Kent v Holbok

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Kent v Holbok 2021 NY Slip Op 33300(U) May 5, 2021 Supreme Court, Erie County Docket Number: Index No. 817122/2018 Judge: Diane Y. Devlin 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. 817122/2018 FILED: ERIE COUNTY CLERK 05/05/2021 02:27 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/05/2021 Ata Special Te1m of the Supreme Courf held in and fot the County ofErie, State ofNew York; located at Part 32j Buffalo,NY, on the 15TH day of April 202L PRESENT: HON. DIANE Y. DEVLIN Justice Presiding STATE OF NEW YORK SUPREMECOURT : : COUNTY dF ERIE JESSICA KENT Plaintiff Index: 817122/2018 DECISION AND ORDER ~vsJENNA HOLBOK, VEHICLE ASSET LEASING TRUST, MATTHEWR. THOMAN, ANDTWIN CITY AMBULANCE CORP. Defendants His hereby ORDERED that Defendants' motion is GRANTED in part and DENIED in part and Plaintiff's cross motion is DENIED. The Court has read and considered the following papers on these motions: Notice of Motion-Affirmations-Exhibits Document Numbers 2 8-41, ·61 Notice of Cross Motion-""Affirmations, Affidavit-Exhibits Document Numbers43-56 Opposing Affirmations, DotumentNumbers 57-59 Replying Affirmations,. Document Numbers 60 Th,ts action sounds in negligence stemrriingfront a motor vehicle accident .that occurred cm January 9, 2018 on Hopkins Road... Plaintiff t~stified that she was on the Way . to a .job ir,terview whi:?n Defendant I-fol bok swerved her car to the other lane to avoid .a rear-,end accident [* 1] 1 of 4 FILED: ERIE COUNTY CLERK 05/05/2021 02:27 PM NYSCEF DOC. NO. 63 INDEX NO. 817122/2018 RECEIVED NYSCEF: 05/05/2021 which caused the DefendantTwin City Ambulance vehicle to react and comeinto contact with Plaintiffs vehicle. As a re stilt of the motor vehicle accident, Plaintiff alleges that she sustained a concussion, post-traumatic headaches, cervical bulges, anxiety, and loss of memory among other injuries. She claims that she sustaineda threshold injury under the permanent loss of use, permanent consequential,<significant1imitation, and 90/180 categories. Discovery has been conducted and Defendants file a motion for sli111mary judgment on the theory that Plaintiff did not sustain a threshold injury pursuant to Insurance Law 5102(d); Plaintiff files a cross motion claiming that she sustained a threshold injury pursuant to the 90/180 and significant limitation categories. Defendants submit an IME report from neuropsychologistDL Santa Mariathatincludes the results of the battery of tests that Plaintiff completed·. Dt. Santa Mariaopinesthauhe Plaintiff does nothave post-traumatic stress disorder and any depressive symptoms are not related to the rnotot vehicle -accident. Defendants also rely on an orthopedic IME where Dr. Molinari found normal cervical range of motion and opined that Plaintiff did not sustain a traumatic spinal IDJury. Plaintiffs neurologist Dr; McVige opines that Plaintiff struggled with daily headaches,. and her headache prnfile revealed. headaches three to four times a week. Jhe he_adaches occur on the right side of her head and radiate to her neck. In Alcombrack v. Swarts,49 AD3d 1170 (4 th Dept. 2008) the Court held that "headaches [are] not physical limitations ,that cari be observed." Courts have. held that heaeuiches do riot necessarily constitute a sl!rious injury. Downie v. McDonough, 117 AD3d 1401 (4 th Dept. 2014). Plaintiff also relies on art .affidavit -Of John Bialecki, D.C. He measured the cervical ranges . .ofmotions and referred to his records where the -ranges· of motion were documented. He [* 2] 2 of 4 FILED: ERIE COUNTY CLERK 05/05/2021 02:27 PM NYSCEF DOC. NO. 63 INDEX NO. 817122/2018 RECEIVED NYSCEF: 05/05/2021 measured right lateral tlexion at 3 ldegrees with 45 as normal and lumbar extension of 12 degrees with25 as normal attheinitial examination on January 23, 2018. The other cervical and lumbar ranges ofmotion were only reduced slightly. By the June 21, 2018 examination, cervical ranges of motion were nearly foll in all planes. Similar to the case at bar, the chiropractor in the Downie case found nearly normal cervical ranges of motion ot a reduction of 10-11 % which the court found to be insignificant or inconsequential. Id. The Plaintiff was not working at the time ofthe accident but was seeking employment. She testified that she could not swim, garden, launder clothes; and vacuum. She could take baths but not showers. In her affirmation, Dr. McVigeindicated that Plaintiff was disabled from January 9; 2018 to April 26, 2018. However, a review of her medical records indicates that at the· initial visit on l/22/18 Plaintiff had full range of cervical motion;atthe2/8/18 visit the notes indicate that Plaintiff did go to some job interviews but had to leave due to persistent symptom; her memory was intact; she had difficulty driving bµt was not restricted frorn driving; the notes from the 3/1/18 visit indicate that Plaintiff should avoid headache triggers;. and notes from the 3/15/18 visit indicatethat "activities high risk for head injury should be avoided" yet she was also counseled on the ''importance ofmoderate physical activity." Notes from the 4/19/18 visit indicate that Plaintiff was ''still hesitant about· applying for jobs given that she is> nervous if she will be able to handle the interviews or thejob duties/' ·1n Felton v Kelly.44 AD3d 1.217 (3d Dept. 2007), dismissal Ofthe 90/l 80 claim was denied where a plaintiff had headaches that kept him oµt of work for seven morttlis and to participate in some• household work and personal hobbies. The Court GRANTS Defendmits, motion and dismisses the permanent los_s of use, perrtmnent consequential limitation, and significant limitationdaims, The Court DENIES · ·3] · · · · · · · · - · · - - · · - - - - · - - - - - - - - - - - -3-of - -4- - - - - - - - - - - - - - - - - [* INDEX NO. 817122/2018 FILED: ERIE COUNTY CLERK 05/05/2021 02:27 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/05/2021 di mi al a to the 90/180 claim. The Court DENIES Plaintif s cross motion. GRA TED: [* 4] M ~ 5 ~ ;)Od \ 4 of 4

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