Lozier v Prevot-Woolery

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Lozier v Prevot-Woolery 2020 NY Slip Op 34958(U) October 16, 2020 Supreme Court, Rockland County Docket Number: Index No. 030883/2019 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. 030883/2019 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/16/2020 1 SUPREME COURT OF THE STATE OFNEW YORK COUl'JTY OF R9CKLAND ---- .-------------------------- ·---- ·--------- X .ROBERT LOZIER, DECISION/'O'RD ER Plaintiff; Index No. 030883/2019 -against·(Motion. #1} D. PREVOT-WOOLERY and SOMAYA K. PREVOT, Defendants .. --- ·--· .-------------.---- .--.-------- .--.. ------. --x HON. SHERRI L. .EISENPRESS, A.J.S.C, Th1= following papers, numbered 1-4, were read in connection with Defendants ,b. PREVOT-WOOLERY a·nd SOMAYA K. PREVOT's (collectively "Defendants'')No_tice of Motion for sumrila ry j u_dgment and d ism issa I of the Cornplaint against them on the ground the plaintiff cannot meet the serious injury threshold requirement as mandated bylnsliranc:e Law Sectioi1s .Sl04(a) ·and Sl02(d): PAPERS NUMBERED NOTICE OF MOTION/AFFIRMA TION IN SUPPORT/EXHi's ns A-D 1-2 AFFIR,MATION IN OPPOSITION/EXHIBITS A-F 3 AFFIRMATION IN. REPLY 4 Plaintiff cornme.nceo the i_nstant action to re~ovet oamag_es for pe.rsonal injuries arising out of an automobile accident which occurred on August 15, 2018, on West Eck_erson Road at or near the intersecti'on·with Oak Street; fn the ·County of Rockland. Pl'aintifF, a 75 year old man at the time, :a.11.eges ..that as _a .r~sult of the accident, he sustained the· following injuries: tear of Jhe right medial meniscus, tear of the lateral meniscus and grade 4 chondromalacia of the right knee; all necessitating arthroscopic s·u:r.gery; and cerv'tcal and iumbar radiculopathy. After completlon of discovery, Defendants move to dismiss the action . . . . for failure to meet the •\serious injury" thre:1_hold under the no-fault .law. [* 1] 1 of 7 INDEX NO. 030883/2019 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/16/2020 2 In support of the summary judgment, Defendants submitthe affirmed medical report of Dr. Ronald L. Mann, orthopedic surgeon, dated November 20, 2019. Dr. Malin examined Plaintiff and reviewe.d his medical records including from Dr. Mfon; MRI report for Plaintiff's right knee showing tears of the medial and lateral meniscus of the right knee; MRI report from Northeast Orthopedics and Sports Medicine of Plaintiff's lumbar spine and the operative report dated February 20, 2019 with respect to arthroscopic surgery of Plaintiff's right knee. Dr. Mann opines that upon review of the imaging studies, the findings with regard to Plaintiff's right knee and lumbar spine were degenerative in nature, not traumatically induced and unrelated to the subject occurrence. Upon examination, Dr. Mann finds Plaintiff's cervical spine to have right and left rotation of 70 degrees (normal 80); flexion and extension to 40 degrees (normal 45). Examination of the Jurnbar spine revealed right and left flexion to 20 degrees (normal 25). Examination of the right knee revealed findings of positive crepitus and mild positive Ap!ey's test with tenderness in the knee. Defendants also argue that Plaintiff fails as a matter of law to demonstrate that he qualifies under the 90/180 day nO"'fault category given his testimony that he was Only out of work for two weeks after the accident and his surgery was more than six months after the incident. In opposition to the motion, Plaintiff submits the affirmed su rg ica I report of Dr. Mian who performed the surgery on February 20, 2019; Dr. Chen's procedure reports of cortisone injections to the right knee and epidural steroid injections to Plaintiff's lumbar spine; the certified medical records and reports from Plaintiff's treating physicians and therapists including range of motion tests conducted directly after the accident;. ahd Dr .. Mian's affirmed reports dated j~nuary 2, 2019, and July 2; 2020, .and an affirme:d addendum report dated luiy 28,. 2020. Plaintiff argues that Defendants hav.e not met the.ir burden. on summary judgment due to.the positive findings noted in Dr. Mannis affirmed report. [* 2] 2 of 7 INDEX NO. 030883/2019 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/16/2020 3 Plaintiff argues. that in th.(;'! event Defendants have met th~ir burden that there are trii3ble issues of fatt requirin·g denial of the motio·n. Piaintrff submits medical records _that dem_onstrate limited ~ange of motion c:oritemporam:·ous to the acddent. Plaintiff i;llso underwent range of motion testing on July 9, 2020, at which time his treating physician 1 Dr. Mian, found: luinbar -flexioil to 70 deg_rees (normal 90); Jumb,ar ex-t~nsion to. 20 d~g·rees (nonn~l 30); _and lateral flexio.n to 20 degrees (normal 30}; and right knee motion limited to .1-120 (normal 0-'"150). Dr. Mian attributes the right knee and lumbar· spine injuries to be causally related to the accident and finds them t_o be permanent in nature. The proponent of a summaryjudghie nt motion must establish his or her claim or defense suffident to wammt a (:i:l"urt directing judgment in its favor as a matter of la~, tendering sufficient evidence to demonstrate the lack of material issues of fact Giuffrida v Citibank Corp.·, et al.r 100 N.Y.2d 72 (2003) (ciUr'lg Alvarezv Prospect-Hosp., 6"8: N.Y:2d 320 (1966). The failure to. Glo so r:equires·a per1ial··of the mo~ion without re_gard to the sufficiency of the opposing papers, Lacaqnino v Gonzalez, _306 A.D.2d 250 (2d Dept 2003). However, once such a ·showing has been- made, .the bu rd·en shifts to the. party opposing the_ motion tq produce evidentiary prpof iri admissible form demonstrating materlal questions of fact requiring tria 1. Gonzale.z v. 98- Mag Leasing. Corp.,. 9 5 N;y., 2d 124 (2000 J. Mere conclusions or unsubstantiated allegations unsuppo:rted by competent evid_ence are. insufficie_nt to _.r~i~e a triable issue, Gilbert Frank Co·rp. v. Federal Ins, Cci~, 70 N.Y.2d 966 (1988); Zuckerman v. Cfty of New York,A9 N.Y.2d 557 (1980.).. In order to be. entitled to summary judgmerit it is incumbent upon the defe·nctant to demon·strate that plaintiff did not suffer from any condition defined i 11 lnsu ran Ge ~aw §5102("d) as .a serious injury .. Healea v Andriani,. 158 A.D.2d .587, 551 N.Y.S.2d 554 (2d Dept 1990). Precedent in.. the Second Department holds tha:t wheri: a defendant relies upon the affirmed medi.cal report of its ·examining physk_ian in s1,1pport ·of its motion for.summary judgment which notes a significant limitation of motion in a body part1 the defendant has [* 3] 3 of 7 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 INDEX NO. 030883/2019 RECEIVED NYSCEF: 12/16/2020 4 failed to meet his prirna facie burden and the Court need not consider the sufficiency of the plaintiff's opposition papers. Robinson v. Yeager, 62 A.D.3d 684, 880 N.Y.S. 88 (2d Dept, 2009}; Locke v. Buksh, 58 A.D.3d 698; 872 N.Y.S.2d 148 (2d Dept. 2009); Bentivegna v. Stein, 42 A.D.3d 555; 841 N,Y.S.2d 316 (2d Dept. 2007); Zarnahiyan v.Vrabeck, 41 A.D.3d 472j 835 N.Y.S.3d 903 (2d Dept. 2007); Kovalenko v. General Electric Capital Auto Lease Inc., 37 A.D.3d 664; 831 N.Y.S.2d 438 (2d Dept. 2007). In Meyer v. Gallardo, 260 A.D.2d 556i 688 N:Y.S.2d 624,625 (2d Dept. 1999), the Second Department affirmed a denial of summary judgment where one of the physitians who examined the injured plaintiff on behalf of the defendant stated thatthe lateral rotation of his cervical spihe was 80 degrees to the right and 50 degrees to the left. The Court found thatthis alone raised an issue of factas to whether the injured plaintiff suffered a "significant limitation of use of a body function or system." Id. See also Rodriguez v. Ross, 19 A.D.3d 395, 396; 796 N.Y.S.2d 398 (2d Dept. 2005)(since· defendants' own examining physician recorded some sjgnfficar:rt limitations in the plaintiff's movement of his cervical and lumbar .spines, and his right shoulder, he did not make a prlma facie showing of entitlement to summary judgment.Ji Koroalski v. Lau, 17 A.D.3d 536i 793 N.Y.S.2d 195 {2d Dept. 2005)( dismissal of cdm pla!ht reversed because defendant failed to make pri ma facie showing that plaintiff did not sustain a serious injury where defendant's experts reported finding a limitation of motion in plaintiff's left shoulder and lower back.); Alam v: Karim, 61 A.D.3d 904, 879 N.Y.S.2d 1151 {2d Dept. 2009)i Baqot v. Singh, 59 A;D,3d 368i 871 N.Y.S.2d 917 (2d Dept. 2009); Colon V. Chu, 61 AD.3d 805; 878 N.Y.S.2d 127 (2d Dept. 2009). Even if Oefenda nts had mettheir bun:len, Plaintiff has established a triable issue ' ' of fact sufficient to require denial of .summary judgment .A plaintiff must come forward with sufficient evidentiary proof in admissible form to raise. a triable issue of fatt as to whether the plaintiff, suffered a ''serious. injury), within. the niean!hg Louis Cab Corp,, [* 4] 108 A.D.. 2cl 378, 489 N.Y.s.zd of the Insuran.ce .Law. Zoldas v St .. 4!)8 {1st Dept 1985); Dwyer v Tracey. 4 of 7 10.5 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 INDEX NO. 030883/2019 RECEIVED NYSCEF: 12/16/2020 5 .AD2d 476, 4:so. N.Y,.S..2.d 781 (.3d De_p.t. 1984)- One way to substantiate a claim of serious injury is through an e~pert's d·esignation 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 .. ~d 672 {2d Dept. 2016), However, an expert's qualitative assessment of a plaintiff's condition also may suffice, p:r_ovided that the e.valuatio_ri_.fa1s a·n objective· basis and com.pares the plaintiff's limitations to the normal function_, _p.urpose and tJse of the affected body organ, . . member, function or system. Id·, By establishing that ·any cine· of-several injuries sustai"ned in an acci(Jent is a: seri_pu_s injury within the me,rning of Insurance Law· §S102{d), a plaintiff is entitled to seek recovery for al! injuries incurred as a resultofthe acciqent. Bonner v Hill, 302 AD2_d 544, 756 N.Y5,-2d 82 (2d Dept.2003): OiNeill v O'Nelll, 261 AD2ci 459, ·.6.90 N:Y..S.2d 277 (2d pept 1999) . . In the l"nstant matter,· Plaintiff has. -demonstrateci a•"t:ria ble issue offact requiring denial of the ,summary judgment motion based upon his ce'rtifi.ed medical records, whi.ch are in admissible form, which document limitation of motion in Plaintiff's right knee and spine contemporane·ous to _the accident, a5; well as. permanent inju_rfes as_ set forth in Dr. Mian's expert affirmation. Where conflicting medical evidence .is offered on the issue as to w_hether the plal"ntiff's injuries are perm·anent or slgnifi.carit, and· varying inferences may be drawn, the ques~ion is one-_for the. Jury. Martinez v Pioneer Transportation Corp.,_ 48 A.D,.3d 306r 851 N.Y;S.2d 194 (lst Dept 2008). Further,.when discrepancies between the competing reports of ti\!;! physid_ans create· issues bf credibility, those issues of fact shou·ld not be. .resolved on summary judgrnent and reqµire a trial. Frands v Basic Metal; Inc., 144 AD2d 634 (2d Dept l 981);, Cassagnol" v Williamsburg Plaza Taxi, 23:4 -AD2d. 2,.08; 651 i\l.Y.$.2;;d 518 (1st Dept 1996). As such, the triable issues of fact require: denial .o.f Defendants' summary judgment motion with respect to the categories bf significant limitation of use and permanent conseque_ntial lirnitc,1tion of use. [* 5] 5 of 7 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 INDEX NO. 030883/2019 RECEIVED NYSCEF: 12/16/2020 6 In the instant matter; upon examination, Dr. Mann found physical limitations in Plaintiff's lumbar spine and knee, including positive crepitus and a positive Apleis test. As such, Defendants have failed to sustain their prima fade burden upon summary jud'gment and the Court need not address the sufficiency of Plaintiff's opposition papers. The Court notes, however, that Defendants have met their burden with respect to the 90/180 day nofault threshold category by virtue of Plairitiff's testimony that he missed onlytwo weeks of work after the accident. Moreover, Plaintiff has failed to demonstrate a triable issue of fact that he was disabled for the minimum dUratiori necessary to state a claim for serious injury under the 90/180 day category. His allegations that he had With regard to work and/or . . . .. some restrictions . everyday activities, coupled with his failure to submitmedfca! evidence which docwments that he was prevented from performing "substantially all" of his usual and customary activities for the requisite period is insufficient to sustain his burden upon summary judgment. See Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 (Pt Dept 2010). As such, that claim is hereby dismissed. Accordingly, it is hereby ORDERED that Defendants D. Prevot-Woolery and Somaya K. Prevot's motion {# 1) for summary judgment, pu rsuarit to CPLR § 3212, is DENIED, except With respect to the 90/180 no-fault category, Which is dismissed; and it is further , , ORDERED that this matter is scheduled for a settlement conference on December 16, 2020, i1:0o a.m. via Microsoft Teams. Link to be provided bythe Co.urt prior [* 6] to the conference. 6 of 7 FILED: ROCKLAND COUNTY CLERK 12/16/2020 02:22 PM NYSCEF DOC. NO. 27 INDEX NO. 030883/2019 RECEIVED NYSCEF: 12/16/2020 7 The foregoing constitutes the Opinion, Decision & Order of the Court on Motion #1. Dated: New City, New York October 16, 2020 TO: All Parties (bye-fi le) [* 7] 7 of 7

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