Meza v Green Leasing Inc.

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Meza v Green Leasing Inc. 2023 NY Slip Op 31651(U) May 9, 2023 Supreme Court, Kings County Docket Number: Index No. 511923/2019 Judge: Carl J. Landicino 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: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 56 INDEX NO. 511923/2019 RECEIVED NYSCEF: 05/16/2023 0 o IAS Term, Part 81 At an lAS Term, Part 81 of of the Supreme Supreme New York, York, held Court Court of of the State State of of New held in and for the County County of of Kings, Kings, at the Courthouse, Courthouse, at 360 Adams Brooklyn, New New York, on Adams Street, Street, Brooklyn, th th 2023. the 9 day of of May, May, 2023. PRESENT: CARL J. LANDICINO, PRESENT: CARL LANDICINO, J.S.C. J.S.C. -__________ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - ---- -X GRACIELA GRACIELA G. MEZA, MEZA, Index No. No. 511923/2019 Index 511923/2019 DECISION AND AND ORDER ORDER DECISION Plaint([/, Plaintiff, -against-againstGREEN LEASING INC., INC., JEREMY ELLISON and GREEN LEASING JEREMY D. ELLISON EMAL EMAL YN GIUFFRIDA, GIUFFRIDA, Motion Sequence# Motion Sequence # I Defendants. Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required required by CPLR papers considered review of this motion: motion: Recitation, CPLR 2219(a), 2219(a), of of the papers considered in review of this Papers Numbered (NYSCEF) Papers Numbered (NYSCEF) Motion/Cross Motion Motion and Notice of Notice of Motion/Cross Affidavits Annexed ................................................. Affidavits (Affirmations) (Affirmations) Annexed Opposing Affidavits (Affirmations) Opposing Affidavits (Affirmations) ................................................. Reply Affidavits Affidavits (Affirmations) Reply (Affirmations) ...................................................... 19-35, 40-50, 40-50, 51-52. 51-52. Upon papers, and after follows: Upon the foregoing foregoing papers, after oral argument, argument, the Court Court finds as follows: This personal injuries part of Plaintiff, Graciela This action action concerns concerns alleged alleged personal injuries on the part of the Plaintiff, Graciela G. Meza Meza (the vehicle accident that purportedly purportedly occurred December 2, 2018 in "Plaintiff') result of "Plaintiff') as a result of a motor motor vehicle accident that occurred on December Ellison, and Emalyn Brooklyn, Leasing Inc., Jeremy Brooklyn, NY. Defendants, Defendants, Green Green Leasing Jeremy D. Ellison, Emalyn Giuffrida Giuffrida (the judgment pursuant pursuant to CPLR 3212 dismissing "Defendants") "Defendants") now now move move (motion (motion sequence# sequence # 1) for summary summary judgment CPLR 3212 dismissing action on the contention contention that that the Plaintiff serious injury threshold, as such term the action Plaintiff has failed to meet meet the serious injury threshold, defined in Insurance Insurance Law Law 5104(a) 5104(a) and 5102(d). 5102(d). Plaintiff Plaintiff opposes opposes the motion. motion. is defined "Summary judgment drastic remedy remedy that that deprives deprives a litigant litigant of of his or her day in court, court, and it judgment is a drastic "Summary 'should only only be employed employed when when there there is no doubt doubt as to the absence absence of of triable triable issues issues of of material material fact."' fact. '" 'should nd Dept, Kolivas v. Kirchoff, AD3d 493 [2 nd Dept, 2005], 2005], citing citing Andre v. Pomeroy, Kirchoff, 14 AD3d Andre v. Pomeroy, 35 N.Y.2d N.Y.2d 361, 364, 362 Kolivas v. ! I [* 1] 1 of 5 , FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 56 INDEX NO. 511923/2019 RECEIVED NYSCEF: 05/16/2023 ,iij .. ~ ., "" N.Y.S.2d 320 N.E.2d 853 [1974]. [1974]. The The proponent proponent for the the summary summary judgment must make make aprimafacie aprimafacie N.Y.S.2d 131, 320N.E.2d judgment must showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate showing judgment as a matter d Dept, 2004 absence of of any material material issues issues of of fact. Se~ Sheppard-Mobley Sheppard-Mobley v. v. King, 10 AD3d AD3d 70, 74 [2" [2ndDept, 2004],], absence King, IO citing Alvarez v. Prospect 923, 501 N.E.2d [1986]; citing Alvarez v. Prospect Hospital, Hospital, 68 N.Y.2d320, N.Y.2d320, 324, 508 N.Y.S.2d N.Y.S.2d 923, N.E.2d 572 [1986]; Winegradv. New Clr., 64 N.Y.2d 851, 853, 487N.Y.S.2d 487 N.Y.S.2d 316,476 316, 476 N.E.2d [1985]. Winegradv. New York Univ. Med. Ctr., N.Y.2d 851,853, N.E.2d 642 [1985]. Once a moving moving party party has has made made a prima showing of of its entitlement entitlement to summary summary judgment, Once prima facie facie showing judgment, "the burden burden shifts shifts to the the opposing opposing party party to produce produce evidentiary evidentiary proof proof in admissible admissible form form sufficient sufficient to "the establish the existence existence of of material material issues issues of of fact which which require require a trial trial of of the the action." action." Garnham Garnham & Han Han Real Real establish ndDept, Estate Oppenheimer, 148 AD2d AD2d 493 [2 nd Dept, 1989]. Failure Failure to make make such such a showing showing requires requires Estate Brokers Brokers v Oppenheimer, denial of of the motion, motion, regardless regardless of of the the sufficiency sufficiency of of the opposing opposing papers. papers. See Demshick v. Cmty. Hous. denial Demshick v. nd Dept, Mgmt. Corp., Corp., 34 AD3d AD3d 518, 518,520, Dept, 2006]; 2006]; see Menzel v. Plotnick, 520, 824 N.Y.S.2d N.Y.S.2d 166, 168 [2nd Menzel v. Plotnick, 202 AD2d 558, 558-559, 558-559, 610 N.Y.S.2d [2ndDept, N.Y.S.2d 50 [2rd Dept, 1994]. AD2d Insurance Law Law §5102 S5102 ((d) defines "serious "serious injury" injury" as: Insurance d) defines "a personal personal injury injury which which results results in death; death; dismemberment; dismemberment; significant significant "a disfigurement; a fracture; fracture; loss loss of of a fetus; fetus; permanent permanent loss loss of of use use of of a body body disfigurement; organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of of organ, use of of a body body organ organ or member; member; significant significant limitation limitation of of use use of of a body body use function or system; system; or a µiedically J;l1edicallydetermined injury or impairment impairment of of a function determined injury non-permanent nature nature which which prevents prevents the injured injured person person from from performing performing non-permanent substantially all of of the the material material acts which which constitute constitute such such person's person's usual usual substantially and customary customary daily daily activities activities for not not less than than ninety ninety days days during during the one and hundred eighty eighty days days immediately immediately following following the occurrence occurrence of of the the injury injury or hundred impairment" ((emphasis added). impairment" emphasis added). Thus, a plaintiff must have have suffered suffered a "serious "serious injury" injury" by, among among other other things, things, demonstrating: demonstrating: (1) Thus, plaintiff must permanent consequential consequential limitation permanent limitation of of use of of a body body organ, organ, member, member, function function or system, system, (2) significant significant limitation of of use of of a body function or system body function system or (3) a non-permanent non-permanent medical medical injury injury which which prevents prevents her limitation 2 [* 2] 2 of 5 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 56 INDEX NO. 511923/2019 RECEIVED NYSCEF: 05/16/2023 .~ from performing performing substantially substantially all of of her customary customary daily daily activities activities for at least least 90 days days during during the 180 days immediately following following the the accident. accident. immediately succeed on a summary summary judgment motion based lack of of a serious serious injury, injury, defendant defendant must must To succeed judgment motion based on the lack submit evidence evidence eliminating eliminating any material material issues issues of of fact with with respect respect to all categories categories of of the the "serious "serious injury" injury" submit threshold (see generally Ocasio v Henry, AD2d 611 [2d Dept Dept 2000]). 2000]). Typically, Typically, it is necessary necessary that that generally Ocasio Henry, 276 AD2d threshold defendants proffer medical evidence evidence in the form of of an expert expert opinion opinion demonstrating demonstrating the absence absence of of a defendants proffer medical serious injury injury to be entitled entitled to an accelerated accelerated judgment dismissing the action action (see Kearse Kearse v New New York City serious judgment dismissing Tr.Auth., 16AD3d45,49-51 16 AD3d 45, 49-51 [2dDept2005];c/ [2dDept2005];cf Sequeira v W&EAutoRepair, W&EAutoRepair, Inc., 17 AD3d442,442AD3d442,442Tr.Auth., Sequeirav Dept 2005]). 2005]). Such Such evidence evidence must must affirmatively affirmatively attest, attest, within within a reasonable degree of of medical medical 443 [2d Dept reasonable degree certainty, that that the alleged alleged injury injury did not result result in a permanent injury limiting limiting use of of the body function certainty, permanent injury body part's part's function non-permanent injury injury limiting limiting plaintiff ability to perform activities for a period of 90/180 90/180 or a non-permanent plaintiffss ability perform her daily activities period of days (see generally Toure v Avis CarSys., [2002], citing citing Dufel Green, 84 NY2d days generally Toure Avis Rent Rent A Car Sys., 98 NY2d NY2d 345 [2002], Du/el v Green, NY2d Senatore, 65 NY2d [1985]). Plaintiffs Plaintiffs own own sworn sworn statements statements may also be 795 [1995]; Lopez Lopez v Senatore, NY2d 1017 [1985]). proffered demonstrate that that she did not suffer suffer injuries injuries or that that her daily daily and customary customary activities activities were were not proffered to demonstrate limited (see Sanchez Sanchez v Williamsburg Williamsburg Volunteer Volunteer of of Hatzolah, AD3d 664 [2d Dept Dept 2008]; 2008]; Ocasio, Ocasio, Hatzolah, Inc., 48 AD3d limited AD2d at 612 [plaintiff [plaintiff testified testified that that she missed missed only only two weeks weeks of of work work and and school, school, thus failing failing to 276 AD2d demonstrate she was prevented from performing substantially all material material acts constituting constituting her customary customary demonstrate prevented from performing substantially II daily activities]). activities]). daily her Verified Verified Bill Bill of of Particulars, Particulars, Plaintiff Plaintiff contends contends that that she suffered suffered injuries injuries to both of her both of In her shoulders and her her cervical cervical spine spine and lumbar lumbar spine. spine. Plaintiff Plaintiff also alleges alleges that that she had had surgery surgery to her right shoulders her right shoulder on March 2019 (less (less than than three three months months post-accident). Plaintiff additionally additionally alleges alleges that she shoulder March 7, 2019 post-accident). Plaintiff confined to her three days days following following the accident, accident, and one week following her right right shoulder shoulder was confined her bed bed for three week following surgery. Plaintiff Plaintiff further further states states that that she was confined confined to home approximately three three months months after after the surgery. home approximately 3 [* 3] 3 of 5 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 56 INDEX NO. 511923/2019 RECEIVED NYSCEF: 05/16/2023 accident and and four months after right should er surger accident four months after her her right shoulder surgery. her emplo employment, Plaintiff alleges that she y. As to her yment, Plaint iff alleges that she was "incap acitated from yment" for imately seven was "incapacitated from emplo employment" for, approx approximately seven months after the accident. The Plaint Plaintiff's months after the accide nt. The iffs deposition testim ony suppo rts the the time time out out of work. See Plaint deposition testimony supports of work. Plaintiff's (NYSCEF 31). iffs Deposition Deposition (NYSC EF Doc. Doc. No. No. 31). The Plaintiff sat deposition on August August 20, 2020. 2020. When The Plaintiff sat for for deposition When asked asked whether claim of of lost lost whether she was was making making aa claim earnings and and missed missed work because of nt, Plaintiff earnings work because of the accide accident, stated, "[y "(y]es. Correct." (Page 10). 10). When Plaintiff stated, ]es. Correc t." (Page When asked how how long did not not work, iff stated, asked long she she did work, Plaint Plaintiff stated, "I would started the day after after would say that that the missing missing job job started the day the accide nt, and and II went went back June 117,2019." 7, 2019 ." (Pages the accident, back to to work work in J~me (Pages 10-11 10-11).). Additionally, Plaintiff stated that Additionally, Plaint iff stated that upon ng to on June June 17, 2019, 2019, her upon returni returning to work work on her schedu schedule was part-time. (Page 92). 92). When When asked asked whether le was part-time. (Page whether there ng she time of of the deposition there was was anythi anything she could could not not do at the time well as she was able to do before deposition or do as well as she was able to do before the nt, Plaint iff stated, the time time of of the the accide accident, Plaintiff stated, "[w]el "(w]ell,l, mostly been lifting (Page 100). 100). mostly it's it's been lifting anything anything heavy." heavy." (Page In of their Defendants proffer proffer the deposition In suppo supportrt of their motion motion,, the Defendants Plaintiff deposition of of the the Plaint iff that that occurred occurred on on Augus lars, a purported purported Brook Augustt 20, 20, 2020, 2020, the the Bill Bill of of Particu Particulars, Brooklyn Methodist Hospital lyn Metho dist Hospi tal record, record, and and aa medical medical report report of of Dr. Jeffrey Jeffrey Guttm Guttman, an, M.D. M.D. Dr. an, an edist, exami ned the Plaintiff Plaintiff on Novem Dr. Guttm Guttman, an orthop orthopedist, examined November after ber 27,2020, 27, 2020, almost almost two two years years after the nt. The found norma l range of the accide accident. The doctor doctor mostly mostly found n01Jl1alrange of motion motion in all material found that all areas areas material areas areas and and found that all had ed. The that the Plaintiff Plaintiff "did had been been resolv resolved. The doctor doctor also also found found that "did not sustain any signifi significant not sustain cant or or permanent permanent injury the motor vehicle accide nt." However, However, the doctor injury as as aa result result of of the motor vehicle acCident." doctor did the 180 180 day did not not address address the day period period after nt. In after the the accide accident. In fact, fact, in light light of of the date of of the exami examination and the failure to review time nation and failure to review any any real real time medic al record period, the doctor medical recordss in in relatio relationn to that that 180 day period, doctor was not not compe competent to address same. tent to address same. While lars contai While it it is is true true that that where where a Bill Bill of bf Particu Particulars contains conclusory allegations 90/180 claim ns conclu sory allega tions of of aa 90/180 claim and ition and/or iff does and the the Depos Deposition and/or affidav affidavitit of of Plaint Plaintiff does not suppor support,t, or reflect reflectss that that there there is is no no such such claim, claim, Defen dant movan utilize those Defendant movantt may may utilize those factors factors in suppo supportrt of of its motion motion,, that that is not the case case here. not the here. See See Master Master v. Boiakhtchion, 122 90, 996 N.Y.S.2d N.Y.S.2d 116, 117 [2d v. Boiakhtchion, 122 AD3d AD3d 589,5 589, 590, (2d Dept Dept 2014]; 2014]; Kuperberg Kuper berg v. v. Montalbano, Montalbano, 4 [* 4] 4 of 5 INDEX NO. 511923/2019 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 05/16/2023 AD3d 903, 904, 899 N.Y.S.2d N.Y.S.2d 344, 345 [2d Dept v. Dwelle, Dwelle, 54 AD3d AD3d 706, 863 72 AD3d Dept 2010]; 2010]; Camacho Camacho v. N.Y.S.2d 754 [2d Dept N.Y.S.2d Dept 2008]. 2008]. Turning the merits Defendants' motion, motion, the Court finds that Turning to the merits of of Defendants' Court finds that the Defendants Defendants have failed to primafacie burden burden of proof. See Che Hong Hong Kim v. Kosso[f, 90 A.D.3d A.D.3d 969, N.Y.S.2d meet their primafacie meet their of proof. v. Kossojf, 969, 969, 934 N.Y.S.2d because the Plaintiff Plaintiff was examined years after 867 [2 nd Dept, Dept, 2011]. 2011]. This This is because examined by Dr. Guttman Guttman nearly nearly two years after injury alleged the accident, relate ,his findings accident, and the doctor doctor did not not relate!his findings to the 90/180 90/180 category category of of serious serious injury alleged by v. the Plaintiff period of Plaintiff for the relevant relevant period of time time immediately immediately following following the accident. accident. See Owens-Stephens Owens-Stephens v. PTM 191 A.D.3d A.D.3d 691, 137N.Y.S.3d 137N.Y.S.3d 734 [2d Dept 2021]; Rouach v. Betts, AD3d 977, PTM Mgmt. Corp., 191 Dept 2021]; Rouach v. Betts, 71 AD3d 977,897 N.Y.S.2d 242,243 Epstein v. Long Island Island Bus, Bus, 161 977,897 N.Y.S.2d 242, 243 [2d Dept Dept 2010]; 2010]; see also Epstein v. MTA Long 161 AD3d AD3d 821, Dept 2018]; 2018]; Stead Serrano, 156 AD3d 823, 75 N.Y.S.3d N.Y.S.3d 532, 532, 534 534 [2d Dept Stead v. v. Serrano, AD3d 836, 837, 837, 67 N.Y.S.3d N.Y.S.3d 244 [2d Nembhard v. Delatorre, 16 AD3d N.Y.S.2d 144 [2d Dept Peplow v. Murat, Dept Dept 2017]; 2017]; Nembhard v. Delatorre, AD3d 390, 390, 791 N.Y.S.2d Dept 2005]; 2005]; Peplow v. Murat, 304 AD2d Dept 2003]; 2003]; Frier AD2d 633, 758 N.Y.S.2d N.Y.S.2d 160, 161 [2d Dept Frier v. v. Teague, 288 AD2d AD2d 177, 732 N.Y.S.2d N.Y.S.2d met their primafacie burden, Plaintiff Plaintiff would have to 428 [2d Dept Dept 2001]. 2001]. If If the the Defendants Defendants successfully successfully met their prima facie burden, would have show medical medical evidence evidence relating category. However, However, the Court Court needs needs not address address the opposing opposing show relating to that that category. papers. "When judgment as a matter papers. "When the defendant defendant fails to establish establish entitlement entitlement to t6 judgment matter of of law, the sufficiency sufficiency of the plaintiffs opposition papers considered (see Junco v. Ranzi, AD2d 440, 733 of plaintiff's opposition papers need need not be considered Junco v. Ranzi, 288 AD2d N.Y.S.2d (Mem), 2001 N.Y. 09530 [2d Dept Dept 2001]." 2001]." Gamberg Gamberg v. AD2d 525, v. Romeo, Romeo, 289 AD2d N.Y.S.2d 897 (Mem), N.Y. Slip Op. 09530 Slip Op. 10974 [2d Dept Dept 2001]. 736 N.Y.S.2d N.Y.S.2d 64, 2001 N.Y. N.Y. Slip 2001]. Based foregoing, it is hereby ORDERED as follows: follows: Based on the foregoing, hereby ORDERED judgment is de The motion motion by the Defendants Defendants (motion (motion sequence sequence #1) for summary summary judgment foregoing constitutes constitutes the Decision Decision and Order Order of of the Court. Court. The foregoing ENTER: ENTER: 5 [* 5] 5 of 5 17 d.

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