Simmons v Berrera

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Simmons v Berrera 2021 NY Slip Op 33968(U) December 21, 2021 Supreme Court, Queens County Docket Number: Index No. 712476/2019 Judge: Ulysses B. Leverett 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: QUEENS COUNTY CLERK 02/25/2022 10:33 AM NYSCEF DOC. NO. 38 INDEX NO. 712476/2019 RECEIVED NYSCEF: 02/25/2022 SUPREME COURT COURT OF THE THE CITY CITY OF NEW NEW YORK YORK SUPREME COUNTY OF QUEENS QUEENS COUNTY \ ' ----------------------------------------------------------------------------~)( -----------~x ----------------------------------------------------------------- MAKEBA ALE ALE SIMMONS, SIMMONS, MAKEBA DECISION/ORDER DECISION/ORDER Plaintiff(s), Plaintiff(s), Inde)( No.: 712476/2019 No.: 712476/2019 Index against - against Sequence Sequence No.: No.: 1 lUANA BERRERA, BERRERA, GABRIELA GABRIELA CAMPOS CAMPOS GIL and ILIANA ABDALAH SAIDOU, SAIDOU, ABDALAH ). Defendant( Defendant( ss). ----------------------------------------------------------~------------------)( --------. ~--x ---------------------------------~-------------------.----·----Present: HONORABLE HONORABLE ULYSSES ULYSSES B. LEVERETT: LEVERETT: Present: Notice of MotionMotion- Affidavit/ Affirmation-Exhibits Affidavit/Affirmation-E)(hibits Notice of Notice of of Cross-Motion-_Affidavit/ Cross-Motion-Affidavit/ Affirmation Affirmation in Support. Support Notice in Papers Numbered Numbered Papers EF 16-23 . .EF EF 25-26 25-26 Upon the foregoing foregoing papers, papers, it is ordered·that ordered that defendant defendant Abdalah Abdalah Saidou's Saidou's motion motion and and coUpon defendants Iliana Iliana Berrera Berrera and Gabriel Gabriel Campos Campos Gils Gils cross cross motion motion for an order order pursuant pursuant to CPLR CPLR defendants S3212 granting granting defendant defendant summary summary judgment and dismissing dismissing plaintiffs plaintiffs complaint complaint pursuant pursuant to judgment and §3212 Insurance Law Law §5104(a) S 5104( a) in that that plaintiff plaintiff did not not sustain sustain a serious serious injury injury as defined defined under under Insurance Insurance Law Law §5102(d) S5102( d) is granted. granted. Insurance personal injuries This action action was was brought recover damages damages for serious serious personal injuries allegedly allegedly brought to recover This sustained by plaintiff plaintiff as a result result of of a motor motor vehicle accident on December December 31, 2018, 2018, on Leavitt Leavitt vehicle accident sustained Street at or near near the intersection intersection of of 137 Street, Street, Co'llllty County of of Queens, Queens, State State of of New New York. York. Street Plaintiff alleges alleges that that she was a passenger passenger in a vehicle vehicle owned owned and and operated operated by by defendant defendant Plaintiff Abdalah Saidou Saidou which which was involved involved in a collision collision with with the motor motor vehicle vehicle owned owned by by defendant, defendant, Abdalah Iliana Barrera Barrera and operated operated by the defendant, defendant, Gabriela Gabriela Campos Campos Gil. Plaintiff Plaintiff states states that that as a Iliana result of of the the accident, accident, she she sustained sustained injuries injuries to her her right right knee, knee, shoulder, shoulder, hand, hand, and and cervical, cervical, result thoracic and and lumbar lumbar spine. spine. thoracic Insurance Law Law §5102( S5102( d) defines defines a "serious "serious injury" injury" as " a personal personal injury injury which which results results in Insurance permanent death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a fracture, fracture, loss loss of of a fetus, fetus, permanent loss loss of of death; of a body body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of of use use of of a use of body organ organ or member; member; significant significant limitation limitation of of use of of a body body function function or system; system; or a medically medically body determined injury injury or or impairment impairment of of a non-permanent non-permanent nature nature which which prevents prevents the the injured injured person person determined performing substantially substantially all of of the material material acts, acts, which which constitute constitute such such person's person's usual usual and from performing customary daily daily activities activities for not not less less than than 90 days days during during the the 180 days days immediately immediately following following customary occurrence of of the injury injury or impairment." impairment." the occurrence [* 1] 1 of 4 FILED: QUEENS COUNTY CLERK 02/25/2022 10:33 AM NYSCEF DOC. NO. 38 INDEX NO. 712476/2019 RECEIVED NYSCEF: 02/25/2022 of a designation ofa expert's designation "[T]o limitation, an expert's physical limitation, of physical degree of extent or degree the extent prove the "[T]o prove claim substantiate used can motion of numeric percentage of plaintiff s loss of range of motion can be used to substantiate a claim of of ofrange plaintiffs a of numeric percentage suffice, also may condition may also suffice, plaintiff's condition of a plaintiffs serious injury expert's qualitative qualitative assessment assessment of An expert's injury ... An serious the limitations to the plaintiff's limitations the plaintiffs compares the basis and compares provided objective basis has an objective evaluation has the evaluation that the provided that system" function member, organ, body normal function, purpose and use of the affected body organ, member, function or system" See affected the of use purpose function, normal (2002). 345,350 N.Y.2d 345, Inc., 98 N.Y.2d Toure 350 (2002). Systems, Inc., Car Systems, Rent A Car Avis Rent Toure v Avis not sustain did not plaintiff did that plaintiff asserts that In support support of Saidou asserts sustain a Abdalah Saidou defendant Abdalah motion, defendant the motion, of the 2020 17, September submitted a September serious S5102( d). Defendant 2020 Defendant submitted Law §5102( Insurance Law defined in Insurance injury as defined serious injury orthopedic performed an orthopedic who performed surgeon who report orthopedic surgeon certified orthopedic board certified Corso, a board Salvatore Corso, report by Dr. Salvatore Bill of Verified plaintiffs reviewed and 2020 examination of plaintiff September 2020 and reviewed plaintiff s Verified Bill of 8, September on plaintiff of examination using examination motion examination using range of Particulars. Corso states states that cervical spine spine range of motion plaintiffss cervical that plaintiff Particulars. Dr. Corso normal), degrees (50 normal), flexion to 50 degrees cervical spine goniometer spine flexion the cervical of the motion of of motion range of revealed range goniometer revealed and normal) degrees flexion extension to 60 degrees (60 normal), right and left lateral flexion to 45 degrees (45 normal) and lateral left and right normal), degrees extension symmetrical equal & symmetrical in present, equal right Reflexes are present, normal). Reflexes degrees (80 normal). rotation to 80 degrees and left rotation right and notes. No sensorial noted atrophy. with no noted the upper extremities. Muscle Muscle strength strength is good good with atrophy. No sensorial deficits deficits notes. upper extremities. right sided There is right normal. There grasp are normal. and grasp pinch and No sided Handgrip, pinch noted, Handgrip, changes noted, neurotrophic changes No neurotrophic and 2+ are Reflexes spasm. Reflexes paracervical paracervical spasm. of paracervical evidence of There is evidence reported. There tenderness reported. paracervical tenderness negative. tests are all negative. equal. Compression tests and Compression Traction and Spurling, Traction equal. Spurling, tenderness. paralumbar tenderness. right sided The thoracolumbar spine range of motion sided paralumbar revealed right motion revealed range of thoracolumbar spine The lower the lower intact to the normal. Sensation There Sensation is intact Alignment is normal. spasms. Alignment of spasms. evidence of There is no evidence extension normal), degrees degrees extremities. Range of motion of flexion to 50 degrees (60 degrees normal), extension to 25 flexion of extremities. Range of motion rotation to left rotation and left normal) and degrees normal) degrees (25 degrees degrees rotation to 25 degrees right rotation normal), right degrees normal), degrees (25 degrees negative in a supine position; SLR degrees (25 degrees degrees normal). SLR is negative seated position; SLR is negative supine negative in a seated normal). SLR 25 degrees equal. and 2+ are Reflexes position. equal. position. Reflexes There is a swelling. There revealed no swelling. Plaintiff examination revealed motion examination of motion range of shoulder range right shoulder Plaintiffss right normal), degrees (180 degrees 180 flexion of posterior tenderness reported. Range of motion of flexion to degrees (180 degrees normal), motion of Range posterior tenderness reported. normal), abduction to 30 degrees extension to 60 degrees degrees (60 degrees degrees normal), degrees (30 degrees degrees normal), normal), abduction extension normal) degrees (90 degrees rotation 90 degrees abduction to 180 degrees (180 degrees external rotation degrees normal) normal), external degrees normal), degrees (180 abduction cuff, rotator the strength Muscle normal). and internal rotation to 70 degrees (70 degrees normal). Muscle strength is 5/5 to the rotator cuff, degrees degrees and internal rotation examination physical examination and physical test and diagnostic test clinical diagnostic biceps various clinical upon various Based upon triceps. Based and triceps. biceps and negative. Apprehension is negative. technique there are no signs signs of of instability. instability. Apprehension technique there ecchymosis. or ecchymosis. tenderness or no swelling, revealed no Examination swelling, tenderness hand revealed right hand plaintiffss right of plaintiff Examination of degrees flexion to 40 degrees palmar flexion normal), palmar Range degrees normal), degrees (20 degrees dorsiflexion to 20 degrees of dorsiflexion motion of of motion Range of degrees inversion and normal) (40 degrees normal), eversion to 20 degrees (20 degrees normal) and inversion to 30 degrees (30 degrees degrees (40 degrees normal), eversion physical test and degrees normal). Muscle strength strength is 5/5. Based clinical diagnostic diagnostic test and physical various clinical upon various Based upon normal). Muscle degrees the fingers motion of Range of intact. Range examination technique Sensation is intact. of motion of the fingers instability. Sensation there is no instability. technique there examination triggering. is normal with a normal thumb opposition and no triggering. normal with normal thumb opposition There alignment. There Valgus alignment. revealed a Valgus Plaintiff examination revealed motion examination of motion range of knee range right knee Plaintiffss right patella is There effusion. is There are multiple well healed arthroscopic portals present. There no effusion. There patella present. portals arthroscopic healed well multiple atrophy. There is no atrophy. instability. There tenderness strength is 5/5. There signs of of instability. There are no signs Muscle strength reported. Muscle tenderness reported. 2 ---2 [* 2] 2 of 4 FILED: QUEENS COUNTY CLERK 02/25/2022 10:33 AM NYSCEF DOC. NO. 38 INDEX NO. 712476/2019 RECEIVED NYSCEF: 02/25/2022 Range Range of of motion motion of of flexion flexion to 140 degrees degrees (140 (140 degrees degrees normal) normal) and extension extension to O 0 degrees degrees (0 degrees degrees normal). normal). Dr. Corso's Corso's assessment assessment revealed revealed that that plaintiffs plaintiffs cervical cervical sprain, sprain, thoracolumbar thoracolumbar sprain, sprain, right shoulder shoulder sprain, sprain, right right hand hand sprain, sprain, and status status post right knee knee arthroscopy arthroscopy are all resolved. resolved. right post right Corso notes notes that that the injured injured body alleged in the Bill of of Particulars Particulars have have fully fully resolved. resolved. Dr. Corso body parts parts alleged The claimant claimant did not sustain sustain any significant significant or permanent injury as a result result of of the motor motor vehicle vehicle The permanent injury present disability, accident. There There are no objective objective clinical clinical findings findings indicative indicative of of a present disability, and and functional functional accident. impairment, which which prevents engaging in Activities Activities of of Daily Daily Living Living (ADL), (ADL), and impairment, prevents the plaintiff plaintiff from engaging usual activities usual activities including including work, work, school, school, and hobbies. hobbies. Defendant report dated Defendant also submitted submitted a report dated June June 30, 2019 2019 from Dr. Darren Darren Fitzpatrick, Fitzpatrick, a board certified radiologist who who performed performed an independent radiology evaluation board certified radiologist independent radiology evaluation on June June 30, 2019. 2019. Dr. Fitzpatrick partially degraded patient motion. Normal marrow Fitzpatrick states states that that images images were were partially degraded by patient motion. Normal marrow signal. preserved. signal. The The medical medical and lateral lateral menisci menisci are intact. intact. The tricompartmental tricompartmental cartilage cartilage is preserved. The cruciate unremarkable. Normal Normal cTUciate ligaments, ligaments, collateral collateral ligaments ligaments and and extensor extensor mechanism mechanism are unremarkable. musculature. No fluid musculature. fluid collection. collection. Rotator Rotator cuff cuff tendinosis tendinosis with with findings findings of of subacromial subacromial impingement. Dr. Fitzpatrick Fitzpatrick opined opined that that there there is no traumatic traumatic injury. injury. Tendinosis Tendinosis is a nonnonimpingement. protracted tendon traumatic entity entity that that is the result result of of chronic chronic overuse, overuse, resulting resulting in protracted tendon degeneration degeneration traumatic over the course course of of months months to years. years. Subacromial Subacromial impingement impingement is an acquired acquired degenerative degenerative over condition with with no traumatic traumatic basis. Motion degraded degraded study study which which appears appears normal. normal. No internal condition basis. Motion No internal derangement or evidence evidence of of traumatic traumatic injury. injury. derangement Co-Defendants Co-Defendants Iliana Iliana Barrera Barrera and Gabriela Gabriela Campos Campos Gil's Gil's cross cross motion motion adopts adopts the arguments and and proofs submitted by defendant defendant Abdalah Abdalah Saidou. Saidou. arguments proofs submitted Where judgment, Where a defendant defendant has has made made a showing showing sufficient sufficient for entitlement entitlement to summary summary judgment, plaintiff has burden shifts shifts to the plaintiff plaintiff to raise an issue issue of of material material fact fact as to whether whether plaintiff the burden sustained Alvarez v. Prospect Hosp., Hosp., 68 N.Y.2d N.Y.2d 320 (1986). sustained a serious serious injury. injury. See Alvarez v. Prospect (1986). Plaintiff Plaintiff submitted submitted no opposition opposition to the motion. motion. Defendant Defendant Abdalah Abdalah Saidou Saidou filed filed this this summary judgment motion summary judgment motion on December December 28, 2020. 2020. On January January 6, 2021, 2021, defendants defendants Iliana Iliana Barrera judgment against plaintiff. The Barrera and Gabriel Gabriel Campos Campos filed a cross-motion cross-motion for summary summary judgment against plaintiff. The motion parties entered motion was was returnable returnable on March March 4, 2021. 2021. On March March 5, 2021, 2021, the parties entered into into a stipulation stipulation adjourning the motion from March March 4, 2021 to April adjourning motion from April 23, 2021 for plaintiff plaintiff to file Affirmation Affirmation in Opposition. The The motion July 21, 2021 and and then adjourned again again to Opposition. motion was made made returnable returnable on July then adjourned September 15, 2021. 2021. On September September 15, 2021 the motion submitted by the the Court Court without September motion was was submitted without opposition. opposition. Court finds finds that that the medical evidence submitted submitted by defendants defendants as to plaintiff Makeba The Court medical evidence plaintiff Makeba Ale Simmons Simmons made case that that plaintiff Simmons did not sustain a serious serious injury injury made out a prima prima facie case plaintiff Simmons not sustain within the meaning meaning of Insurance Law d), which plaintiff. within ofInsurance Law §5102( S5102(d), which was was not rebuked rebuked by plaintiff. Accordingly, defendant defendant Abdalah Abdalah Saidou Saidou motion motion and co-defendants co-defendants Iliana Iliana Barrera Barrera and and Accordingly, Gabriela Campos Campos cross cross motion motion for an order order pursuant CPLR §3212 S3212 granting granting summary summary Gabriela pursuant to CPLR judgment favor of of defendants defendants and and dismissing dismissing the complaint complaint on the the grounds grounds that that there there are no judgment in favor -3- [* 3] 3 of 4 FILED: QUEENS COUNTY CLERK 02/25/2022 10:33 AM NYSCEF DOC. NO. 38 INDEX NO. 712476/2019 RECEIVED NYSCEF: 02/25/2022 triable issues issues of that plaintiff plaintiff Makeba Makeba Ale Simmons Simmons has has failed failed to meet meet the the serious serious injury injury triable of fact, in that New York York Insurance Insu'rance Law Law §5102(d) granted. threshold mandated by New threshold requirement requirement mandated S51 02( d) and §5104(a) S51 04( a) is granted. This is the Decision Order of of this Court. Comi. This Decision and Order Dated Dated ;z/-u/202/ !z/<!/20-zj ~. ,J.S.C 2/25/2022 - 4-4- [* 4] 4 of 4

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