Jakes-Silvers v Cahill

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Jakes-Silvers v Cahill 2020 NY Slip Op 35178(U) September 15, 2020 Supreme Court, Suffolk County Docket Number: Index No. 610678/2018 Judge: Joseph A. Santorelli 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. -_. -" NO. 610678/2018 ~---~INDEX FILED: SUFFOLK COUNTY CLERK 09/17/2020 12:20 PM -~"'.-' NYSCEF DOC. NO. 43 ~ RECEIVED NYSCEF: 09/17/2020 \ FORM ORDER ORDER SHORT FORM , , ,•~r · · . i '!d''.'1r ~.~~'.~P{-"..'-1~ I-.~. •." "tr~ 1··.: ..·.•,-:'~.'~-wr.1r~' t; l ..~ 1~ 1 H~r;.•~· ~r~ . . :~_·. -'d-.· :., 1.;" :1"' 'A~v~n_~. :;-4. ;'; ~1' '~y> ·-~.Y .:'>l: ,. ~ ~¥1< W.J ,~,lrI ..,..,,._ / "~~_i;., ""4U' .L~ - I INDEX 610678/2018 No. 610678/2018 INDEX No. CAL. No. 201902322MV 201902322M V CAL. No. • -. YORK NEW YORK A TE OF NEW SUPREME COURT COURT - ST STATE SUPREME COUNTY LA.S. PART 10 SUFFOLK COUNTY SUFFOLK I.A.S. PART PRESENT: PRESEN T: Hon. -----'J=-=O=c..::S=E=P"""H,,_,A JOSEPH A. SANTORELLI ~.,_,S=A=N...,__T~O~RE=L~La!!,I_ Justice of the Supreme Court Court Supreme the of Justice MOTION DATE MOTION DATE MOTION DATE MOTION DATE MOTION DATE MOTION DATE ADJ. DATE ADJ. DATE Mot. Seq. # 001 Mot. Seq.# # 002 # 003 2/27/20 (001) 2/27/20 (00l) (002) /9/20 (002) 77/9/20 8/6/20 (003) (003) 8/6/20 8/6/20 8/6/20 MG; CASEDISP MG; CASEDISP MD MD MD ----. ------------------------. ---------------------------------X ---------------------------------------------------------------X LITE & RUSSELL, ESQS. RUSSELL, ESQS. LITE Attorney ' Plaintiff Attorney for Plaintiff Higbie Lane Lane 212 Higbie West York 11795 New York Islip, New West Islip, ERS, MARY JAKES-SILV JAKES-SILVERS, MARY Plaintiff, Plaintiff, against- - against and CAHILL and TREVOR DOUGLAS S. CAHILL CAHILL, DOUGLAS TREVOR CAHILL, PATRICIA A. FLYNN, FLYNN, PATRICIA ___________________~ Defendants. Defendants. ---------X ESQS. GENTILE & TAMBASCO TAMBASCO, , ESQS. GENTILE Cahill Attorney Defendants Cahill Attorney for Defendants Road, Suite Suite 300 300 Hollow Road, Broad Hollow 115 Broad 11747 York Melville, New York 11747 New Melville, ESQ. LAWRENCE , ESQ. KAREN L. LAWRENCE, . KAREN Attorney for Defendant Defendant Flynn Flynn Attorney Highway, Suite Suite 100 Memorial Highway, Veterans Memorial 878 Veterans New York Hauppauge, New York 11788 Hauppauge, ---------------------------------------------------------------X Notice of judgment : Notice motions for summary Upon following papers e-filed motion and cross cross motions summary judgment: of motion and these e-filed read on these papers read the following Upon the Motion Cross of Notice ; 2019 I 1 December dated 1 defendants, Cahill Motion/Order to Show Cause and'supporting papers by Cahill defendants. dated December 11. 2019 Notice of Cross Motion Motion/Order Show Cause and-supporting papers 2020 ; Answering and supporting supporting papers dated May May 6, 2020 defendant Flynn, Flynn, dated dated August August 3, 3,2020; Answering Affidavits Affidavits and and 2020 and by defendant plaintiff, dated papers by plaintiff. and and Affidavits Replying ; 2020 August dated supporting papers by Cahill defendants, dated June 29, 2020 and by plaintiff, dated August 4, 2020 Replying Affidavits and plaintiff, 2020 June dated Cahill defendants, supporting papers is it Other_; ; 2020 July dated defendant, supporting papers by Cahill defendants, dated May 2020 by defendant, dated July 6, 2020 Other _; it is and 2020 18, May dated defendants, Cahill by supporting papers determination ; this determination; of this purposes of ORDERED consolidated for purposes hereby consolidated motions are hereby following motions the following that the ORDERED that further and it is further judgment ORDERED that that the the motion defendants Douglas Douglas Cahill Cahill and and Trevor Trevor Cahill Cahill for summary summary judgment motion by defendants ORDERED injury" as defined not sustain dismissing sustain a ''serious. "serious injury" defined in did not plaintiff did that plaintiff ground that complaint on the ground dismissing the complaint Insurance Law Law §S 5102 ((d) granted; and it is further further d) is granted; Insurance [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 09/17/2020 12:20 PM NYSCEF DOC. NO. 43 INDEX NO. 610678/2018 RECEIVED NYSCEF: 09/17/2020 ;;' Jakes-Silvers v Cahill Cahill Jakes-Silvers 610678/2018 Index No. 610678/2018 Page 2 Page2 ORDERED that that the motion (incorrectly denominated denominated as a cross cross motion) motion) by plaintiff order ORDERED motion (incorrectly plaintiff for an order granting summary summary judgment favor on the issue issue of of liability denied, as moot; liability is denied, moot; and it is further further granting judgment in her favor ORDERED that that the motion motion (incorrectly (incorrectly denominated denominated as a cross cross motion) defendant Patricia Patricia Flynn ORDERED motion) by defendant Flynn summary judgment dismissing the the complaint complaint on the ground ground that sustain a "serious "serious for summary judgment dismissing that plaintiff plaintiff did not sustain injury" as defined defined in Insurance Insurance Law Law § S 5102 ((d) denied, as moot. moot. injury" d) is denied, This is an action action to recover damages for injuries sustained by the plaintiff result of of a chainchainThis recover damages injuries sustained plaintiff as a result reaction, rear-end rear-end motor collision which which occurred occurred on Sycamore Sycamore Avenue Town ofislip, of Islip, reaction, motor vehicle vehicle collision Avenue in the Town New June 19, 19,2017. There were three vehicles vehicles involved involved in the accident. New York, on June 2017. There were allegedly allegedly three accident. The lead vehicle was owned owned and operated operated by the plaintiff; plaintiff; behind behind the plaintiff vehicle was owned by vehicle plaintiffss vehicle was the vehicle vehicle owned defendant Douglas Douglas Cahill Cahill and operated defendant Trevor Trevor Cahill; Cahill; behind behind the Cahill Cahill vehicle defendant operated by defendant vehicle was the vehicle owned owned and operated operated by defendant defendant Patricia Patricia Flynn. of particulars, alleges that, particulars, plaintiff plaintiff alleges vehicle Flynn. By the bill of result of of the accident, accident, she sustained sustained various various serious injuries and conditions, conditions, including including herniated as a result serious injuries herniated and bulging discs in the cervical cervical and thoracic thoracic regions. regions. bulging Defendants Douglas Douglas Cahill Cahill and Trevor Trevor Cahill Cahill move summary judgment dismissing the Defendants move for summary judgment dismissing complaint on the ground "serious injury" injury" as defined defined in Insurance complaint ground that that the plaintiff plaintiff did not sustain sustain a "serious Insurance Law §5102 S5102 (d). motion for summary summary judgment, defendant has the initial initial burden burden of of making On a motion judgment, the defendant making a prima prima facie showing, through submission of of evidence evidence in admissible injured plaintiff plaintiff did not sustain sustain admissible form, that that the injured showing, through the submission "serious injury" injury" within meaning ofinsurance of Insurance Law Toure v Avis Car Sys., Law§S 5102 (d) (see Toure Avis Rent Rent A A Car Sys., a "serious within the meaning [2002]; Gaddy Gaddy v Eyler, [1992]; Akhtar 98 NY2d NY2d 345, 746 NYS2d NYS2d 865 [2002]; Eyler, 79 NY2d NY2d 955,582 955, 582 NYS2d NYS2d 990 [1992]; Akhtar v Santos, AD3d 593, 869 NYS2d Dept 2008]). 2008]). The defendant defendant may satisfy this burden Santos, 57 AD3d NYS2d 220 [2d Dept may satisfy burden by submitting the plaintiffs plaintiff s deposition deposition testimony testimony and the affirmed affirmed medical medical report of the defendant's defendant's own own submitting report of examining physician AD3d 672, 672,811 examining physician (see Moore Moore v Edison, Edison, 25 AD3d 811 N YS2d YS2d 724 [2d Dept Dept 2006]; 2006]; Farozes Farozes v Kamran, AD3d 458, 458, 802 NYS2d Dept 2005]). Kamran, 22 AD3d NYS2d 706 [2d Dept 2005]). Cahill defendants defendants made prima facie showing showing that that plaintiff sustain a serious serious Here, the Cahill made a prima plaintiff did not sustain within the meaning meaning ofinsurance of Insurance Law§ Law S 5102 through the affirmed affirmed report of defendants' defendants' 5102 (d) through report of injury within examining physicians 633,953 2012]; Sierra Bailey v Islam, Islam, 99 AD3d AD3d 633, 953 NYS2d NYS2d 39 [1st Dept Dept 2012]; Sierra v examining physicians (see Bailey Gonzalez First 864,895 NYS2d Dept 2010]). 2010]). On September September 24, 24,2019, Gonzalez First Limo, Limo, 71 AD3d AD3d 864,895 NYS2d 863 [2d Dept 2019, approximately two years years and three after the subject subject accident, accident, the Cahill Cahill defendants' defendants' examining examining approximately three months months after orthopedist, Dr. Stuart Stuart Hershon, Hershon, examined examined plaintiff plaintiff and performed certain orthopedic orthopedic and neurological orthopedist, performed certain neurological tests, including including the straight straight leg raising raising test, the impingement impingement sign, the Neer O'brien test, the tests, Neer sign, sign, the O'brien Speed test, the Yergson Yergson test, the McMurray test, and the Lachman Speed the Hawkins Hawkins test, the McMurray Lachman test. Dr. Hershon Hershon that all the test test results were negative negative or normal. normal. Dr. Hershon Hershon also performed range of of motion motion found that results were performed range testing on plaintiffs plaintiffs spine, spine, left shoulder, shoulder, right right wrist, using a goniometer goniometer to measure measure her testing wrist, and left knee, knee, using joint movement. Dr. Hershon found that exhibited normal normal joint function. Dr. Hershon opined joint movement. Hershon found that plaintiff plaintiff exhibited joint function. Hershon opined that plaintiff orthopedic disability disability at the time of the examination examination (see Willis Willis v New York City Tr. that plaintiff had no orthopedic time of New York Auth., AD3d 696, 789 NYS2d Dept 2005]). Auth., 14 AD3d NYS2d 223 [2d Dept 2005]). [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 09/17/2020 12:20 PM NYSCEF DOC. NO. 43 INDEX NO. 610678/2018 RECEIVED NYSCEF: 09/17/2020 ;; Cahill Jakes-Silvers Jakes-Silvers v Cahill 610678/2018 Index Index No. 610678/2018 Page Page 3 two days only two missed only accident, she missed the accident, following the that following Further, testified that plaintiff testified deposition, plaintiff her deposition, Further, at her had although she had that although testified that restrictions. She testified from work with no restrictions. work with returned to work that she returned work and that perform unable that activity there difficulty in driving for a month after the accident, there is no activity that she is unable to perform accident, month after difficulty driving prevent her not prevent her injuries that her established that testimony established because ofthe accident. Plaintiffs deposition testimony injuries did not Plaintiff's deposition the accident. because of during activities daily customary her from performing "substantially all" of the material acts constituting her customary daily activities during constituting material the of all" performing "substantially AD3d 1111, 794 McCabe, 17 AD3d Burns v McCabe, accident (see Burns at least following the accident days following the first 180 days of the out of least 90 out 1997]). Dept [2d NYS2d 663 442, AD2d NYS2d 267 [4th Dept 2005]; Curry v 243 AD2d 442,663 NYS2d 63 Dept 1997]). Velez, Curry 2005]; Dept 4th [ NYS2d not plaintiff did not that the plaintiff Thus, Cahill defendants of establishing establishing that burden of initial burden their initial met their defendants met Thus, the Cahill limitation member or significant organ or member sustain a permanent significant limitation body organ of a body use of of use limitation of consequential limitation permanent consequential sustain of substantially all of performing substantially from performing of prevented from not prevented was not that she was and that system, and function or system, body function of a body of use of the within accident within the accident following the her of the first 180 days following activities for 90 of daily activities customary daily usual and customary her usual Dept 450 [3d Dept NYS2d 450 AD3d 939,805 Green, 24 AD3d meaning ofInsurance 5102 (d) (see Gonzalez Gonzalez v Green, 939,805 NYS2d Law§~ 5102 Insurance Law meaning of 2005]). 2005]). Eyler, Gaddy v Eyler, fact (see Gaddy of fact issue of triable issue raise a triable The burden, plaintiff to raise shifted to the plaintiff therefore, shifted burden, therefore, her must substantiate use" categories supra). claiming injury injury within "limitation of of use" categories must substantiate his or her within the "limitation plaintiff claiming supra). A plaintiff of limitation the of degree or extent showing complaints of pain with objective medical evidence showing the extent degree of the limitation of evidence medical complaints of pain with objective 498, 854 AD3d 498, Serv., 49 AD3d Ridge Car Ferraro v Ridge movement Car Serv., duration (see Ferraro and its duration injury and caused by the injury movement caused Laruffa v 2006]; Dept [2d NYS2d 825 NYS2d 408 [2d Dept 2008]; Mejia v DeRose, 35 AD3d 407,825 NYS2d 772 Dept 2006]; Laruffa 407, AD3d Dept 2008]; Mejia DeRose, NYS2d 408 507, 815 AD3d 507,815 Cerisier v Thibiu, Yui Ming Thibiu, 29 AD3d 2006]; Cerisier Dept 2006]; NYS2d 642 [2d Dept 996, 821 NYS2d AD3d 996,821 Lau, 32 AD3d Ming Lau, Yui either present must plaintiff a limitation, NYS2d 140 [2d Dept 2006]). To prove significant physical limitation, plaintiff must present either physical significant prove Dept 2006]). NYS2d recent based on a recent duration based and its duration motion and of motion objective ofrange of loss ofrange the loss of the evidence of quantitative evidence objective quantitative with an limitations, plaintiff's of nature" examination or a sufficient description of the "qualitative nature" of plaintiff s limitations, with "qualitative the of description sufficient examination body of the body use of and use purpose, and function, purpose, normal function, the normal objective limitations to the plaintiff's limitations correlating plaintiffs basis, correlating objective basis, Inc., Systems, Car Rent Avis Toure [2011]; 655 part (see Perl v Meher, NY3d 208,936 NYS2d [2011]; Toure v Avis Rent A Car Systems, Inc., NYS2d 936 208, NY3d 18 Meher, Perl part Dept NYS2d 322 921 NYS2d AD3d 1034, 345, 746 NYS2d [2002]; Rovelo 1034,921 322 [2d Dept Rovelo v Volcy, 83 AD3d NYS2d 865 [2002]; NY2d 345, 98 NY2d of the meaning of within the meaning insignificant within considered insignificant 2011]). of use is considered limitation of slight limitation mild or slight minor, mild 2011]). A minor, AD3d 09 I 1982]; Cebron NYS2d 570 [[1982]; statute Cebron v Tuncoglu, Tuncoglu, 109 AD3d 631, 230, 455 NYS2d NY2d 230, Elliott, 57 NY2d Licari v Elliott, statute (see Licari 970 NYS2d Dept 2013]). 2013]). NYS2d 826 [2d Dept insufficient to report is insufficient expert report defendants' expert The Cahill defendants' the Cahill arguing the motion, arguing the motion, opposes the plaintiff opposes The plaintiff treating prepared reports medical the meet their burden on the motion. Plaintiff also argues that the medical reports prepared by her treating argues that the motion. Plaintiff meet their burden "significant within the "significant injury within suffered injury whether she suffered chiropractor issue as to whether triable issue raise a triable physician raise and physician chiropractor and alia, the inter submits, plaintiff opposition, d). ( 5102 limitation of use" category ofInsurance Law ~ (d). In opposition, plaintiff submits, inter § Law Insurance of limitation of use" category resonance magnetic resonance unswom magnetic Beller, and Edward Beller, sworn report and the unsworn chiropractor, Dr. Edward treating chiropractor, her treating of her report of sworn of Dr. report medical unswom The Hershowitz. imaging (MRl) examination report of Dr. Stephen Hershowitz. The unsworn medical report of Stephen of report examination imaging (MRI) admissible not in admissible of fact, as it is not issue offact, Hershowitz triable issue raise a triable insufficient to raise plaintiff is insufficient submitted by plaintiff Hershowitz submitted AD3d 751, Brown, 91 AD3d Scheker v Brown, NYS2d 178 [1991]; Grasso v Angerami, 580NYS2d [1991]; Scheker NY2d 813, 580 Angerami, 79 NY2d form (see Grasso 2011]). Dept 2011]). NYS2d 383 [2d Dept AD3d 994, Cora, 89 AD3d 994, 933 NYS2d Karpinos v Cora, 2012]; Karpinos Dept 2012]; NYS2d 283 [2d Dept 936 NYS2d subject after the subject months after two months Dr. Beller's approximately two 24, 2017, approximately August 24,2017, that on August states that report states Beller's report accident. the accident. sustained in the injuries sustained the injuries of the accident, evaluation of office for evaluation his office seen in his first seen was first plaintiff was accident, plaintiff report set Beller's performed. test However, during the initial consultation, no range of motion test was performed. Dr. Beller's report motion of range consultation, initial However, during [* 3] 3 of 4 INDEX NO. 610678/2018 FILED: SUFFOLK COUNTY CLERK 09/17/2020 12:20 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 09/17/2020 Jakes-Silvers v Cahill Cahill Jakes-Silvers Index No. 610678/2018 610678/2018 Index Page 4 Page4 plaintiffs complaints complaints and and the the findings, findings, including including significant significant limitations limitations in her her cervical cervical and lumbar lumbar forth plaintiffs joint function measured measured during during range range of of motion motion testing testing performed performed at his last last consultation consultation on February February 27, joint function 2020, more more than than two two years years and eight eight months months after after the subject subject accident. accident. However, However, Dr. Beller Beller failed failed to 2020, provide any medical medical evidence evidence conceming concerning plaintiffs plaintiffs condition condition contemporaneous contemporaneous to the the accident accident (see provide Sukalic v Ozone, Ozone, 136 AD3d AD3d 1018, 1018,269 Dept 2016]; 2016]; Griffiths Griffiths v Munoz, AD3d 997, 269 NYS3d NYS3d 188 [2d Dept Munoz, 98 AD3d Sukalic 998,950 [2d,Dept 2012]). 2012]). A contemporaneous contemporaneous doctor's doctor's report report is important important to proof proof of of 998, 950 NYS2d NYS2d 787 [2d.Dept causation (see Perl the absence absence of of a contemporaneous contemporaneous medical medical report report invites invites causation Perl v Meher, Meher, supra), supra), and the speculation as to causation causation (see Griffiths Griffiths v Munoz, supra). Dr. Beller's Beller's report, report, therefore, therefore, is insufficient insufficient Munoz, supra). speculation to raise a triable triable issue issue of of fact. Further, even even assuming assuming that that plaintiff plaintiff was was entitled entitled to rely on the the unaffirmed unaffirmed MRI MRI report report prepared prepared Further, Hershowitz, such such report report is insufficient insufficient to warrant warrant denial denial of of the Cahill Cahill defendants' defendants' motion motion for by Dr. Hershowitz, summary judgment. Said MRI MRI report report revealed revealed herniated herniated and bulging bulging discs discs in plaintiff's plaintiff s cervical cervical and summary judgment. Said thoracic regions. regions. However, However, the mere mere existence existence of of a herniated herniated or bulging bulging disc, disc, in the absence absence of of objective objective thoracic evidence as to the extent extent of of the alleged alleged physical physical limitations limitations resulting resulting from from the the injuries injuries and their their duration, duration, evidence evidence of of serious serious injury injury (see Pierson AD3d 642, 642, 909 NYS2d Dept is not evidence Pierson v Edwards, Edwards, 77 AD3d NYS2d 726 [2d Dept 2010]; J.R.R. Limo, AD3d 801, 878 NYS2d Dept 2009]). 2009]). 201 O]; Byrd Byrd v J.R.R. Limo, 61 AD3d NYS2d 95 [2d Dept Moreover, plaintiff plaintiff failed failed to offer offer competent competent evidence evidence that that she sustained sustained nonpermanent nonpermanent injuries injuries Moreover, that left her unable unable to perform perform substantially substantially all of of her normal normal daily daily activities activities for at least least 90 of of the 180 that immediately following following the accident accident (see John John v Linden, 124 AD3d AD3d 598, 598, 1 NYS3d NYS3d 274 [2d Dept Dept Linden, 124 days immediately II Chung Chung Lim Chrabaszcz, 95 AD3d AD3d 950,944 950, 944 NYS2d Dept 2012]; 2012]; Rivera 2015]; II Lim v Chrabaszcz, NYS2d 236 [2d Dept Rivera v Bushwick Bushwick Ridgewood supra). Ridgewood Props., Props., Inc., Inc., supra). Thus, the Cahill Cahill defendants' defendants' motion motion for summary summary judgment based on plaintiff's plaintiffs failure failure to meet meet Thus, judgment based serious injury injury threshold threshold is granted, granted, and the complaint complaint is dismissed. dismissed. Accordingly, Accordingly, plaintiff's plaintiffs motion motion the serious summary judgment the issue issue of of liability liability and defendant defendant Flynn's Flynn's motion motion for suinniary sumniary judgment judgment on for summary judgment on the of liability liability are denied, denied, as moot. moot. the issue of .SEP SEP11 5 5 2020 Dated: - - - - - - - - _ Dated: X [* 4] HON. JOS FINAL FINAL DISPOSITION DISPOSITION 4 of 4 SANTORELLI A. SANTORELLI J.S.C. J.S.C. NON-FINAL NON-FINAL DISPOSITION DISPOSITION

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