Benson v Hall

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Benson v Hall 2021 NY Slip Op 33407(U) May 21, 2021 Supreme Court, Dutchess County Docket Number: Index No. 2019-52948 Judge: Christi J. Acker 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: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 INDEX NO. 2019-52948 RECEIVED NYSCEF: 05/21/2021 To commence commence the 30-day 30-day statutory time period. for appeals statutory of right right (CPLR (CPLR 551 5513[a]), you as of J[a]), you are this are advised to serve a copy copy of of this order, with notice of of entry, upon order. parties. all parties. SUPREME COURT COURT OF THE THE ST STATE NEW YORK SUPREME ATE OF NEW YORK COUNTY OF DUTCHESS DUTCHESS .-------x COUNTY ______________________________________________________ ----------------------------------------------------- .-------x CHRISTIAN D. BENSON, BENSON, CHRISTIAN Plaintiff, Plaintiff, DECISION ORDER DECISION AND AND ORDER -against-against- Index No.: Index No.: 2019-52948 2019-52948 COURTNEY A. HALL, COURTNEY HALL, Motion Seq. NO.1 No. 1 & 2 Motion Defendant. Defendant. ______________________________________________________ -~-----x -------------------------------------------------------------x The following following papers, were read on the following following applications: applications: (I) (I) The papers, numbered numbered 1I to 22, were motion of Defendant Courtney A. Hall (hereinafter "Defendant") "Defendant") for summary summary judgment motion of Defendant Courtney Hall (hereinafter judgment pursuant pursuant to CPLR CPLR 3212 3212 due due to Plaintiff Christian D. Benson's (hereinafter "Plaintiff'') "Plaintiff') failure failure to meet meet the the Plaintiff Christian Benson's (hereinafter threshold limits set by Insurance Law §5102 g5102 and §5104 g5104 and (2) Plaintiff's Plaintiff's cross-motion cross-motion for an threshold limits Insurance Law Order pursuant CPLR 3025 granting granting plaintiff plaintiffleave amend his Bill Bill of of Particulars: Order pursuant to CPLR leave to amend Particulars: Notice of Motion-Affirmation of Keri Wehrheim, Esq.-Exhibits Esq.-Exhibits A-F ....................... 1-8 Notice of Motion-Affirmation of Keri A. Wehrheim, Notice of Cross-Motion-Affirmation Cross-Motion-Affirmation in Support Support of of Cross-Motion Cross-Motion and and in Notice of Opposition of of Mark Cambareri, Esq.-Exhibits 9-19 Opposition Mark P. Cambareri, Esq.-Exhibits 1-9 ................................................... 9-19 Affim1ation Opposition to Cross-Motion Cross-Motion of of Keri A. Wehrheim, Wehrheim, Esq.Esq.Affim1ation in in-Opposition Exhibits 19-2 I Exhibits A-B ................................................................................................................ 19-21 Affirmation Reply of of Keri A. Wehrheim, Affirmation in Reply Wehrheim, Esq .............................................................. 22 Plaintiff commenced this injury action action against against Defendant about July 26, Plaintiff commenced this personal personal injury Defendant on or about 2019. It is alleged injured as the result of a motor that occurred occurred motor vehicle vehicle accident accident that alleged that that Plaintiff Plaintiff was injured result of I 7 on Mill Street intersection with of on July 20, 20 2017 Street near near its intersection with North North Clinton Clinton Street Street in the City City of Poughkeepsie Poughkeepsie when when his vehicle vehicle was was struck struck by the vehicle vehicle owned owned and operated operated by Defendant. Defendant. [* 1] 1 of 6 FILED: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 INDEX NO. 2019-52948 RECEIVED NYSCEF: 05/21/2021 Defendant summary judgment alleging that Defendant moves moves for summary judgment on Plaintiffs Plaintiffs claims, claims, alleging that said Plaintiff Plaintiff "serious injury" threshold pursuant fails to meet meet the "serious injury" threshold pursuant to the New New York York Sta~e Sta~e Insurance Insurance Law. In support of of her summary judgment application, Defendant submits copies her summary judgment application, Defendant submits copies of of the pleadings, pleadings, support Plaintiffs of Particulars, Plaintiffs deposition deposition transcript, Plaintiffs Verified Verified Bill of Particulars, Plaintiff's transcript, the June June 22, 2020 2020 affirmed affirmed report of of Adam Soyer, D.0., D.O., who examined examined Plaintiff Adam Soyer, Plaintiff on May May 27, 2020 2020 (attached (attached to the Wehrheim Wehrheim report Affirmation "Soyer Report") 11,2020 Report") and the February February 11, 2020 Affirmation as Exhibit Exhibit 0, D, hereinafter hereinafter referred referred to as the "Soyer affirmed report of Loren Rosenthal, M.D., ePE, FRSM, examined Plaintiff same Loren E. Rosenthal, M.D., CPE, FRSM, who examined Plaintiff on that that same affirmed report of date (attached (attached to the Wehrheim "Rosenthal _ Wehrheim Affirmation Affirmation as Exhibit Exhibit E, hereinafter hereinafter referred referred to as the "Rosenthal Report"). Report"). The New New York York Insurance Insurance Law Law defines defines "serious "serious injury" injury" as a personal death; dismembem1ent; dismemberment; significant personal injury injury which which results results in death; significant disfigurement; a fracture; fracture; loss of of a fetus; permanent of a body organ, permanent loss of of use of body organ, disfigurement; member, function or system; system; pem1anent consequential limitation pem1anent consequential limitation of of use of of a body body member, function organ organ or member; member; significant significant limitation limitation of of use of ofaa body body function function or system; system; or a medically determined injury of a non-permanent impairment of non-pemrnnent nature nature which which medically determined injury or impairment prevents the injured injured person person -from perfonning substantially of the material material acts prevents from performing substantially all ofthe which constitute constitute such such person's customary daily da_ily activities activities for not not less which person's usual and customary than ninety ninety days days during during the one one hundred eighty days immediately following the hundred eighty immediately following occurrence of of the injury impairment. occurrence injury or impairment. . N.Y. 5102(d) (McKinney's (McKinney's 2018) Law§S 5102(d) 2018) N.Y. Ins. Law The purpose of New State's No-Fault "assure prompt New York York State's No-Fault Insurance Insurance Law Law is to "assure prompt and full purpose of compensation for economic economic loss by curtailing curtailing costly costly and time-consuming court trials." · compensation time-consuming court trials." Licari Licari v. v. Ellioll, 57 NY2d [1982]. Any injury injury outside outside the definition definition of of "serious Elliotl, NY2d 230, 230, 237 [1982]. "serious injury" injury" is considered insignificant injury injury and, therefore, therefore, a trial is not allowed under the no-fault no-fault statute. considered an insignificant allowed under statute. ld. "significant" refers "something more Id. at 235. The The term "significant" refers to "something more than than a minor minor limitation limitation ofuse".ld. of use". Id. at 236. Whether claimed injury injury falls within statutory definition definition of of "serious "serious injury" injury" is a Whether a claimed within the statutory 2 [* 2] 2 of 6 INDEX NO. 2019-52948 FILED: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/21/2021 question of of law that may be decided summary judgment. question decided by the court court on a motion motion for summary judgm~nt. See Licari, Licari, supra, supra, at 237. defendant seeking seeking summary summary judgment of establishing establishing a A defendant judgment bears bears the initial initial burden burden of prima sustain a "serious "serious injury." injury." Toure Tourev.v. Avis Sys. prima facie case that the plaintiff plaintiff did not sustain Avis Rent Rent A Car Sys, v. Ey/er, Eyler, 79 NY2d NY2d 955 [1992]. NY2d 345 [2002]; Inc., 98 NY2d [2002]; Gaddy Gaddy v. [1992]. Once Once a defendant defendant has made made a prima fcicie showing, burden shifts plaintiff to submit admissible form, fom1, prima/acie showing, the burden shifts to the plaintiff submit evidence, evidence, in admissible sufficient to create issue of offact v. Pa/mireri, fact necessitating necessitating a trial. Franchini Franchini v. Palmireri, 1I N.Y.3d N.Y.3d sufficient create a material material issue 536 [2003]; v. Wright, 268 AD2d AD2d 79, 84 [2d Dept Dept 2000]. 2000]. [2003]; Grossman Grossman v. Summary judgment Summary judgment is is aa , \ drastic that deprives deprives a litigant of his or her day in court that should should only drastic remedy remedy that litigant of court that only be employed employed absence of when there there is no doubt doubt as to the absence of triable triable issues. issues. Castlepoint Cast/epoint Ins. Co. v. v. Command Command Corp., 144 AD3d 731, 733 [2d Dept. 2016]. Sec. Corp., AD3d 731, Dept. 2016]. A review of Defendant's submissions demonstrates that she failed failed to satisfy satisfy her Defendant's submissions demonstrates that her prima/acie primafacie review of burden of establishing serious injury. burden of establishing that Plaintiff Plaintiff did not stiffer a serious injury.. At the examination examination on May May 27,2020, Defendant's orthopedic orthopedic expert, expert, Dr. Sayer, Soyer, measured measured Plaintiffs Plaintiffs lumbar lumbar extension extension range range 27, 2020, Defendant's of motion 15 degrees, degrees, with 25 degrees degrees being normal. of motion at 15 being nom1al. of motion of motion translates translates to a 40% 40% loss. This 10-degree 1O-degree reduction oflumbar reduction of lumbar range range Accordingly, establish her Accordingly, Defendant Defendant fails to establish her prima/acie primafacie case significant limitation limitation in the Plaintiffs lumbar extension range of of motion. as her expert expe11 found significant Plaintiffs lumbar extension range motion. McGee v. Bronner, Bronner, 188 AD3d AD3d 1033 McGee v. I 033 [2d Dept. 2020]. 2020]. Further, Soyer diagnosed Further, Dr. Sayer diagnosed Plaintiff Plaintiff with with sprain of spine, superimposed superimposed on pre-existing degenerative disc disc disease, disease, but a resolved resolved sprain of his lumbar lu~bar spine, pre-existing degenerative he does not opine opine as to whether whether this "resolved" "resolved" sprain sprain was, or was not, ofthe accident at not, the the result result of the accident , I issue herein. Soyer also fails to state affim1atively affirmatively that subject accident herein. Notably, Notably, Dr. Soyer that the subject accident had not caused the measured measured limitation, limitation, similarly similarly rendering insufficient to satisfy satisf'y the caused rendering his report report insufficient Defendant's prima/acie burden. v. Hurd/e, 646, 647 [2d Dept. 2015]. Finally, Defendant'sprimafacie burden. Murphy Murphy v. Hurdle, 132 AD3d AD3d 646,647 Dept. 2015]. Finally, 3 [* 3] 3 of 6 INDEX NO. 2019-52948 FILED: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/21/2021 Defendant's doctors' reports reports create create an issue of fact as Defendant's expert neurologist, Defendant's own doctors' issue of Defendant's expert neurologist, Dr. Rosenthal, of motion motion and found them Plaintiffs lumbar lumbar ranges ranges of them to all be within within normal normal Rosenthal, measured measured Plaintiffs determine' . limits. limits. Since Defendant Defendant failed to meet meet her prima prima jacieburden, facie burden, it is unnecessary unnecessary to determine whether opposing papers sufficient to raise a triable of fact. 1I McGee, papers were were sufficient triable issue issue of McGee, supra; supra; see see whether the opposing also Nunez 1058,1059 Nunez v. v. Alies, Alies, 162 AD3d AD3d 1058, 1059 [2d Dept. Dept. 2018]. 2018]. Plaintiffs Plaintiffs Cross-Motion Cross-Motion to Amend Amend the Bill of of Particulars Particulars According to Plaintiffs counsel, the "entire "entire basis" of Plaintiffs counsel, basis" for leave leave to amend amend Plaintiffs Plaintiffs Bill of According Particulars claim activation activation and exacerbation exacerbation of of previously asymptomatic degenerative Particulars is to claim previously asymptomatic degenerative condition. condition. through a Counsel maintains that such an amendment Counsel maintains amendment can be accomplished accomplished through supplemental bill of of particulars particulars pursuant CPLR 3043(b). 3043(b).22 That supplemental pursuant to CPLR That section section provides provides that that a party may serve serve a supplemental supplemental bill of of particulars of particulars with with respect respect to claims claims of continuing special special damages damages and disabilities disabilities without continuing without leave leave of of court court at any time, 'Provided however time, but not less than thirty thirty days prior prior to trial. 'Provided however that that no new cause injury claimed that the cause of of action action may be alleged alleged or new injury claimed and that other party seven days entitled to newly other party shall upon upon seven days notice, notice, be entitled newly exercise exercise any and all rights rights of discovery but only respect to such special of discovery only with respect such continuing continuing special damages (Emphasis supplied) supplied) damages and disabilities. disabilities. (Emphasis Plaintiff argues that the "activation" which were were previously previously Plaintiff argues that "activation" of of degenerative degenerative conditions conditions which asymptomatic is "not "not entirely entirely a new new ,injury." .injury," asymptomatic CambareriAffirmation, Cambareri Affirmation, '119,3 ,I9. 3 The The Court Court disagrees, disagrees. Plaintiffs current Particulars alleges caused the lumbar lumbar Plaintiffs current Bill of of Particulars alleges that the accident accident in question question caused injuries. which includes herniations and bulges. injuries. which includes herniations bulges. Plaintiff seeks to allege Plaintiff now now seeks allege that that these these injuries injuries were aggravated activated by the existed before the accident, existed before accident, but were asymptomatic, asymptomatic, and were aggravated or activated Nevertheless, Court need consider Plaintiffs Plaintiffs opposition, opposition, Plaintiff Plaintiff submitted submitted affirmed Nevertheless, although although the Court need not consider affinned medical medical reports and an expert raise triable issues of of fact. reports expert affirmation, affirmation, which which raise triable issues 2 Counsel Counsel mistakenly cites CPLR CPLR 3042(b), 3042(b), but quotes from CPLR CPLR 3043{b). 3043(b), mistakenly cites but thereafter thereafter quotes _.• 3 , Indeed, Indeed, relying upon this section, section, Plaintiff served a Verified Supplemental Bill of of Particulars Particulars dated dated J_anuary January 18, relying upon Plaintiff served Verified Suppl_emental 2021 and annexed Cambareri Affirmation Affirmation as as Exhibit Exhibit I. · ·. 2021 annexed to the the Cambareri 1 I 4 [* 4] 4 of 6 INDEX NO. 2019-52948 FILED: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 accident. accident. RECEIVED NYSCEF: 05/21/2021 Although same area area of spine, Plaintiff's Although the proposed proposed amendment amendment involves involves the same of the spine, Plaintiff's theory of of the injury dramatically - from from the accident accident causing causing the lumbar injury has changed changed dramatically lumbar injuries injuries to theory accident aggravating injuries. the accident aggravating pre"existing pre~existing injuries. As this is clearly claimed injury, injury, it is not clearly a newly newly claimed the appropriate appropriate subject subject of ofaa Supplemental Supplemental Bill of of Particulars CPLR 3043(b). 3043(b). Particulars pursuant pursuant to CPLR Accordingly, Plaintiff's Plaintiff's application Accordingly, application will be evaluated evaluated as one to arriend amend the Bill of of Particulars pursuant to CPLR CPLR 3025. Particulars pursuant 3025. Although leave to amend particulars should Although amend a bill of of particulars should be freely granted, where application for leave to amend amend is mad~ after after the action action has certified for granted, where the application has been been certified trial, '"judicial "'judicial discretion discretion in allowing such amendments amendments should should be discrete, discrete, circumspect, allowing such circumspect, prudent, prudent, _) . and cautious' cautious' [citation omitted]." Rodgers Rodgers v. New York City Auth., 109 AD3d [citation omitted]." v. New City Transit Transit Aufh., AD3d 535, 53653637 [2d Dept. 2013]. 2013°]. "A determination whether to grant leave is within within the Supreme Court's determination whether grant such leave Supreme Court's broad discretion, discretion will not hqt be lightly disturbed." broad discretion, and the exercise exercise of of that discretion lightly disturbed." Gitlin Gitlin v. v. Chirinkin, 60 AD3d AD3d 901, 901,902 2009]. Chirinkin, 902 [2d Dept. 2009]. Plaintiff argues that amendment as Defendant's Defendant's own prejudice in allowing allowing the amendment own Plaintiff argues that there there is no prejudice experts indicate condition in his experts indicate that the accident accident exacerbated exacerbated Plaintiff's Plaintiff's pre-existing pre-existing degenerative degenerative condition lumbar lumbar spine. However, Plaintiff's Plaintiff's application devoid of However, application is devoid of any explanation explanation for the delay delay in . ' seeking this amendment. amendment. seeking It is uncontested October 5, 2017 2017 MRI report makes uncontested that the October MRI report makes numerous numerous references to disc disc disease disease and concludes concludes with an impression impression of of"Moderate references "Moderate degenerative degenerative disease disease of of lunibar Exhibit 4, Cambareri Cambareri Affirmation. Affirmation. lunibar spine." spine" Exhibit by Defendant's In addition, addition, as noted noted.by Defendant's counsel counsel in opposition, Plaintiff was on noiice of the opinions opinions of of the Defendant's early as March opposition, Plaintiff notice of Defendant's experts experts as early March instant motion Defendant moved summary judgment. 20, 2020 2020 and did not make make the instant motion until Defendant moved for summary judgment. More importantly, importantly, Plaintiff's own expert expert clearly clearly maintains maintains that injuries to Plaintiff's Plaintiff's lumbar Plaintiff's own that the injuries lumbar· "were caused caused ?y 20,2017 accident and not by degenerative degenerative disc by the July 20, 2017 accident disc· disease." disease." spine "were ' . 5 [* 5] 5 of 6 January January INDEX NO. 2019-52948 FILED: DUTCHESS COUNTY CLERK 05/24/2021 01:36 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/21/2021 Affirination of of Gabriel Gabriel L. Dassa, Dassa, D.O, 0.0, Exhibit Exhibit 8, Cambareri Cambareri Affirmation. Affirmation. 2021 Affirrnation Given the delay delay Given seeking this amendment amendment and the fact that that the opinion opinion of of Plaintiff's Plaintiffs own own expert expert does does not not support support in seeking proposed am~ndment, amendment, PhJintiffs Plaintiffs motion motion -to to amend amend the Bill Bill ·of of Particulars Particulars is denied. denied. the proposed See 537 ("Under. ("Under the circumstances circumstances of of this case, case, including including the the fact that, that, during during four Rodgers, supra supra at 5-37 years of of discovery, discovery, the plaintiff plaintiff affirmatively affirmatively maintained maintained that that his injuries injuries did not not include include the years aggravation of of a pre-existing pre-existing condition, condition, as weil well as the lateness lateness of of his request request for leave leave to amend, amend, aggravation prejudice to the defendants, defendants, and the lack of of any reasonable reasonable excuse excuse for the delay, delay, the Supreme Supreme the prejudice Court improvidently for leave improvidently ex_ercised·its exercised its discretion discretion in granting granting the plaintiff's plaintiffs moti~n motion leave to amend amend . . particulars. "): his bill of of particulars."): Court has considered considered the additional additional contentions contentions of of the parties parties not not specifically specifically The Court addressed herein. herein. To the extent extent any relief relief requested requested by either either party party was was not not addressed addressed by the the ~curt, Court, addressed .it hereby denied. denied. Now, Now, therefore, therefore, it is hereby hereby it is hereby ORDERED ORDERED that that Defendant's Defendant's motion motion is DENIED DENIED in its entirety; entirety; and and it is further further ORDERED that that Plaintiff's Plaintiffs cross-motion cross-motion is DENIED DENIED in its entirety; entirety; and it is further further ORDERED ORDERED that that the trial in this this matter matter is.hereby is hereby scheduled scheduled for jury selection on ORDERED jury st:lection September 13, 2021; 2021; and it is further further September ORDERED that that this this matter matter is schedule~ scheduled for a _virtual virtual settlement settlement conference conference on June June 7, ORDERED 2021 at 11 11:30 a.m .. via via Microsoft Microsoft Teams. Teams. :30 a.m foregoing constitutes constitutes the Decision Decision and Order Order of of the Court. Court. The foregoing . . Poughkeepsie, New York Dated: Poughkeepsie, New York 21,2021 May 21, 2021 Uc.u~~~ CHRISTI J.~ER, To: parties via ECF ECF All parties 6 [* 6] 6 of 6 J.S.C. _

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