Taylor v Zaman

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Taylor v Zaman 2021 NY Slip Op 32991(U) January 12, 2021 Supreme Court, Suffolk County Docket Number: Index No. 618564/2018 Judge: Joseph A. Santorelli 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. ~',"~ .... -.AL" dRIGIN ..-;. IGINAL [*FILED: 1] SUFFOLK COUNTY CLERK 01/12/2021 01:35 PM INDEX NO. 618564/2018 NYSCEF DOC. NO. 71 SHORT FORM FORM ORDER ORDER SHORT RECEIVED NYSCEF: 01/12/2021 INDEX No. 618564/2018 INDEX No. 618564/2018 CAL. No. No. 202000646MV 202000646MV SUPREME COURT - STATEOFNEWYORK STATE OF NEW YORK SUPREMECOURT LA.S. PART PART 10, 10.-- SUFFOLK SUFFOLK COUNTY COUNTY I.A.S. PRESENT: PRESENT: Hon. MOTION DATE DATE 8/7/20 (002) MOTION 8/7 /20 {002) MOTION DATE DATE 9/24/20 9/24/20 {003) (003) MOTION ADJ. DATE DATE 10/29/20 ADJ. 10/29/20 MD Mot. Seq. # 002 MD MD · Mot. Seq. # 003 MD JOSEPHA. SANTORELLI SANTORELLI JOSEPHA. Justice of of the the Supreme Supreme Court Court Justice ------------------~-----------------~--------------------------X ------------------· ----------------------------------------·---X NICHOLAS TAYLOR, NICHOLAS TAYLOR, CARL P. MALTESE, MALTESE, ESQ. ESQ. CARL Attorney for Plaintiff Plaintiff Attorney West Jericho Jericho turnpike turnpike 1050 West Smithtown, New York 11787 11787 Smithtown, New York Plaintiff, Plaintiff, against- - against BAKER MCEVOY MCEVOY MORRISSEY, MORRISSEY, P.C. P.c. BAKER Attorney for Defendants Defendants Zaan Zaan andJeb and Jeb Tech Tech Attorney One Metrotech Metrotech Center, Center, 8th Floor Floor One Brooklyn, New,York Brooklyn, New,York 11201 MDATIQUZ ZAMAN, ZAMAN, JEB TECH, TECH, INC., INC., and MDATIQUZ BERGQUIST, C BERGQUIST, SCAHILL LAW LAW GROUP, GROUP, P.C. SCAHILL Attorney for Defendant Defendant Attorney Stewart A Avenue, Suite 210 1065 Stewart venue, Suite Bethpage, New York 11714 11714 Bethpage, New York Defendants. Defendants. · -------------------------_________ ·_________ ------·---------X --------------------------~-------------------~----------------X '' Upon the following folIowing papers papers read read on this this motion motion and cross cross motion motion for summary summary judgment: of Motion/ Motion/ Order Order Upon judgment : Notice Notice of Show Cause Cause and supporting supporting papers papers by Zaman defendants, defendants, dated dated July July I10, 2020 ; Notice of Cross Cross Motion Motion and and supporting supporting to Show by Zaman 0, 2020 Notice of papers by defendant defendant Bergquist, Bergquist, dated dated August August 26, 2020 2020 ; Answering Answering Affidavits Affidavits and supporting supporting papers papers by plaintiff, plaintiff, dated dated papers September 15, 2020 2020 ; Replying Replying Affidavits Affidavits and and supporting supporting papers defendants, dated dated September September 22, 22, 2020, 2020, and October October 27, September papers _by defendants, 2020 ; Other_; Other _; it is .· 2020 ORDERED that that the motion motion by defendants defendants Mdatiquz Mdatiquz Zaman, Zaman, and JEB JEBTech, seeking ORDERED Tech, Inc. seeking su~ary judgment dismissing the complaint complaint is denied; and it is further summary judgment dismissing is denied; further ORDERED that that the cross cross motion motion by defendant defendant C. Bergquist seeking summary summary judgment ORDERED Bergquist seeking judgment dismissing the complaint complaint is denied. denied. dismissing 1 of 5 [*FILED: 2] SUFFOLK COUNTY CLERK 01/12/2021 01:35 PM NYSCEF DOC. NO. 71 INDEX NO. 618564/2018 RECEIVED NYSCEF: 01/12/2021 Taylor Zaman Taylor v Zaman Index 618564/2018 Index No. 61856412018 Page Page22 allegedly injuries he allegedly Plaintiff damages for injuries recover damages action to recover this action commenced this Taylor commenced Nicholas Taylor Plaintiff Nicholas sustained as a result result of of a motor motor vehicle accident that that occurred occurred at the intersection intersection of of Montauk Montauk Highway Highway vehicle accident sustained 2017. It is alleged Lambert Avenue Town of Brookhaven on April alleged that that the accident accident April 25, 2017. of Brookhaven Avenue in the Town and Lambert Zaman and owned occurred when operated by defendant defendant Mdatiquz owned by defendant defendant JEB Tech, Tech, Mdatiquz Zaman vehicle operated when the vehicle occurred light red a at stopped was stopped while it was plaintiff while Inc. struck struck the rear of the vehicle owned and operated operated by plaintiff light on vehicle owned rear of plaintiff'ss rear of westbound impact with of plaintiff the rear vehicle, the Zaman vehicle, with the Zaman Following the impact Highway. Following Montauk Highway. westbound Montauk of the result a vehicle struck by the Bergquist. As result ofthe defendant C. Bergquist. operated by defendant owned and operated vehicle owned the vehicle vehicle was struck propelled was propelled vehicle was plaintiff'ss vehicle vehicle, plaintiff impact plaintiff'ss vehicle, and plaintiff vehicle and Bergquist' s vehicle defendant Bergquist's between defendant impact between acting was Zaman defendant accident, defendant Zaman the accident, of the forward acting time of the time vehicle. At the stopped vehicle. preceding stopped forward into the preceding particulars, plaintiff bill of within the scope scope of of his employment employment with with defendant defendant JEB Tech, Tech, Inc. By his bill of particulars, plaintiff within subject of result a as injuries alleges, among other things, that he sustained various personal injuries result of the subject personal sustained various alleges, among other things, that lumbar spines, collision, including of the cervical cervical and lumbar spines, an aggravation aggravation and bulges of multilevel disc bulges including multilevel collision, exacerbation of a pre-existing cervical spine condition. condition. spine exacerbation of pre-existing cervical move now move defendants) now Zaman defendants) the Zaman Defendants (hereinafter the Tech, Inc. (hereinafter Zaman, and JEB Tech, Mdatiquz Zaman, Defendants Mdatiquz result plaintiff as a result for summary summary judgment sustained by plaintiff been sustained have been alleged to have injuries alleged the injuries that the basis that the basis judgment on the (d). 5102 (d). Law §9 5102 of Insurance Law oflnsurance requirement of threshold requirement injury threshold serious injury the serious meet the not meet accident do not subject accident of the subject pleadings, the pleadings, of the copies of things, copies other things, among other In support submit, among defendants submit, Zaman defendants the Zaman motion, the the motion, of the support of plaintiffs deposition transcript, transcript, and the sworn sworn medical medical reports reports of of Dr. Mark Mark Decker Decker and Dr. Jesu Jesu Jacob. plaintiff's deposition Jacob, at the Zaman Zaman defendants' defendants' request, request, conducted conducted an independent independent orthopedic orthopedic examination examination of of Dr. Jacob, performed an plaintiff March 6, 2020. 2020. Dr. Decker, Decker, also at the Zaman Zaman defendants' defendants' request, request, performed plaintiff on March plaintiff'ss cervical independent radiological of the magnetic images ("MRI") ("MRI") films films of of plaintiff cervical resonance images magnetic resonance review of radiological review independent that motion on lumbar spines spines taken opposes the motion on the grounds grounds that Plaintiff opposes 2017. Plaintiff August 22, 2017. taken on August and lumbar defendants failed to meet evidence submitted submitted in opposition opposition that the evidence burden, and that prima facie burden, their prima meet their have failed defendants have of categories of demonstrates sustained an injuries "limitations of "90/180" categories the "90/180" use" and the of use" within the "limitations injuries within that he sustained demonstrates that submits his plaintiff submits motion, plaintiff the motion, opposition to the the Insurance accident. In opposition subject accident. the subject of the result of Law as a result Insurance Law sworn issue, and the sworn own injuries at issue, the injuries pertaining to the records pertaining medical records of his medical copies of uncertified copies affidavit, uncertified own affidavit, medical reports reports of of Dr. Brian Brian McNulty, McNulty, Dr. Mindy Mindy Pfeffer, Pfeffer, and Dr. Musarrat Musarrat Iqbal. Iqbal. medical weed No-Fault Law underlying the No-Fault long been established that "legislative intent intent underlying Law was to weed that the "legislative been established It has long NY2d 795, 798, 622 frivolous claims claims and and limit limit recovery significant injuries" injuries" (Du/el (Dufel v Green, Green, 84 NY2d recovery to significant out frivolous 865 [2002]). NYS2d 900 [1995]; see Toure v Avis Rent A CarSys., 98 NY2d NYS2d [2002]). NYS2d 746 345, NY2d [1995]; see Toure vAvis RentA Car Sys., NYS2d made injury" is to be made Therefore, determination of of whether sustained a "serious "serious injury" plaintiff has sustained whether or not a plaintiff Therefore, the determination Porcano [1982]; 570 NYS2d 230, NY2d by the court in the first instance Licari v Elliott, NY2d 230, 455 NYS2d 570 [1982]; Porcano v 57 Elliott, Licari (see instance first court NYS2d 579,473 AD2d 579, Lehman, 1988]; Nolan 473 NYS2d Ford, 100 AD2d Nolan v Ford, Dept 1988]; NYS2d 590 [2d Dept 430,680 NYS2d AD2d 430,680 Lehman, 255 AD2d [1984]). 516 [2d Dept 1984], aff'd 64 NY2d 681, 485 NYS2d 526 [1984]). Dept 1984], aff'd NY2d 681,485 NYS2d Insurance Law defines a "serious "serious injury" injury" as "a "a personal injury which which results results in death; death; personal injury d) defines Law §9 5102 ((d) Insurance body permanent loss dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss of of a fetus; fetus; permanent loss of of use of of a body dismemberment; body organ organ, member, function or system; system; permanent consequential limitation limitation of of use of of a body organ or permanent consequential member, function organ, member; significant limitation limitation of of use of of a body function or system; system; or a medically determined injury injury or medically determined body function member; significant impairment of a non-permanent from performing substantially performing substantially person from injured person prevents the injured which prevents nature which non-permanent nature impairment of activities for not less all of such person's daily activities customary daily usual and customary person's usual constitute such which constitute material acts which of the material 2 of 5 [*FILED: 3] SUFFOLK COUNTY CLERK 01/12/2021 01:35 PM NYSCEF DOC. NO. 71 INDEX NO. 618564/2018 RECEIVED NYSCEF: 01/12/2021 Zaman Taylor v Zaman Taylor Index 618564/2018 Index No. 618564/2018 Page Page 3 injury of the injury occurrence of the occurrence following the immediately following than eighty days immediately hundred eighty one hundred the one during the ninety days during than ninety impairment." or impairment." claim is plaintiff's negligence defendant seeking seeking summary summary judgment ground that that a plaintiff's negligence claim judgment on the ground A defendant prima facie case that establishing a prima of establishing burden of barred Law bears initial burden bears the initial Insurance Law No-Fault Insurance under the No-Fault barred under Eyler, supra; Gaddy Sys., supra; A Car Rent A Avis Rent the plaintiff sustain a "serious "serious injury" injury" (see Toure Toure v Avis Car Sys., Gaddy v Eyler, not sustain plaintiff did not based on the judgment based [1992]). When defendant seeking seeking summary summary judgment When a defendant NYS2d 990 [1992]). NY2d 955, 582 NYS2d 79 NY2d must be in witnesses, "those own witnesses, lack of of serious serious injury findings of of the defendant's "those findings findings must defendant's own relies on the findings injury relies demonstrate reports" to demonstrate unswom reports" admissible [such as], affidavits affirmations, and not unsworn affidavits and affirmations, admissible form, [such NYS2d 692 268, 270, 587 NYS2d AD2d 268,270,587 Kingsbury, 182 AD2d entitlement to judgment matter of oflaw (Pagano v Kingsbury, law (Pagano judgment as a matter entitlement plaintiff's judgment using Dept 1992]). 1992]). A defendant defendant may may also establish summary judgment using the plaintiff's entitlement to summary establish entitlement [2d Dept physicians (see plaintiff's own prepared by the plaintiff's deposition testimony testimony and and medical medical reports reports and records own physicians records prepared deposition AD2d 79, Grossman v Wright, Fragale Geiger, 288 AD2d AD2d 431, 431,733 Dept 2001]; 2001]; Grossman Wright, 268 AD2d NYS2d 901 [2d Dept 733 NYS2d Fragale v Geiger, Dept 1997]; NYS2d 831 [2d Dept 464, 662 NYS2d AD2d 464,662 2000]; Vignola Vignola v Varrichio, Varrichio, 243 AD2d Dept 2000]; NYS2d 233 [2d Dept 707 NYS2d this met this Dept 1994]). Torres v Micheletti, 519,616 NYS2d 1994]). Once Once a defendant defendant has met NYS2d 1006 [2d Dept AD2d 519,616 Micheletti, 208 AD2d Torres the of degree and nature proof of admissible proof burden, submit objective of the nature degree of objective and admissible then submit must then plaintiff must burden, the plaintiff New under New injury" under alleged of the statutory statutory standard standard for "serious "serious injury" threshold of the threshold meet the order to meet injury in order alleged injury AD2d 1025, Pawlewski, 305 AD2d supra; Tornabene York's Green, supra; Tornabene v Pawlewski, Du/el v Green, Law (see Dufel Insurance Law No-Fault Insurance York's No-Fault Kingsbury, supra). Pagano v Kingsbury, NYS2d 593 [4th Dept 2003]; Pagano supra). Dept 2003]; 758 NYS2d prima facie failed to satisfy Based upon upon the adduced adduced evidence, evidence, the Zaman defendants have have failed satisfy their their prima Zaman defendants Based (d) as a 5102 Law§ Insurance of meaning the burden that plaintiff did not sustain serious injury within meaning of Insurance Law S 5102 (d) within injury serious a not sustain burden that plaintiff McGee v supra; McGee Eyler, supra; Gaddy v Eyler, supra; Gaddy Sys., supra; A Car Rent A Avis Rent result of the subject subject accident accident (see Toure Toure v Avis Car Sys., result of proffer Zaman defendants Bronner, 2020]). The The Zaman defendants failed failed to proffer Dept 2020]). NYS3d 692 [2d Dept AD3d 1033, 132 NYS3d Bronner, 188 AD3d within not sustain competent medical evidence to establish establish that sustain a serious serious injury injury to his spine spine within plaintiff did not that plaintiff medical evidence competent their orthopedic Law, since Insurance Law, the meaning since their orthopedic expert, expert, Dr. of the Insurance categories of use categories of use limitations of of the limitations meaning of plaintiff of plaintiff examination of during his examination region during this region Jacob, limitations in this motion limitations of motion range of significant range found significant Jacob, found R Singleton v F & R 2020]; Singleton Dept 2020]; Williams v Maleachern, AD3d 1462, 128 NYS3d NYS3d 851 [2d Dept Maleachern, 186 AD3d (see Williams NYS3d Nutfez v Teel, 162 AD3d Royal, AD3d 837, 837,88 2019]; Nurjez AD3d 1058, 75 NYS3d Dept 2019]; 81 [2d Dept NYS3d 81 88 NYS3d Inc., 166 AD3d Royal, Inc., medical evidence objective medical Dept 2018]), 2018]), and and failed explain or substantiate with any objective evidence his substantiate with failed to explain 541 [2d Dept NYS3d 643 AD3d 669, Mendoza, 72 AD3d opinion that that such such limitations were voluntary voluntary (see Quiceno 669, 897 NYS3d Quiceno v Mendoza, limitations were opinion Moriera v NYS2d 892 [2d Dept 995, 893 NYS2d Dept 2010]; 2010]; Chun Chun Ok Ok Kim Orouke, 70 AD3d Dept 2010]; 2010]; Moriera AD3d 995,893 Kim v Orouke, [2d Dept Zaman defendants' Durango, 1024,886 2009]). In addition, addition, despite despite the Zaman defendants' Dept 2009]). NYS2d 45 [2d Dept 886 NYS2d AD3d 1024, Durango, 65 AD3d injuries to his cervical plaintiff's alleged radiologic expert, Dr. Decker, stating in his report alleged injuries cervical and that plaintiff's report that Decker, stating radiologic expert, related to the subject causally related not causally nature and not lumbar subject degenerative in nature longstanding and degenerative regions are longstanding lumbar regions of an result of the result not the were not Jacob were noted by Dr. Jacob accident, show that limitations noted that the limitations conclusions fail to show accident, his conclusions [2d 175 NYS2d 944 864, AD3d 95 Duffy, exacerbation caused caused by the subject subject accident accident (see Rodgers AD3d NYS2d Rodgers v Duffy, exacerbation neither Dr. 2011]). In fact, neither Dept 2011]). NYS2d 85 [2d Dept Dept 2012]; 2012]; Edouazin Champlain, 89 AD3d AD3d 892, 933 NYS2d Edouazin v Champlain, Dept accident subject the that particulars of bill his in Decker nor Dr. Jacob addressed plaintiff's allegations of particulars that the subject accident Jacob addressed plaintiff's allegations Decker nor NYS2d 109 AD3d 801, Ajah, 97 AD3d Little v Ajah, exacerbated/aggravated a pre-existing spinal condition 801, 949 NYS2d condition (see Little pre-existing spinal exacerbated/aggravated 2011]; NYS2d 364 920 NYS2d AD3d 681, Dept 2012]; 2012]; Pero 681,920 364 [2d Dept Dept 2011]; Inc., 83 AD3d Logistics, Inc., Transervice Logistics, Pero v Transervice [2d Dept proof submitted Dept 2010]). Rabinowitz 678, 910 NYS2d 2010]). Therefore, Therefore, the proof submitted by NYS2d 216 [2d Dept AD3d 678,910 Kahl, 78 AD3d Rabinowitz v Kahl, permanent plaintiff did not suffer the Zaman defendants failed to objectively objectively demonstrate demonstrate that plaintiff suffer a permanent Zaman defendants Pupko v accident (see Pupko of the subject result of consequential significant limitation subject accident of her spine as a result of use of limitation of consequential or significant 3 of 5 [*FILED: 4] SUFFOLK COUNTY CLERK 01/12/2021 01:35 PM NYSCEF DOC. NO. 71 INDEX NO. 618564/2018 RECEIVED NYSCEF: 01/12/2021 Taylor v Zaman Zaman Taylor 618564/2018 Index No. 618564/2018 Page 4 Page4 Hassan, 149 AD3d NYS3d 295 [2d Dept 2017]; Fudol Fudol v Sullivan, Sullivan, 38 AD3d 831 NYS2d NYS2d Hassan, AD3d 988, 50 NYS3d AD3d 593, 593,831 2007]; Abraham AD3d 497, 816 NYS2d Dept 2006]). 2006]). 504 [2d Dept 2007]; Abraham v Bello, Bello, 29 AD3d NYS2d 118 [2d Dept Since the Zaman Zaman defendants defendants have have failed failed to meet meet their their prima burden, it is unnecessary unnecessary for the Since prima facie burden, Court to consider consider whether whether plaintiff opposition were were sufficient sufficient to raise raise a triable triable issue issue of of fact Court plaintiffss papers papers in opposition Che Hong AD3d 969,934 969,934 NYS2d Dept 2011]; 2011]; Gibson-Wallace Gibson-Wallace v (see Che Hong Kim Kim v Kosso/f, Kossoff, 90 AD3d NYS2d 867 [2d Dept Dalessandro, AD3d 679, 679,872 Dept 2009]). 2009]). Accordingly, Accordingly, the the Zaman Zaman defendants' defendants' Dalessandro, 58 AD3d 872 NYS2d NYS2d 156 [2d Dept motion for summary summary judgment dismissing the complaint complaint is denied. denied. motion judgment dismissing Defendant Bergquist Bergquist cross-moves cross-moves for summary summary judgment basis that that plaintiffs injuries do plaintiffs injuries Defendant judgment on the basis come within within the meaning meaning of of the serious serious injury injury threshold threshold requirement requirement of of the Insurance Insurance Law. In not come support of of the motion, motion, defendant defendant submit submit copies copies of of the pleadings, deposition transcript, transcript, and the pleadings, plaintiffs plaintiffs deposition support sworn medical medical report report of of sworn sworn medical medical reports reports of of Dr. David David Weissberg, Weissberg, Dr. Mathew Mathew Chacko, Chacko, and Dr. sworn Jonathan Lerner. Lerner. At defendant defendant Bergquist's Bergquist's request, request, Dr. Weissberg Weissberg conducted conducted an independent independent orthopedic orthopedic Jonathan examination of of plaintiff 2019. Also Also at defendant defendant Bergquist Bergquist request, request, Dr. Chacko Chacko examination plaintiff on November November 27, 2019. conducted an independent independent neurologic neurologic examination examination of of plaintiff January 20, 2020. 2020. Lastly, Lastly, Dr. Lerner, Lerner, conducted plaintiff on January defendant Bergquist's Bergquist's request, request, performed independent radiologic radiologic review review of of the MRI studies studies of of at defendant performed an independent plaintiff cervical spine spine taken taken on August August 22, 201 2017. Plaintiff opposes opposes the motion motion on the grounds grounds that that plaintiffss cervical 7. Plaintiff defendant Bergquist Bergquist failed failed to meet meet his prima that the evidence evidence submitted submitted in opposition opposition defendant prima facie burden, burden, and that demonstrates that that he sustained sustained an injuries injuries within within the limitations limitations of of use and and the 90/180 90/180 categories categories of of the demonstrates Insurance Law Law as a result result of of the subject subject accident. accident. In opposition opposition to the motion, motion, plaintiff submits his own own Insurance plaintiff submits affidavit, uncertified uncertified copies copies of of his medical medical records records pertaining injuries at issue, issue, and and the sworn sworn affidavit, pertaining to the injuries medical reports reports of of Dr. Brian Brian McNulty, McNulty, Dr. Mindy Mindy Pfeffer, Pfeffer, and Dr. Musarrat Musarrat Iqbal. Iqbal. medical defendant Bergquist Bergquist has failed failed to establish establish a prima case that that plaintiff sustain a Here, defendant prima facie case plaintiff did not sustain serious injury injury within within the the meaning meaning of of Section Section 5102(d) 5102(d) of of the Insurance Insurance Law Law (see Hernandez serious Hernandez v Pagan Pagan NYS3d637 [2d Dept Mercado v Mendoza, Mendoza, 133 AD3d NYS3d Corp.,174 Corp., 174 AD3d AD3d 513, 101 NYS3d637 Dept 2019]; 2019]; Mercado AD3d 833, 19 NYS3d Dept 2015]; 2015]; Farrah Farrah v Pinos, AD3d 831,959 831, 959 NYS2d Dept 2013]). 2013]). Defendant Defendant Pinos, 103 AD3d NYS2d 741 [2d Dept 757 [2d Dept Bergquist has submitted submitted contradictory contradictory evidence evidence in support support of of his motion. motion. While While Dr. Weissberg Weissberg Bergquist concludes, following following an examination examination of of plaintiff, that plaintiff range of of motion motion in his spine spine and plaintiff, that plaintiff has full range concludes, spinal injuries injuries he allegedly allegedly sustained sustained have have resolved, resolved, Dr. Chacko Chacko found found significant significant range range of of that the spinal motion limitations limitations in plaintiffs cervical and lumbar lumbar regions regions during during his examination examination of of plaintiff, which motion plaintiffs cervical plaintiff, which occurred almost almost three three years years after after the subject subject accident accident (see Britt AD3d 781, 909 occurred Britt v Bustamante, Bustamante, 77 AD3d NYS2d Dept 2010]; 2010]; Kjono AD3d 581,893 581, 893 NYS2d Dept 2010]; 2010]; Held Kjono v Fenning, Fenning, 69 AD3d NYS2d 157 [2d Dept Held v NYS2d 138 [2d Dept Heideman, Dept 2009]). 2009]). Where Where conflicting conflicting medical medical evidence evidence is Heideman, 63 AD3d AD3d 1105, 883 NYS2d NYS2d 246 [2d Dept offered on the issue issue of of whether whether a plaintiffs injuries are permanent significant, and and varying varying inferences inferences offered plaintiffs injuries permanent or significant, drawn, an issue issue of of credibility credibility for the jury been presented York City Tr. may be drawn, jury has been presented (see Barrett Barrett v New New York Auth., 550, 914 NYS2d AD3d 905,908 905, 908 NYS2d Auth., 80 AD3d 550,914 NYS2d 269 [2d Dept 2011]; Jacobs Jacobs v Rolon, Rolon, 76 AD3d NYS2d 31 [1st Dept 2010]; 2010); Mercado-Arifv AD3d 446,902 446, 902 NYS2d Dept 2010]). 2010]). The discrepancies discrepancies Mercado-Arifv Garcia, 74 AD3d NYS2d 72 [1st Dept between defendant Bergquist's Bergquist's experts experts create create an issue of of fact for the jury determine (see Martinez between defendant jury to determine Martinez v Pioneer Transp. Corp., Corp., 48 AD3d AD3d 306, 306,851 Dept 2008]; 2008]; Martin AD2d 851 NYS2d NYS2d 194 [1st Dept Martin v Schwartz, Schwartz, 308 AD2d Pioneer Transp. 318,766 NYS2d 13 [1st Dept 2003]; Velasquez v Quijada, 269 AD2d 592,703 NYS2d 518 [2d Dept 318, 766 NYS2d Dept 2003]; Velasquez Quijada, AD2d 592, 703 NYS2d Dept 2000]). 2000]). 4 of 5 [*FILED: 5] SUFFOLK COUNTY CLERK 01/12/2021 01:35 PM NYSCEF DOC. NO. 71 INDEX NO. 618564/2018 RECEIVED NYSCEF: 01/12/2021 Taylor v Zaman Zaman Taylor Index No. 618564/2018 618564/2018 Index Page 5 Additionally, defendant defendant Bergquist's Bergquist's examining examining radiologist, radiologist, Dr. Lerner, Lerner, states states in his report report that that Additionally, plaintiff suffers from osteoarthritis osteoarthritis and degenerative degenerative disc disease, disease, which which are chronic chronic degenerative degenerative plaintiff suffers process changes, changes, and not not attributable attributable to an acute acute traumatic traumatic event. event. Dr. Lerner Lerner further further states states that that there there is process causal relationship relationship between subject accident accident and plaintiffs alleged injuries. injuries. Dr. Lerner Lerner also no causal between the subject plaintiffs alleged obliquely states states that that the findings, findings, such such as disc bulges, spondylolisthesis, disc disc degeneration degeneration and disc loss obliquely bulges, spondylolisthesis, common in patients group that that they they must must be interpreted interpreted with with caution caution and in the are so common patients in plaintiffs plaintiffs age group context of of a clinical clinical setting. setting. However, However, like Drs. Weissberg Weissberg and Chacko, Chacko, Dr. Lerner Lerner fails to address address context plaintiffs allegation that that the subject subject accident accident exacerbated exacerbated his pre-existing cervical spin~ condition condition (see (see plaintiffs allegation pre-existing cervical D'Augustino AD3d 648, 648,59 Dept 2017]; 2017]; Washington v . D'Augustino v Bryan Bryan Auto Auto Parts, Inc., 152 AD3d 59 NYS3d NYS3d 104 [2d Dept Asdotel AD3d 880, 880,887 Dept 2009]). 2009]). Consequently, Consequently, Dr. Lerner's Lerner's Asdotel Enters., Inc., 66 66 AD3d 887 NYS2d NYS2d 623 [2d Dept conclusions are speculative, speculative, unsubstantiated, unsubstantiated, and without without probative value (see Irizarry v Lindor, conclusions probative value Lindor, 110 AD3d 846, 973 NYS2d Dept 2013]; 2013]; Casimir v Bailey, 70 AD3d AD3d 994, 994,896 Dept AD3d NYS2d 296 [2d Dept 896 NYS2d NYS2d 112 [2d Dept 2010]).). As a result, result, defendant defendant Bergquit' Bergquit's s evidence evidence raises raises triable triable issues issues of of fact as to whether whether plaintiff 2010] plaintiff sustained an injury injury within within the limitations limitations of of use or the 90/180 90/180 categories categories of of the Insurance Insurance Law Law (see (see sustained 0ffman v Singh, AD3d 284, 284,813 Dept 2006]; 2006]; Korpalski AD3d 536, 793 Offman Singh, 27 AD3d 813 NYS2d NYS2d 56 [1st Dept Korpalski v Lau, Lau, 17 AD3d NYS2d Dept 2005]). 2005]). Further, Further, defendant defendant Bergquist's Bergquist's evidentiary evidentiary submissions submissions demonstrated demonstrated the NYS2d 195 [2d Dept existence of of a triable triable issue issue of of fact as to whether whether the alleged alleged injuries injuries sustained sustained by plaintiff were caused caused by existence plaintiff were subject accident accident (see (see Straussberg AD3d 694, 968 NYS2d Dept 2013]; 2013]; Straussberg v Marghub, Marghub, 108 AD3d NYS2d 898 [2d Dept the subject Synder v Rivera, 98 AD3d AD3d 1104, 1104,951 Dept 2012]). 2012]). 951 NYS2d NYS2d 233 [2d Dept ', Inasmuch as defendant defendant Bergquist Bergquist failed failed to meet meet his prima of establishing establishing Inasmuch prima facie burden burden of entitlement to judgment matter of of law, the Court Court need need not not address address the sufficiency sufficiency of of the papers . entitlement judgment as a matter papers submitted in opposition opposition to the motion motion by the plaintiff (see Werthner. Werthner.vv Lewis, 120 120 AD3d AD3d 490, 490,990 submitted plaintiff (see 990 NYS2d Dept 2014]; 2014]; Keenum AD3d 843, 918 NYS2d Dept 2011]). 2011]). NYS2d 267 [2d Dept Keenum v Atkins, Atkins, 82 AD3d NYS2d 547 [2d Dept Accordingly, defendant defendant Bergquist's Bergquist's motion motion for summary summary judgment.dismissing complaint is denied. denied. Accordingly, judgment.dismissing the complaint JAN 1 12 2 JAN 2021 Dated: - - - - - - Dated: -FINAL DISPOSITION DISPOSITION FINAL ,. )' SANTORELLI A. SANTORELLI l.S.C. J.S.C. X 5 of 5 NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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