Urvalek v Maccia

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Urvalek v Maccia 2021 NY Slip Op 33265(U) June 15, 2021 Supreme Court, Suffolk County Docket Number: Index No. 610963/2018 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. INDEX NO. 610963/2018 FILED: SUFFOLK COUNTY CLERK 06/15/2021 01:42 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/15/2021 INDEX 610963/2018 No. 610963/2018 INDEX No. CAL. No. No. CAL. 202001089MV 202001089MV YORK NEW YORK SUPREME COURT COURT - STATE STATE OF NEW SUPREME COUNTY LA.S. SUFFOLK COUNTY PART 10 - SUFFOLK I.A.S. PART PRESENT: PRESENT : Hon. 4/8/21 DATE 4/8/21 MOTION MOTION DATE 5/6/21 ADJ. DATE ADJ. DATE MD 001 MD Mot. Seq. #001 Mot. Seq.# JOSEPH A. SANTORELLI SANTORELLI JOSEPH Court Justice Supreme Court the Supreme of the Justice of ---------------------------------------------------------------X ---------------------------------------------------------------X SOBO & SOBO, SOBO, LLP. SOBO Plaintiff Attorney Attorney for Plaintiff A venue One Dolson Avenue One Dolson York 10940 New York Middleton, New 10940 Middleton, ALEK, KAREN URV URV ALEK, KAREN Plaintiff, Plaintiff, against - againstMURRAY MARTYN SMITH & MURRAY MARTYN SMITH MARTYN MARTYN Att~rney Defendants Att~mey for Defendants 230 Parkway, Suite Suite 230 Motor Parkway, 102 Motor Hauppauge, 11788 York 11788 New York Hauppauge, New GREGORY C. MAC CIA and and MARLA MARLA GALE GALE MACCIA GREGORY MACCIA, MACCIA, Defendants. Defendants. ----------------------------------------~----------------------X ---------------------------------------------------------------X and Cause and Order to Show Motion/ Order of Motion/ Notice of judgment : Notice Upon summary judgment Show Cause motion for summary this motion read on this papers read following papers the following Upon the Answering __ papers supporting and Motion Cross of supporting papers by defendant, dated March 11, 2021 ; Notice of Cross Motion and supporting papers __ ; Answering Notice 11. March dated supporting papers by defendant, ~. papers by defendant. and supporting Affidavits and Replying Affidavits Affidavits supporting papers dated April supporting papers defendant, ~. April 29, 2021 ; Replying plaintiff. dated by plaintiff, papers by Affidavits and supporting dated 5, 2021 ; Othe~~; Othe~ // ; it is May 5. dated May summary seeking summary Maccia seeking Marla Maccia and Marla ORDERED motion by Maccia and Gregory Maccia defendants Gregory by defendants that the motion ORDERED that judgment dismissing the complaint complaint is denied. denied. judgment dismissing allegedly injuries she allegedly damages for injuries Plaintiff Karen Karen Urvalek commenced this this action action to recover recover damages Urvalek commenced Plaintiff premises parking lot to the premises that occurred sustained as a result accident that occurred in front front of of the parking vehicle accident motor vehicle result o~ a motor sustained York, New Highway, Southampton, known Southampton, New York, on Montauk Highway, 2044 Montauk located at 2044 Commons located Bridgehampton Commons known as Bridgehampton Marla defendarit Marla vehicle operated August 11,2016. alleged that that the accident accident occurred occurred when when the vehicle operated by defendarit 2016. It is alleged August 11, was it while vehicle plaintiff'.s' vehicle while rear of Maccia owned by defendant defendant Gregory Gregory Maccia struck the rear of plaintiffs' Maccia struck Maccia and owned various sustained various that she sustained alleges that stopped plaintiff alleges particulars, plaintiff of particulars, bill of her bill light. By her red light. traffic at a red stopped in traffic shoulder left preexisting a of aggravation injuries as a result of the the subject subject collision, collision, including including an aggravation of preexisting left shoulder result of injuries tear the left condition; tears of the distal distal supraspinatus supraspinatus and infraspinatus infraspinatus tendons of the left shoulder; shoulder; a complex complex tear tendons of tears of condition; spine cervical the of listhesis and of the glenoid labrum of the left shoulder; disc bulges at level C-3-C4; and listhesis of the cervical spine C-3-C4; level bulges disc glenoid labrum of the left shoulder; of through C7. . levels C5 through at levels \ [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 06/15/2021 01:42 PM NYSCEF DOC. NO. 40 INDEX NO. 610963/2018 RECEIVED NYSCEF: 06/15/2021 Urvalek v Maccia Maccia Urvalek Index No. 610963/2018 610963/2018 Index Page 2 Defendants now now move move for summary summary judgment basis that that the injuries injuries plaintiff plaintiff alleges alleges to judgment on the basis Defendants have to sustained sustained as a result result of of the the subject subject accident accident do not not meet meet the the serious serious injury injury threshold threshold requirement requirement have and pleadings, the of copies submit defendants ofInsurance Law S 5102 support of the motion, defendants submit copies of the pleadings, and motion, the of support In (d). of Insurance Law§ 5102 request, At defendants' Katzman. At Marc Katzman. the sworn sworn medical of Dr. Raymond Shebairo and and Dr. Marc defendants' request, Raymond Shebairo reports of medical reports 8, November on Shebairo Dr. by conducted plaintiff underwent an independent orthopedic examination conducted Shebairo November examination orthopedic independent plaintiff underwent 2019. Also Also at defendants' defendants' request, request, Dr. Katzman Katzman performed performed an independent independent radiological radiological review review of of the 2019. on taken shoulder left and spine cervical magnetic resonance imaging (MRI) scans of plaintiff s cervical spine and left shoulder taken plaintiffs of scans (MRI) imaging magnetic resonance Plaintiff 2015. Plaintiff taken on February 16,2017, scans of of plaintiffs shoulder taken on June June 19, 19,2015. plaintiffs left shoulder MRI scans well as MRI 2017, as well February 16, not did not that she prima facie make a prima opposes grounds that failed to make facie showing showing that she did defendants failed that defendants the grounds on the motion on the motion opposes the sustain a serious serious injury injury as a result result of of the subject subject collision, collision, and that that the the evidence evidence submitted submitted in opposition opposition sustain demonstrates that that she sustained sustained injuries injuries within within the the "limitations "limitations of of use" use" categories categories of of the the Insurance Insurance Law. demonstrates report of medical report opposition to the submits the sworn medical of Dr. Michael Michael Genereux. Genereux. the sworn plaintiff submits motion, plaintiff the motion, In opposition purpose of of New New York York State's State's No-Fault No-Fault Insurance Insurance Law Law is to "assure "assure prompt prompt and full The purpose Licari v compensation for economic economic loss loss by curtailing curtailing costly costly and and time-consuming time-consuming court court trial[s]" trial[s]" (see Licari compensation minor with those Elliott, 230, 455 455 NYS2d [1982]), and and requiring every case, case, even even those with minor injuries, injuries, requiring every NYS2d 570 [1982]), NY2d 230, Elliott, 57 NY2d supra). Therefore, Elliott, supra). Licari v Elliott, to be decided decided by a jury defeat the statute's effectiveness effectiveness (see Licari Therefore, the statute's would defeat jury would loss, except No-Fault Insurance Insurance law law precludes precludes the right right ofrecovery of recovery for any "non-economic "non-economic loss, except in the the No-Fault Schwartz, Martin v Schwartz, of serious serious injury, injury, or for basic basic economic economic loss" loss" (see Insurance Insurance Law§ Law S 5104 5104 [a]; Martin case of of definition the within falling not injury 308 AD2d AD2d 318, 318,766 NYS2d 13 [1st Dept 2003]). Any injury falling within the definition of Any [1st Dept 2003]). 766 NYS2d No-Fault the No-Fault under the not allowed trial is not "serious injury" injury" is classified classified as an insignificant insignificant injury, injury, and a trial allowed under "serious 582 955, NY2d 79 Eyler, Gaddy [2005]; 380 statute (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005]; Gaddy v Eyler, NY2d 955,582 NYS2d Pommells Perez, NY3d 566, statute Schwartz, supra). NYS2d 990 [1992]; [1992]; Martin supra). Martin v Schwartz, NYS2d results in death; which results personal injury Insurance Law Law § S 5102 ((d) defines a "serious "serious injury" injury" as "a "a personal injury which death; d) defines Insurance body a of of loss permanent fetus; a of loss dismemberment; significant disfigurement; fracture; loss of fetus; permanent loss of use of body fracture; a dismemberment; significant disfigurement; organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of of use use of of a body body organ organ or organ, injury determined medically a or system; or member; significant limitation of of body function system; medically determined injury or function body a of use of limitation member; significant performing substantially person from impairment of of a non-permanent non-permanent nature nature which which prevents injured person from performing substantially prevents the injured impairment not less usual and all of of the material constitute such such person's and customary customary daily daily activities activities for not less person's usual which constitute material acts which injury the injury occurrence of the occurrence than eighty days immediately following the of the immediately following hundred eighty one hundred the one during the ninety days during than ninety impairment." or impairment." negligence claim plaintiff's negligence that a plaintiff's A defendant defendant seeking seeking summary summary judgment ground that claim is judgment on the ground that facie prima facie case burden of barred of establishing establishing a prima case that initial burden the initial bears the Law bears Insurance Law No-Fault Insurance under the No-Fault barred under Eyler, A Car Rent A A vis Rent plaintiff did not not sustain sustain a "serious "serious injury" injury" (see Toure Toure v A Car Sys., Sys., supra; supra; Gaddy Gaddy v Eyler, the plaintiff the on based judgment 955,582 [1992]). When When a defendant defendant seeking seeking summary summary judgment based NYS2d 990 [1992]). 582 NYS2d NY2d 955, 79 NY2d of serious serious injury injury relies on the the findings findings of of the the defendant's defendant's own own witnesses, witnesses, "those "those findings findings must must be in relies on lack of demonstrate to reports" unsworn not admissible form, form, [such [such as], affidavits affidavits and and affirmations, affirmations, and and not unsworn reports" demonstrate admissible NYS2d 692 270, 587 268, 270, AD2d 268, Kingsbury, 182 AD2d entitlement to judgment matter of (Pagano v Kingsbury, 587 NYS2d law (Pagano of law judgment as a matter entitlement judgment, using [2d Dept Dept 1992]). 1992]). A defendant defendant may may also establish establish entitlement entitlement to summary summary judgment, using the plaintiffs plaintiffs physicians (see plaintiffss own prepared by the deposition testimony testimony and and medical medical reports reports and and records records prepared the plaintiff own physicians deposition AD2d 79, 268 AD2d Wright, v Grossman 2001]; Dept [2d Fragale Geiger, 288 AD2d 431,733 NYS2d Dept 2001]; Grossman Wright, 901 NYS2d 733 431, AD2d 288 Geiger, v Fragale [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 06/15/2021 01:42 PM NYSCEF DOC. NO. 40 INDEX NO. 610963/2018 RECEIVED NYSCEF: 06/15/2021 Urvalek v Maccia Maccia Urvalek Index No. 610963/2018 610963/2018 Index Page Page 3 662 NYS2d 707 NYS2d NYS2d 233 [2d Dept Dept 2000]; 2000]; Vignola v Varrichio, 243 AD2d AD2d 464, 464,662 NYS2d 831 [2d Dept Dept 1997]; AD2d 519,616 519, 616 NYS2d Dept 1994]). 1994]). Once Once a defendant defendant has met met this NYS2d 1006 [2d Dept Torres v Micheletti, 208 AD2d of degree and nature the of proof admissible and burden, submit objective objective admissible proof of the nature and degree of the then submit must then plaintiff must burden, the plaintiff New under New alleged injury injury in order order to meet of the statutory statutory standard standard for "serious "serious injury" injury" under threshold of the threshold meet the alleged Tornabene [1995]; 900 NYS2d 795,622 NY2d York's No-Fault Insurance Law (see Du/el v Green, NY2d 795, 622 NYS2d [1995]; 84 Du/el York's No-Fault Insurance Law Kingsbury, 182 AD2d AD2d 1025, 1025, 758 NYS2d Dept 2003]; 2003]; Pagano v Kingsbury, AD2d 268, 268, NYS2d 593 [2d Dept v Pawlewski, 305 AD2d case facie prima a establish not does 270, 587 NYS2d 692 [2d Dept 1992]). However, if defendant does not establish prima case defendant a if Dept 1992]). However, NYS2d 692 not consider need not the court threshold, the that injuries do not serious injury injury threshold, court need consider the meet the serious not meet plaintifrs injuries that the plaintiffs NYS2d 60 [2d 819 360, AD3d 31 Stranger, Burns (see sufficiency of the plaintiffs opposition papers Burns v Stranger, AD3d 360, NYS2d papers opposition sufficiency of the plaintiffs Dept 2006]; 2006]; Rich-Wing AD3d 726, 795 NYS2d NYS2d 706 [2d Dept Dept 2005]; 2005]; see generally Rich-Wing v Baboolal, 18 AD3d Dept [1985]). 316 NYS2d 851,487 NY2d WinegradvNew Univ. Med. NY2d 851, 487 NYS2d 316 [1985]). 64 Ctr., Univ. York WinegradvNew matter of judgment as a matter Here, failed to establish of entitlement to judgment facie entitlement prima facie their prima establish their have failed defendants have Here, defendants Avis that plaintiff plaintiff did not not sustain sustain a serious serious injury injury as a result result of of the subject subject accident accident (see Toure v A vis law that NYS3d 691 [2d Dept 89 NYS3d RentA CarSys., v St. Eloi, 168 AD3d AD3d 690, 690,89 Dept 2019; 2019; Steadv Stead v Sys., supra; Hodge vSt. Rent A Car Inc., 47 AD3d Nicmanda Trucking, Serrano, 156 AD3d 244 [2d Dept Dept 2017]; 2017]; Jensen Trucking, Inc., AD3d 769, Jensen v Nicmanda NYS3d 244 AD3d 67 NYS3d plaintiff the strains that the report that his report Shebairo concluding concluding in his strains plaintiff Despite Dr. Shebairo 2008]). Despite Dept 2008]). NYS2d 594 [2d Dept 851 NYS2d Shebario Dr. have resolved, sustained to her her spine spine and and left shoulder shoulder as a result result of of the subject subject accident accident have resolved, Shebario sustained notes significant significant range range of of motion motion limitations limitations in plaintifrs plaintiffs spine spine and left left shoulder shoulder during during active active range range of of notes (see accident subject the after motion testing testing when when he examined examined plaintiff approximately three three years years after the subject accident (see plaintiff approximately motion New Katanov v County of o/Nassau, 936 NYS2d Dept 2012]; 2012]; Grisales v City of o/New NYS2d 285 [2d Dept AD3d 723; 936 Nassau, 91 AD3d NYS2d 997,912 AD3d 79 Rhodes v Stoddard, 964,925 NYS2d AD3d 997,912 NYS2d 2011]; Rhodes Dept 2011]; NYS2d 633 [2d Dept AD3d 964,925 York, 85 AD3d Held v 893 NYS2d Dept 2010]; 2010]; Kjono v Fenning, Fenning, 69 AD3d AD3d 581, 581,893 NYS2d 157 [2d Dept Dept 2010]; 2010]; Held 908 [2d Dept 874 AD3d 59 Garcia, v Heideman, AD3d 1105, 1105, 883 NYS2d 246 [2d Dept Dept 2009]; 2009]; Torres AD3d 705, 705,874 NYS2d 246 Heideman, 63 AD3d motion range of plaintiffs decreased NYS2d Dept 2009]). 2009]). Although Shebairo indicates indicates that that plaintiffs decreased range of motion Although Dr. Shebairo NYS2d 527 [2d Dept his for basis the evidence medical objective any with is subjective subjective in nature, he failed to substantiate with objective medical evidence the basis his failed substantiate nature, Raguso v Ubriaco, conclusion that that such such limitations limitations were were self-imposed self-imposed (see (see Raguso Ubriaco, 97 AD3d AD3d 560, 560, 94 9477 NYS2s NYS2s conclusion v Cheour 2011]; Dept [2d 522 NYS2d 343 [2d Dept Dept 2012]; 2012]; Roc v Domond, AD3d 862, 931 NYS2d Dept 2011]; Cheour Pete & 862,931 AD3d 88 Roe Domond, NYS2d 517 [2d Dept Sals AD3d 989,907 989, 907 NYS2d Dept 2010]). 2010]). Inc., 76 AD3d Sais Harborview Transp., Inc., that reports that medical reports his medical While examining radiologist, concludes in his Katzman, concludes radiologist, Dr. Katzman, defendants' examining While defendants' shoulder left her in injuries degenerative-type and plaintiff suffers from preexisting chronic degeneration degenerative-type injuries her shoulder degeneration chronic preexisting plaintiff suffers plaintifr s left post-trauma" injury cervical spine, spine, and and that that there there is no evidence evidence of of a "recent "recent post-trauma" injury to either either plaintiffs and cervical the subject that allegations plaintiffs addressed shoulder cervical spine, neither he nor Shebairo addressed plaintiffs allegations that the subject Shebairo Dr. nor neither spine, cervical or shoulder NYS2d l, 949 AD3d 80 Ajah, 97 AD3d Little v Ajah, accident aggravated aggravated her left shoulder shoulder condition condition (see Little 801, 949 NYS2d preexisting left her preexisting accident Dept 2012]; 2012]; Edouazin Champlain, 89 AD3d AD3d 892,933 892, 933 NYS2d NYS2d 85 [2d Dept Dept 2011]; 2011]; Pero v Edouazin v Champlain, 109 [2d Dept NYS2d 364 [2d Dept AD3d 681,920 681,920 NYS2d Dept 2011]). 2011]). Transervice Logistics, Inc., 83 AD3d prima facie case, light of of defendants' defendants' failure failure to meet initial burden of establishing establishing a prima case, it is burden of their initial meet their In light of issue of triable issue raise a triable were sufficient unnecessary to consider consider whether whether plaintiffs plaintiff s papers papers in opposition sufficient to raise opposition were unnecessary v Chiara 2018]; Dept fact (see (see Cervantes v McDermott, 159 AD3d 669, NYS3d Dept 2018]; Dernago, [2d 612 NYS3d 71 AD3d 669, McDermott, 865 AD3d 746, 746,894 Dept 2010]; 2010]; Stern v Oceanside School School Dist., 55 AD3d AD3d 596, 596,865 NYS2d 129 [2d Dept 894 NYS2d 70 AD3d [* 3] 3 of 4 INDEX NO. 610963/2018 FILED: SUFFOLK COUNTY CLERK 06/15/2021 01:42 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/15/2021 Urvalek Urvalek v Maccia Maccia Index No. 610963/2018 610963/2018 Index Page 4 Page4 NYS2d 325 [2d judgment dismissing NYS2d [2d Dept Dept 2008]). 2008]). Accordingly, Accordingly, defendants' defendants' motion motion for summary summary judgment dismissing the complaint is denied. denied. . complaint JUN 1 5 Dated: - - - - - - - Dated: 2011 HON.JOSf1ft HON. JOsfi1f:f::TORELLI J.S.C. l.S.C. FINAL FINAL DISPOSITION DISPOSITION .X NON-FINAL NON-FINAL DISPOSITION DISPOSITION . (( [* 4] 4 of 4

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