Pratts v Reyes

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Pratts v Reyes 2021 NY Slip Op 33858(U) January 13, 2021 Supreme Court, Kings County Docket Number: Index No. 511022/2018 Judge: Lara J. Genovesi 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. 511022/2018 FILED: KINGS COUNTY CLERK 01/21/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/26/2021 At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 13 th day of January 2021. PRESENT: HON. LARA J. GENOVESI, J.S.C. -------------------------------------------------------------X PROVIDENCIA PRATIS, Index No.: 511022/2018 Plaintiff, DECISION & ORDER -againstLUIS REYES & TOYOTA LEASE TRUST, Defendants. -------------------------------------------------------------X Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: NYSCEF Doc. No.: Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ __ 79 - 91 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ 99 - 105 Reply Affidavits (Affirmations) _ _ _ _ _ _ _ _ __ 107 - 110 Defendant Luis Reyes moves (sequence number five) for summary judgment on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff commenced this action for personal injuries as the result of a motor vehicle accident on June 30, 2017. In the bill of particulars, plaintiff alleged injuries to her left knee tear, left shoulder, cervical and lumbar spine (see NYSCEF Doc. # 86 at Plaintiff underwent arthroscopic surgery on her left knee after the accident. [* 1] 1 of 4 ,r 5). Plaintiff FILED: KINGS COUNTY CLERK 01/21/2021 NYSCEF DOC. NO. 113 INDEX NO. 511022/2018 RECEIVED NYSCEF: 01/26/2021 further alleges that the injuries sustained meet the following categories of Insurance Law § 5102: (1) significant disfigurement, (2) permanent consequential limitation, (3) a significant limitation, and ( 4) a non-permanent medically determined injury which prevented him from his usual and customary activities for 90 out of the first 180 days following the accident (see id. at ,r 15). Defendant provided the sworn medical report of Dr. Dana A. Mannor, M.D., who conducted an orthopedic examination on November 21, ~019 and found that plaintiff had full range of motion in her cervical and lumbar spine. Although the doctor opined that passive range of motion is full in plaintiffs left shoulder and knee, the report provides that her left shoulder's "external rotation (with the arm in O degrees of abduction) to O degrees (90 degrees normal)" (NYSCEF Doc. # 87). The doctor opined that plaintiffs left shoulder, cervical and lumbar sprain/strain were resolved and knee is healed and causally related the plaintiffs injuries to the accident (see id.). Defendant further provided the sworn medical report of Dr. Michael J. Carciente, M.D., who conducted a neurological examination on October 25, 2019, and opined that there were no objective neurological findings (see NYSCEF Doc. # 88). Defendant provided the sworn medical report of Dr. Melissa Sapan Cohn, M.D., who reviewed x-ray and CT scans of plaintiffs back, shoulders and knees and opined that plaintiff has degeneration (see NYSCEF Doc. # 89). Defendants failed to meet their burden and establish that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants failed to establish that plaintiff did not sustain a permanent consequential or significant limitation. Dr. Mannor's report showed that plaintiff sustained loss in range of motion in external [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 01/21/2021 NYSCEF DOC. NO. 113 INDEX NO. 511022/2018 RECEIVED NYSCEF: 01/26/2021 rotation of her left shoulder. Defendant contends that they "placed causality at issue" by providing the radiological review of Dr. Cohn, who opines that plaintiff has degeneration. However, defendant also provided the report of Dr. Mannor who causally related the injuries to the accident. Further, "[t]he papers submitted by the defendant failed to eliminate triable issues of fact regarding the plaintiffs claim, set forth in the bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law§ 5102(d)" (Reidv. Edwards- Grant, 186 A.D.3d 1741, 129 N.Y.S.3d 798 [2 Dept., 2020]). Defendant relies on plaintiffs deposition transcript to establish that she did not sustain a serious injury under this category (see NYSCEF Doc. # 80 at ,r 29). However, plaintiff testified that she rode her bicycle, was able to walk several blocks and stand for extended periods of time prior to the accident and since the accident she is unable to ride her bicycle, sit or stand for an extended time and therefore she also cannot ride a subway (see NYSCEF Doc# 90, Plaintiffs EBT, p 125-129, 132). As defendants did not meet their burden, this Court need not examine the sufficiency of plaintiffs opposition papers. However, even assuming, arguendo, that defendants met their burden, plaintiff provided credible medical evidence sufficient to raise a triable issue of fact on the significant limitation and permanent consequential lim_itation categories of Insurance Law 5102(d). The sworn report of Dr. Donald Goldman demonstrates that in a recent examination on January 7, 2020, plaintiff had measured range of motion loss up to 60% in the cervical spine, up to 44% in the left shoulder and up to 78 percent in the lumbar spine at an examination on January 7, 2020. Dr. Goldman further causally relates the loss to this accident (see NYSCEF Doc. # 99 at p 5-6). [* 3] 3 of 4 FILED: KINGS COUNTY CLERK 01/21/2021 NYSCEF DOC. NO. 113 INDEX NO. 511022/2018 RECEIVED NYSCEF: 01/26/2021 Accordingly, defendants' motion for summary judgment (sequence number five) pursuant to Insurance Law § 5102( d) is denied. ENTER: 'H'c5i'CLara J. Genovesi J.S.C. To: Brett Myerson, Esq. Harmon Linder & Rogowsky 3 Park Avenue, Suite 2300 New York, NY 10016 Shawn P. O'Shaughnessy, Esq. DeSena & Sweeney, LLP 1500 Lakeland A venue Bohemia, NY 11 716 [* 4] 4 of 4 (J

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