Lopez v Debraz

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Lopez v Debraz 2021 NY Slip Op 33471(U) December 23, 2021 Supreme Court, Westchester County Docket Number: Index No. 61540/2018 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 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 To commence commence the the statutory statutory time for appeals time for appeals as of of right right (CPLR 5513[a]), 5513[a)), you you are advised advised to serve serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER PRESENT: SAM D. WALKER, J.S.C. PRESENT: HON. SAM WALKER, J.S.C. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x JOSE JOSE R. LOPEZ, LOPEZ, Plaintiff, Plaintiff, DECISION and ORDER DECISION and ORDER Index 61540/2018 Index No. 61540/2018 Seq# Seq # 1 -against-againstGABRIEL GABRIEL DEBRAZ, DEBRAZ, Defendant. Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The CPLR 3212 The following following papers papers were were read on a motion motion for an order, order, pursuant pursuant to CPLR Article 51 51 of the Insurance Insurance Law of the State granting summary summary judgment: and Article State of New York York granting judgment: A-E Notice Notice of Motion/Affirmation Motion/Affirmation in Support/Exhibits Support/Exhibits A-E Affirmation in Opposition/Exhibits Opposition/Exhibits A-B Affirmation A-B Factual Factual and Procedural Procedural Background Background This action action arises arises out out of a motor motor vehicle accident that occurred on March March 3, 2018, 2018, This vehicle accident that occurred Hutchinson River River Parkway, Parkway, 0.2 miles miles south south of the intersection intersection with Mamaroneck on the Hutchinson with Mamaroneck Avenue, in Scarsdale, Scarsdale, Westchester Westchester County, County, New York, when plaintiff was passenger Avenue, when the the plaintiff was a passenger plaintiff, Jose Jose R. Lopez Lopez ("Lopez/plaintiff") ("Lopez/plaintiff") commenced commenced the action action on July July in an Uber. The plaintiff, 2018, by filing a summons complaint. The defendant, Gabriel Gabriel Debraz Debraz 30, 2018, summons and verified verified complaint. The defendant, ("Debraz/defendant") served served and filed a verified parties ("Debraz/defendant") verified answer, answer, joining joining issue, the parties completed discovery discovery and the plaintiff plaintiff filed a note of issue issue and certificate readiness on completed certificate of readiness March 19, 2021. 2021. March The plaintiff's bill of particulars particulars alleges, alleges, inter inter a/ia, alia, the following serious injuries: injuries: following serious The plaintiff's [a] ..,. Left Shoulder partial rotator rotator cuff cuff tear, Ibara! Ibaral tear, tear, full-thickness full-thickness tear tear of ., Left Shoulder - partial distal distal suprapinatus suprapinatus tendon tendon with tendinosis/tendinopathy, tendinosis/tendinopathy, partial partial tear tear of of the the subscapularis with tendinosis/tendinopathy tendinosis/tendinopathy resulting in artroscopic artroscopic subscapularis with resulting debridement. debridement. Thoracic Spine Spine - segment segment and somatic somatic dysfunction. dysfunction. [b] - Thoracic Lumbar Spine Spine - diffuse diffuse disc disc hernitation hernitation with compression of of the the anterior anterior [c] - Lumbar with compression thecal sac sac and bilateral bilateral neural neural foramina foramina and bilateral bilateral exiting exiting nerve nerve root at thecal L2/L3. Diffuse Diffuse disc disc herniation herniation at L3/L4; L3/L4; diffuse diffuse disc disc bulge bulge with encroachment encroachment L2/L3. [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 neural foramina foramina at L4/L5; L4/L5; diffuse diffuse disc disc herniation herniation with with compression compression of of on the neural anterior thecal thecal sac sac and bilateral bilateral neural neural foramina foramina and bilateral bilateral exiting exiting nerve nerve anterior 1.. root at L5/S 1 Cervical Spine Spine - disc disc bulge bulge with compression compression of of anterior anterior thecal thecal sac sac and [d] - Cervical partial effacement effacement of anterior anterior subarachnoid subarachnoid space space at C5/6 with radiculopathy. radiculopathy. partial Left Knee Knee - proximal proximal AGL, ACL, high grade grade partial partial or full thickness thickness tear, tear, 10[e] - Left erosive/osteochondral lesion lesion on the the patellar patellar apex. apex. mm erosive/osteochondral The defendant defendant now now files files for for an order order pursuant pursuant to CPLR CPLR 3212, 3212, granting granting The summary judgment favor, dismissing dismissing the the complaint complaint on the the grounds grounds that that the the summary judgment in his favor, plaintiff's injuries injuries do not satisfy-the satisfy the serious serious injury injury threshold threshold requirement requirement of Section Section plaintiff's 51 02(d) of of the the New New York York Insurance Insurance Law, thereby thereby barring barring the the plaintiff's plaintiff's claim claim for for nonnon5102(d) economic loss under under Section Section 5104(a) 51 04(a) of of the statute. statute. economic Discussion Discussion party seeking seeking summary summary judgment bears the the initial initial burden burden of of affirmatively affirmatively A party judgment bears demonstrating its entitlement entitlement to summary summary judgment matter of of law. (Winegrad (Winegrad demonstrating judgment as a matter New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, Alvarez v Prospect v New NY2d 320 320 [1986]). [1986]). If a sufficient sufficient prima prima facie facie showing showing is made, made, the burden burden then then 68 NY2d shifts to the non-moving non-moving party party to come come forward forward with evidence evidence to demonstrate demonstrate the the shifts existence of of a material material issue issue of of fact fact requiring requiring a trial. (CPLR (CPLR 3212[b]); 3212[b]); see see also, existence Vermette v Kenworth Kenworth Truck Truck Company, Company, 68 NY2d NY2d 714, 714, 717 717 [1986]). [1986]). The The parties' parties' Vermette competing contentions contentions are viewed viewed in the light light most most favorable favorable to the the party party opposing opposing competing the motion. motion. (Marine (Marine Midland Midland Bank, N.A. v Dino Dino & Artie's Transmission the Artie's Automatic Automatic Transmission AD2d 610 610 [2d Dept Dept 1990]). 1990]). Co., 168 AD2d Insurance Law Law §5104(a) S5104(a) provides provides in pertinent pertinent part part that: that: Insurance Notwithstanding any any other other law, in any any action action by or on behalf behalf of of Notwithstanding covered person person against against another another covered covered person person for for personal personal a covered injuries arising arising out out of negligence negligence in the the use of operation operation of of a injuries motor vehicle vehicle in this this state, state, there there shall shall be no right to recovery recovery for for motor non-economic loss, except except in the case case of of a serious serious injury, or for for non-economic basic .... (NY Insurance basic economic economic loss 10ss....(NY Insurance Law §5104[a]) S5104[a]) Insurance Law Law §5102(d) S5102(d) defines defines "serious "serious injury" injury" as Insurance personal injury injury which which results results in death; death; dismemberment; dismemberment; a personal significant disfigurement; disfigurement; a fracture; fracture; loss of of a fetus; fetus; permanent permanent significant of use use of of a body body organ, organ, member, member, function function or system; system; loss of permanent consequential consequential limitation limitation of of use of of a body body organ organ or permanent member; significant significant limitation limitation of use of of a body body function function or member; system; or a medically medically determined determined injury injury or impairment impairment of of a system; 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 non-permanent which prevents non-permanent nature nature which prevents the injured injured person person from from performing performing substantially substantially all of of the material material acts acts which which constitute such such person's constitute person's usual usual and customary customary daily daily activities activities for not than ninety days during for not less than ninety days during the hundred eighty eighty the one hundred days following the occurrence days immediately immediately following occurrence of the InJury injury or impairment. impairment. (NY Insurance Insurance Law 951 02[d]) §5102[d]) 'The determination of of whether whether [a] plaintiff "The determination plaintiff sustained injury within sustained a serious serious injury within the meaning the statute statute is, as a rule, a question meaning of of the question for the jury." (31 N.Y.Prac., New jury." N.Y.Prac., New York York Insurance Insurance Law§ Law S 32:32 32:32 [2015-2016 [2015-2016 ed.]; see also, Toure v Avis Rent A Car Car Systems, Systems, Inc., Avis Rent 98 NY2d for summary NY2d 345 [2002]). [2002]). "[O]n "[O]n a motion motion for burden summary judgment judgment the the defendant defendant has the the burden that the the plaintiff to show show that plaintiff has not sustained sustained a serious serious injury injury as a matter matter of of law" (Id.). (/d.). The seriousness of of an injury The degree degree or seriousness injury may may be shown shown in one one of of two two ways: ways: either either by an expert's designation of a numeric expert's designation of numeric percentage percentage of of a plaintiff's plaintiff's loss of of range range of of motion motion or by an expert's expert's qualitative qualitative assessment assessment of a plaintiff's plaintiff's condition condition provided provided that that the evaluation evaluation has an objective compares the the plaintiff's objective basis basis and compares plaintiff's limitations limitations to the normal function, the normal function, purpose and use of the affected organ, member, purpose the affected body body organ, member, function function or system system (see Toure v Avis Rent Avis Rent A Car Car Sys., 98 NY2d NY2d 345, 357 [2002]). [2002]). A defendant defendant can establish establish that that a plaintiff's plaintiff's injuries injuries are not serious serious within within the meaning meaning of New New York State Insurance Insurance Law§ Law 9 York State 5102(d), by the submission of an affirmed affirmed medical 5102(d), the submission of medical report report from medical expert from a medical expert who who has examined examined the plaintiff plaintiff and has determined determined that that there there are no objective objective medical medical findings findings to support support the plaintiff's plaintiff's alleged alleged claim claim (see Rodriguez Rodriguez v Huerfano, Huerfano, 46 AD3d AD3d 794 [2d Dept Dept 2007]). 2007]). In this case, case, the plaintiff plaintiff did not suffer suffer death, death, dismemberment dismemberment, , significant significant disfigurement, fracture fetus. Therefore, disfigurement, fracture or loss of a fetus. categories of Insurance Law Therefore, those those categories of the the Insurance § 9 5102(d) 5102(d) can be eliminated. eliminated. The The other other categories categories are a permanent permanent loss of use of a body body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of use of a body body organ significant limitation organ or member; member; significant limitation of use of body function medically of a body function or system; system; or a medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which prevented him from which prevented from performing performing substantially substantially all of the material material acts which which constitute constitute his usual usual and customary customary daily activities activities for for not less than than ninety daily ninety days hundred eighty eighty days days during during the the one one hundred days immediately following the occurrence immediately following occurrence of the injury injury or impairment. impairment. In support support of of the motion, defendant submits motion, the defendant report Richard Richard N. Weinstein, submits the the report Weinstein, M.D., a board board certified certified orthopedic orthopedic surgeon, surgeon, who conducted an independent independent orthopedic orthopedic who conducted examination the plaintiff examination of ofthe plaintiff on September September 16, 2020. 2020. Dr. Weinstein Weinstein states states that that Lopez Lopez reports reports no loss of of consciousness, consciousness, he injured injured his neck, lower lower back, right right and left left shoulder, shoulder, left hip and left knee, he went went to White White Plains Plains Hospital Hospital on the same same day day by ambulance, ambulance, x-rays x-rays were were taken taken and no fracture fracture was was found, found, he went went to therapy therapy three three times times a week week and is no longer longer going going to therapy. therapy. 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 Dr. Weinstein Weinstein performed performed range range of of motion motion testing of a goniometer, goniometer, with testing with the use of the following cervical spine: following readings readings for the cervical spine: 30 degrees (normal 45); 30 degrees degrees of flexion flexion (normal degrees of extension extension (normal (normal 45); 45 degrees degrees of right right and left rotation rotation (normal (normal 80); 30 degrees degrees of right lateral bending lateral bending and 30 degrees degrees of left lateral lateral bending bending (normal (normal 45). He further further found found positive positive paraspinal paraspinal tenderness tenderness on the left, negative negative on the the right, negative negative spasm, spasm, negative negative midline tenderness, positive trapezia! tenderness midline bony bony tenderness, positive trapezial negative on the tenderness on the the left, negative the right, spurling's test negative, compression test spurling's test negative, cervical cervical compression test - negative, negative, regflexes regflexes normal normal in the bilateral bilateral upper upper extremities extremities and symmetrical, symmetrical, sensation sensation and motor motor normal normal in both upper upper extremities. extremities. Dr. Weinstein further reported motion for Weinstein further reported range range of motion for the plaintiff's plaintiff's thoracolumbar spine thoracolumb ar spine and lower lower extremities extremities of 80 degrees degrees of flexion flexion (normal (normal 90); 20 degrees degrees of extension of extension (normal (normal 30); 20 degrees degrees of right and left rotation rotation (normal (normal 30; and 20 degrees degrees of of right and left left lateral lateral bending bending (normal (normal 30. Positive Positive paraspinal paraspinal tenderness, tenderness, left and right sides, negative spasm, negative line bony tenderness, normal negative spasm, negative mid midline bony tenderness, normal alignment, alignment, negative negative straight straight leg raise bilaterally, bilaterally, reflexes reflexes 2+/4 2+/4 bilaterally bilaterally and symmetrical, symmetrical, sensation motor are normal normal sensation and motor in both lower lower extremities. extremities. Examination the left shoulder shoulder showed showed well-healed Examination of of the well-healed incisions incisions with range of motion motion with range of 160 degrees forward elevation degrees of of forward elevation (normal (normal 180); internal internal rotation rotation to T10 T10 and external external rotation rotation of of 60 degrees degrees (normal (normal 60); and 150 degrees of abduction (normal 180). Rotator Rotator degrees of abduction (normal cuff cuff strength strength is 5-/5, positive positive impingemen impingement,t, non-tender non-tender AC joint, negative cross-chest cross-chest joint, negative addiction. addiction. Dr. Weinstein Weinstein found found normal normal range range of motion motion in the shoulder, bilateral bilateral hips the right shoulder, and bilateral bilateral knees. knees. Dr. Weinstein's that the Weinstein's impression impression is that plaintiff is status post cervical the plaintiff status post cervical sprain sprain that that is resolved; thoracolumb ar sprain that resolved; thoracolumbar sprain that is resolved; resolved; left shoulder tenonitis status status post post shoulder tenonitis arthroscopy, arthroscopy, which which is resolved resolved and left knee knee sprain minor subjective subjective tenderness, tenderness, sprain with minor otherwise otherwise resolution resolution of symptoms. symptoms. Dr. Weinstein Weinstein states that the the plaintiff states that plaintiff did not seek seek immediate immediate medical medical attention attention on the day day of of the accident accident and the first first record record of treatment treatment was was not until approximately approximate ly one week later on March 8, 2018, when he was was seen week later March 2018, when complaints seen at Arcadia Arcadia Acupuncture, Acupuncture , with complaints of neck, back, left hip and left knee knee pain and he then then followed followed up with with acupuncture, acupuncture, chiropractic chiropractic care and physical physical therapy therapy for his alleged injuries. alleged injuries. Dr. Weinstein Weinstein states states that that his examination examination of of the cervical cervical and thoracolumbar spine thoracolumb ar spine revealed revealed a decrease decrease in range range of of motion, motion, which subjective finding as the testing which is a subjective finding the testing is actively performed by the claimant actively performed claimant at their their own volition. volition. He states states that that there there is no objective objective evidence of of cervical evidence cervical or lumbar lumbar radiculopath radiculopathy.y. He states report findings states that that the the MRI report findings for for the the cervical which is typically cervical spine spine revealed revealed a bulge bulge which typically not due due to an acute event. The MRI report acute event. The report findings findings for the lumbar lumbar spine spine revealed revealed herniations herniations and bulges bulges and the herniations and the herniations bulges bulges noted noted could could be pre-existing. pre-existing. Dr. Weinstein Weinstein states states that that he would would like the opportunity opportunity to review review the the imaging imaging studies studies to provide provide further further comment. comment. His examination examination of the left 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 shoulder revealed revealed a decrease decrease in range of motion motion and mild impingement. impingement. Dr. Weinstein shoulder Weinstein states that that he is unable unable to state state within reasonable degree medical certainty states within a reasonable degree of medical certainty that that the shoulder procedure procedure was record and would left shoulder was due due to the accident accident of record would like the opportunity opportunity review the imaging imaging studies studies along intraoperative photos photos to provide provide further to review along with the color color intraoperative further comment. Dr. Weinstein knee was normal and there comment. Weinstein states states that that his examination examination of the left knee was normal there range of motion motion with no objective internal derangement. was full range objective evidence evidence of internal derangement. The The MRI report findings findings noted noted consistency partial or full thickness report consistency with a partial thickness tear tear and Dr. Weinstein Weinstein states that that he would would like the opportunity opportunity to review review the imaging imaging studies left knee, as states studies for for the left they were were not provided provided for review at the time they for his review time of the examination. examination. Weinstein opines opines within reasonable degree medical certainty, certainty, that that based Dr. Weinstein within a reasonable degree of medical physical examination, examination, the plaintiff plaintiff has no disability, prognosis is good, on his physical disability, his prognosis good, he is capable of full-duty full-duty work restrictions or limitations limitations and he is able perform all capable work without without restrictions able to perform activities of daily daily living without without restrictions restrictions or limitations limitations .. .. activities opposition, the plaintiff's plaintiff's attorney In opposition, attorney argues argues for for the denial denial of the defendant's defendant's summary judgment motion because because the defendant make out prima facie summary judgment motion defendant failed failed to make out a prima facie case case positive findings findings and vague due to positive vague and conclusory conclusory opinions. opinions. The The attorney attorney further further argues argues plaintiff's clinical clinical record, record, diagnostic intervention, examinations that the plaintiff's diagnostic testing, testing, surgical surgical intervention, examinations and negative that he suffered suffered severe severe and permanent negative health health history, history, reveal reveal that permanent injuries injuries to his left shoulder and cervical cervical spine resulting in a permanent permanent partial partial loss of use of those body parts. shoulder spine resulting those body The plaintiff's plaintiff's attorney attorney asserts asserts that proof fails because Dr. Weinstein The that the defendant's defendant's proof fails because Weinstein makes positive positive findings findings and does injuries to degenerative processes. makes does not attribute attribute the injuries degenerative processes. The plaintiff's plaintiff's attorney attorney states limitations of Weinstein opines opines that that the limitations The states that that while while Dr. Weinstein motion were were subjective, also found impingement. The motion subjective, he also found mild impingement. The attorney attorney also also contends contends that, although Dr. Weinstein Weinstein reviewed reviewed the plaintiff's plaintiff's left shoulder report dated although shoulder MRI report dated April April 10, 2018, which which indicates indicates a finding 2018, finding of a full thickness thickness tear tear of the supraspinatus supraspinatus with tendonitis tendonitis further reviewed reviewed the operative report of Dr. Dowd, Dowd, dated and further operative report dated April April 18, 2018, 2018, which which indicates a postoperative postoperative diagnosis diagnosis second partial rotator rotator cuff indicates second partial cuff tear tear of the the left shoulder, shoulder, a labral tear tear of the left shoulder, shoulder, synovitis labral synovitis of the left shoulder, shoulder, subacromial subacromial adhesion's adhesion's and impingement of the left shoulder, shoulder, Dr. Weinstein merely sets impression of left impingement Weinstein merely sets forth forth an impression shoulder tendonitis tendonitis status status post post arthorscopy, resolved. The proffers that shoulder arthorscopy, which which is resolved. The attorney attorney proffers that down tendonitis, tendonitis, but forgot resolved even he put down forgot about about the tears tears and opined opined that that it was was resolved even though the plaintiff plaintiff complained complained to him about plaintiff's attorney though about his shoulder. shoulder. The The plaintiff's attorney also argues that that the defendant's defendant's orthopedists argues orthopedists failed failed to address address the 90/180 90/180 claims. claims. The The attorney attorney states that that Or. Dr. Weinstein review the imaging imaging states Weinstein said that that he would would like the opportunity opportunity to review studies further comment, comment, so he clearly clearly felt felt that that he did not have enough studies to provide provide further have enough information to make make an accurate accurate determination, bulges and information determination, but set forth forth an opinion opinion that that the bulges herniations were were not related related to the accident herniations accident anyway. anyway. The The attorney attorney additionally additionally argues argues that that plaintiff's medical medical evidence evidence raises raises a question the plaintiff's question of fact. Upon review review and viewing light most most favorable plaintiffs, this viewing the facts facts in the light favorable to the plaintiffs, Court finds finds that that the defendant has failed make a prima prima facie Court the defendant failed to make facie showing showing of entitlement entitlement to judgment matter of law with respect respect to the plaintiff plaintiff suffering permanent loss of use judgment as a matter suffering a permanent 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 01/04/2022 04:30 PM NYSCEF DOC. NO. 30 INDEX NO. 61540/2018 RECEIVED NYSCEF: 01/04/2022 body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of use of a body of a body body organ organ or member; member; significant significant limitation limitation of use of a body body function function or system; system; or a of medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which which prevented prevented him medically performing substantially substantially all of the material material acts which which constitute constitute his usual usual and from performing customary daily daily activities activities for for not less than than ninety ninety days days during during the the one one hundred hundred eighty eighty days days customary immediately following following the occurrence occurrence of the injury injury or impairment. impairment. immediately Weinstein performed performed the range range of motion motion testing testing using using a goniometer, goniometer, but still Dr. Weinstein opined in a conclusory conclusory manner manner that that the decreased decreased range range of motion motion can be considered considered a opined subjective finding, finding, since since the testing testing is actively actively performed performed by the claimant claimant at his own volition. volition. subjective then no range range of motion motion limitations limitations should should be taken taken into account. account. He If such is the case, then stated that that the bulges bulges and herniations herniations could could be pre-existing pre-existing and would also stated would like the opportunity to review review the imaging imaging studies studies to provide provide further further comment, comment, showing showing that that he did · opportunity have all of the information information to make make an accurate accurate determination, determination, but still set forth forth an not have opinion. Further, Further, Dr. Weinstein Weinstein did not address address the 90/180 90/180 category. category. opinion. The Court Court finds finds that that the issues issues presented presented are to be decided decided by the trier trier of fact fact and The questions of law and the defendant defendant has failed failed to make make a prima prima facie facie showing. showing. are not questions Since, the defendant defendant has failed failed to make make a prima prima facie facie showing, showing, the Court Court need not address address Since, adequacy of the plaintiff's plaintiff's opposition. opposition. the adequacy Accordingly, based on the foregoing, foregoing, it is hereby; hereby; Accordingly, based ORDERED that that the defendant's defendant's motions motions for summary summary judgment denied; ORDERED judgment is denied, The parties parties are directed directed to appear appear before before the CRT CRT - ADR date to be The ADR Part on a date determined. The The foregoing foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order Order of the Court. Court. determined. Dated: White White Plains, Plains, New New York York Dated: December 23, 2021 December cJ(. ON. SAM D. WALKER, J.S.C. 6 [* 6] 6 of 6

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