Escobar v Almulaiki

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Escobar v Almulaiki 2021 NY Slip Op 30760(U) February 17, 2021 Supreme Court, Kings County Docket Number: 508957/2016 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. [*FILED: 1] KINGS COUNTY CLERK 03/10/2021 01:59 PM NYSCEF DOC. NO. 45 INDEX NO. 508957/2016 RECEIVED NYSCEF: 03/10/2021 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 17th day of February, 2021. PRESENT: CARL J. LANDICINO, J.S.C. -------------------------------------------------------------------------x Index No.: 508957/2016 SAMUEL DEJESUS ROSALES ESCOBAR, Plaintiff, -against- DECISION AND ORDER MAHMOUD ALMULAIKI and AJAZ ANJUM, Motion Sequence # 1 Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Qi~tion: Papers Numbered <NYSCEF) Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed......... ..................................................... 15-24 Opposing Affidavits (Affirmations)...................................................... ....... 30-34 •...> Reply Affidavits (Affirmations) ................................................................. .. Upon the foregoing papers, and after oral argument, the Court finds as follows: This action concerns a motor vehicle accident that occurred on November 15, 2015. On that day, the Plaintiff, Samuel Dejesus Rosales Escobar (hereinafter referred to as the "Plaintiff') was involved in a motor vehicle collision with a vehicle operated by Defendant Mahmoud Almulaiki and owned by Ajaz Anjum Defendant (hereinafter the "Defendants"). The Plaintiff alleges that the collision occurred on the Jackie Robinson Parkway at or near Jamaica A venue, Brooklyn, New York. The Plaintiff claims, in his Verified Bill of Particulars, that he sustained a number of serious injuries including, inter alia, injuries to his right shoulder, cervical spine, lumbar spine, and right ankle. The Plaintiff also alleges that he was unable to perform his usual duties for 90 days out of the first 180 days following the accident. 1 1 of 5 0 [*FILED: 2] KINGS COUNTY CLERK 03/10/2021 01:59 PM NYSCEF DOC. NO. 45 INDEX NO. 508957/2016 RECEIVED NYSCEF: 03/10/2021 The Defendants now move (motion sequence #1) for an order pursuant to CPLR 3212, granting summary judgment and dismissing the. complaint against them on the groU11d that none of the injuries allegedly sustained by the Plaintiff meets the "serious injury" tlrreshold requirement of Insurance Law § 5102(d). I11 support of this application, tl1c Defe11da11t relies on the deposition of the Plaintiff and the reports of Dr. Pierce J. Ferriter and Dr. Eric L. Cantos. 'fl1e Plaintiff opposes the n1otion a11d argues tl1at it should be de11ied. The Plaintiff contends that the movants l1ave failed to ineet their pri111afi1cie evidentiary showing, and that even assu1ning that they had, there are sufficient issues of fact raised by the reports oftl1e Plaintiff's Doctors which serve to support the denial of summary judg1nent. It has long been established that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the abse.nce of triable issues of material fact.'" Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005], citing An.dre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate. absence of any material issues of fact. See Sheppard-Mobley v. King, 10 AD3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501N.E.2d572 [1986]; Winegradv. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. Once a moving parry- has made a prima facie showing of its entitlement to summary judgment, "the burden sl1ifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estote Brokers v Oppenheimer, 148 AD2d 493 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. 2 2 of 5 INDEX NO. [*FILED: 3] KINGS COUNTY CLERK 03/10/2021 01:59 PM= k - ... ··-··--··· ~'~-~·=····=···=··=···=···=··=···=··=~~=·=··===··=·==·==·=·· ·=···=·=··= = === NYSCEF DOC. NO. 45 508957/2016 RECEIVED NYSCEF: 03/10/2021 Mgmt Corp., 34 AD3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 AD2d 558, 558~559, 610 N.Y.S.2d 50 [2d Dept 1994]. In support of their in·otion (motio11s sequence #1) the Defendant proffers the affirmed medical reports of Drs. Ferriter m1d Dr. Eric L. Cantos. Dr. Dr. Pierce J. Ferriter exrunined the Plaintiff on December 31, 2018, more thru1 tlu·ee years after the date of the a9cident. Dr. Ferriter conducted range of n1otion testing of the Plaintiff's cervical spine, thoracic spine, lu1nbar spi11e, right sl1otdder and right foot. Dr. f'erriter found 1101mal range of motion for eacl1 test, \·vith the use of the goniometer. Dr. Ferriter's i1nprcssio1-i was tl1at the "orthopedic exami11ation is objectively normal and indicates no findings which would result in no orthopedic limitations in use of the body parts examined." Dr. Ferriter further opined that "The examinee is capable of functional use of the examined body parts for normal activities of daily living as well as usual daily activities including regular work duties." (See Defendants' Motio11, Exhibit F, Report of Dr. Ferriter). Dr. Eric L. C:antos did not exan1ine the Plaintiff but instead review a11 MRI of the Plai11tiffs cervical and lumbar spine. The MRI of the Plaintiffs cervical spi11e was perfo1n1ed on January 13, 2016. Dr. Cantos· review of the MRI of the cervical spine revealed "[m]ild bulging oftl1e disc annuli from CS to Tl." Dr. Cantos opined that "I see no imaging evidence of a fracture or disc herniation that could be attributed to the accident occurrence." Dr. Cantos further acknowledged that "[t]here is mild bulging of the lower cervical disc annuli." The MRI of the Plaintiff's lumbar spine was performed on January 13, 2016. Dr. Cantos stated that "[t]he imaging study fails to demonstrate evidence of a fracture or disc hermiation that could be attributed to the accident occurrence." Dr. Cantos also found "[t]here is an underlying mild scoliosis." (See Defenda11ts' Motion, Exhibit G 1 Report of Dr. Cantos). addressed the right shoulder1 but there was appare11tly no MRT of the right ankle. 3 3 of 5 He also [*FILED: 4] KINGS COUNTY CLERK 03/10/2021 01:59 PM NYSCEF DOC. NO. 45 INDEX NO. 508957/2016 RECEIVED NYSCEF: 03/10/2021 Turning to the merits of the Defendants' motion, the Court is of tl1e opi11ion that tl1e Defe11da11ts have i1ot1net their initial burden ofpro_of. See (:he Hong K;n1 v. Kassa.ff, 90 AD3d 969, 969, 934 N.Y.S.2d 867 [2d Dept 201 l]. T11e Defendants contend that the af:fi1med reports of Dr. Ferriter and Dr. Cantos support their conte11tions t11at the J>Iaintiff did not suffer a serious injury as defined under Insurance Law § 5102(d). Dr. Ferriter conducted a 1nedical examination of Plaintiff on December 31, 2018, inore than three years after the date of the accident. Dr. Cantos, reviewed a Magnetic Resonance ln1aging Scans (MRls) of the Plaintiff. These IvlRls were performed relatively shortly after the motor vel1icle incident. However. neither Dr. Cantos nor Dr. Fe1Titer spoke to the ability of the Plaintiff to condt1ct his daily activities dt1ring this early post-accident period, nor did the)' address Plaintiff's alleged "90/180 1' clai1n. Moreover, w11en tl1e Plaintiff v.'as asked, during 11is depositio11, wl1ether he had bee11 out of work for any period a±ler the accident, he responded ':[t]hree months." Whe.n asked whether this \Vas based on a doctor's advice he responded "[f]rom the therapist." Wl1en asked if he returned to full dtities when he returned to \\.'Ork he a11svlered "[n]o.'' (See Defe11dants' Motion, Exhibit D, Page 57) As a result~ the Court is of the opinion tl1at t11e motion fails to adequately address. as a matter of law, the Plaintiffs claim set fort11 in the verified bill of particulars, that he sustained 11 a medically detennined injury or impairment of a non-permanent nature which prevents the Plaintiffs injured per.Sort's usual and customary daily activities for not less than ninety days (90) during the one hundred eighty (180) days immediately following the occurrence of the injury or irnpairment. 11 See Aujour v. Singh, 9.0 AD3d 686, 934 N.Y.S.2d 240 [2d Dept 2011]; Lewis v. John, 81 AD3d 904, 905, 917 N.Y.S.2d 575 [2d Dept 2011]; Menezes v. Khan, 67 AD3d 654, 889 N.Y.S.2d 54 [2d 2009]; Faun Thai v. Butt, 34 A.D.3d 447, 448, 824 N.Y.S.2d 131, 132 [2d Dept 2006]. Even assumi11g, arguendo, that the Defendants had n1et their primct.fCicie burden, the Court tinds that the Plaintiff has raised 1naterial issues of fact relati11g to his ability to meet tl1e t11feshold required by 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 03/10/2021 01:59 PM NYSCEF DOC. NO. 45 INDEX NO. 508957/2016 RECEIVED NYSCEF: 03/10/2021 l11surance Law 5102. The Plai11tiff relies primaril)' on the report of Joseph Gregorace, D.O. who exa1nined the Plaintiff on August 29, 2019 and reviewed the subject January 2016 MRis. During this examination I)r. Gregorace conducted a range of motion exam (with a goniometer) of the Plaintiffs cervical spine, lllillbar spine, right shoulder, left shoulder, right ankle and left ankle. As to the cervical spine, he found limited range of motion in the right rotation 60/80 and left rotation 60/80. As to the lumbar spine, Dr. Gregace found limited range of motion flexion 70 degrees (90 degrees normal), extension 20 degrees (30 degrees normal), right side bending 20 degrees (25 degrees normal), left side bending 20 degrees (25 degrees normal). (See Plaintiffs Affirmation in Opposition, Exhibit A, Report of Dr. Gregace). As a result, the Court finds that the Plaintiff raised material issues of fact that prevent the Court from granting summary judgment. See McNeil v. New York City Transit Auth., 60 AD3d 1018, 1019, 877 N. Y.S.2d 351, 351 [2nd Dept2009]. "An expert's qualitative assessment of a plaintiffs condition also may suffice, provided that the evaluation has -an objective basis and compares the plaintiffs 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 NY2d 345, 774 N.E.2d 1197 [2002]; see Dufel v. Green, 84 NY2d at 798, 622 N.Y.S.2d 900, 647_NE 2d 105 [1995]. Based on the foregoing, it is hereby ORDERED as follows: Defendants' motion (motion sequence #1) for summary judgment is denied. This Constitutes the Decision and Order of the Court. ) ' ~ ENTER: / 5 5 of 5

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