Barnes v Schiff

Annotate this Case

Download PDF

Barnes v Schiff 2021 NY Slip Op 33527(U) January 13, 2021 Supreme Court, Rockland County Docket Number: Index No. 032531/2019 Judge: Sherri L. Eisenpress 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. 032531/2019 FILED: ROCKLAND COUNTY CLERK 01/14/2021 03:32 PM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/14/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------x DENISE BARNES, DECISI ON/OR DER Plaintiff , Index No. 032531 /2019 -agains t - (Motion #1) MATTHEW C. SCHIFF, Defenda nt. -------------------------------------------------x HON. SHERRI L. EISENPRESS, A.J.S,C. nt The followin g papers, number ed 1-7, were read in connect ion with Defenda dismiss al of the Matthew C. Schiff 's("Defe ndant") motion for summa ry judgme nt and plaintiff cannot Compla int on the ground that there are no triable issues of fact, in that the Sections 5104(a) meet the serious injury thresho ld requirem ent as mandat ed by Insuran ce Law and 5102(d) : NUMBE RED PAPER S NOTICE OF MOTION /AFFIRM ATION IN SUPPORT/AFFIRMATION OF BARRY KRAUSHAAR, M.D./AF FIRMAT ION OF SHELDON FEIT, M.D./ EXHIBIT S A-G 1-4 AFFIRM ATION IN OPPOS ITION/A FFIRMA TION OF SCHOTT GOTTLIEB, M.D. 5-6 REPLY AFFIRMATION 7 Plaintiff commen ced the instant matter to recover damage s for personal injuries 303 at or near arising out of an automo bile acciden t which occurred on April 17, 2019, on Route of her vehicle was its intersec tion with Emerald Drive, in the Town of Clarksto wn, when the rear t, alleges that struck by Defenda nt's vehicle. Plaintiff , 47 years old at the time of the acciden required right as a result of the acciden t she sustaine d disc bulges at L4-5 and LS-Sl which and sprain/s train lumbar paraspin al, thoracic paraspin al and trapeziu s trigger point injection s; ry judgme nt and of the lumbar, thoracic and cervical spine. Defenda nt moves for summa fact, in that the dismiss al of the Compla int on the ground that there are no triable issues of by Insuran ce Law plaintiff cannot meet the serious injury thresho ld requirem ent as mandat ed Section s 5104(a) and 5102(d) . [* 1] 1 of 5 FILED: ROCKLAND COUNTY CLERK 01/14/2021 03:32 PM NYSCEF DOC. NO. 32 INDEX NO. 032531/2019 RECEIVED NYSCEF: 01/14/2021 the Plaintif f's In suppor t of her summa ry judgm ent motion , Defend ant annexe s of Barry Kraushaar, M.D., examin ation before trial transcr ipt and the affirme d medica l report aar finds Plaintif f's cervical Defend ant's examin ing orthop edist. Upon examin ation, Dr. Kraush s to be within normal and lumbar examin ation to be unrema rkable, with all measu rement ranges. and ligame ntous. His impres sion is that Plaintif f's injuries were purely muscu lar gist, who finds no eviden ce Defend ant also submit s the affirma tion of Dr. Sheldon Feit, radiolo causall y related to the disc bulge or focal herniat ion and opines that there are no abnorm alities 90/180 day catego ry claim subjec t accide nt. Additio nally, Defend ant argues that Plaintif f's medica lly preven ted from must be dismiss ed because Plaintif f's proof fails to show that she was for the requisi te period and perform ing "substa ntially all" of her usual and custom ary activiti es the time. report of Dr. In opposi tion to the instant motion , Plaintif f submit s the affirme d ons of range of motion in Scott Gottlie b, an orthopa edic surgeon. Dr. Gotlieb finds limitati (norma l 80); extens ion Plaintif f's lumbos acral spine includi ng a finding of 65 degree s flexion degrees (norma l 25) and limited to 15 degrees (norma l 30); right lateral rotatio n limited to 15 b diagnoses Plaintif f with left lateral rotatio n limited to 20 degrees (norma l 25). Dr. Gottlie pain and that she has a thorac olumba r strain with lumbar facet arthop athy; causall y related g lumbar facet blocks. partial perma nent disabil ity which will require ongoin g treatm ent includin As such, Plaintif f alleges that there is a triable issue of fact. or her claim The propon ent of a summa ry judgm ent motion must establi sh his favor as a matter of law, or defense sufficie nt to warran t a Court directin g judgm ent in its issues of fact. Giuffrid a v tender ing sufficie nt eviden ce to demon strate the lack of materia l ct Hosp., 68 N.Y.2d 320 Citiban k Corp., et al., 100 N.Y.2d 72 (2003) (citing Alvarez v Prospe t regard to the sufficie ncy (1986) . The failure to do so requires a denial of the motion withou Dept 2003). However, once of the opposing papers. Lacaqnino v Gonzalez, 306 A.D.2d 250 (2d ng the motion to produce such a showin g has been made, the burden shifts to the party opposi .2 [* 2] 2 of 5 FILED: ROCKLAND COUNTY CLERK 01/14/2021 03:32 PM NYSCEF DOC. NO. 32 INDEX NO. 032531/2019 RECEIVED NYSCEF: 01/14/2021 evidentiary proof in admissible form demonstratin g material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000). Mere conclusions or unsubstantia ted allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). In order to be entitled to summary judgment it is incumbent upon the defendant to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a serious injury. Healea v Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554 (2d Dept 1990). In the instant matter, Defendant's examining physicians found full range of motion in Plaintiff's cervical and lumbar spine. As such, Defendant has met his burden on summary judgment with respect to the categories of significant limitation of use and permanent consequentia l limitation of use and the burden shifts to Plaintiff to demonstrate a triable issue of fact. A plaintiff must come forward with sufficient evidentiary proof in admissible form to raise a triable issue of fact as to whether the plaintiff, suffered a ''serious injury" within the meaning of the Insurance Law. Zoldas v St. Louis Cab Corp., 108 A.D.2d 378,489 N.Y.S.2d 468 (1st Dept 1985); Dwyer v Tracey, 105 AD2d 476, 480 N.Y.S.2d 781 (3d Dept. 1984 ). One way to substantiate a claim of serious injury is through an expert's designation of a numeric percentage of a plaintiff's loss of range of motion, i.e., quantitatively . McEachin v. City of New York, 137 A.D .3d 753, 756, 25 N.Y.S.3d 672 (2d Dept. 2016). However, an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. Id. By establishing that any one of several injuries sustained in an accident is a serious injury within the meaning oflnsurance Law §5102(d), a plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident. Bonner v Hill, 302 AD2d 544, 756 N.Y.S.2d 82 (2d Dept 2003); O'Neill v O'Neill, 261 3 [* 3] 3 of 5 FILED: ROCKLAND COUNTY CLERK 01/14/2021 03:32 PM NYSCEF DOC. NO. 32 INDEX NO. 032531/2019 RECEIVED NYSCEF: 01/14/2021 AD2d 459, 690 N.Y.S.2d 277 (2d Dept 1999). In the instant matter, Plaintiff has demonst rated a triable issue of fact requiring the denial of the summary judgmen t motion based upon her lumbar spine limitation s, which issue Court finds sufficient ly significan t. Where conflictin g medical evidence is offered on the may as to whether the plaintiff's injuries are permane nt or significan t, and vary ing inference s be drawn, the question is one for the jury. Martinez v Pioneer Transpor tation Corp., 48 A.D.3d g 306, 851 N.Y.S.2d 194 (1st Dept 2008). Further, when discrepancies between the competin reports of the physician s create issues of credibilit y, those issues of fact should not be resolved Dept on summary judgmen t and require a trial. Francis v Basic Metal, Inc., 144 AD2d 634 (2d Dept 1981); Cassaqnol v Williamsb urg Plaza Taxi, 234 AD2d 208, 651 N.Y.S.2sd 518 (1st t 1996). As such, the triable issues of fact require denial of Defendan t's summary judgmen nt motion with respect to the categorie s of significan t limitation of use and permane conseque ntial limitation of use. However , Defendan t is entitled to summary judgmen t with respect to the 90/180 day category . Defendan t submits Plaintiff's examina tion before trial transcrip t which demonst rates that Plaintiff had some restrictio ns with regard to her work and/or everyday out activities but not that she was prevente d from performin g all of her usual activities for 90 in of the 180 days following the occurrence, as she continued to work until she gave birth ts October, 2018. This, coupled with Plaintiff's failure to submit medical evidence which documen that she was prevente d from performin g "substan tially all" of her usual and customar y activities for the requisite period, requires the grant of summary judgmen t with respect to this category. See Rubin v. SMS Taxi Corp., Accordin gly, it is hereby ORDERE D that Defendan t Matthew Schiff's' motion for summary judgmen t, the pursuant to CPLR § 3212, is DENIED, except with respect to Plaintiff's claim based upon 90/180 no-fault category , which is dismisse d; and it is further 4 [* 4] 4 of 5 INDEX NO. 032531/2019 FILED: ROCKLAND COUNTY CLERK 01/14/2021 03:32 PM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/14/2021 ORDERED that this matt er is scheduled for a settlement conference on APRIL 5, 2021, at 10 a.m. via Microsoft Teams. Link to be provided the day prior . The foregoing constitutes the Opinion, Decision & Order of the Court on Motion #1. Dated : New City, New York January 13, 2021 / HON.SH TO: All Parties (bye-file) 5 [* 5] 5 of 5 s., ,..A.J .S C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.