Vanderhorst v Collins

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Vanderhorst v Collins 2021 NY Slip Op 32303(U) November 12, 2021 Suprem Court, New York County Docket Number: Index No. 150371/2017 Judge: Suzanne Adams 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] NEW YORK COUNTY CLERK 11/16/2021 03:03 PM NYSCEF DOC. NO. 119 INDEX NO. 150371/2017 RECEIVED NYSCEF: 11/16/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. su~.... ~~c AUr'll'JiJ --------------------- 21 PART HON. SUZANNE ADAMS Justice ______J.S...C..___ ----X KESHAWNA VANDERHORST, Plaintiff, INDEX NO. 150371/2017 MOTION DATE N/A MOTION SEQ. NO. 005 - V - THOMAS COLLINS, LACOR MECHANICAL SYSTEMS, INC.,ROBERT SONG, OUSMAN GUMSNEH, NEW YORK CITY TRANSIT AUTHORITY DECISION + ORDER ON MOTION Defendant. \ ·---------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 005) 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, it is ordered that defendant Robert Song's motion for summary judgment is granted. This personal injury action arises out of an alleged multi-motor vehicle accident that occurred on August 2, 2016, on Broadway near West 62 nd Street in Manhattan. Plaintiff alleges that on that date she was a passenger in a bus owned by defendant New York City Transit Authority and operated by defendant Ousman Gumsneh, which came into contact with vehicles operated by defendant Song and defendant Thomas Collins, in the scope of his employment with defendant Lacor Mechanical Systems, Inc. By decision and order of this court dated February 5, 2021, plaintiff was granted partial summary judgment on the issue of liability, in that plaintiff, as an innocent passenger, was not responsible for the occurrence. Defendant Song now moves move pursuant to CPLR 3212 for summary judgment on the grounds 1 of 4 150371/2017 VANDERHORST, KESHAWNA vs. COLLINS, THOMAS Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 11/16/2021 03:03 PM NYSCEF DOC. NO. 119 INDEX NO. 150371/2017 RECEIVED NYSCEF: 11/16/2021 that none of plaintiffs alleged injuries amount to a "serious injury" as defined in Insurance Law § 5102(d), New York's "No-Fault Law." Plaintiff opposes the motion. It is well-sertled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N. Y.2d 320,324 (1986) (citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)). The party opposing a motion for summary judgment is entitled to all reasonable inferences most favorable to it, and summary judgment will only be granted if there are no genuine, triable issues of fact. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521-22 (1 Dep't 1989). The question of st . whether a plaintiff suffered a "serious injury" within the meaning of§ 5102(d) of the No-Fault Law is one of law that can and should be disposed of by summary judgment. See Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345 (2002). "Since the purpose of the No-Fault Law is to assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trials [cite omitted], requiring that every case, regardless of the extent of the injuries, be decided by a jury would subvert the intent of the Legislature and destroy the effectiveness of the statute. The result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation. '[l]fthe procedural system cannot find a way to keep cases that belong in no-fault out of the courthouse, the system is not going to work' [cite omitted]." Licari v. Elliott, 57 N. Y.2d 230, 238 (1982). Viewing the evidence in a light most favorable to the non-moving party, defendant Song has made a prima facie showing of entitlement to judgment as a matter of law, having tendered sufficient evidence to demonstrate the absence of any material issues of fact as to whether plaintiff sustained a "serious injury" as a result of the alleged accident. Alvarez, 68 N.Y.2d at 324. 150371/2017 VANDERHORST, KESHAWNA vs. COLLINS, THOMAS Motion No. 005 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/16/2021 03:03 PM NYSCEF DOC. NO. 119 INDEX NO. 150371/2017 RECEIVED NYSCEF: 11/16/2021 Defendant proffers evidence that the alleged injuries do not fall under the applicable categories of injury, namely a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a non-permanent injury or impairment preventing the performance of substantially all usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. For example, defendant cites the reports of Drs. Joseph Yellin, an orthopedist, and Jeffrey Passick, a neurologist (Affirmation in Support, Exhibits F and G), both of which find, inter alia, that plaintiff has no disability proximately caused by the subject incident. The burden now shifts to plaintiff to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]." Zuckerman v. City ofNew York, 49 N.Y.2d 557,560 (1980). See also Winegrad, 64 N.Y.2d at 853. As an initial matter, plaintiff fails to refute defendant's Statement of Facts Pursuant to Civil Rule 202.8(g), with the result that defendant's contentions therein are deemed admitted. However, apart from said failure, plaintiff also fails to raise material factual issues that would defeat the motion, as she submits unswom and unaffirmed medical records, which is not evidence in admissible form. Grasso v. Angerami, 79 N.Y.2d 813, 814-15 (1991). Moreover, even if the reports were admissible, none of them objectively set forth that plaintiff sustained a "serious injury" as defined in the Insurance Law, or that any such injury was a proximate result of the incident at issue. Nor do they address the recent findings of Ors. Yell in and Passick. Accordingly, it is hereby ORDERED that defendant Robert Song's motion for summary judgment dismissing the complaint herein is granted, and the complaint and all cross-claims and counterclaims are dismissed in their entirety as against him; and it is further 150371/2017 VANDERHORST, KESHAWNA vs. COLLINS, THOMAS Motion No. 005 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 11/16/2021 03:03 PM NYSCEF DOC. NO. 119 INDEX NO. 150371/2017 RECEIVED NYSCEF: 11/16/2021 ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving defendant shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room I 4 I B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of the court. 11/12/2021 DATE CHECK ONE: HON~~M'4E3Pi3AMS CASE DISPOSED GRANTED •. DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 150371/2017 VANDERHORST, KESHAWNA vs. COLLINS, THOMAS Motion No. 005 4 of 4 • • J.S.C. OTHER REFERENCE Page 4 of 4

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