Williams v Sow

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Williams v Sow 2020 NY Slip Op 35328(U) December 7, 2020 Supreme Court, Kings County Docket Number: Index No. 511672/2018 Judge: Carl J. Landicino 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. 511672/2018 FILED: KINGS COUNTY CLERK 12/29/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/04/2021 At an IAS Tenn, Part 81 of the Supreme Court of tbc State of New York, hdd in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 7th day of December, 2020. PRESENT: I ION. CARL J_I ,ANDICINO, Justice. -----·-----~-----------------~-----X SI {A NfQUA WILLIAMS,, lndex No.: 5116721201 S P(aintiff, - against - DECISION AND ORDER MAMADOU BOYE SOW, Motions Sequ~nce #2 Defendarr(. - - - - - - - . - - .. - - - - . - - - ~ - - - - - - - - - - - ~ - - -X Recitatio .. , as required by CPLR 2219(a), of the papers ~onsidered •n the review of this motion: Papers Numbered (NY SC EF) l\ otice of Moiiort/Cross Motion and A ffl d.avi ts (Affinnat ions) Anne~ed .... ,.... ,.... --.,___ ,.__ .,... ,, .... ,, .... ,............... ,... 30-3 6 Op posing Affida v j ts (Affirmations).. ,............. __ ,.. _.. ,... ,, .... ,.... _.________ .,..... ,.... 40-4 9 Reply Affid avi ts (Am rmat ions) .... ,, .... ,... ,, ...... ___ .,.. _.. ,... ,, .... ,.... _._____ .__ .. ,... ,, .. 52 Upon the foregoing papers, and after oral argument, the Court finds as follows: This action concerns a motor vehicle incident that occurred on September 15, 2015. The Plai11tiff Shaniqua Williams (hereinafter '·th~ Plaintiff') was a passchgcr in a vehicle o,vncd and opernt~d Defendant Mamdou Boye So,•.: (h~reinaftcr '1he DefendanC). ,vhen it was ilHegedly involve-.d 1n a wHision whh a parked ve.hick:. TbePJair.itiff alleges that the collision occurred at Buffalo Avenue at or near Rergen Street. in Brooklyn, New York. The Plaintiff further claims in her Verified BiU of Particulars (Defendants' Motion Exhibit B, Paragraphs I0): that she sustained a number of sed ou s injuries, intcr al ia. inj uri.e s to her right sho lllder, thoracic spine, cervical and Iurn bar spine. The Plaintiff additionally alleges (Defendant's Motion Exh1bit B~Paragraph 20) that she was prcvcn ted from "performjng esseni1al Jy aH of the ma teJiaJ acts wbkh c.onsti tut~ SIJ ch per.sons usual and customary daily activities. for not }es~ than ninety (90) da)'S during, the one hundred and eighty ( 180) days immediately following the occurrence of th~ injury or impairment." [* 1] 1 of 6 0 INDEX NO. 511672/2018 FILED:• KINGS COUNTY CLERK 12/29/2020 . NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/04/2021 The Defendant moves (motion sequence tf2} for an order pursuant to CPLR 3212, granting ~ummary judgme;nt and dismissing the comphint on the ground that none of the injuries allegedly sustained by the Plaintiff meet the•· seri(l us injury·~ thrcsho ld requirement o fl n~urance Law § 5 l O2(<l). ln support 0f rhjs application, the l)cfcndanl rehes ot.1 th.c dcti(1')iti(m of tll.c Ph,m.i ff ,.m<l the repmt~ of Dr. Alan J. Zimmerman and Dr. \1ichacl Setton. The Plaintiff opposes the motjon and contends tlrnt the Dd~ndant has failed to rne~t his primaJar.:ie evidentiary showi,ig, und that even assuming that he had. there are sufilcient issues M fact raised by the reporb of the Plaintt!T's doctors which serve to support the dental or sunJmary judgment. rt has long been established that ~•r s]wnma.ry judgment Is a dra~tic remedy that deprives a 1iti gant of his or h~r day in court>and it 'should only be emp\'.)yed when there is n{) dw11bt -~ to 1he a bscnce or triable issucs of material fact.,'' Kol ivas v, Kirchoff.' 14 AD 3d 493 [2 d Dept 20051. citing Andre v. Pomeroy, 35 N.Y.2d 361,364,362 N.Y.S.2d 131,320 N.F..2d 853 [19741. The proponent for the swnmaiJ judgment must make a prima_(acie showing of entitlement to j udgn1ent as a matter of law, tendering Sllfficient evidence to demonstrate absence of any material issues of fact. See Shc.ppard-A-Jobleyv. King, lO AD3d 70. 74 !2d Dept 20O4].citinK Afvarezv, Prospect Hospital~ 68 N, Y.2d320~ 324~ 508 N .Y .S.2d 923, SO l N.E.2d 572 tl 9&6]; Wfriegrud .i . J"·fow York. U~h,_ M~d. Or., 64 N.Y.2d 851,853,487 N.Y .S.2d 316,476 N .E.2d 642 [ l 985J. Once a moving party has ma.de aprimafacie showing ofits entjtlcmcnt to summary judgment. "the burden shifts to the opposing party to produce evidentiary proof in admjssiblc fonn sufficient lo establish the existence of materfaJ issues offact which require a trial of the action"Garnham & Han Real Estale Brokers v Oppenheimer, 148 AD2d 493 l2d Dept 1989], Failure to make such a showjng requires tknial oftttc tnt1ti,m, reg,milc-;s of l"he ~uffa:. ienc-::, ofth~ c,p-pooing p:apers. See Dl:'mshick v. Cmty. Hous. Mgmt. Corp., 34 A03d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006J~ ::.·~e .Menzel v, I'lotnick. 202 AD2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994]. ') .... [* 2] 2 of 6 FILED: KINGS COUNTY CLERK 12/29/2020 NYSCEF DOC. NO. 57 Insurance Law INDEX NO. 511672/2018 RECEIVED NYSCEF: 01/04/2021 f 5102(d) ln suppmt oC his motion (motions scqu~nce Ml) the Defendant proffers affomcd medical rcporls from Dr. Alan J. 7immcrman and Dr. \ilichael Setton. Dr. A\an J. Zimmerman conducted an orthope;:dic medkal examination upon the Plaintiff on April 9, 2019, more than three years after the collision at issue. In his report, which was duly affirmed on April 12, 2019, Dr. Zimmerman detailed his findings based upon hb review of Plaintiff's medical records, his personal observations and objective tesling. Dr. Zimmcm1an perfomred an orthop~dic examination of the Pfafotiffs cen:ica1 spine, thoracic :-:.pine, lumbar spine, and her left and right shoulders, with the use of a hand held goniometer. Dr. Zimmennan found no limitation in th~ Plaintiff's range of motion in relation to these areas. Dr. Zimmerman opjned that the "claimant presents a ncmnal orthopedic examination on all objective testing~ subjective complaints do not correlate with negative cUnical test results." Further, Dr. 7.immcrman oph~d that "[ t}bere Defendant's Motion, Report H.i~i.s no medjcal necessity for rjght shouhfo.r surgery." (Sec or Dr. Zimmerman, Exhibit D). However, the Court notes that this a.,:,scssment failc:d to provide any detail or explanation as t() what Ied Dr. 7.immcnnan to this c0nclusion. Dr. Zimmerman does not conclude;: that the injuries aHeged ,vere a product or a degenerative or chronic condition. i\'ee Keamey v. Gorrell~ 92 A.D.3d 725,726,938 N.Y.8.2d 349, 350 12d Dept 2012]. However>Dr. Setton, a radiologist, examined the MRi of the P-lainlil'rs right shoulder, that was conducted on October 14, 2015. Dr. Se1ton's review of the MRI found "'no evidem:e of osseous or soft tissue injury which may have resulted from the accident one month prior." Dr. Setton opined that the right sho uldcr j njury '"reflects a chronic repe;:t iti vc overuse type injury, with no causal relation t.o trauma." {Defendant's Motion. Report of Dr. Setton. Exhibit ~'E''). The Court notes that Dr. Setton did not review or make reference tCl the MRis for either the Plajntiff's cervical spine or lumbar spine. [* 3] 3 of 6 FILED: KINGS COUNTY CLERK 12/29/2020 NYSCEF DOC. NO. 57 INDEX NO. 511672/2018 RECEIVED NYSCEF: 01/04/2021 Turning to the merjts of the motion for summary judgment. the Court is of the opinjon that based upon the foregoing submissions, including expert medical testimony. the Defendant has met his initial burden or proof as lo the Plaintiff. Where the Drn of Particular.:; contains conclusory allegations of a 90/180 claim and the Deposition and/or affidavit of Plaintiff docs not support~ or reflects that there is no. such claim, Defendant movant may utilize those factors in support of its motion for summary jl.ldgi:ncnt. See Mastet v. Raiakhtchion, 122 AD3d 589, 590, 996 N .Y $.2d l 16, l l 7 l2dDept2014tKuperbergv, Montalbano, 72AD3d903. 904, 899N.Y.S.2d344. 345 [2d Dept 2010]; Camacho v. Dwelle. 54 AD3d 706, 863 N.Y.S.2d 754 [2d Dept 2008]. ln thh case. the ffiO\i'ill1\ pcitl.ts \.',) both the. ~onclusory s\~tcment~ in the Plc1intirr ~ BiU of ?artlculars and her deposition wherein Plaintiff states. fnter alia, that she was confined to her home for three to six weeks after the \V1thin accident. (Defendants• Motion, Exhibit "C'\ Page 51). As such, this together with the medical reports~ serves to establish aprimufacie sho\ving in support of the DefendanCs motion. As a result, it becomes fr:tcu.mbcnt u.pon the Ptainti ff to establish that there are triable issues of foct as to whether the Plaintiff suffered serious injuries. in order to avoid the dismissal of her action. Sec Jack.son v United Parcel Serv., 204 AD2d 605 [2d Dept 1994}; Bryan v Brancato, 213 AD2d 577 [2d Dept I995J. In thi~ regard. the Plaintiff must submit quantitative objective findings, in addition to opinions a~ to the significance of the Plaintiffs injuries. See Oberly v Bangs Amhulance. Inc., 96 NY2d 295 [2001 ]; Candia v. Omonia Cab Corp., 6 ADJ<l 641. 642~ 775 N. Y.S.2d 546, 547 [2d Dept 2004]; Burnett v MU/er, 255 AD2d 54 I [2d Dept 1998]; Beckett v Conte. 176 AD2d 774 [2d Dept 199 l J. 1n opposition. the Plaintfff rclies primariJy on the reports ornr. Gabriel L. Oassa, l)r. Sa~an Azar and Dr. Gordon C. D~Yis. Dr. Dassa, an orthopaedist. examined the Plaintiff on March 20, 2020, and clmducted range of motion testing on the Plaintiff's cervical spine, lumbar spine, right wrist, and left and right shoulders, using a hand held goniometer. Dr. Dassa found limitations in the range of motion for each area examined. The Doctor also reviewed MRis of the Plainti rr 1:, cervical spine, lumbar spine and right shoulder. Dr. Dassa opined tha.t "[t]he patient was injured on the above 4 [* 4] 4 of 6 FILED: KINGS COUNTY CLERK 12/29/2020 NYSCEF DOC. NO. 57 INDEX NO. 511672/2018 RECEIVED NYSCEF: 01/04/2021 dat c an<l .".-iUStaincd. injuries to severa1 areas of the body." Dr. Dass.a also frlund that 'li Jt is my profossional opinion, with a reasonable degree of medical certainty, that today's evaluation and findjngs represent objective evidence of persistent orthopedic impairment to the patient's ned, back, right shoulder and right ¼Tist." (Sec AtTirrnation in Oppositjon, Examination of Dr. Dass.a~ Attached a~ Exl . u"b"It ''A") - . Dr, Davls offered, by affirmation, hls opinion in relation to his examinations dated September 21, 2015 (ten days after the ac.:cidem) and May 9, 2016. Dr. Davis conducted range of motion testing of the P laittti ff' s right shoul det, cervi caJ spine and 1um bar spine which revealed signi fi (;ant deereascd range of motion. The PJaintiffwas examined by Dr. Davis again on May 9, 2016, approx.im.atelyeight months after the accident. when the Plaintiff again complained of pajn in the right shoulder, neck and lo\vcr back. Dr. Davis aguin conduc-tcd range of motion tcsti11g of the Plaintiffs rlght shouJder cervical spin~ and lumbar spine which revealed significant dec-reased range of motion. Dr. Davis stated that "[i"lt is my professional opinion with a reasonable degree of medical certainty that the injuries sustained by Shaniqua Williams, as set forth in my above referenced reports are pennao~nt and causally related to the motor vehicle accident of September 15, 20I 5." (Se~ Affirmation in Oppo.sitior1, Examination of Dr. Davis, Attached as Exhibit "C" ). While the findjngs of the Defendant's doctors were arguably sufficient to meet the Defendanf s pr imu Jae ic burden, Pl ai ntitr s evidence, nam eJ y the affinned reports of Dr. Dassa and Dr. Davis raise triable issues or fact with regard to the Plaintiff's claim that she sustained a. seriou!:I injury to her cervical spine and lumbar spine. "An expert's qualitative assessment of a plain ti fl's condition also may suilice, provided thal the evaluation has an objective ba<;is and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ. member, function or system." Toure v Avis Rent A Car Systems Inc.• 98 N.Y.2d 345, 774 N.E.2d 1197 [2002}; .w:e Castro v, Amhony, 153 A.D.3d 655, 57 N.Y.S.3d 895 [2d Dept 2017]; Dufel i-·. Green, 84 N.Y.2d '-1.L 798, 622 I\. Y.S.2d 900, 64 7 N_E.2d 105 [1995 J. What i~ more, ''(t]he totality of the admissible 5 [* 5] 5 of 6 INDEX NO. 511672/2018 FILED: r-.... KINGS COUNTY CLERK 12/29/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/04/2021 evidence submitted by the plaintiff was sufficient to raise triab1c issues of facl us to whether she sustained a serious injury to her rjght shou]dcr or the cervjcal and/or Jumbar regions or her spine under the permanent consequcntia] and/M the .significant limitation o t· use categories of lnsurance Law § 5102(d) as a resuh of the subject accident." Bernier v. Torres, 79 A.D.3d 776. 777, 913 N.Y.S.2d 299, 301 pd Dept 2010]. Accordingly, the Defondanfs molion is dcrtied. Based on the foregoing. it is hereby ORDERED as folJows: Delendanfs motjon (motion sequtnce #2) is denied . The foregoing constitutes the Decision and Order of the Court. ENTER: ., / ..... •.•;<~.· c.' 6 [* 6] 6 of 6

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