Dabel v Kislev Enters., Inc.

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Dabel v Kislev Enters., Inc. 2020 NY Slip Op 35399(U) December 10, 2020 Supreme Court, Kings County Docket Number: Index No. 502325/2018 Judge: Reginald A. Boddie 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. 502325/2018 FILED: KINGS COUNTY CLERK 12/21/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/24/2020 At an I. A.S. Part 95 of the Supreme ourt of th tate of New York, held in and for lh ouncy Kings, at the Courthouse, locati.ld at 3 0 A tr t, Borough of Brooklyn, City nd York on the toth day of December 020. T: . Boddie ------------------- ·.rantz D lnde . o... 02325/201 ' Cal. o. 9 M. 1 Plaintiff, DECISIO A D ORDER -against- Kisl v Enterprises lnc. and Fnu Zu1J1qar Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ ___., _______________________________ R - U tion as reqlilired by CPLR 22] 9 1 ,( ). p o, th papers considered mthe re i _ f thi mot·on: U n the foregoing cited papers, d fi ndru • motion for summary judgment on tl of thr hold; pursuantto CPLR 3212 and lnsuran a §llOI(d), is decided as follow': Pl.a.intifl commenced this action tor ov r ot p r ona] injuries allegedly sustain d a· the re ult ol'a motor vehicle accident on Novem er 7 2017. on Brighton Third Street, t orn ar 't ptune A"'enuc in Brooklyn co Hided with w Oll'k. He was the dFive · o the hide o~ n db dd ndant Ki I ,n rpri · Inc. and operat.ed by fnu ulfiq r. · al a:nd lumb r prain/ train, ]um bar radiculopathy and le l kt t ict~d range of motion. Plaintiff a , o c -ntusion, 1ies:tricted range of motion and 'train/sprain. Plaintiff averred he ha co tinued pain in the neck and back, includin r pr bl ms va king) carrying heavy item [* 1] 1 of 5 INDEX NO. 502325/2018 FILED: KINGS COUNTY CLERK 12/21/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/24/2020 bending and climbing and d soendin .,. - t_ irs. During hi d po ition, plaintiff admitted lmving been involved in a prior accident where hi n - k ba k and right arm were ·njured and that he wa. stiU WJde:rgoing treatment -;; h. n th 1 urren , id nt cmred. Defendan:t'l moved for surrumi.ry j udgm n · pur . uan t to C P LR 3212, to dismiss the complaint on the gr-ound that plaintiff did n l ustain a riou injury \Vithin the meaning of Insurance Law § 5 102 (d). Plaintiff opposed. Summary judgment is a drastic r m dy and. hou.ld not beg a1ted where there is any doubt as to the existence of a triable i ue (s Zu k rman 11 'ily of New York, 49 Y2d 557, 562 [19801). A party moving for sum1nary jud - m nt mu t make a rima. fade showing of n e of anv ., material issues of fact, but once a prim.a fade showing h · been m d • th burd n hi fls to the party oppo ing the motiofl to, produce evidcntiacy proo[ in ad.mi ibl form ufficient to establish material i u :s of (act which require trial of the action (Win [J9 8S]· Zuckerman. 49 1 g,-ad, · ork - ni . Med. Cir. 64 Y d 851 8 3 2d at 62). 1 In a •·serious injury thresho]d" motion f, ,r .ummruy judgment1 as here, defendant must initiaUy submit competent medical eviden ·slabli J ir g that plaintiff did not suffer a ~~serious injury" and the injuries are not causally related to th Kelly v Ghee, 87 Ad3d l054, l055 [2d ath· di memberment ignificant rm n nt I , of use of a body organ. member, func tion or syst,em~ pemtanent con qu nti I Umitati n f u 1 significant limitation of us of a bod fun tion r i:mpaim1ent of a non-pennatilen naturi whi h pre of a body org-.:m m: member; tcm · or a m d ·caU detennined injury or nts th. injured person from performing 2 [* 2] ee pt 201 ]~ ;'~'ee Win grad, 64 NY2d at 85 3), HSerious injury" means a persona] injury whi.ch result ·i nd disfigurement; a fracture · loss of a :f; tus · accident (see Insurance Law 5102 [d]; 2 of 5 INDEX NO. 502325/2018 FILED: KINGS COUNTY CLERK 12/21/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/24/2020 substantiaHy aJl of th material acts whlcl con titut such person's usual and cu ·tomary daily acti itie. for not J th oc~urren Ch n ninety da s durin the n hundred eighty day j mm d" ate o th injury or impairment (In uran plaintiff can uUimat 1 Law 5102 folio ing £di . Th tahJish a ' serious injury • but whether there exist an i ue of fa.ct in the case on such is u (Zuckerman. 49 NY2d at 562), ant proffered the affirm d rep rt of Dr. Mark Decker, Here, de r: i lo gist \ ho after reviewing th. RJ films of plaimiff found bulg bulges at L4-5 and - ] were reported lo b broad and asymmetric o right h miations at L l - - L3-4 L4-S ,a nd 1- 1. The impressing on th th I sac-. lne radiologi t c duded p1aintiffhas dcgcn rati throughout hi s lumb ·pine and such was longst nding and not causaUy re} t d to die accident disc disease on ovembe.r 7, 2017. Defendants al proffered tme affirm .d repon f Dr. Dooa Mannor a b rd certified orthopedic surgeon. Dr. Mammr examined laindff n ptember 26 2019. h 11epo11ed plaintiff complained of neck, back and left kne injury. he fUJther report d a n rma] orthopedic examination. including -un ranges of motion in th kn e and cervica1 and lumbar spine. She op,i ned plmnfrff · c rvica] spine sprain/ train, ~umb r >pine sprain/strain, and i ft kn strain v. . re re ol d. ti ndants further a erred th ,t sprru there is no proof on thi rec rd to suppotil: a 901180 daim. D ·~ n ant therefore met th i prima c-i burden of pro f hi fting ~he burden to plaintiff. Plaintil ~ in oppo Won, produced a adiology report of Dr . Steven B. L ik; dated December 8 2,017. Th radio]ogy report re _all_ d _ " - disc butge \'liith en .ro hm nt on the neuraJ foramin~ _ po t rior L4-5 disc h miafon with ompression on the th 3 [* 3] 3 of 5 Isa and nerve INDEX NO. 502325/2018 FILED: KINGS COUNTY CLERK 12/21/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/24/2020 . n the entraJ th cal t and LS-S1 disc herniation with compre c and impingement , the nerve roots. Plaintiff a] o p du ed an affirmed r port o Dr. Nicky Bhatia, cemher 27 2019. D . Bhatia noted in the hl o n urologi st, dated section o hi report This is a 58 y,car ld man \-vho was in 1 din a traumatic injur on l l/7117. He was a driver of a car; w · seat belted. The car - struck at the fronl. n im.pact he suffered a largely anterior-p - terior whiplash typ injury at the neck .. ; Ai tsr 3~4 days started feeHng pain jn th neck and left knee. _i c th accident he ha. h d epi odic neck pain· states that about ery two months or HI~ el it wherein can b evere, iimifng mo ion and in parf cu1ar ab~Jity to p -rform t c CUJJation-w rlk. a · a taxi driver. Pain i . harp and loc liz d 10th m·ddl po _ · r ce ical base ofth n k and. v.it1hout radiati n to either ann r hand; no associated numbn r tinglin . During pain will ha OT analgesics whi h h lp briefly ... H had , prior acddent ug 2017, M A, as true" dri r. He suffered right elbow and lower back injuries~ stil1 has some lin • r'ng symptom sat (sic) the right am, . On the date of th _amination; Dr. Bhaha determined plaindf had Jimited range of t,ension 45/60 and right 1ateral fl ·ion. 0/. and diagnosed him ubsequentJy, n J nuary 28, 2020 Dr. hatia reviewed the radi. I gy · ilms of plaintif1 ba k and indicated h di a ,reed with Dr. Dcckc r' c nc Iusioa that th: i ive findings are du i n on th thee.al sac and n :rv • related to this t d g :neration. lie opined th re i compres a cident and not due to a p11 -exi·ting condition. H th l Dr. Bhatia ever examin d plaintiff's ba • , r it mu~ hen led, ~here is no e i nc r uspec-ted. any injury r lated to his back sine h did not record any complaints •o f back problem mad by p1aintiJ f. Furthermore. no report of a urrcnt medical e am ~n _ti n was pro ided. Plaintiff contend _ pit _the ack of _ id n _e regarding an urrent .ondition h n _v _rtJheless has a 90/ 180 , 1aim under the statut . D endants co ntcnd ev _n j f he suffered a medically detennincd in'ury he does not me t t remaining r-equkem nt to support a 90/1 80 4 [* 4] 4 of 5 INDEX NO. 502325/2018 FILED: KINGS COUNTY CLERK 12/21/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/24/2020 claim. Here, although plain.ti f was already r,ec · ing physical therapy r fa.t d to a prior accident curred the ph ic 1 therapy did not temiinatJ until m·d-of20l8,.' hen the subject H was confined to b d app:ro imatel ten da , and th house foF ti tl.een da work for eight months . He averred, as a result · th a cid nt, he cou]d not 1' . He v.ras unable to t heavy items, have persona] relation~ walk fast, or bend without difficulty. Acc()rdingly on th e facts, th ere are rious injury ·. 1hich quaHfi · for relief under questions of fact a. 10 th 90/l 810 pro i n fth Insurance Lat, (Tour: ~ whether plaintiff suffered • Avi Rent A Car 2d 345(2O02U. Therefore, the mod n or ummacy j1udgm nt i d ni d. E TE R: ~ -........__ ·. o. .. - ·. , ~ N oc,01AALD A. B000l . ttO, ·. · rt,~ J.S..C. Hon. Reginald A. B di Ju tice, u preme outt --~.., ... ~ --.. ' 5 [* 5] 5 of 5

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