Min Zhao v Poppo

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Min Zhao v Poppo 2020 NY Slip Op 35196(U) October 19, 2020 Supreme Court, Westchester County Docket Number: Index No. 68515/2018 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 commence the the statutory statutory time time period period for appeals appeals To commence of right right (CPLR (CPLR 55 5513[a]), you are are advised advised to serve serve a copy copy as of l 3[a]), you of this order, order, with with notice notice of of entry, upon all parties. parties. of entry, upon SUPREME COURT COURT OF OF THE THE STATE OF NEW NEW YORK YORK SUPREME ST ATE OF COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x MIN ZHAO. ZHAO, MIN Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No. 68515/2018 68515/2018 Index Sequence No. No.11 Sequence MICHAEL F. POPPO, POPPO, MICHAEL Defendant. Defendant. --------------- -----------------------------------------------------------x ---------------,-----------------------------------------------------------x WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers New Numbers 10-22, connection with with the motion motion by defendant defendant for summary summary judgment issue of of judgment on the issue were read in connection Serious Injury Injury under under Insurance Insurance Law §5104. S5104. Serious action for alleged alleged serious serious personal personal injuries injuries arising arising out of of a rear end This is an action automobile accident accident on December December 9, 2015, 2015, approximately approximately 7:11PM 7:11PM on Mount Mount Kisco Kisco Road Road in automobile North result of of the car accident, accident, plaintiff plaintiff reported reported that that she sustained injuries to her North Castle. As a result sustained injuries head, neck neck and left knee. knee. head, Now, upon upon the foregoing foregoing papers, papers, the motion motion is decided decided as follows: follows: Now, proponent of of a summary summary judgment motion must must make make a "prima "prima facie showing showing of of judgment motion A proponent entitlement to judgment matter of of law, law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the entitlement judgment as a matter absence of of any material material issues of fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d issues of NY2d 320, 324 absence [1986];; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 [2d [1986] [* 1] 1 of1 I9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 Dept Dept 2007]; 2007]; Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Moreover, Moreover, failure failure to make make such such a prima prima facie showing showing requires requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the motion motion papers (Wine grad v New York University University Medical Medical Center, Center, 64 NY2d [1986]; papers (Winegrad New York NY2d 851, 853 [1986]; Jakabovics Jakabovics v Rosenberg, Rosenberg, 49 AD3d AD3d 695 [2d Dept Dept 2008]; 2008]; Menzel Menzel v Plotkin, Plotkin, 202 202 AD2d AD2d 558, 558Dept 1994]). 1994]). Once Once the movant movant has met this threshold threshold burden, opposing party must 559 [2d Dept burden, the opposing party must present the existence existence of of triable triable issues issues of of fact in admissible admissible form "sufficient "sufficient to require require a trial of of present material questions questions of of fact on which which he rests his claim claim or must must demonstrate demonstrate acceptable acceptable excuse excuse material failure to meet meet the requirement requirement of of tender tender in admissible admissible form; mere mere conclusions, conclusions, for his failure expressions of of hope hope or unsubstantiated unsubstantiated allegations allegations or assertions assertions are insufficient" insufficient" (Zuckerman (Zuckerman v expressions New [1980]; Khan Khan v Nelson, AD3d 1062 1062 [2d Dept Dept 2009]). 2009]). In New York, 49 NY2d NY2d 557, 562 [1980]; Nelson, 68 AD3d deciding a motion motion for summary summary judgment, court is "required "required to view view the evidence evidence presented presented deciding judgment, the court light most most favorable favorable to the party opposing the motion motion and and to draw draw every every reasonable reasonable in the light party opposing inference from the pleadings proof submitted submitted by the parties parties in favor favor of of the opponent opponent to inference pleadings and the proof motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009]; 2009]; Nicklas Nicklas v Tedlen Tedlen Realty Realty the motion" Corp.,.. 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). Summary Summary judgment drastic remedy remedy and Corp judgment is a drastic should not be granted granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez (Alvarez v should Prospect Hospital, Hospital, 68 NY2d NY2d 320, 324 [1986]). [1986]). Prospect plaintiff claiming claiming personal injury as a result result of of a motor motor vehicle vehicle accident accident must must first A plaintiff personal injury demonstrate a prima facie case case that that he or she sustained sustained serious serious injury injury within within the meaning meaning of of demonstrate prima facie Insurance Law Law §5104(a) g5104(a) (Licari (Licari v Elliott, Elliott, 57 NY2d NY2d 230 [1982]). [1982]). Insurance Insurance Law Law §5104(a) g5104(a) Insurance provides: "notwithstanding "nvtwithstanding any other other law, in any action action by or on behalf behalf of of a covered covered person provides: person against another another covered covered person injuries arising arising out of of negligence negligence in the use or against person for personal personal injuries operation of of a motor motor vehicle vehicle in this state state there shall shall be no right right of of recovery recovery for non-economic non-economic operation except in the case of of serious serious injury." injury." Pursuant Pursuant to Insurance Insurance Law Law §5102(d), g5102(d), serious serious injury injury loss, except 2 [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 means: a personal dismemberment; significant disfigurement; a personal injury injury which which results results in death; death; dismemberment; significant disfigurement; of a fetus; permanent of a body body organ, organ, member, function or system; system; fracture; loss of permanent loss of of use of member, function permanent permanent consequential consequential limitation limitation of of use of of a body organ organ or member; member; significant significant limitation limitation of of of a body body function function or system; system; or a medically medically determined determined injury injury or impairment impairment of use of of a nonpermanent nature nature which which prevents prevents the injured injured person person from performing substantially all of of the permanent performing substantially material acts. acts. which which constitute constitute such such person's person's usual usual and customary daily activities activities for not not less material customary daily than ninety ninety days during during the one hundred hundred eighty eighty days immediately immediately following the occurrence than following the occurrence of of impairment. the injury or impairment. Whether a plaintiff plaintiff has sustained sustained a serious serious injury injury within within the meaning meaning of statute is a Whether of the statute threshold legal legal question question within within the sole province province of of the court court (Hambsch (Hambsch v New New York York City threshold Transit Authority, Authority, 101 101 AD2d AD2d 807 [2d Dept Dept 1987]). Insurance Insurance Law Law §5102 ~5102 is the legislative legislative Transit attempt to '\yeed "'.::eed out frivolous frivolous claims claims and limit limit recovery recovery to serious injuries" (Toure serious injuries" (Toure v Avis attempt Rent-A-Car Systems, Systems, Inc., 98 NY2d [2002]). Rent-A-Car NY2d 345, 345, 350 [2002]). recover under under the the permanent permanent loss of of use category, category, a plaintiff plaintiff must To recover must demonstrate demonstrate a of use of of a body body organ, organ, member, member, function function or system Bangs Ambulance Ambulance Inc., Inc., total loss of system (Oberly (Oberly v Bangs [2001]). For For the permanent permanent consequential consequential limitation limitation category of a body body 96 NY2d NY2d 295, [2001]). category of of use use of organ or member member or significant significant limitation limitation of of use of body function function or system, system, either specific of a body either a specific organ percentage of oi' the loss of of range range of of motion motion must must be ascribed there must percentage ascribed or there must be a sufficient sufficient description of of the qualitative nature of of plaintiffs plaintiffs limitations, limitations, with objective basis, qualitative nature with an objective basis, description correlating plaintiffs plaintiffs limitations limitations to the normal normal function, function, purpose purpose and body part correlating and use of of the body part (98 NY2d consequential limitation limitation of category also requires that that the limitation limitation be of use category also requires NY2d 345). The consequential permanent (Lopez (Lopez v Senatore, Senatore, 65 NY2d NY2d 1017 [[1995]). 1995]). permanent 3 [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 plaintiff claiming claiming a significant significant limitation limitation of of use of function must must substantiate substantiate A plaintiff of a body body function his complaints complaints with with competent competent medical medical evidence evidence of of any range-of-motion range-of-motion limitations limitations that were contemporaneous with with the subject subject accident accident (Ferraro Ridge Car Car Serv., Serv., 49 AD3d AD3d 498 [2d contemporaneous (Ferraro v Ridge Dept 2008]). 2008]). A minor, minor, mild mild or slight slight limitation limitation of of use is considered considered insignificant insignificant within within the Dept meaning of of the the statute statute (Licari Elliott, 57 NY2d However, evidence evidence of of contemporaneous contemporaneous meaning (Licari v Elliott, NY2d 230). However, of motion motion limitations limitations is not a prerequisite prerequisite to recovery recovery (Perl (Perl v Meher, Meher, 18 NY3d range of NY3d 208, 218 Court of of Appeals Appeals noted noted that that "in "in our view, view, any assessment assessment of of the significance significance of of a [2011]). The Court bodily limitation limitation necessarily necessarily requires requires consideration consideration not only only of the extent extent or degree degree of of the of the bodily limitation, but of of its duration duration as well." well." Although Although Insurance Insurance Law Law §5102( S5102(d) not expressly expressly limitation, d) does does not temporal requirement requirement for a "significant "significant limitation," limitation," there there can can be no doubt doubt that that if if a set forth any temporal bodily limitation limitation is substantial degree yet only only fleeting fleeting in duration, duration, it should not qualify qualify as a bodily substantial in degree should not "serious injury" injury" under under the state (Thrall v City of of Syracuse, Syracuse, 60 NY2d NY2d 950, revg revg 96 AD2d AD2d 715; "serious state (Thrall Partlow v Meehan, Meehan, 155 AD2d AD2d 647,648 647, 648 [2d Dept Dept 1989]). Partlow To prove prove the 90/180 category, an injury injury must must be (1) (l) medically-determined medically-determined injury injury or 90/180 day category, impairment of of a nonpermanent nonpermanent nature nature (2) which which prevents prevents the injured injured person person from performing performing impairment substantially all of of the material material acts which which constitute constitute such person's person's usual usual and customary daily customary daily substantially activities for not not less than than 90 days during during the 180 days immediately immediately following following the occurrence occurrence activities of the injury or impairment impairment and (3) there must must be curtailment curtailment of of usual usual activities activities to a great great of extent, rather rather than than some some slight slight curtailment curtailment (Damas (Damas v Valdes, Valdes, 84 AD3d AD3d 87, 91 [2d Dept Dept 2011]). 2011]). extent, Resolution of of the issue issue of of whether whether "serious "serious injury" injury" has been sustained involves involves a comparative comparative Resolution been sustained determination of of the the degree degree or qualitative qualitative nature nature of of an injury based on the the normal normal function, function, determination injury based purpose and use of of the body body part part (98 NY2d order to establish establish serious injury here, the NY2d 345). In order serious injury purpose plaintiff must must establish establish that that he "has "has been been curtailed curtailed from performing performing his [[or usual activities activities plaintiff or her] usual extent" (57 NY2d NY2d at 236; 236; Lanzarone Lanzarone v Goldman, Goldman, 80 AD3d AD3d 667, 669 [2d Dept Dept 2011]). 2011]). to a great extent" 4 [* 4] 4 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 moving party, party, it is the defendant's defendant's initial initial burden burden to establish establish that that the plaintiff plaintiff has As the moving not sustain~d (Gaddy v Eyler, NY2d 955, This is sustain~d a "serious "serious injury" injury" (Gaddy Eyler, 79 NY2d 955, 956 [1992]). [1992]). This accomplished by submitting submitting objective objective proof, proof, generally generally in the form form of of "affidavits "affidavits or affirmations accomplished affirmations of medical medical experts experts who who examined examined the plaintiff plaintiff and conclude conclude that medical findings findings of that no objective objective medical support the plaintiffs plaintiffs claim" claim" (Grossman (Grossman v Wright, Wright, 268 AD2d AD2d 79, Dept 2000]). Such support 79, 84 [2d Dept 2000]). Such proof can even even include include "unswom "unsworn medical medical reports reports and uncertified uncertified records records of of an injured injured proof plaintiffs treating treating medical medical care providers" providers" (Elshaarway (Elshaarway v V-Haul Company of of Mississippi, Mississippi, 72 plaintiffs U-Haul Company AD3d 878 [2d Dept Dept 2010] 2010];; see Itkin Itkin v Devlin, Devlin, 286 AD2d AD2d 477[2d AD3d 477[2d Dept Dept 2001]). 2001]). A defendant defendant either on the sworn sworn statements statements of of the defendant's defendant's examining examining physician unsworn physician or the unswom may rely either reports of of plaintiffs plaintiffs examining examining physician physician (Pagano (Pagano v Kingsbury, Kingsbury, 182 AD2d AD2d 268 [2d Dept reports Dept 1992]). If defendants defendants establish establish their their prima prima facie entitlement matter of of law, the If entitlement to judgment judgment as a matter burden shifts shifts to the plaintiff plaintiff to produce produce evidence evidence sufficient triable issue of fact burden sufficient to demonstrate demonstrate a triable issue of existence of of a "serious "serious injury" injury" as defined defined by the statute statute (see Sanevich v Lyubomir, Lyubomir, 66 on the existence (see Sanevich AD3d 665 [2d Dept Dept 2009]; 2009]; Azor Azor v Torado, Torado, 59 AD3d AD3d 367, 367, 368 [2d Dept Dept 2009]). 2009]). AD3d well-settled that that "in "in order order to successfully motion for summary It is well-settled successfully oppose oppose a motion summary judgment judgment of whether whether an injury injury is serious serious within within the meaning meaning ofInsurance S5102(d), the on the issue of of Insurance Law §5102(d), plaintiffs expert expert must must submit submit quantitative quantitative objective objective findings findings in addition opinion as to the plaintiffs addition to an opinion significance of of the injury" injury" (Grossman (Grossman v Wright, Wright, 268 AD2d AD2d at 84). An significance An affidavit affidavit or affirmation affirmation simply setting forth forth the observations observations of of the affiant not sufficient sufficient unless unless supported supported by simply setting affiant is not objective proof proof such such as X-rays, X-rays, MRis, MRIs, straight-leg Laseque tests, tests, and any other similarlyobjective straight-leg or Laseque any other similarlyrecognized tests or quantitative quantitative results results based based on a neurological neurological examination examination (Grossman recognized (Grossman v Wright, 268 AD2d AD2d at 84). To meet meet its burden burden of of proof, proof, a plaintiff plaintiff is required required to submit medical Wright, submit medical 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 evidence based based on an initial initial examination examination close close to the date date of of the accident accident (Griffiths (Griffiths v Munoz, Munoz, evidence AD3d 997, [2d Dept Dept 2012]). 2012]). Equally Equally important, important, plaintiff plaintiff must must also establish establish through through 98 AD3d admissible medical medical evidence evidence that that the injuries injuries sustained sustained are causally causally related related to the accident accident admissible claimed (Pommells [2005]). A plaintiffs plaintiffs submission submission must must contain contain a claimed (Pommells v Perez. 4 NY3d NY3d 566 [2005]). competent and must sustained at least competent statement statement under under oath oath and must demonstrate demonstrate that that plaintiff plaintiff sustained least one of of the categories serious injury been a categories of of serious injury as enumerated enumerated in Insurance Insurance Law §5102( S5102( d). d). Where Where there there has been gap or cessation cessation of of treatment, treatment, a plaintiff plaintiff must must offer offer some some reasonable reasonable explanation explanation for the gap in plaintiff is treatment treatment or cessation cessation (Neugebauer ilieugebauer v Gill, Gill, 19 AD3d AD3d 567 [2d Dept. Dept. 2005]). 2005]). While While plaintiff required to submit submit contemporaneous contemporaneous range range of motion testing, testing, he is required required to submit submit not required of motion competent medical medical evidence evidence demonstrating demonstrating that that he sustained sustained range range of of motion motion limitations limitations competent contemporaneously with with the accident accident (Perl v Meher, Meher, 18 NY3d NY3d 208, 208, 218 [2011]). [2011]). The The absence contemporaneously absence of a contemporaneous contemporaneous medical medical report report invites invites speculation speculation as to causation causation (Griffiths (Griffiths v Munoz, Munoz, 98 of AD3d at 999). Even Even if if plaintiffs plaintiffs doctor specifically address address the findings findings in the reports reports AD3d doctor does not specifically submitted by defendants defendants that that the abnormalities abnormalities in the tested tested areas areas were were degenerative, degenerative, rather rather submitted than traumatic, traumatic, the findings findings of of the plaintiffs plaintiffs doctor doctor that that the injuries injuries were were indeed indeed traumatic traumatic and than causally related related to the collision, collision, is sufficient implicitly addressed addressed the the defendants' defendants' were causally sufficient as it implicitly contention that that the injuries injuries were were degenerative degenerative (Eraser-Baptiste (Fraser-Baptiste v New York City City Transit Transit contention New York Authority, 81 AD3d AD3d 878 [2d Dept Dept 2011]). 2011]). Finally, Finally, subjective subjective complaints complaints of of pain, without Authority, pain, without more, are not sufficient sufficient to establish establish a serious serious injury (Scheer (Scheer v Koubek, Koubek, 70 NY2d NY2d 678 [1987]). [1987]). more, With these these principles mind, addressing addressing the Permanent Permanent Loss Loss of of Use Category, Category, With principles in mind, plaintiffs medical medical records records shows shows no total loss of of use of body organ organ or member. member. There There are plaintiffs of any body allegations that that plaintiffs injuries consist consist of death, dismemberment dismemberment significant no allegations plaintiffs injuries of death, significant disfigurement :fracture fracture or loss of of fetus. Thus, these categories categories under under the statute statute are inapplicable. inapplicable. disfigurement Thus, these 6 [* 6] 6 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 Turning Turning to the merits merits of of defendant' defendant's s motion, motion, he offers offers the Affirmation Affirmation of of board board certified certified Orthopedic Surgeon, Surgeon, Dr. Jeffrey Jeffrey Salkin, Salkin, M.D., M.D., who conducted IME on February February 21 21,, 2020 2020 Orthopedic conducted an IME (NYSCEF#16). Dr. Salkin Salkin measured measured plaintiffs range of of motion motion with with the aid of of a standard standard (NYSCEF#16). plaintiffs range hand-held goniometer. goniometer. Range Range of motion normal normal values values were were based based on the the AMA AMA guidelines. guidelines. of motion hand-held From parameters, plaintiff plaintiffss ranges From these these parameters, ranges of of motion motion for the cervical cervical spine spine were were normal normal or close close normal for flexion, flexion, extension, right and left rotation rotation there there was a 30 degree degree difference difference and to normal extension, for right right and left lateral lateral bending 15 degree degree difference difference between between normal normal and and plaintiffs plaintiffs for right bending a 15 readings. Examination Examination of of the thoracic thoracic spine spine and lumbar lumbar spine showed normal normal or close close to readings. spine showed normal within within 10 degrees degrees for all ranges ranges of of motion. motion. Examination Examination of of the right right and left knee knee normal showed normal normal ranges ranges of of motion. motion. Dr. Salkin' Salkin'ss diagnosis diagnosis was that that the cervical cervical spine spine sprain, showed sprain, resolved, Thoracic Thoracic spine pain non non causal, causal, clinically normal examination examination of of the lumbar lumbar spine spine resolved, spine pain clinically normal and left knee pain pain non-causal. plaintiff had non-causal. Dr. Salkin Salkin found that that plaintiff had a pre-existing pre-existing condition condition from motor vehicle vehicle accident accident in 2007, 2007, which which resulted resulted in neck neck and bilateral bilateral shoulder shoulder injuries; injuries; a prior prior motor degenerative disc disease disease of of the cervical cervical spine. spine. The The expert expert believes believes plaintiff plaintiff sustained sustained an degenerative aggravation of of the underlying underlying cervical cervical disc disease. disease. aggravation Turning to the Permanent Permanent Consequential Consequential Limitation Limitation of of Use/Significant Use/Significant Limitation Limitation of of Turning Categories. Defendant Defendant submitted competent medical medical evidence establishing, prima prima facie, facie, Use Categories. submitted competent evidence establishing, alleged injuries injuries to the lumbar lumbar and thoracic thoracic regions regions of of her spine spine and to her right right and left that the alleged constitute serious serious injuries injuries under under either either the permanent permanent consequential consequential limitation limitation of of knee did not constitute significant limitation limitation of of use categories categories of of Insurance Insurance Law Law §5102( ~5102( d) (Staff (Staff v Y Yshua, use or significant shua, 59 AD3d 614). 614). In opposition, opposition, plaintiff plaintiff failed to raise raise triable triable issues issues of of fact as to whether whether she AD3d sustained serious serious injuries injuries to these these parts parts of of the body. sustained However, as to the region region of of the cervical spine, defendant defendant failed failed to submit submit competent competent cervical spine, However, 7 [* 7] 7 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 medical evidence evidence establishing, establishing, prima facie, that plaintiff plaintiff did not sustain sustain a serious serious injury injury to the medical prima facie, cervical spine, as defendant's defendant's expert expert found found significant significant limitations limitations in the range range of of motion motion of of this cervical body part. Additionally, Additionally, defendant's defendant's expert expert opined opined that that this injury injury was caused caused by cervical cervical disc disease, disease, perhaps perhaps by the 2007 2007 motor motor vehicle vehicle accident. accident. In opposition, offers the Affidavit opposition, plaintiff plaintiff offers Affidavit of of Charles Charles J. Blatt, Blatt, M. M. D. Radiologist, Radiologist, who who performed an MRI of of the cervical cervical spine spine on December December 10, 2015, 2015, one one day after after the subject subject performed accident, which which demonstrates demonstrates traumatic traumatic soft tissue tissue damage damage to the cervical cervical region. region. From From his accident, examination of of the MRI, MRI, Dr. Blatt Blatt opined opined that that the findings findings are casually casually related related to the date of of the examination accident (NY.SCEF#20). (NYSCEF#20). accident Clearly, the conflicting conflicting affidavits affidavits submitted submitted present credibility battle Clearly, present a credibility battle between between the parties' experts experts regarding of plaintiffs plaintiffs injury injury relating relating to the cervical cervical spine, issues parties' regarding the extent extent of spine, and issues of credibility credibility are properly properly left to a jury resolution (Ain (Ain v Allstate Allstate Ins. Co., 181 AD3d AD3d of jury for its resolution 875,878-79 Dept 2020]). 875, 878-79 [2d Dept 2020]). Plaintiff also alleged alleged that that she sustained serious injury injury under under the the 90/180-day 90/180-day category category Plaintiff sustained a serious of Insurance Insurance Law Law §5102(d). ~5102( d). Defendant Defendant claims claims that that during during the 180-day 180-day period immediately of period immediately following the subject subject accident, accident, plaintiff injury or impairment impairment which, which, for more more following plaintiff did not have an injury days, that prevented prevented her from performing performing substantially substantially all of of the acts that that constituted constituted than 90 days, customary daily daily activities activities (Karpinos (Karpinos v Cora, Cora, 89 AD3d AD3d 994 [2d Dept Dept 2011]). 2011]). his usual and customary Plaintiff testified testified that that for the first four days after after the accident accident she was confined confined to her Plaintiff went back back to work work within within a week week of of the accident, accident, and her her boss boss accommodated accommodated her her home. She went schedule. When When she went went back back to work work she wore wore a neck neck collar collar that that she had worn worn for her 2007 2007 schedule. accident. She testified testified that that for a period of at least a month month within within that that accident, accident, she couldn't couldn't accident. period of household chores, chores, like vacuum, vacuum, clean clean up the floor, cooking, cooking, gardening, gardening, and drive and do household church activity. activity. She quit quit the choir, choir, because because her shoulder shoulder was "heavy"(NYSCEF#14, "heavy"(NYSCEF#14, Pgs83-84). Pgs83-84). church 8 [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 10/21/2020 09:42 AM NYSCEF DOC. NO. 23 INDEX NO. 68515/2018 RECEIVED NYSCEF: 10/19/2020 Notwithstanding claims in the bill of of particulars regarding the length length of of Notwithstanding the claims particulars regarding confinement, plaintiffs plaintiffs testimony testimony combined combined with with the absence absence of of any contemporaneous contemporaneous medical medical confinement, opinion respecting respecting a causally causally related related disability, dismissal of of this claim. claim. No expert expert opinion disability, leads to dismissal testimony was offered offered as to whether whether the limitations limitations plaintiff plaintiff experienced experienced during during at least 90 of of testimony following the the accident accident were related related to the injuries injuries from from the the accident. accident. the first 180 days following According to defendant's defendant's medical medical expert, expert, plaintiff reported that that she was employed employed full time as According plaintiff reported database administrator administrator when when the accident occurred on December December 9, 9,2015, that she missed missed a database accident occurred 2015, and that weeks from work work following following the the accident. accident. She is now now working working at a new new job analyst. For job as an analyst. 2 weeks reasons, this category category is dismissed. dismissed. these reasons, Accordingly, it is Accordingly, ORDERED, that that defendants' defendants' motion motion for summary under the Permanent Permanent Loss ORDERED, summary judgment judgment under Categories, the 90/180-day 90/180-day category, category, Permanent Permanent Consequential Consequential Limitation Limitation of of Use/Significant Use/Significant Categories, Limitation of of Use Categories Categories relating relating to the lumbar lumbar and thoracic thoracic regions, regions, and the right right and left Limitation granted, and denied denied otherwise; otherwise; and it is further further knee is granted, ORDERED, that that the parties directed to appear appear in the Compliance Compliance Conference Conference Part Part in ORDERED, parties are directed of the the Westchester Westchester County County Courthouse, Courthouse, 111 111 Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White White Room 800 of Plains, New York 10601 10601,, at a date, time, and place, designated by that that Part. Plains, New York date, time, place, as so designated matters not herein herein decided decided are denied. denied. All matters This constitutes the Decision Decision and Order Order of of the court. This constitutes Dated: October 19, 2020 2020 October White Plains, Plains, New New York York White Parties by NYSCEF NYSCEF TO: All Parties 9 [* 9] 9 of 9

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