Menjivar v Capers

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Menjivar v Capers 2020 NY Slip Op 35470(U) October 6, 2020 Supreme Court, Nassau County Docket Number: Index No. 603720/2017 Judge: Leonard D. Steinman 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. NO. 603720/2017 INDEX 603720/2017 FILED: NASSAU COUNTY CLERK 10/13/2020 10:25 AM RECEIVED NYSCEF: NYSCEF: 10/07/2020 NYSCEF DOC. DOC. NO. NO. 91 91 SUPRElVJE COURT OF THE STATE--OF NE.WYORK COUNTY OF NASSAU CRUZ.MENJIVAR and JORGE -CASTILLO, .Plaintiffs, -against- IASPart..12 Index ijo. 603720/2017 Motion s·eq. No. 005 DECISION AND ORDER RODN-EY CAPERS and ABRAN.I DARD, Defend_ants. ---- ---- -· .... ·--------. . . ----.... -----. ---------- ._.... - .---. -----. ---·X LEONARD D. STEIN_M.AN, J. The following submissfons_1 in adqition·to any meinqranda. Qf law s_ub_mitted oy the parties, have be·en:reviewed in preparing this Decision and Order; Defendants·' Notice of Motion, Affirmation & Exhibits ........ ; ........i.•••••• .,_... ~ •• , ••••••• 1 Plaintiffs' Notice of Cross-Motion; Affinnation & Exhibits·....... ,'.,.;....._, ....... ; .. ,, . ..i Defendants' Affi~ation in Opposition and Reply & Exhibit. ...................... ...... .3 Plaintiffs' Reply Affirmation ..........._.... , ....... ; .. ; ~ ...... , . , ....... , ..._....•.....................,4 fa thisaction, plaintiffs seekto recoverfor injmies-.they allegedly sustained as a result of a cat accident. By Order dated April 20, 2020 (hereinafter the "prior order''), this court $ranted. defendants' motion fot summary· judgment finding plaintiffs did _not. susWn injuries sµfficientto satisfy the No.:.Faul t threshoid set forth in Insurance LawArtide 51. Plaintiffs' cross'-motion for-summaty·judg ment on the issues of liability and threshold was depiecl. P1airttiffs now seeks leave to reargue this court's pdor order. Defendants OJ?pOse the application. Pursuant to CPLR § 222l(d)~ .a motion.for leave to reatgue "shall be bf,ised upoQ.· matters of fact or law aliegedly overlooked-or misapprehended by the coilrt in detenriirting the prior motion but-shall nQt include. a_ny m~tters of.factnot offered on the pd9r mo{icm." CPtR § 2221(d)(2). A motion to reargue is address'ed to ''the soUnd discretion. of the court which, decided the prior motion and m;:iy be granted 1,1pon a showing-that the court --overlooked or misapprehended the facts ot law~ or for some reason mistakenly-Elrt'ived ¥tt its [* 1] 1 of 4 INDEX INDEX NO. NO. 603720/2017 603720/2017 FILED: NASSAU COUNTY CLERK 10/13/2020 10:25 AM NYSCEF DOC. DOC. NO. NO. 91 91 RECEIVED NYSCEF: NYSCEF: 10/07/2020 earlier decision." Beverage Marketing USA, Inc. v. South Beverage Co., Inc. 58 A.D.3d 657 (2d Dept 2009); CPLR § 2221. Plaintiffs claim that this court "overlooked" two main issues in defendants' evidence when determining defendants mettheir primafacie burden on summary judgment: 1) purported inadequacies in Dr. Fitzpatrick's radiological review ofMenJivar 1s lumbar spine MRI; and 2) positive findings upon Dr; Jay Eneman's orthopedic examination of Menjivar and Cruz. With respect to Dr:. Fitzpatrick's radiological review; this court found that Dr. Fitzpatrick proffered c1 sufficient explanation in support of his opinionthat the findings of Menjivar's lumbar MRI were degenerative in nature and had no traumatic basis. Plaintiffs failed torebut defendants' showing that Menjivar' s injuries were age-related and .degenerative through competent medical evidence. And of course, plaintiffs' counsel's opinion is insufficient to rebut the opinion ofa medical expert. This court also did not overlook or misapprehend any aspect of Dr. Eneman's independent orthopedic examinations of plaintiffs. In fact,. this court noted thatinsignificant limitations were reported by Dr. Eneman for both plaintiffs. Plaintiffs also contend that issues offact were created in opposition to defendants' motion fofsummaryjudgment that this court overlooked. First, plaintiffs contend thattheir medical recordB were profferedln admissible form and were sufficient to create an issue of fact as to whether they sustained serious injury. Plaintiffs are correct in that this court did not reference two affidavits of Dr.Levano, both dated October 29, 2019, attached as thelast pages ofcompilation:s.of medical records: submitted for Menjivar and Castillo; respectively; In each affidavit, Dr. Levano attests that his medicalrec.ords, along with ''physical therapy notes'' and ''acupuncture notes'' ofothet providers, are the work product of his office and were made and kept in the regular course ofbusiness byhis office. Dr. Levano also affirms that the contents of such notes and reportsare "true .." However, it is unclear how Dt.. Levano coulq have generated the notes of' other physidans. And certainly Dr. Levano cannot affirm the veracity of another treating physician's report. 1riz,arry v. Lindor, 110 A.D.Jd 846 (2d. Dept. 2013 ). Putting aside. questions of credibility and probative value,this court noted in its prior order that Dr; Levano' s. reports and records were still considered. Contrary to piaintiffs' contention, itremairts clear that Dr. Levtmo failed to indicate what guideli_fies were 2 ---······················································"················ [* 2] ................................ ,.... , ....•.... 2 of 4 INDEX INDEX NO. NO. 603720/2017 603720/2017 FILED: NASSAU COUNTY CLERK 10/13/2020 10:25 AM NYSCEF DOC. DOC. NO. NO. 91 91 RECEIVED NYSCEF: NYSCEF: 10/07/2020 used to determine normal range ofmotion measurements in his initial examination reports of plaintiffs.1 Dr. Levano only referenced the AMA Guidelines, 5th Edition, in his final narrative reports. It was significant to this court thatthe normal range of motion values referenced in Dr: Levano' s final report differed from those utilized in his initial evaluations of plaintiffs. As such, this court found that plaintiffs failed to proffer competent objective medical evidence revealing the existene,e of range ofmotion limitation contemporaneous with the subject accident. Sutton v. Yener, 65 A.D3d 625 (2dDept. 2009). Second, plaintiffs contend thatthere existed an issue offact with respect to whether Menjivar satisfied the 90/180 category ofthe serious injury statute but pose the same arguments as those in their opposition and cross'-m,otion that were already addressed in the prior order. Lastly, in its prior order this court noted, parenthetically, plaintiffs~ gap in treatment. Regarding Menjivar, while it is true that Dr. Levano states in his final report that she reached a "permanent and stationary plateau;" there is no indication this is thereason thatMenivar ceasedtreatmenttwo years prior. 2 Further, despite counsel's,c;ontention, Menjivaronly testified to the cesation of insurance coverage as it related to spinal injections. The record is de:void of any indication as to when her noc.fault benefits were terminated. And when asked why he stopped treating only 3 months after this accident, Castillo testified tha.t "the doctors from the insurance told me to no longer go."' There was no explanation proffered for why these doctors allegedly told Castillo to cease treatment. Nevertheless, even if plaintiffs continued treatrhent·or provided an adequate explanation for their gap in treatment, the court's ultimate determination would remain the same --- plaintiffs failed to create an issue of factas to whether they sustained aserious injury as a result ofthesubjectaccident. ·1 Dr, Philip M~ Ra.fly, Castillo's orthopedic surgeon, also faiiedto sitewha,t guii:l.elines he utilized to determine nonnal range of mqtion values for his e_;icarnination of Ca,stillo on November 14, Zo 19. So, ror the same reason, this examination was insufficient tcr create art iss.ue off'act that Castillo. suffered significant limitations in rang1;1 of motion. 2 Althoµgh Menjivar testifjed she. ceased. treahnent 6 months. foliowing the acdd,mt, certain medical records reveal ·some treatment as late as December 2017. 3 [* 3] 3 of 4 FILED: NASSAU COUNTY CLERK 10/13/2020 10:25 AM NYSCEF DOC. DOC. NO. NO. 91 91 INDEX INDEX NO. NO. 603720/2017 603720/2017 RECEIVED NYSCEF: NYSCEF: 10/07/2020 Based on the foregoing, plaintiffs' application to reargue is granted and upon reargument the motion is denied. Any relief requested .not specific:ally addressed herein is denied, This constitutes the Decision and Order of this court. Dated: October 6, 2020 l'vlineola, Ne,v York ENTERED Oct 13 2020 NASSAU COUNTY COUNTY CLERK"S OFFICE 4 [* 4] 4 of 4

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