appropriately appropriately slowed to whether slowed down down "as necessary necessary for safe safe operation'.' operation" before before proceeding past past the red Vehicle & proceeding red light light into into the intersection intersection where where the' the, accident accident occurred occurred (see Vehicle Traffic Traffic Law Law §S 1104 [b] [2]). While defendants defendants contend contend that While that the dashboard dashboard camera camera video video submitted submitted as an exhibit exhibit "establishes" that that Murabito decelerated when "establishes" Murabito decelerated when he saw saw a tractor-trailer tractor-trailer as he approached approached and and entered the intersection, intersection, review of the video video footage footage is inconclusive. inconclusive and and does does not not establish establish entered review of defendants' right right to relief of law. Rather, Rather, an issue issue of of factis fact is presented presented as to whether whether defendants' relief as a matter matter oflaw. Murabito slowed slowed down down appropriately appropriately when light at the intersection. intersection. Murabito when approaching approaching the red light Notably, failure to do so, if Notably, a failure if such such a failure failure is found, found, may may amount amount to to more more than than the the type type of of negligent "momentary "momentary lapse negligent lapse in judgment" judgment" that that is insufficient insufficient to establish establish reckless reckless disregard disregard (see Puntarich County of a/Suffolk, Puntarich v County Suffolk, 47 AD3d AD3d 785 [2d Dept Dept 2008]). 2008]). Serious Injury Serious Injury . Defendants contend contend that Defendants that plaintiff plaintiff neither neither sustained sustained a fracture fracture causally causally related related to the the accident, nor of serious serious injury injury as that that term term is~efined is defined in Insurance Insurance Laws Law§ accident, nor suffered suffered any other other form form of They rely on the report ..5102. 5102. They report of of their their orthopedic orthopedic expert, expert, Dr. Ronald Ronald L L Mann, Mann, dated dated May May 29, 2019, and that that of of their neurologist, Dr. Michael their neurologist, Michael LWeintraub; I. Weintraub, whose whose report report is dated dated June June 19, 2019, 2019. Dr. Mann examination and found 2019. Mann performed performed an examination found no limitation limitation in plaintiff plaintiffss ranges ranges of of motion, and diagnosed diagnosed his condition condition as "Lumbar "Lumbar sprain/strain, motion, sprain/strain, left knee knee contusion/sprain/strai~, contusion/sprain/strain, 5 5 of 9 [*FILED: 6] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 right foot contusion/sprain." contusion/sprain." He concluded concluded that necessity for further and right that there there is no medical medical necessity further orthopedic treatment treatment or physical physical therapy, permanency regarding these orthopedic therapy, no disability, disability, and and no permanency regarding these injuries relating relating to this this accident. accident. injuries Weintraub's s report report discussed discussed his examination examination of and plaintiff of plaintiff plaintiff and plaintiffss medical medical Dr. Weintraub' records, and and concluded concluded records, "the have produced produced a concussion well as a "the accident accident of of 06/02/2017 06/0212017 appears appears to have concussion as well soft tissue tissue injury injury to the the right knee, thoracic spine and and right shoulder. soft right ankle, ankle, left knee, thoracic spine right shoulder. does have have pre-existing degenerative arthritis arthritis in the thoracic thoracic spine, spine, which which He does pre-existing degenerative apparently was was activated activated by the trauma. why he is still still symptomatic symptomatic 2 apparently trauma. It is unclear unclear why years since the accident accident in the absence absence of of any fractures. strain/sprain syndrome syndrome years since fractures. A strain/sprain occurred. His symptoms symptoms are subjective subjective rather rather than than objective." has occurred. objective." Defendants further further o~serve o~serve that that while unaffirmed MRI report signed signed by Dr. Mba-Jonas, Mba-Jonas, Defendants while the unaffirmed MRI report which they they submit submit as part ofplaintiffs Hospital records, referred to the plaintiffs Northern Northern Westchester Westchester Hospital records, referred which part of presence of a "fracture," "fracture," specifically specifically a "small "small focal trabecular fracture/contusion of of the lateral lateral trabecular fracture/contusion presence of trochlea without without cortical cortical break," break," no doctor, doctor, including including plaintiffs the plaintiffs treating treating physician, physician, adopted adopted the trochlea MRI report's report's finding finding of of fracture. Rather, they they all concluded concluded instead fracture. Rather, instead that that the injury injury was was merely merely a MRI contusion. contusion. Plaintiff emphasizes emphasizes that MRI report electronically signed signed by Dr. Mba-Jonas Mba-Jonas includes includes Plaintiff that the MRI report electronically finding that that the finding "[t]here is a small small area of focal T2 signal signal hyperintensity hyperintensity involving involving the the "[t]here area of anterolateral trochlea, likely likely reflecting contusion/trabecular anterolateral margin margin of of the lateral lateral trochlea, reflecting a contusion/trabecular fracture. There is no evidence evidence for cortical cortical break. additional fracture fracture is fracture. There break. ,No additional is. identified. " identified. Plaintiff observes observes that defendants' expert expert Dr. Mann own report, report, that Plaintiff that defendants' Mann acknowledged, acknowledged, in his own that the the report "indicates "indicates a small small focal focal trabecular trabecular fracture/contusion fracture/contusion lateral lateral trochlear trochlear without without MRI report cortical break." Based on that that acknowledgment acknowledgment by Dr. Mann, Mann, plaintiff argues that that in the the absence absence cortical break." Based plaintiff argues of any specific specific assertion assertion by Dr. Mann Mann that that lie he disagreed disagreed with with the the MRI MRI report report in that that regard, regard, or an of 6 6 of 9 [*FILED: 7] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 explanation indication in the MRI MRI report report is sufficient explanation of of why he did so, the acknowledged acknowledged indication sufficient to whether plaintiff plaintiff suffered fracture as a result result of create a question create question of of fact as to whether suffered aaJracture of the accident. accident. Plaintiff adds that since review either either the MRI MRI image image Plaintiff adds that since defendants' defendants' expert expert Dr. Weintraub Weintraub did not review plaintiff's treating and that that Dr. or the MRI MRI report, records of report, but but only only the records ofplaintiffs treating orthopedist, orthopedist, Dr. Oh, and 2017 records records in which which he "states Weintraub part of Weintraub specifically specifically refers refers to the part of Dr. Oh' Oh'ss August August 31, 2017 "states of the lateral lateral trochlea trochlea without without cortical that the MRI revealed fracture/contusion of revealed a focal trabecular trabecular fracture/contusion cortical break." break." Mrijaj (35 AD3d AD3d 274, 274,275 Dept 2006]), 2006]), where where an Defendants cite O'Bradovich Defendants O'Bradov,ich v Mrijaj 275 [1st Dept award of of summary summary judgment defendant was affirmed affirmed based absence of of evidence evidence of of judgment to the defendant based on the absence award serious injury. The The Court that there there was no admissible admissible evidence that plaintiff plaintiff was was ever serious injury. Court explained explained that evidence that ever diagnosed with with a fracture this accident, accident, since diagnosed fracture that that resulted resulted from this since "the "the unsworn unsworn MRI MRI report report merely merely contain [ed] reference to a 'cortical 'cortical or impact fracture,'" but contain[ ed] the reference impact fracture,"' but the plaintiffs plaintiffs treating treating physician physician reference or adopt adopt the findings pertaining Baez v Boyd Boyd did not not reference the report's report's findings pertaining to a possible possible fracture. fracture. In Baez (90 AD3d 1st Dept Dept 2011]), 201 I]), where plaintiffs treating treating orthopedist 011hopedist affirmed affirmed that that "his AD3d 524 [[1st where plaintiffs "his review review of the plaintiffs plaintiffs MRI films of the calcaneus calcaneus (heel bone) of films revealed revealed a nondisplaced nondisplaced fracture fracture of bone) and a presumed Salter-Harris Salter-Harris I fracture fracture of of the distal distal fibula," evidence was sufficient to fibula," the plaintiffs plaintiffs evidence was sufficient presumed raise a triable triable issue issue of of fact; however, Court commented commented that 'equivocal' finding ofaa however, the Court that "the "the 'equivocal' finding of raise 'presumed' Salter-Harris Salter-Harris I fracture, fracture, standing standing alone, alone, may may not satisfy satisfy the serious serious injury threshold" 'presumed' injury threshold" citing Glover Glover v Capres Capres Contr. Corp., Corp., 61 AD3d AD3d 549,550 (id. at 525, citing 549, 550 [1st Dept Dept 2009] 2009] reports were equivocal regarding regarding the existence of of a fracture the existence fracture [[contemporaneous contemporaneous x- ray reports were said to be equivocal event inadmissible]). inadmissible]). and in any event the present present record, record, this this Court Court may may not not ignore ignore the the finding finding in the the wiswom unsworn MRI MRI report. report. On the Where unsworn unsworn MRI MRI reports reports were were referred referred to by both both defendants' defendants' and and plaintiffs plaintiffs experts experts in their their Where 7 7 of 9 [*FILED: 8] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 affirmations, they they are properly court (see Clemmer Clemmer v Drah Corp., 74 AD3d affirmations, properly before before the court Drah Cab Corp., AD3d 660, Dept 2010]). 2010]). Here, unlike in O'Bradovich O'Bradovich v Mrijaj 275), the the plaintiffs 662 [1st Dept Here, unlike Mrijaj (35 AD3d AD3d at 275), plaintiffs treating physician least one of of defendants' defendants' experts experts directly directly referenced referenced the MRI MRI report's report's treating physician and at least findings pertaiNing to a fracture, fracture, without elaborating on why of fracture findings pertaining to without elaborating why the finding finding of fracture was was not not explicitly adopted. adopted. explicitly Notably, discussion in Dr. Oh's report can can be understood viewing the knee injury Oh's report understood as viewing knee injury Notably, the discussion fracture, with comment: "Trabecular "Trabecular fractures generally treated same way as a as a fracture, with his comment: fractures are generally treated in the same severe contusion contusion ... ... No acute treatment treatment was needed for the left knee." knee." Based severe No acute was needed Based on the unsworn unswom MRI report report and Dr. Oh' Oh'ss report, report, a question question of of fact is presented sustained a MRI presented as to whether whether plaintiff plaintiff sustained fracture as a result result of accident. fracture of the accident. Additionally, although there is no showing showing of of permanence record, plaintiffs plaintiffs. . permanence on this this record, Additionally, although there claims sufficiently sufficiently fall within category of of "significant "significant limitation limitation of of use of of a major major body body claims within the category function or system," system," which which need accompanied by proof proof of of permanence function need not be accompanied permanence (see Miller Miller v Miller, AD2d 577,578 577, 578 [2d Dept 1984]). Dr. Oh's Oh's assessment assessment of of plaintiffs injuries is Miller, 100 AD2d Dept 1984]). plaintiffs injuries sufficient to create create an issue issue of of fact as to whether whether they constituted a significant significant limitation. sufficient they constituted limitation. Since Dr. Oh' Oh'ss report report also confirmed confirmed that there was direct causal causal relation relation between Since that there was a direct between plaintiff injuries and and the accident, accident, summary summary judgment must be denied denied here. here. As long long as a plaintiffss injuries judgment must plaintiff establishes one serious serious injury injury of of any kind, kind, the plaintiff entitled to recover plaintiff establishes plaintiff is entitled recover for for all injuries incurred as a result result of of the accident accident (see Marfey York City City Tr. Tr. Aufh., Marte v New New York Auth., 59 AD3d AD3d 398, injuries incurred Dept 2009]). 2009]). 399 [2d Dept view of the foregoing, foregoing, it is hereby hereby In viewofthe ORDERED that that defendants' defendants' motion motion for summary summary judgment dismissing the the complaint complaint is ORDERED judgment dismissing denied, and it is further further denied, 8 8 of 9 [*FILED: 9] WESTCHESTER COUNTY CLERK 02/04/2020 09:08 AM NYSCEF DOC. NO. 45 INDEX NO. 59740/2018 RECEIVED NYSCEF: 02/03/2020 ORDERED that that all parties ORDERED parties are directed directed to appea~ appear at 9:15 a.m. on Tuesday, Tuesday, March March 17, 2020, in the Settlement Settlement Conference Conference Part, 2020, Part, room room 1600 of of the Westchester Westchester County County Courthouse Courthouse located at 111 111 Dr. Martin 10601, to located Martin Luther Luther King King Jr. Boulevard, Boulevard, White White Plains, Plains, New New York, York, 10601, schedule a trial. trial!. schedule This constitutes constitutes the Decision of the Court. Court . This Decision and Order Order of Dated: White Plains, New . Dated: White Plains, New York York Februa~ ,2020 Februa~ ,2020 9 9 of 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.