Meade v Holahan

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Meade v Holahan 2021 NY Slip Op 33470(U) September 30, 2021 Supreme Court, Westchester County Docket Number: Index No. 52533/2019 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 INDEX NO. 52533/2019 RECEIVED NYSCEF: 10/12/2021 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR (CPLR 5513[a]), 5513[a]), you you are advised to to serve serve a copy copy advised of of this this order, order, with with notice notice of of entry, entry, upon upon all all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: -------------------·---------------x ------------------------------------------------------------------------------x KENNETH C. MEADE MEADE and KENNETH STACY STACY DETHOMASIS-MEADE DETHOMASIS-MEADE , ' Plaintiff, Plaintiff, DECISION DECISION and and ORDER ORDER Index Index No. 52533/2019 52533/2019 Seq# Seq # 2 & 3 -against-against- CINDY CINDY A. HOLAHAN, HOLAHAN, JOSE-GUAMAN JOSE GUAMAN MORA, MORA, and GUAMAN MORA MORA GENERAL GENERAL SERVICES, SERVICES, LLC, GUAMAN Defendants. Defendants. ·~----------------x ---------------~--------------------------------------------------------------x JOSE E. GUAMAN GUAMAN and MAGDALENA MAGDALENA CHUQUI, CHUQUI, JOSEE. Plaintiff, Plaintiff, Index Index No. 60075/2019 60075/2019 -against-againstCINDY A. HOLAHAN, HOLAHAN, CINDY Defendant. Defendant. ______________________________________________________ ------------------------x ---------- -------------~---x The following following papers papers were were read on the the motion motion and cross-motion cross-motion 11(Sequence# The (Sequence# 2 & 3) for for an order, order, pursuant pursuant to CPLR CPLR 3212 3212 and Article Article 51 of of the the Insurance Insurance Law Law of of the the State State of judgment in favor of New New York York granting granting summary summary judgment favor of of the the defendants, defendants, Cindy Cindy Holahan, Holahan, and Jose Jose Guaman Guaman ("Guaman"), ("Guaman"), dismissing dismissing Magdalena Magdalena Chuqui's Chuqui's verified verified complaint: complaint: Notice of Motion/Statement Motion/Statement of of Material Material Facts/Affirmation Facts/Affirmation in Support/Exhibits Support/Exhibits A-G A-G · Notice Affirmation Affirmation in Opposition/Exhibits Opposition/Exhibits A-D A-D Notice Notice of of Cross-Motion/Statement Cross-Motion/Statement of of Material Material Facts/Affirmation Facts/Affirmation in Support/Exhibits Support/Exhibits A-E A-E Reply Reply Affirmations Affirmations The attorney attorney for for Guaman Guaman acknowledged acknowledged that that the the cross-motion cross-motion is untimely, untimely, but but requests requests leave leave of of Court Court for for the the motion motion be accepted, accepted, since since the the defendant defendant wa_s was permitted permitted to amend her her answer answer to include include a counterclaim counterclaim against against Guaman. Guaman. Prior Prior to this, this, there there was was no amend counterclaim against against Guaman Guaman and therefore, therefore, it was was unnecessary unnecessary for for him to file file a motion motion counterclaim for summary summary judgment this action. action. Given Given the the procedural procedural history, history, the the Court Court grants grants leave leave for judgment in this of Court for the untimely motion to be heard. Court for the untimely motion heard. 11The [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 INDEX NO. 52533/2019 RECEIVED NYSCEF: 10/12/2021 Factual and Procedural Procedural Background Background Factual This action action arises arises out out of a motor motor vehicle vehicle accident, accident, which which occurred occurred on December December 15, This 2018, on the the Interstate Interstate 95, at or near near the 5 mile marker marker in the City of New New Rochelle, Rochelle, 2018, Westche~t~r County, County, New New York York State. State. The The plaintiffs plaintiffs commenced commenced the the action action on July July 3, Westche~t~r 2019, by filing filing a summons summons and verified verified complaint. complaint. By Order Order dated dated November November 26, 26,2019, 2019, 2019, this Court granted granted a motion motion to consolidate consolidate this this action action with Index No. 52533/2019 52533/2019 (Meade (Meade v Court with Index Holahan) for for the purpose purpose of a joint Holahan) joint trial. The bill of of particulars particulars alleges alleges the following following serious serious injuries injuries for for Magdalena Magdalena Chuqui Chuqui The ("Chuqui"): ("Chuqui"): Internal derangement derangement of left left knee; cervical cervical radiculopathy; radiculopathy; lumbosacral lumbosacral radiculopathy; radiculopathy; Internal cervical sprain/strain; sprain/strain; lumbar lumbar sprain/strain; sprain/strain; left knee knee sprain/strain; sprain/strain; limitation limitation of motion; motion; cervical depression; headaches; headaches; anxiety; anxiety; fear; emotional emotional upset upset and shock. shock. depression; was operated operated on at Montefiore Montefiore New New Rochelle Rochelle Hospital; Hospital; was was confined confined to bed for for a She was period of approximately approximately two two weeks weeks except except for for necessary necessary and essential essential excursions excursions for period required purposes; purposes; was confined home home for for a period period of approximately approximately five five weeks weeks except except for required was confined necessary and essential essential excursions excursions for required required purposes. purposes. necessary The movants, movants, by their their attorneys, attorneys, now file the instant instant motion motion pursuant pursuant to CPLR CPLR 3212 The granting summary summary judgment their favor, favor, dismissing dismissing the complaint complaint as to allegations allegations made made granting judgment in their Chuqui, arguing arguing that that she has not suffered suffered a permanent permanent consequential consequential limitation limitation or by Chuqui, significant limitation, limitation, because because objective objective medical medical evidence evidence demonstrates demonstrates that that the alleged alleged significant injuries were were minor minor and have have healed, healed, leaving leaving no residual residual loss of motion; motion; Chuqui Chuqui does does not injuries meet the the threshold threshold under under the 90/180 90/180 category; category; and Chuqui Chuqui has failed failed to establish establish any other other meet category of serious serious injury, injury, such such as loss of use and significant significant disfigurement2. disfiguremenf. category opposition, Chuqui, Chuqui, by her her attorney, attorney, argues argues that that the motion motion must must be denied denied on In opposition, procedural and substantive substantive grounds, grounds, because because the motions motions fail to dispute dispute the existence existence of procedural Chuqui's tear tear of the the left knee knee and herniating herniating and bulging bulging discs discs with impingement in the Chuqui's with impingement cervical, thoracic thoracic and lumbar lumbar spine spine and other other injuries injuries that that she sustained sustained as a result result of the cervical, subject accident accident and that that those those injuries injuries were proximately caused caused by that that accident. accident. The The subject were proximately attorney further further argues argues that that the the medical medical reports reports submitted submitted in support support of their their motions motions are attorney insufficient and inconsistent inconsistent as to causation causation and sets sets forth forth positive positive findings. findings. insufficient movants' attorneys attorneys argue argue that that the opposition opposition papers papers are untimely untimely and In reply, the movants' should not be considered. considered. Substantively, Substantively, the attorneys attorneys argue argue that that the entire entire extent extent of should Chuqui's treatment treatment following following the accident accident was was confined confined to physical physical therapy, therapy, acupuncture acupuncture Chuqui's chiropractic adjustments, adjustments, that that Chuqui Chuqui was was unemployed unemployed as of the date date of the accident accident and chiropractic was less than than diligent diligent in attending attending to therapy. therapy. The The independent independent medical medical examination examination and was 2The attorney for for Guaman Guaman has adopted adopted the arguments arguments of Cindy Cindy A. Holahan's Holahan's The attorney 2 attorney. attorney. 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 INDEX NO. 52533/2019 RECEIVED NYSCEF: 10/12/2021 ("I~E") performed performed with goniometer, revealed revealed normal normal range range of motion motion of the cervical cervical ("l~E") with a goniometer, spine, shoulders, shoulders, elb?ws, spine, elb?ws, wrists, wrists, knees knees and the lumbar lumbar spine. spine. The The attorney attorney further further argues argues that that they they also also submitted submitted the reports reports of th radiologist, radiologist, who who reviewed reviewed the MRI studies studies showing no evidence ' showing evidence of trauma. trauma. The The attorneys attorneys argue argue that that Chaqui's Chaqui's opposition opposition papers papers are insufficient insufficient to overcome overcome the submissions submissions and that that their their physician's physician's affirmation affirmation is conclusory conclusory and makes makes no mention mention of any any evidence evidence of of trauma trauma on any any of the films. films. Discussion Discussion judgment bears burden of affirmatively A party party seeking seeking summary summary judgment bears the initial initial burden affirmatively demonstrating judgment as a matter demonstrating its entitlement entitlement to summary summary judgment matter of law. (Winegrad (Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect [1985]; Alvarez Prospect Hospital, Hospital, 68 NY2d 320 [1986]). [1986]). If a sufficient sufficient prima prima facie facie showing showing is made, made, the burden burden then then shifts shifts to the to demonstrate the existence non-moving party to come forward with evidence non-moving party come forward with evidence demonstrate the existence of a material issue issue of fact fact requiring requiring a trial. (CPLR (CPLR 3212[b]); 3212[b]); see see also, Vermette Vermette v Kenworth Kenworth material Truck Company, Company, 68 NY2d NY2d 714, 717 [1986]). [1986]). The The parties' parties' competing competing contentions contentions are viewed viewed Truck light most most favorable favorable to the party party opposing opposing the motion. motion. (Marine (Marine Midland in the light Midland Bank, N.A. Dino & Artie's Transmission Co., 168 AD2d 610 [2d Dept Dept 1990]). 1990]). v Dino Artie's Automatic Automatic Transmission AD2d 610 Insurance Insurance Law §5104(a) S5104(a) provides provides in pertinent pertinent part that: that: Notwithstanding any other other law, in any action action by or on Notwithstanding behalf of a covered covered person person against against another another covered covered person person for for behalf personal injuries arising out negligence in the use of personal injuries arising out of negligence operation operation of a motor motor vehicle vehicle in this this state, state, there there shall shall be no right right to recovery the case recovery for for non-economic non-economic loss, except except in the case of a serious injury, injury, or for for basic basic economic economic loss 10ss....(NY Insurance Law serious .... (NY Insurance §5104[a]) s5104[a]) Insurance Law §5102(d) S5102(d) defines defines "serious "serious injury" injury" as Insurance personal injury injury which death; dismemberment; dismemberment; a personal which results results in death; significant disfigurement; disfigurement; a fracture; fracture; loss of a fetus; fetus; permanent permanent significant body organ, organ, member, member, function function or system; system; loss of use of a body permanent consequential consequential limitation limitation of use of a body body organ organ or permanent member; significant significant limitation limitation of use of a body body function function or member; system; or a medically medically determined determined injury injury or impairment impairment of a system; non-permanent nature nature which prevents the injured injured person person from from non-permanent which prevents performing substantially substantially all of the material material acts acts which which performing constitute such such person's person's usual usual and customary customary daily daily activities activities constitute for not less less than than ninety ninety days days during during the one one hundred hundred eighty eighty for days immediately immediately following following the occurrence occurrence of the the injury injury or days impairment. (NY Insurance Insurance Law §5102[d]) S5102[d]) impairment. 3 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 INDEX NO. 52533/2019 RECEIVED NYSCEF: 10/12/2021 the within the injury within serio us injury sust aine d a serious plain tiff sustained whe ther [a] plaintiff of whether dete rmin ati? n of "The determinati~n .. "The York New ., Prac jury. " (31 the jury." for the meanmg of the statute IS, as a rule, a question (31 N.Y. N.Y.Prac., New York que stion for mea ning of the stat ute Is, as Inc., ems, Inc., A Car t Ren Avis v re Insurance Law S 32:32 [2015-2016 ed.]; see also, Toure Avis Rent A Car Syst Systems, also, Tou Insu ranc e Law § 32:32 [201 5-20 16 ed.]; see burden the burden nda nt has the defe judg men t the 98 NY2dd 345 [2002]). "[O]n a motion for summary defendant has the mar y judgment 98 NY2 345 [2002]). "[O]n a mot ion for sum (Id.) law" of law" (Id.).. ter of a mat as a serio us injur to show that the plaintiff has not sustained a serious injuryy as matter to sho w that the plain tiff has not sustained eith er by ways: either two ways: of two one of show n in one The degree or seriousness of an injur injuryy may may be shown by The deg ree or seri ousn ess of or ion mot of e rang of loss tiff's plain a of ge an expert's designation of a numeric percentage plaintiff's loss of range of motion or an expe rt's desi gna tion of a num eric perc enta evaluation the evaluation that the ided that cond ition prov by an expert's qualitative assessment of a plaintiff's provided plaintiff's condition by an expe rt's qua litati ve asse ssm ent of function, al norm the to the normal function, limit ation s to tiff's limitations has an objective basis and compares the plain plaintiff's has an obje ctive basis and com pare s the re vv (see Tou syst em (see func tion or ber, function purpose and use of the affected body organ, member, or system Toure n, mem purp ose and use of the affe cted bod y orga a that a esta blish that can establish defe nda nt can 2]). A defendant Avis Ren Rentt A Car Sys., NY2dd 345, 357 [2002]). 357 [200 98 NY2 Sys., 98 A Car Avis § Law e ranc Insu e Stat Insurance Law S York State of New ning of plaintiff's injuries not serious meaning New York the mea within the serio us within are not ies are tiff's injur plain who has expe rt who ical expert med a from rt repo ical report from a medical 5102(d), by the submission of an affirmed medical has affir med med 5102(d), by the subm issio n of to findi ngs to ical findings med ctive obje e ther examined the plaintiff and has determined that there are no objective medical that ed rmin exam ined the plain tiff and has dete Dep [2d 794 d AD33d 794 [2d Deptt 46 AD rfan o, 46 rigu ez v Hue support plaintiff's Rodriguez Huerfano, claim (see Rod alleg ed claim tiff's alleged the plain supp ort the ]). 2007]). 2007 disfi gure men t, sign ifica nt disfigurement, emb erm ent, significant In this case, Chuqui did not suffer death, dismemberment, In this case, Chu qui did not suff er death, dism or func tion or mem ber, function organ, member, bod y organ, of a body of use of fracture, loss of a fetus, or permanent loss of fracture, loss of a fetus, or perm ane nt loss eliminated. be eliminated. 2(d) can Law § ranc e Law system. Therefore, those categories of the Insu Insurance S 510 5102(d) can be system. The refo re, thos e cate gori es of the ber; or n orga or mem bod y organ a body of a use of of use limitation of Chuqui claims a permanent consequential l limitation member; Chu qui claim s a perm ane nt cons equ entia injur dete rmin ed injuryy icall y determined a med syst em or a significant limitation use of medically func tion or system bod y function of a body of use ation of sign ifica nt limit perf orm ing from performing her from ente d her whic h prev or impairment of a non-permanent nature prevented re which or impa irme nt of a non -per man ent natu daily ry daily oma cust and customary usua l and her usual titut e her substantially all of the material acts whichh cons constitute subs tant ially all of the mat eria l acts whic imm edia tely day s immediately eigh ty days dred eighty one hun the one ng the activities for not less than ninety days during hundred activ ities for not less than nine ty days duri impa irme nt. injury or impairment. the injury following occurrence of the rren ce of the occu following the M.D., Sem ble, M.D., D. Semble, ard D. of Rich report of the report In supp support of the motion, Richard subm it the mov ants submit the movants on, the the moti ort of In of ion inat exam ery surg ope dic surgery pen den t orth an orthopedic surgeon who conducted an inde independent orthopedic examination of an orth ope dic surg eon who cond ucte d Chuqui 2020.. Aug ust 20, 2020 qui on August Chu of aid of the aid with the orm ed with was perf testing was ion testing Dr. Semble reports rangee of motion performed of mot the rang that the rts that Sem ble repo Dr. or ss tend erne or with no spine, with cervical spine, for cervical a goniometer and reports normal range of motion no tenderness mot ion for a gon iome ter and reports norm al range her that her rts that repo He ts. wris ws and spasm; full range of motion for both shoulders, elbows and wrists. He reports lders, elbo spasm; full range of mot ion for both shou e spin bar lum and her area; and vert ebra l area; thoracic spine is non-tender in the midline and para paravertebral her lumbar spine thor acic spin e is non -ten der the midl ine the in pain in the radiating pain desc ribe s radiating She describes demonstrates tenderness in the right iliolumbar area.. She mba r area dem onst rate s tend erne ss in the right iliolu 80/80°, of 80/80°, on flexi and m spas and flexion of able spasm posterior thigh to the lateral calf. He repo reports palpable rts no palp post erio r thigh to the lateral 20/20°. extension of 20/20°. exte nsio n of no ther e is sprain, there cervical sprain, sust aine d a cervical Dr. Sem Semble's is no Chu qui sustained that, Chuqui impr essi on is that, ble's impression Dr. no e ther. in, spra thor aco lum bar sprain, objective residuals, it has resolved; she sustained ther.e no sust aine d a thoracolumbar objective residuals, it has resolved; she ctive obje is no ther e is y, there left knee objective residuals, it has resolved; there was knee injur injury, no objective was a left obje ctive residuals, it has resolved; ther e exam al exam norm a is e ther y, injur there is a normal wris t injury, left wrist able left residual, it has resolved; there was questionable residual, it has resolved; ther e was a que stion 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 INDEX NO. 52533/2019 RECEIVED NYSCEF: 10/12/2021 e no er injury, there ar ld ou sh ft le a as w a left shoulder injury, with no objective residuals, it has resolved;; there there dare noe to th there was are causally relate als, it has resolved ses are ~iItdu re no e ag iv di ~t e je ov ly ob al objective residuals, has resolved; and the above diagnoses causally related to the ab n? us e wit_h of any further ca s resolved; and th ed ha ne It in s, t al no d~ is s, i re qu e he date states that Chuqui is not in need of anye further causally r hu 1vthe accIdent. Dr. Semble Jectof ob , sh can work at :1ble states that C f1 ns io Se at r. ic D_ . ed nt m de n ci tio ial the ac related she IS not In need of medications, she can atec her prescrip te of treatment, any prescription da lp, sp of any hework household help, e Is not tn need for household sh t, ed en ne tm ea t~ normal lob as a housekeeper, and there is no need for special d e te rela eeper, and ther JO~ as a housek edical equipment. al rm no transportation or durable medical equipment. durable m transportation or M.D., a diagnostic Berkowitz, M.D., F. a ic ss The movants also submit thee reports of Jessica F. Berkowitz, a diagnostic Je of ine, left submit th reports huqui's cervical sp C so of al ts ew vi an re ov y m og e ol ew radiologist, radiology review of Chuqui's on di Th whO performed an independent ch revileft s fo r easpine, si cervical an independent ra es pr ed im rm ed rfo id pe ov ho pr w knee, leftist, shoulder, and thoracicic spine. Dr. for each Berkowitz provided impressions diolog nt. review r. Berkowitz ra the subject accide d thorac spine. D to an , d er te la ld re ou ly sh al ft le us , and found that Chuqui's injuries were not causally related to the subject accident. knee not ca qui's injuries were ic and found that Chu M.D., an orthoped s, os R k an H of In opposition, Chuqui submits the report an orthopedic report of Hank RosS, .,M.D., doctors' qui submits the M.O to rebut the he, M.D., os tion, Chu M a in eg opposi R In Marc d surgeon, Katzman, M. D., a radiologist and Regina Moshe, to rebutlhe doctors' most an t e facts in the light M.D., a radiologis th , g an in zm ew at vi K c d ar an M facie opinions the light review and viewing the dfacts rgeon, in their reports.. However, ima most su a pr upon review ake to min owever, upon H ile fa rts ve po re ha r ts ei an th mov ga the movants favorable to the plaintiff, this Court have failedt to make a prima facie inions in fferin that the op finds that is Court finds spec to Chuqui su re ntiff,tothjudgment ai ith pl w e w th la to of nt e r bl ca te showing of entitlement as a matter of law with respect to Chuqui suffering a ra ifi at favo ju dg m en t as m member; and sign to t or n en m ga le or tit dy en bo of permanent consequential limitation of of a body organ or member; and significant owing use of sh of use uential limitation eq ns co t en an em st rm sy pe or system.. function or limitationn of of us use of body function a body of e a tio ita lim cervical sprain, ned aa cervical ai st su i qu hu Dr. Semble states in hiss report that Chuqui sustained sprain, a C er ould that injury, and a left sh es in hi report wrist injury, ft wrist bl e stat le e bl na tio Dr. S emsprain, dent. thoracolumbar a left knee injury, a questionable left and a left shoulder es ci qu ac to the date of the a left knee injury, , resolved, d in te ra la sp re r ly ba al us um ical ol ca ys injury, which were all but were all causally related to the date of the accident. l al thorac based on the ph solved, but were , re at l th al e ed er w ed nc ch hi co Therefore, since the movants' that, based on causally jury, w in expert conceded ere physical s wthe own expert jurie ts' own in an ov ed lv m so e re th e e th nc at th the resolved injuries examination records reviewed, wereabcausally le issue erefore, siand the medical viewed, that Th edical records re huqui to raise a tri C em th to d ift an sh t n io no at D3d es in related to the subject accident, the burden does not shift to Chuqui to raise a triable issue do 5A exam dent, the burden or te z v Nugent, 17 ci C ( ac t t en ec m bj at su e tre th in to gaps in treatment (Cortez v Nugent, 175 AD3d offact causation or to explainn any latedregarding re any gaps usation or to explai ca g in rd ga re ct fa of 2019]). ept 20191). 1383, 1384(2d Dept 84 [2d D ns are 83, 13 13 ive and her opinio at ul ec sp d an ry Further, Dr. Berkowitz's report and her not concluso and speculative she did are is conclusory ly,opinions report is onal 's iti itz dd w A . ko ty er in B rta r. D ce , ho Furtherwithin a reasonable medical certainty. Additionally, not provided degree of shebldid e, wnot of medical reasonable degree nflicts with Dr. Sem a co n in io ith in w op r ed he id d ov provide lumber spine with Dr. Semble, whO an her opinion conflicts ci t pr a report for Chuqui's ine and no huqui's lumber sp subject ac dent. the subject port for Cinjuries to d a reChuqui's te la re ovidethat ly pr al found were causally related to the accident. us i's injuries were ca i from found th at Chuqu prevented Chuqu that prevented s rie ju in d ge le However, with regard to an anyy claims of alleged injuries that Chuqui from ary al claims of r usual and custom rd to he ga ed re ut ith tit w ns , er co ev ch whi constituted her usual How substantially all of the ty days performing material and customary acts which ial acts one hundred eigh lly all of th e mater the one ntia ta g bs rin su du g in ys rm da rfo daily activities for not less than ninety days during the hundred eighty days ty pe ne not less than ni r . fo ed ni es de iti is tiv ac ch su is denied. ily da injuries, such leged injuries, immediately following alleged he r al ing her from immediately follow prevented them which prevented re which tu na t en ary an To sustain impairment of a non-permanent nature them from om rm st pe cu nute her usual and pairment of a no tit im ns n co ai st ch su hi ys w To ts da performing substantially alll of acts which constitute her hu ghty d eicustomary material ac ndreand the material of the e usual al on lly ia e nt th ta g bs rin su du g ent in days during the one ehundred rform daily activities for not less than eighty days pe us t pres ninety days than ninety plaintiff m ss th le t, t en no irm r fo pa im or impairment, the plaintiff anent injury or immediately following the occurrence of the must rm present ily activities the injury da irment of a non-pe the occurrence of pa g in im w or llo fo ry ju ly in te ia ed objective a 5, non-permanent med evidence of "a medically im 357 [2002]). determin injury or impairment Y2dof 34 medically determined N "a 98 of , ce c. In en id s, ev em Syst nature" Rentt A Inc., 98 NY2d 345, 357 [2002]). jective(see Toure v Avis ob C ar Systems, A Car ure v A vi s R en To ee (s " re tu na 5 [* 5] 5 of 6 INDEX NO. 52533/2019 FILED: WESTCHESTER COUNTY CLERK 10/12/2021 02:46 PM NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/12/2021 Curtailment of recreational recreational and household household activities'is insufficient to meet meet the burden burden Curtailment activities ·is insufficient (Omar v Goodman, 295 AD2d 413 [2d Dept 2002]). Chuqui did not offer any medical (Omar Goodman, AD2d 413 Dept 2002]). Chuqui offer any medical evidence to support support a claim claim that perform substantially usual evidence that she were were unable unable to perform substantially all of their their usual customary activities activities under under this category particulars states neither states that that neither and customary category and her bill of particulars were confined confined to bed as a result result of the accident, period were accident, but both were were confined confined to bed for for a period approximately two weeks weeks and was confined home for period of approximately of approximately confined home for a period approximately five weeks. Such Such does does not meet meet the requirement requirement for weeks. for this category. category. Therefore, Therefore, there there is no evidence to show show that that Chuqui Chuqui sustained injury in this evidence sustained an injury this category. category. I " Accordingly, based based on the foregoing, hereby; Accordingly, foregoing, it is hereby; ORDERED motion for part and granted ORDERED that that the motion for summary summary judgment judgment is denied denied in part granted in part. The parties parties are directed directed to appear before the Settlement date The appear before Settlement Conference Conference Part on a date determined. The foregoing constitutes Decision and Order Court. to be determined. The foregoing constitutes the Opinion, Opinion, Decision Order of the Court. Dated: White White Plains, Plains, New New York Dated: York September 30, 2021 September -~ ..JZ>~ ON. SAM D. WALKER, WALKER, J.S.C. J.S.C. \\ 6 [* 6] 6 of 6

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