Vaccaro v Francolopez

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Vaccaro v Francolopez 2020 NY Slip Op 35046(U) February 5, 2020 Supreme Court, Westchester County Docket Number: Index No. 57032/2018 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. INDEX NO. 57032/2018 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 RECEIVED NYSCEF: 02/06/2020 commence the the statutory statutory time time for appeals appeals as ofright of right To commence (CPLR 5513[a]), 55 13(a]), you you are advised advised to serve serve a copy copy (CPLR of this order, order, with with notice notice of of entry, entry, upon of upon all parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY ----------------------~ --------------------------------------------x --------------~--------~--------------------------------------------x ANTHONY VACCARO, VACCARO, ANTHONY Plaintiff, Plaintiff, DECISION and and ORDER ORDER DECISION Motion Sequence Sequence NO.7 Motion No. 7 Index No. 57032/2018 Index No. 57032/2018 -against· -againstOMARLIN FRANCOLOPEZ, FRANCOLOPEZ, RYDER RYDER TRUCK TRUCK OMARLIN RENTAL INC. and and D. BERTOLINE BERTOLINE & SONS SONS INC., RENTAL Defendants. Defendants. ------------------------------------------------------------------x ---------------------~----------------~-----------~-----------------x RUDERMAN, J. RUDERMAN, The following following papers were considered considered in connection connection with with the motion motion by defendants defendants The papers were Omarlin Francolopez, Francolopez, Ryder Ryder Truck Truck Rental Rental Inc. and D. Bertoline Bertoline & Sons stunmary Omarlin Sons Inc. for summary judgment dismissing the complaint complaint as against against them: them: judgment dismissing Papers Papers Notice of Motion, Motion, Affirmation, Affirmation, Exhibits Exhibits A - X Notice of Affirmation in Opposition, Opposition, Exhibits Exhibits A - F; Affirmation Further Affirmation Affirmation in Opposition, Opposition, Exhibit Exhibit A Further Reply Affirmation Affirmation Reply Numbered Numbered 1 2 3 This is an action action for personal injuries allegedly allegedly sustained sustained by plaintiff Anthony Vaccaro Vaccaro plaintiff Anthony This personal injuries July 25, 25,2017 result of of a two-vehicle two-vehicle collision. collision. Plaintiff Plaintiff asserts asserts that that he was was driving driving on July 2017 as a result westbound on Croton Croton A Avenue near the intersection intersection of of Clinton Clinton Avenue Avenue in Ossining, Ossining, New York, venue near New York, westbound slowing down down for traffic traffic in in front front of of him, him, when when his vehicle vehicle was was struck struck in the rear rear by a truck truck slowing owned by defendant defendant Ryder Ryder Truck Truck Rental, Rental, leased leased by defendant defendant D. Bertoline Bertoline & Sons Sons Inc. and and owned operated by defendant defendant Omarlin Omarlin Francolopez. Francolopez. operated ../ 1 [* 1] 1 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 moving for summary summary judgment, remaining defendants defendants! 1 contend contend that that plaintiff's In moving judgment, all the remaining plaintiffs injuries do not not meet meet the serious serious injury injury threshold threshold of of Insurance Insurance Law Law §S 5102; 5102; defendant defendant Ryder Ryder injuries Truck Rental Rental Inc. ("Ryder") ("Ryder") also relies relies on the Graves Amendment Amendment (49 USC§ USC S 30106), 30106), which which Truck the Graves creates an exception exception to a vehicle vehicle owner's owner's vicarious vicarious liability liability where where the the owner owner is in the business of creates business of renting part of renting or leasing leasing motor motor vehicles, vehicles, and there there is no negligence negligence on the part of the owner. owner. Graves Amendment Amendment The Graves This previously denied, This Court Court previously denied, with with leave leave to renew renew following following completion completion of of discovery, discovery, Ryder Truck Truck Rental's Rental's earlier earlier summary summary judgment application based Graves Amendment. Amendment. Ryder judgment application based on the Graves While Ryder Ryder had had established established therein therein that that it is "engaged "engaged in the trade trade or business of renting renting or While business of leasing ·motor motor vehicles" vehicles" (id.), its submissions submissions on the prior motion "failed "failed to conclusively conclusively leasing prior motion establish that that it was was not maintenance of of the vehicle, vehicle, as alleged" alleged" (see Anglero establish not negligent negligent in the maintenance Anglero v , ' Hanif, 140 AD3d AD3d 905, 906-907 906-907 [2d Dept Dept 2016]). 2016]). The decision decision remarked remarked that that this this was was particularly true in view view of of Francolopez's Francolopez's statement, statement, as reported reported in the the police accident report, report, particularly true police accident that he had had a problem with the air brakes. Moreover, facts essential essential to plaintiff's ability to problem with brakes. Moreover, plaintiffs ability that oppose the application application were were exclusively exclusively within within the knowledge knowledge and and control control of of defendants. defendants. oppose Now that discovery discovery is complete, complete, Ryder Ryder again again moves moves for relief relief based Graves Now that based on the Graves Amendment. It cites cites Francolopez's Francolopez's deposition deposition testimony testimony in which which he disavowed disavowed the statement statement Amendment. reported by the police officer, to the effect effect that that the air brakes were not not full and did not not respond respond reported police officer, brakes were immediately, causing causing the collision. collision. It further further quotes quotes from the deposition deposition testimony testimony of of the immediately, representative for D. Bertoline Bertoline & Sons Inc., who who asserted asserted that that ifthere ifthere had had been insufficient air representative been insufficient pressure, officer reported reported having having been told by Francolopez, Francolopez, the the true!-< truck would would not not pressure, as the police police officer been told 1! Anheuser-Busch d/b/a d/b/a Budweiser Budweiser was was granted granted summary summary )udgment Judgment dismissing dismissing the Anheuser-Busch complaint as against against it by decision decision and order order dated dated October October 31, 2019. 2019. complaint 2 [* 2] 2 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 provides the deposition have able to proceed addition, Ryder Ryder provides deposition testimony testimony of of its own own proceed at all. In addition, been able have been of regardless of brake, regardless parking brake, functions as a parking witness, which functions brake, which the air brake, that the confirmed that who confirmed witness, who whether it was was full, would would not not -cause cause the braking braking system system to fail, or have have anything anything to do with with the the whether not include papers do not motion papers However, the motion driver's ability ability to reduce speed when driving. However, include when driving. reduce his speed driver's any showing showing regarding regarding the maintenance maintenance performed performed on the truck. truck. Analysis Analysis against claim against the claim of the dismissal of entitled to dismissal While Ryder is entitled that Ryder assert that repeatedly assert defendants repeatedly While defendants of leasing leasing vehicles, Graves amendment amendment creates creates an exception exception to vehicles, the Graves business of the business because it is in the it because met: requirements are met: an owner's where two requirements liability where vicarious liability owner's vicarious person ... "[The] owner owner of of a motor motor vehicle vehicle that that rents rents or leases leases the the vehicle vehicle to a person ... shall shall not not "[The] being . reason of thereof, by reason be liable liable under law of of any State State or political subdivision thereof, of being political subdivision the law under the results or arises that results property that the owner owner of of the vehicle ... , for harm arises out out of of persons or property harm to persons vehicle ... if lease, rental the of period the during the use, operation, or possession of the vehicle during the period of the rental or lease, if vehicle the operation, possession of business ofrenting (l) the the owner owner ... ... is engaged engaged in the the trade trade or business of renting or leasing leasing motor motor (1) vehicles; and vehicles; and owner (or an the owner part of there is no negligence of the wrongdoing on the part criminal wrongdoing negligence or criminal (2) there ·.- affiliate the owner)"of the affiliate of AD3d 55 (2d Dunkley, 50 AD3d 30106 [emphasis [emphasis added]; added]; see Graham Graham v Dunkley, [2d Dept Dept 2008]). 2008]). USC§S 30106 (49 USC law ... of law matter of judgment as a matter "[I]n order ... [the entitlement to judgment prima facie entitlement establish its prima order to establish "[I]n prove not company that that leased leased the the vehicle vehicle to the the driver] driver] was was required required to prove not only only that that it is in the the company vehicle" the ... maintain the negligently maintain business of leasing also, that ... vehicle" not negligently that it did not but also, vehicles, but leasing vehicles, business of (Casine v Wesner, 165 AD3d AD3d 749, 749, 750 [2d Dept Dept 2018]). 2018]). Although Although Ryder·established Ryder'established that that the the (Casine basis for a provide a basis not provide brake does truck's air brake statement attributed attributed to Francolopez does not regarding the truck's Francolopez regarding statement sustain its prima failed to sustain Ryder failed truck, Ryder claim that that Ryder Ryder was was negligent negligent in its maintenance maintenance of of the truck, prima claim not truck, since the truck, maintain the negligently maintain not negligently facie burden of demonstrating demonstrating that since it did not that it did not burden of facie provide subject. evidence on the subject. other evidence provide any other 3 [* 3] 3 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 . , Accordingly, that that branch branch of of defendants' defendants' motion motion must must be denied. denied. Accordingly, Serious Serious Injury Injury moving for summary summary judgment, defendants contend contend that that plaintiff's plaintiff s injuries injuries do not not · In moving judgment, defendants meet the serious serious injury injury threshold threshold of ofInsurance Law S 5102; 5102. Defendants' Defendants' analysis analysis begins begins with with the the _meet Insurance Law§ observation that that testing testing performed performed on July July 25, 20_17, 2017, the the date date of of the the accident, accident, at Phelps Phelps Memorial Memorial observation Hospital Center, Center, showed showed no serious serious injury injury or traumatic traumatic changes, changes, but but only only degenerative degenerative changes. changes. Hospital Further, an MRI MRl taken taken on September September 14, 2017 2017 of of plaintiff's plaintiffs thoracic thoracic spine spine revealed revealed only only "disc "disc Further, dessication from from C2-3 through through C6-7," C6-7," and "C5-6 "C5-6 midline midline disc disc herniation herniation indents indents ventral ventral cord cord dessication causing moderate moderate central central canal canal stenosis, stenosis, with with superimposed superimposed right right foraminal foramina1 disc disc herniation herniation causing causing proximal proximal right right neural neural foraminal foraminal stenosis, stenosis, potentially potentially abutting abutting exiting exiting right right C6 nerve nerve root, root, causing multilevel disc bulges." bulges." They They also submit submit findings findings from from a CT scan scan of of plaintiffs plaintiffs orbits orbits on and multilevel September 18, 2017, 2017, which which states states "Indication: "Indication: Orbital Orbital fracture fracture left left side," side," and reports reports findings findings of of September mass in the the left left orbit, orbit, and and a subsequent subsequent biopsy biopsy report report regarding regarding that that mass, mass, which which was was a mass determined, upon upon biopsy, biopsy, to be a neurofibroma. neurofibroma. determined, Defendants also also submit submit the the reports reports of of their their orthopedic orthopedic expert, expert, Dr. Ronald Ronald L. Mann, Mann, dated dated Defendants May 4, 4,2018, which found found that that plaintiff's plaintiffs thoracolumbar thoracolumbar sprain/strain sprain/strain was was resolved resolved and and he has has May 2018, which disability, and and that that his range range of of motion motion is normal, normal, and that that of of Dr. Jeffrey Jeffrey Passick Passick dated dated June June 6, no disability, 2019, who who opined opined that that plaintiff's plaintiff's cervical cervical and lumbar lumbar spine spine sprain/strain sprain/strain was was resolved, resolved, and that that 2019, "spinal imaging imaging shows shows degeneration degeneration only." only." "spinal Finally, defendants defendants rely rely on plaintiff's plaintiffs deposition deposition testimony testimony regarding regarding his ability ability to work, work, Finally, previous accidents accidents anq injuries. injuries. and his previous Plaintiff emphasizes emphasizes in opposition opposition that that his claims, claims, ~ as reflected reflected in his his supplemental supplemental and and Plaintiff second supplemental supplemental bill bill of of particulars, particulars, include include a left left eye lateral lateral orbital orbital fracture, fracture, and bulging bulging and second 4 [* 4] 4 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 i, . herniated discs, well as nerve those claims claims he submits reports herniated discs, as well nerve damage. damage. In support support of of those submits affirmed affirmed reports from radiologist Thomas Kolb, of the affirmed affirmed reports October 12, reports by Dr. Kolb, Kolb, dated dated October radiologist Thomas Kolb, M.D. One One of 2019, describes review of 2017, and that the scan 2019, describes his review of a CT scan scan dated dated September September 18, 18,2017, and his finding finding that inferior orbital report from from New New disclosed, inter alia, a fracture fracture of disclosed, inter of the left inferior orbital floor. An operative operative report York Ear Infirmary Mount Sinai, dated 20, 2017, inciicates indicates that that David David A. York Eye and Ear Infirmary of of MountSinai, dated October October 20,2017, Della performed an operative operative proc~dure proce,dure on plaintiff plaintiff at that that time, time, including left Della Rocca, Rocca, M.D., M.D., performed including a left orbitotomy with excision mass, and repair floor fracture with implant. orbitotomy with excision of of an orbital orbital mass, repair of of an orbital orbital floor fracture with implant. reviewed the MRIs MRJs performed performed on September 2017, and reported reported that that they they Dr. Kolb Kolb also reviewed September 12, 12,2017, reflect the presence presence of bulges and herniation herniation of lumbar spine. spine. The reflect of disc disc bulges of the cervical cervical and lumbar The affirmed affirmed of Kevin Kevin H. Weiner, Weiner, M.D., M.D., reports reports finding limited range range of motion in plaintiffs plaintiffs cervical report of report finding limited of motion cervical opines that bulges and herniation, orbital fracture, and lumbar lumbar spine, spine, and opines that the disc bulges herniation, as well well as the orbital fracture, 25, 2017. are posttraumatic posttraumatic and and were related to the accident accident of were causally causally related of July July 25,2017. Analysis Analysis When defendants move for summary judgment dismissing grounds of When defendants move summary judgment dismissing a complaint complaint on the the grounds of they bear bear the initial initial burden burden of prima facie, facie, that that the plaintiff plaintiff a lack of of serious serious injury, injury, they of establishing, establishing, prima did not not sustain caused by the accident A1atinale, 58 AD3d Dept sustain a serious serious injury injury caused accident (Smith (Smith v Matinale, AD3d 829 [2d Dept the forms forms of injury explicitly included in the list provided provided 2009]). 2009]). Fractures Fractures are one of of the of serious serious injury explicitly included by Insurance Insurance Law de-emphasize the orbital orbital fracture, Law§S 5102 (d). Defendants' Defendants' moving moving papers papers de-emphasize fracture, and suggest that the fracture fracture was was pre-existing. pre-existing. They They include include as exhibits the radiologist's report from from suggest that exhibits the radiologist's report September 18, 2017 2017 regarding regarding the scan of of plaintiff's plaintiff s orbits, orbits, which which report report contains contains the the words words September the CT scan "Indication: Orbital Orbital fracture fracture left left side." side." However, However, although although they they also also included included as an exhibit exhibit the the "Indication: post-surgical pathology pathology report, report, they they did did not not include include the operative operative report report from from October October 20, 20,2017, 201_7, post-surgical which noted, noted, inter inter alia, alia, the the repair repair of of an orbital orbital fracture. fracture. Significantly, Significantly, Dr. Passick's Passick's report report which 5 [* 5] 5 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 acknowledged the the post-accident ofan orbital fr&cture. fn~cture. acknowledged post-accident presence presence of an orbital Given the evidence evidence establishing establishing the presence of an orbital orbital fracture fracture less than than two two months months Given presence of after the accident, accident, and and the lack lack of of any basis invalidate that that evidence, evidence, defendants defendants failed failed to make make after basis to invalidate showing of of an absence absence of of any form of of serious serious injury. injury. Moreover, Moreover, the materials materials a prima prima facie showing submitted by plaintiff demonstrating, prima existence of of an orbital orbital fracture fracture caused caused by submitted plaintiff demonstrating, prima facie, the existence accident, preclude summary judgment defendants on the serious serious injury injury issue. issue. Notably, the accident, preclude summary judgment to the defendants Notably, suggestion by defendants' defendants' counsel counsel that that the orbital orbital fracture fracture is a pre-existing injury cannot cannot the suggestion pre-existing injury serve as an evidentiary evidentiary showing showing of of that that claim, claim, and no evidence evidence supporting supporting the the assertion assertion is serve provided. provided. long as a plaintiff establishes one serious serious injury injury of of any kind, kind, the plaintiff entitled to As long plaintiff establishes plaintiff is entitled recover for all injuries injuries incurred incurred as a result result of of the accident accident (see ·Marte "Marte v New City Tr. Tr. Auth., New York City Auth., recover AD3d 398, 398, 399 [2d Dept Dept 2009]). 2009]). Accordingly, Accordingly, plaintiffs evidence that that he suffered suffered an orbital orbital 59 AD3d plaintiffs evidence fracture as a result result of of the accident accident at issue issue here here is sufficient sufficient in itself itself to preclude summary preclude summary fracture judgment. judgment. motion must must be also denied denied on the grounds grounds of of significant significant or permanent consequential The motion permanent consequential limitation of of use or function. function. Assuming Assuming that that defendants' defendants' submissions submissions were were sufficient sufficient to make make a. a limitation prima showing that that plaintiff sustain a significant significant or consequential consequential limitation limitation of of a prima facie showing plaintiff did not sustain body function, the opposing opposing evidence evidence submitted submitted by plaintiff suffices to create create issues issues of of body part part or function, plaintiff suffices that point. fact on that point. The necessary necessary objective objective evidence evidence must must show show both contemporaneous treatmenttreatment The both (1) contemporaneous qualitative or quantitative quantitative - to establish establish that injuries were were causally causally related related to the qualitative that the plaintiffs plaintiffs injuries accident and (2) recent recent examination examination to establish establish the required required permanency accident permanency (see Perl Perl v Meher, Meher, 18 NY3d 208,217 [2011]; Toure v Avis 345,353 [2002]). The The NY3d 208, 217 [2011]; Avis Rent Rent a Car Sys., 98 NY2d NY2d 345, 353 [2002]). 6 [* 6] 6 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 the related to the causally related time of, and causally injuries at the time requirement of objective of plaintiffs plaintiffs injuries proof of objective proof requirement of injury tissue injury soft tissue of soft presence of the presence accident, September 15, 2017 revealing the MRis revealing 2017 MRIs the September satisfied by the accident, is satisfied such as bulging discs. The need recent objective objective examination examination to establish establish the need for recent herniated discs. bulging or herniated such by Dr. Passick motion, by required satisfied by findings findings of of decreased decreased ranges of motion, Passick as ranges of permanency is satisfied required permanency that the injury medical opinion well expert, Dr. Weiner, conjunction with opinion that injury was with his medical Weiner, in conjunction plaintiffs expert, well as plaintiffs Dept AD.3d 626, causally subject accident Clervoix v Edwards, 626, 627 [2d Dept Edwards, 10 AD3d accident (see Clervoix the subject related to the causally related 2016]). Dept 2016]). 756 [2d Dept 2004]; see City of AD3d 753, 756 New York, 137 AD3d ofNew McEachin v City also McEachin see also cessation of This Court Court rejects rejects defendants' defendants' suggestion suggestion that that plaintiffs plaintiffs gap in, or cessation of treatment treatment This NY3d Perez (4 NY3d Pommells v Perez Unlike Pommells injuries, disqualifies disqualifies his claim claim of of serious serious injury. injury .. Unlike those injuries, for those why he failed whatever as to why 566,574 [2005]), where "provided no explanation explanation whatever failed to plaintiff "provided where the plaintiff 574 [2005]), 566, plaintiffs sworn period," a plaintiffs pursue sworn six-month period," initial six-month the initial after the injuries after treatment for his injuries pursue any treatment statement or testimony testimony as to why why he did not get treatment treatment may may be enough enough to raise raise an issue issue of of fact statement 907 [2013]; NY3d 905, Inc., 22 NY3d Enters. Inc., Grand Style Style Transp. Enters. 905,907 [2013]; Croisdale Croisdale v Weed, Ramkumar v Grand (see Ramkumar 2016]). Here, indicated during during his deposition deposition plaintiff indicated Here, plaintiff Dept 2016]). AD3d 1363, 1364 [4th Dept 139 AD3d his canceled his until he canceled testimony saw Dr. Matthew appointments until of appointments number of Kohler for a number Matthew Kohler that he saw testimony that attended that he attended testified that most also testified and also frightened; and became frightened; because he became appointment because recent appointment most recent physical therapy for a long long time, time, but stopped going going when when he found found that that it was was not not helping, helping, and but stopped physical therapy failure plaintiffss failure that own therapy circumstances, plaintiff these circumstances, Under these back. Under therapy for his back. handles his own now handles that he now than rather than to continue continue obtaining obtaining treatment claimed injuries issue of of fact rather presents an issue injuries presents treatment for his claimed the claim. of the dismissal of grounds claim. grounds for dismissal However, defendants defendants have have established established grounds grounds to dismiss of "serious "serious claim of plaintiffs claim dismiss plaintiffs However, injury" under the 90/180-day 90/180-day category, category, with with their their submission submission of ofplaintiffs testimony that that he plaintiff's testimony under the injury" I I returned 2017. To satisfy satisfy the definition definition of of "serious "serious injury" injury" under 90/180 the 90/180 under the August 2017. work in August returned to work 7 [* 7] 7 of 8 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:47 AM NYSCEF DOC. NO. 261 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/06/2020 category, plaintiff must must provide provide competent plaintiff's inability category, a plaintiff competent medical medical evidence evidence of of the plaintiff's inability to the first 180 days perform substantially perform substantially all of of his or her daily daily activities activities for at least least 90 of of the Acc. Indem. Corp., AD3d 917, 919 [2d Dept subsequent Motor Veh. subsequent to the accident accident (Nunez (Nunez v Motor VehAee. Corp., 96 AD3d 917,919 Dept . 2012]; 2012]; Sainte-Aime AD2d 569 [2d Dept Plaintiff has not not offered Sainte-Aime v Suwai Suwai Ho, 274 AD2d Dept 2000]). 2000]). Plaintiff offered any that point. point. evidence issue of evidence creating creating an issue of fact on that For reasons, the branch of defendants' defendants' motion seeking summary summary judgment For the foregoing foregoing reasons, branch of motion seeking judgment dismissing failure to satisfy the serious injury threshold dismissing the complaint complaint for failure to'satisfy serious injury threshold is granted granted only only to the plaintiff's 90/180 extent extent of of dismissing dismissing plaintiff's 90/180 claim, claim, and is otherwise otherwise denied. denied. The third branch branch of time to file any The third of defendants' defendants' motion, motion, for an extension extension of of their their time Hon. Joan dispositive motions, was denied, in the decision dispositive motions, was already already addressed, addressed, and denied, decision and order order of ofHon. Joan 23, 2019, and may not be reconsidered B. Lefkowitz Lefkowitz dated dated September September 23,2019, reconsidered here. here. Based upon upon the foregoing, foregoing, it is hereby, hereby, Based ORDERED judgment is denied except with regard ORDERED that that defendants' defendants' motion motion for summary summary judgment denied except with regard to plaintiff's plaintiff's 90/180 further 90/180 claim; claim; and itit is further ORDERED that the parties parties shall appear March 24,2020 24, 2020 at 9: 15 a.m. in the the Settlement ORDERED that appear on March 9:15 Settlement Conference Part Part of of the Westchester Westchester Supreme Supreme Court Court in the Courthouse Courthouse located located at room 111 Conference room 1600, 111 Dr. Martin Luther King New York, York, 10601, trial. Martin Luther King Jr. Boulevard, Boulevard, White White Plains, Plains, New 10601, to schedule schedule a trial. of the Court. This Decision and Order This constitutes constitutes the Decision Order of Court. Dated: York Dated: White White Plainl,.,New Plainj..New York February ~, 2020 February~' 2020 ~-~ HO 8 [* 8] 8 of 8 y JA RUDERMAN, J.S.C.

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