Lapsker v Rose

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Lapsker v Rose 2021 NY Slip Op 30301(U) January 29, 2021 Supreme Court, Kings County Docket Number: 516173/2017 Judge: Edgar G. Walker 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: 1] KINGS COUNTY CLERK 02/01/2021 12:11 NYSCEF DOC. NO. 65 P~ INDEX NO. 516173/2017 RECEIVED NYSCEF: 02/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: IAS PART 90 PRESENT: HON. EDGAR G. WALKER, J.S.C. --------------------------------------------------------------------){ KEVIN LAPSKER, Plaintiff, Decision and Order -againstIndex No. 516173/2017 IVERAM AISHA ROSE, BROMLEY A. SYNMOIE and ALEUNDER VARSHAVKSY, Defendants. --------------------------------------------------------------------){ Defendants' motions for summary judgment, seeking dismissal of the plaintiff's action based upon their contention that plaintiff fails to satisfy the threshold for serious injury pursuant to the Insurance Law, are granted to the extent that the plaintiff's claims of fracture, significant disfigurement, permanent and total loss of use of a body organ, member, function or system and a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment are dismissed. The remainder of the motions are denied. In support of the motions the defendants offer the affirmed reports of an orthopedist, Dr. Rafael A. Lopez Steuart; a radiologist, Dr. Audrey Eisenstadt; and an otolaryngologist, Dr. Daniel Arick. In his report from his physical examination of the plaintiff, Dr. Steuart noted that, upon conducting range of motion tests, he found reductions in right and left cervical rotation, cervical extension, and right lateral flexion when compared to normal. Dr. Steuart concluded that the plaintiff sustained cervical, thoracic and lumbar strains, all of which are resolved and concluded that the plaintiff had a normal orthopedic exam. He offers no other comment or 1 of 4 [*[FILED: 2] KINGS COUNTY CLERK 02/01/2021 12:11 P~ NYSCEF DOC. NO. 65 INDEX NO. 516173/2017 RECEIVED NYSCEF: 02/01/2021 opinion regarding the plaintiff's loss of range of motion in his cervical spine or how someone with the deficits identified could still have a "normal" examination, and he offers no opinion regarding causation. In her review of the plaintiff's MRis, Dr. Eisenstadt reports that the plaintiff has cervical disc bulges at the C3/4 and C4/5 levels, as well as lumbar disc bulges at the L2/3, L3/4 and L4/5 levels. Remarkably, despite the fact that the plaintiff was only seventeen years old when the MRis were conducted, Dr. Eisenstadt attributes her findings to degeneration and arthritis, and offers no comment about the plaintiff's young age and/or how such unusual degenerative changes can be present in someone so young. The Court also notes that Dr. Eisenstadt's report is silent regarding plaintiffs claims of cervical disc bulges at the CS/6 and C6/7 levels and of a lumbar bulge at the Ll/2 level. Dr. Eisenstadt's review of the MRI of the facial bones found no evidence of a nasal fracture. Dr. Daniel Arick, the otolaryngologist who examined the plaintiff with regard to his claim of a nasal fracture, found that the plaintiff had a "[n]ormal ear, nose and throat examination." Based upon the foregoing, the Court finds that the defendants have failed to establish prima facie entitlement to judgment as to whether the plaintiff sustained a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system. In the absence of a prima facie showing by the defendants, the motions must be denied regardless of the sufficiency of the opposition. Alvarez v. Prospect Hospital, 68 NY2d 320. Even ifthe defendants had made aprimafacie showing, plaintiff's papers in opposition are sufficient to raise an issue of fact as to these categories. With regard to the branch of the defendants' motions addressing plaintiffs claim that he 2 2 of 4 [*[FILED: 3] KINGS COUNTY CLERK 02/01/2021 12:11 NYSCEF DOC. NO. 65 P~ INDEX NO. 516173/2017 RECEIVED NYSCEF: 02/01/2021 satisfies the 90/180 category, the defendants point to portions of the plaintiffs deposition transcript wherein he testified that he missed no time from school and was not confined to his bed or home for any period of time following the accident. The defendants have submitted sufficient evidence to shift the burden of proof to the plaintiff with regard to the 90/180 category. In opposition to this branch of the defendants' motions, the plaintiff fails to submit any evidence that would show that a question of fact exists as to whether the he can satisfy the 90/180 category. As such, the defendants' motions are granted as to 90/180 category. Although the plaintiffs bill of particulars specifies that he is making claims under the significant limitation, permanent consequential limitation, and 90/180 categories of the Insurance Law, his opposition to the motions alleges that he satisfies the fracture, significant disfigurement, permanent loss, significant limitation, and permanent consequential limitation categories. However, there is no proof offered by the plaintiff that he satisfies the fracture, significant disfigurement, or permanent loss categories. Both the plaintiffs and the defendants' radiologists found no evidence of nasal fracture, and there is no evidence that the plaintiff satisfies either the significant disfigurement or permanent loss categories. As such, the defendants' motions for summary judgment are granted to the extent that the plaintiffs' claims of fracture, significant disfigurement, permanent and total loss of use of a body organ, member, function or system and a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment are dismissed. The remainder of the motions, seeking dismissal of plaintiffs claims that he sustained a permanent 3 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 02/01/2021 12:11 P~ NYSCEF DOC. NO. 65 INDEX NO. 516173/2017 RECEIVED NYSCEF: 02/01/2021 consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system are denied. This constitutes the decision and order of the court. ENTER, MS# 001, 003 Dated: January 29, 2021 J. 4 4 of 4 s.c.

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