Collymore-Maynard v Gayle-Lyken

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Collymore-Maynard v Gayle-Lyken 2023 NY Slip Op 32022(U) June 13, 2023 Supreme Court, Kings County Docket Number: Index No. 516923/2020 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. INDEX NO. 516923/2020 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 06/16/2023 '~ of the Part 81 of At an lAS Term, Part IAS Term, New of New State of Supreme the State of the Court of Supreme Court the County York, and for the County of of held in and York, held 360 at Courthouse, Kings, the Courthouse, Kings, at the York, New York, Brooklyn, New Adams Street, Brooklyn, Adams Street, of June, June, 2023. 2023. on the 13th day of PRESENT: PRESENT: CARL J. LANDICINO, LANDICINO, J.S.C. J.S.C. CARL ___________________________________________ ~ -----------------J{ -----------------------------------------------------------------------x JEAN YMORE-MAAYNARD, YNARD, COLLYMORE-M JEAN COLL IndeJ{No. 516923/2020 Index No. 516923/2020 AND ORDER DECISION ORDER DECISION AND Plaintiff, Plaintiff, -against-againstLYKEN, DWYGHT LYKEN, NATASHA GAYLE-LYKEN, DWYGHT NATASHA GAYLE-LYKEN, LLC, MOBILITY, CURB BAKHIT MOUMENIZA, CURB MOBILITY, LLC, BAKHIT MOUMENIZA, AUTHORITY, NEW CITY TRANSIT TRANSIT AUTHORITY, YORK CITY NEW YORK METROPOLITAN TRANSPORTATION METROPOLITAN TRANSPORTATION TRANSIT CITY TRANSIT AUTHORITY, YORK CITY NEW YORK MTA NEW AUTHORITY, MTA PARATRANSIT and AUTHORITY DIVISION OF PARATRANSIT AUTHORITY DIVISION MOHIELDIN ABDALLA MOHIELDIN ABDALLA Defendants. Defendants. ______________________________________________________ Motion Sequence #2, 3, 3,4,4, 5 Motion Sequence ------------------J{ ------------------------------------------------------------------------x motion: this motion: of this review of considered in review papers considered the papers of the Recitation, 2219(a), of CPLR 2219(a), required by CPLR Recitation, as required Papers (NYSEF) Numbered (NYSEF) Papers Numbered and Notice Motion and Motion/Cross Motion of Motion/Cross Notice of 96-101, 110-111, 112 51-60, 92, 96-101,110-111,112 47-50, 51-60, 39-46, 47-50, Affidavits Annexed .................................. 39-46, (Affirmations) Annexed Affidavits (Affirmations) 117-118, 115-116, 93-94, 79-90, 65-77, .. Opposing Affidavits (Affirmations) 65-77, 79-90, 93-94, 115-116, 117-118, ............................... (Affirmations) Affidavits Opposing 9, I 1 114, 03, I ....... Reply Affidavits (Affirmations) 103, 119, ............................... (Affirmations) Reply Affidavits follows: Upon foregoing papers, and after after oral argument, the Court Court finds as follows: oral argument, papers, and Upon the foregoing September purportedly occurred that purportedly This lawsuit lawsuit arises arises out out of of a motor accident that occurred on September vehicle accident motor vehicle This Complaint her Complaint alleges in her Plaintiff') alleges 22,2019. "the Plaintiff') (hereinafter "the Collymore-Maynard (hereinafter Jean Collymore-Maynard Plaintiff Jean 22, 2019. Plaintiff involved was involved passenger in was was a passenger vehicle she was that suffered personal after the vehicle injuries after personal injuries date she suffered that date that on that injuries alleges injuries Plaintiff alleges the Plaintiff Particulars the collision with other vehicles. of Particulars Bill of Verified Bill her Verified vehicles. In her two other with two in a collision that she states that also states Plaintiff also The Plaintiff knee. The to her right knee. and right shoulder and right shoulder spines, right lumbar spines, and lumbar cervical and her cervical prevents which prevents nature which non-permanent nature suffered a "a "a medically determined injury injury or impairment impairment of of a non-permanent medically determined suffered 11 [* 1] 1 of 11 o 0 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 Plaintiff from performing performing substantially the material material acts which which constitute Plaintiffss usual Plaintiff substantially all of of the constitute Plaintiff and customary customary daily than 90 days during immediately following following daily activities activities for not less than during the 180 days days immediately the occurrence injury." (90/180 claim) occurrence of of the injury." (90/180 claim) Defendants Natasha Natasha Gale Lyken and Dwyght Dwyght Lyken Lyken (hereinafter the "Lyken Defendants") Defendants Gale Lyken (hereinafter the "Lyken Defendants") move #2) for an order pursuant to CPLR 3212, granting judgment and move (motion (motion sequence sequence #2) order pursuant CPLR 3212, granting summary summary judgment dismissing of the Plaintiff Plaintiff on the ground that none none ofthe of the injuries injuries allegedly allegedly sustained sustained dismissing the complaint complaint of ground that by the Plaintiff meet the "serious injury" threshold threshold requirement requirement ofinsurance Law§S 5102(d). 1I The Plaintiff meet "serious injury" of Insurance Law Plaintiff opposes the motions motions and that the Defendants have failed failed to meet meet their their burden burden and Plaintiff opposes the and argues argues that Defendants have should be denied. denied. as a result result the motion motion should Defendants Bakhut Moumeniza Moumeniza and Mohieldin Mohieldin Abdalla Abdalla (hereinafter referred to collectively Defendants Bakhut (hereinafter referred collectively as the "Abdalla pursuant to CPLR "Abdalla Defendants") Defendants") cross-move cross-move (motion (motion sequence sequence #4) for an order order pursuant CPLR judgment and dismissing grounds that that they they were were not 3212, granting 3212, granting summary summary judgment dismissing the complaint complaint on the grounds liable Abdalla Defendants Defendants argue that the complaint liable as a matter matter oflaw of law for the collision collision at issue. The Abdalla argue that complaint should be dismissed dismissed as against against them evidence shows shows that their vehicle struck in the rear rear should them as the evidence that their vehicle was was struck by the Lyken Lyken Defendants' stopped at a red Defendants' vehicle vehicle while while the Abdalla Abdalla Defendants' Defendants' vehicle vehicle was was stopped traffic signal. signal. The Plaintiff motion. The Plaintiff (motions sequence sequence traffic Plaintiff does does not not oppose oppose this motion. Plaintiff moves moves (motions order pursuant CPLR 3212 summary judgment of liability 3212 granting granting her summary judgment on the issue issue of liability #5) for an order pursuant to CPLR against the Lyken oppose both sequence as against Lyken Defendants. Defendants. The Lyken Lyken Defendants' Defendants' oppose both motions motions (motion (motion sequence #4, 5) and argue argue that that there there are issues of fact regarding whether the Abdalla regarding whether Abdalla Defendants' Defendants' vehicle vehicle issues of stopped suddenly suddenly at the time time of collision. stopped of collision. 11 Defendants Defendants Bakhut Bakhut Moumeniza Moumeniza and and Mohieldin Mohieldin Abdalla Abdalla cross-move cross-move (motion (motion sequence sequence #3) for same relief relief and and for the the sake sake of of judicial economy adopt adopt and and incorporate incorporate the the submissions submissions made made the same judicial economy Lyken Defendants. Defendants. by the Lyken 2 [* 2] 2 of 11 INDEX NO. 516923/2020 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 06/16/2023 It has has long long been been established judgment is a drastic established that that "[s]ummary "[s]ummary judgment drastic remedy remedy that that deprives deprives his or her only be employed when there there is no doubt a litigant litigant of of his her day day in court, court, and it 'should 'shouldonly employed when doubt as to nd Dept, 2005], the absence of triable issues of of material fact.'" Kolivas [2ndDept, 2005], triable issues material fact."' Kolivas v. v. Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2 absence of Pomeroy, 35 N.Y.2d N.Y.2d 361, N.Y.S.2d 131, 320 N.E.2d N.E.2d 853 [1974]. The citing Andre v. citing Andre v. Pomeroy, 361, 364, 362 N.Y.S.2d 131,320 proponent for the summary judgment must a primafacie showing judgment proponent summary judgment must make makeaprimafacie showing of of entitlement entitlement to judgment as a matter to demonstrate matter of of law, law, tendering tendering sufficient sufficient evidence evidence to demonstrate absence absence of of any material material issues issues of of nd Dept, King, 10 AD3d AD3d 70, 74 [2 nd Dept, 2004], Alvarez v. v. Prospect Prospect fact. See Sheppard-Mobley Sheppard-Mobley v. v. King, 2004], citing citing Alvarez N.E.2d 572 [1986]; v. New New York Hospital, 68 N.Y.2d320, N.Y.2d320, 324, 324, 508 N.Y.S.2d N.Y.S.2d 923, 501 Hospital, 501,N.E.2d [1986]; Winegrad Winegrad v. N.Y.2d 851,853,487 N.Y.S.2d 316,476 N.E.2d 642 [1985]. Univ. Univ. Med. Ctr., 64 N.Y.2d 851,853,487 N.Y.S.2d 316, 476 N.E.2d [1985]. prima facie facie showing Once moving party party has made Once a moving made a prima showing of of its entitlement entitlement to summary summary judgment, "the burden shifts party to produce produce evidentiary proof in admissible judgment, "the burden shifts to the opposing opposing party evidentiary proof admissible form of material require a trial of sufficient the existence sufficient to establish establish the existence of material issues issues of of fact which which require of the nd Dept, action"Garnham & Han Oppenheimer, 148 AD2d AD2d 493 [2 [2nd Real Estate Estate Brokers Brokers v Oppenheimer, Dept, 1989]. action"Garnham Han Real Failure make such motion, regardless regardless of the Failure to make such a showing showing requires requires denial denial of of the motion, of the sufficiency sufficiency of ofthe opposing papers. See Demshick Demshick v. v. Cmty. Hous. Mgmt. Corp., A.D.3d 518,520, N.Y.S.2d opposing papers. Corp., 34 AD.3d 518, 520, 824 N.Y.S.2d nd Dept, Dept, 2006]; see Menzel Menzel v. v. Plotnick, Plotnick, 202 A.D.2d N.Y.S.2d 50 166, 168 [2 nd 2006]; see AD.2d 558, 558, 558-559, 558-559, 610 N.Y.S.2d nd Dept, 1994]. [2ndDept, [2 Threshold (Insurance (lnsurance Law 5102) Law 5102) Threshold support of of their Lyken Defendants Defendants proffer affirmed medical their motion motion the Lyken proffer an affirmed medical report report from In support Howard A. A Kiernan, Kiernan, M.D. M.D. Dr. Kiernan Kiernan examined examined the Plaintiff Plaintiff on November 15,2021, more than than Howard November 15, 2021, more after the the date date of of the the accident. accident. Dr. Kiernan Kiernan conducted conducted range range of of motion motion testing testing with with the two years years after of a goniometer. goniometer. He examined examined the Plaintiffs Plaintiffs cervical, cervical, thoracic thoracic and and lumbar lumbar spine, spine, right right shoulder shoulder use of 3 [* 3] 3 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 those areas, relation to those motion in relation range of and found found no limitation limitation in the Plaintiffs Plaintiff s range of motion areas, knee and right knee and right normal)." Dr. except for for limited limited flexion flexion of of the right ... flexion flexion at 120 degrees degrees (150 (150 degrees degrees normal)." Dr. knee. " ... right knee. except right the right resolved, the had resolved, Kiernan found found that that the cervical cervical spine spine sprain sprain had resolved, the lumbar lumbar sprain sprain had had resolved, Kiernan the relates the shoulder sprain sprain had had resolved, resolved, and and the the right right knee knee sprains sprains had had resolved. resolved. He also causally causally relates shoulder diagnoses to the subject subject accident. accident. Dr. Kiernan Kiernan also found found that that "[t]here "[t]here is evidence evidence of of contributin contributingg diagnoses preexisting arthritis arthritis of of the the knee knee that that impacting impacting on the current current injuries." injuries." Dr. Kiernan Kiernan does does not not preexisting indicate the basis basis for this this determinati determination. Additionally,y, Dr. Kiernan Kiernan does does not not address address the Plaintiffs Plaintiff s on. Additionall indicate condition in relation relation to the the 180 day period immediatelyy following following the the accident. accident. (See Lyken Lyken period immediatel condition NYSCEF Doc. 45). Defendants' ' Motion, Motion, Report Report of of Dr. Kiernan, Kiernan, NYSCEF Defendants When the Bill Bill of of Particulars Particulars contains contains conclusory conclusory allegations allegations of of a 90/180 90/180 claim claim and and the the When there is no such that there reflects that deposition and/or and/or affidavit affidavit of of Plaintiff Plaintiff does does not support, or reflects such claim, claim, the the not support, deposition Master v. judgment. See Master motion for summary Defendant factors in support support of of its motion summary judgment. v. those factors utilize those may utilize Defendant may v. Kuperberg v. 2014]; Kuperberg Dept 2014]; Boiakhtchion, 590, 996 N.Y.S.2d n 7 [2d Dept N.Y.S.2d 116, 117 AD3d 589, 590, on, 122 AD3d Boiakhtchi Dwelle, 54 2010]; Camacho Dept 2010]; Montalbano,o, 72 AD3d AD3d 903,904, 903, 904, 899 N.Y.S.2d N.Y.S.2d 344,345 344, 345 [2d Dept Camacho v. v. Dwelle, 54 Montalban AD3d 706, 706,863 N.Y.S.2d 754 [2d Dept Dept 2008]. 2008]. In this this case, case, the Verified Verified Bill Bill of of Particulars Particulars states, states, 863 N.Y.S.2d AD3d ely at Paragraph Paragraph 10, that that the the Plaintiff Plaintiff "was "was -incapacitat incapacitateded from from employme employmentnt from from approximat approximately at September 23, 23,2019 March 13, 13,2020." During her her deposition, deposition, when when asked asked when when she returned returned to to 2020." During 2019 to March September work after after her her accident, accident, the Plaintiff Plaintiff stated, stated, "I've "I've been been back back to work work two two weeks weeks in March March and and then then work believe, and then then the COVID COVID hit and and the hotel hotel closed." closed." (NYSCEF (NYSCEF Doc. 44, 44, Page Page on the 17th, I believe, 95). When When asked asked if if she performed her regular regular duties, duties, the Plaintiff Plaintiff stated stated "(m]y "[m]y regular regular duties, duties, yes." yes." performed her 95). (Page 96). 96). When When asked asked if if she was out of of work September to March, March, the Plaintiff Plaintiff stated stated "[t]he "[t]he work from September was out (Page work 16 on the 17th." back to work doctor gave gave me, I can't can't remember sent me back 17th." (Page (Page 96). 96). name. He sent remember his name. doctor 4 [* 4] 4 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 1'" the Plaintiff primafacie Assuming that that the Defe~dants Defendants had had made made a prima facie establishing establishing that that the Plaintiff did Assuming sustain a serious serious injury injury as defined defined by the statute, statute, it becomes becomes incumbent incumbent upon upon the Plaintiff Plaintiff to not sustain establish that that there there are triable triable issues issues of of fact as to whether whether the the Plaintiff Plaintiff suffered suffered serious serious injuries, injuries, in establish Parcel Serv., Jackson v United See Jackson order to avoid avoid dismissal dismissal of of the the action. action. See United Parcel Serv., 204 204 AD2d AD2d 605 [2d Dept Dept order Bryan v Brancato, Brancato, 213 AD2d AD2d 577 [2d Dept Dept 1995]. In this this regard, regard, the Plaintiff Plaintiff must must submit submit 1994]; Bryan quantitative objective objective findings, findings, in addition addition to opinions opinions as to the significance significance of of the Plaintiffs Plaintiffs quantitative injuries. See Oberly Oberly v Bangs [2001];]; Candia Candia v. v. Omonia Omonia Cab Corp., Corp., NY2d 295 [2001 Inc., 96 NY2d Ambulance, Inc., Bangs Ambulance, injuries. Miller, 255 AD2d Burnett v Miller, AD3d 641, 641, 642, 642, 775 N.Y.S.2d Dept 2004]; 2004]; Burnett AD2d 541 [2d N.Y.S.2d 546, 547 [2d Dept 6 AD3d Dept 1991]. AD2d 774 [2d Dept Beckett v Conte, Dept 1998]; Beckett Conte, 176 AD2d Dept initial matter, matter, some some of of the records records that that the Plaintiff Plaintiff relied relied upon; upon, such such as some some of of the As an initial records are often often illegible illegible and and as a resulthave result have no probative probative value. value. See CPLR CPLR 2106 2106 and Parente Parente v. v. records nd Dept, Riddick, 69 A.D.3d Mora v. Kang, 37 A.D.3d AD.3d 687, 687, 831 N.Y.S.2d 430 [2nd Dept, 2007]; 2007]; See Mora v. Riddick, AD.3d 591, N.Y.S.2d 430 nd Dept, A.D.3d 972, 871 Mendoza, 57 AD.3d Dept, 2010]; 2010]; Washington Washington v. v. Mendoza, N.Y.S.2d 149, 150 [2 nd 591, 893 N.Y.S.2d nd Dept, Dept, 2008]. N.Y.S.2d 336 [2nd 2008]. N.Y.S.2d 336 Dr. Yolande Yolande Bernard Bernard examined examined the Plaintiff, Plaintiff, with with the first examination examination occurring occurring on October 15, 15,2019, less than than a month month after after the Plaintiffs Plaintiffs accident. accident. The The final final examination examination occurred occurred 2019, less October March 2, 2022. 2022. Each Each examination examination involved involved range of motion motion testing testing with with the the use use of of a hand hand held held range of on March reflect body areas goniometer. The The range of motion subject body areas on October October 15, 2019 2019 reflect testing on the subject motion testing range of goniometer. limitations in the cervical cervical spine, spine, the right right knee knee and right right shoulder: shoulder. The The doctor doctor stated stated that that "[a]fter "[a]fter limitations approximately ten ten month's month's of of regular regular treatment, treatment, Ms. Collymore Collymore Maynard's Maynard's treatment treatment stopped." stopped." approximately palliative." ... as she plateaued plateaued in treatment treatment and it was determined determined that that further further therapy therapy would would be palliative." " ... the cervical The March March 2, 2022 2022 examination examination reflects found, as to the cervical spine, spine, "flexion "flexion Bernard found, that Dr. Bernard reflects that degrees normal 60 degrees was degrees, normal degrees [10 percent loss]; extension extension was degrees, normal was 45 degrees, percent loss]; normal 50 degrees was 45 degrees, 5 [* 5] 5 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 degrees normal 80 degrees degrees, normal was 50 degrees, left was the left [25 percent degrees, to the was 50 degrees, right was the right rotation to the loss]; rotation percent loss]; was 100 Bernard found right shoulder, the right shoulder, Dr. Bernard found "abduction "abduction was bilaterally]." As to the loss, bilaterally]." percent loss, [38 percent abduction and normal abduction loss], normal percent loss], degrees [56 percent degrees was 85 degrees flexion was forward flexion loss], forward percent loss], degrees [44 percent Bernard found knee, Dr. Bernard right knee, the right forward flexion flexion 180 degrees, degrees, respectively." found "flexion "flexion was respectively." As to the forward spine found "[c]ervical Bernard found loss]." Dr. Bernard o0 to 70 degrees, to 130 degrees "[c]ervical spine percent loss]''' degrees [46 percent normal 0Oto degrees, normal persistent radiculopathy, persistent right C6 radiculopathy, with right herniated discs, bulging discs, myofascial derangement with myofascial derangement bulging discs, herniated discs, ]ight found "[r also found Bernard also functioning" Dr. Bernard of functioning" pain, "[r]ight impairment of motion, and impairment of motion, range of restricted range pain, restricted of range of restricted range pain, restricted persistent pain, with persistent shoulder fracture with of fracture history of with history derangement with internal derangement shoulder internal causal direct causal that "[t]here opined that motion, of functioning." "[t]here is a direct Bernard opined functioning." Dr. Bernard impairment of motion, and impairment 2019, and September 22, 2019, occurred September which occurred relationship accident, which vehicle accident, motor vehicle patient's motor the patient's between the relationship between her "[b]ased on her that "[b]ased Bernard also her above above complaints, complaints, injuries, injuries, and disabilities." disabilities." Dr. Bernard also opined opined that post her status post years status approximately 3 years motion, approximately ongoing of motion, range of of range loss of and loss symptomatology and ongoing symptomatology and complete prognosis for full and the prognosis that the accident, it is evident evident that injuries are permanent complete permanent and that these injuries that these accident, that the noted that was noted (paragraph 24) it was affirmation (paragraph recovery Bernard's affirmation of Dr. Bernard's part of poor." As part remains poor." recovery remains of 5-6 period of 2020, a period February 2020, late February until late Plaintiff accident until after the accident work after return to work "unable to return was "unable Plaintiff was treatment examinations, treatment the examinations, "[b ]ased on the that "[b]ased months following the opined that Bernard opined accident." Dr. Bernard the accident." months following and lifting, and aching, lifting, pain, aching, stiffness, pain, of stiffness, complaints of and testing, Maynard's complaints Collymore Maynard's well as Ms. Collymore testing, as well Maynard Ms. Collymore that Ms. medical certainty numbness, can state state with degree of of medical certainty that Collymore Maynard reasonable degree with a reasonable numbness, I can same as living the same daily living of daily activities of customary activities would and customary usual and her usual perform her able to perform been able have been not have would not Affirmation in Plaintiff'ss Affirmation post accident." before accident for at least least the first 90 days days post accident." (See (See Plaintiff the first before the accident 70) .. Docs. 67, 70). NYSCEF Docs. Opposition, Bernard, NYSCEF of Dr. Bernard, Report of Opposition, Report Mannor, an orthopedic Dana A. Mannor, The Plaintiff Plaintiff also also submits submits the affirmed report of Dr. Dana orthopedic report of the affirmed The after the years after two years than two more than 2021, more surgeon. Dr. Mannor December 2, 2021, Plaintiff on December the Plaintiff examined the Mannor examined surgeon. 6 [* 6] 6 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 of the accident. accident. Dr. Mannor.conducted Mannorconducted range range of of motion motion testing testing of of the Plaintiffs Plaintiffs cervical, cervical, date of thoracic and lumbar lumbar spines, spines, right right shoulder shoulder and right right knee, knee, using using a goniometer, goniometer, and found found limitation limitation thoracic Plaintiff s range range of of motion motion in relation relation to the the lumbar lumbar spine spine and right right knee. knee. Dr. Mannor Mannor found found in the Plaintiffs that as to the the Plaintiffs Plaintiffs lumbar lumbar spine, spine, "[a]ctive "[a]ctive range range of of motion motion is in flexion flexion to 30 degrees degrees but but that when moving moving step step stand stand for 50 degrees degrees (60 degrees degrees normal), normal), extension extension to 10 degrees degrees (25 degrees degrees when normal), and right right lateral lateral bending bending to 25 degrees degrees (25 degrees degrees normal) normal) and and left left ~ateral lateral bending bending to 25 normal), degrees (25 degrees degrees normal)." normal)." As to the the right right knee, knee, Dr. Mannor Mannor found found "[a]ctive "[a]ctive range range of of motion motion is degrees in flexion to 90 degrees degrees (150 (150 degrees degrees normal) normal) and extension extension to O 0 degrees degrees (0 degrees degrees normal)." normal)." Dr. inflexion Mannor found found that that "[p "[p ]assive ]assive range range of of motion motion is same same as active active and and consistent consistent with with age and Mannor possible arthritis arthritis and and voluntarily voluntarily restricted." restricted." (See (See Plaintiffs Plaintiffs Affirmation Affirmation in Opposition, Opposition, Report Report of of possible Mannor, NYSCEF Doc. 74). Dr. Mannor, NYSCEF Doc. Plaintiffs evidence, evidence, mostly mostly the affirmed affirmed reports reports of of Dr. Bernard, Bernard, raises raises triable triable issues issues of of fact Plaintiffs with regard regard to the the Plaintiffs Plaintiffs claim claim of of serious serious injury injury causally causally related related to to the subject subject accident. accident. See with McNeil v. New York City City Transit Transit Auth., A.D.3d 1018, 1019, 1019,877 351, 351 [2nd Dept, Dept, New York Auth., 60 A.D.3d 877 N.Y.S.2d N.Y.S.2d 351,351 McNeil v. 2009]. "An "An expert's expert's qualitative qualitative assessment assessment of of a plaintiffs plaintiffs condition condition also also may may suffice, suffice, provided provided that that 2009]. evaluation has has an objective objective basis basis and compares compares the plaintiffs plaintiffs limitations limitations to the the normal normal function, function, the evaluation purpose of the affected affected body body organ, organ, member, member, function function or system."Toure purpose and use of system."Toure v Avis Avis Rent Rent A Car Systems Inc., 98 N.Y.2d 345, 774 N.E.2d [2002]; see Dufel v. Green, Green, 84 N.Y.2d 798,622 N.Y.2d 345, N.E.2d 1197 [2002]; Dufel v. N.Y.2d at 798,622 Systems N.Y.S.2d 900, 900,647 [1995]. Additionally, Additionally, Dr. Bernard Bernard found found that that the the Plaintiff Plaintiff was not N.Y.S.2d 647 N.E.2d N.E.2d 105 [1995]. work or otherwise otherwise perform perform her her usual usual and customary customary activities activities for the required required statutory statutory able to work period. period. Moreover, in relation relation to the the Defendant's Defendant's argument argument that that the Plaintiff Plaintiff did not not consistently consistently Moreover, receive treatment, treatment, the the Plaintiff, Plaintiff, in her her affidavit, affidavit, did discuss discuss the the purported purported gap gap in treatment treatment and receive 7 [* 7] 7 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 provided an adequate adequate explanation explanation for the the gap gap in her treatment treatment history. history. This This explanation explanation was was provided supported by Dr. Bernard Bernard who who indicated indicated that that the Plaintiff, Plaintiff, after after 10 months, months, reached reached a plateau plateau with with supported regard to the the efficacy efficacy of of further further treatment. treatment. See Pommells v. Perez, 566,576,830 N.E.2d Pommells v. Perez, 4 N.Y.3d N.Y.3d 566,576,830 N.E.2d regard [2005]. 278, 284 [2005]. Liability Liability Turning the the merits merits of of the the motion motion by the Abdalla Abdalla Defendants Defendants (motion (motion sequence sequence #4), the Turning Court finds finds that that they they have have met met their their prima burden. The The Abdalla Abdalla Defendants Defendants argue argue that that prima facie facie burden. Court summary judgment appropriate because they were were not not liable liable for the the accident accident given given that that their their summary judgment is appropriate because they vehicle was was struck struck in the the rear rear by the the Lyken Lyken Defendants' Defendants' vehicle vehicle while while Abdalla Abdalla Defendants' Defendants' vehicle vehicle vehicle was stopped stopped at a red red traffic traffic signal. signal. In support support of of their their application, application, the the Abdalla Abdalla Defendants Defendants rely on was deposition of of the the Plaintiff, Plaintiff, the the deposition deposition of of Defendant Defendant Dwyght Dwyght Lyken, Lyken, an affidavit affidavit of of the deposition Defendant Mohieldin Mohieldin Abdalla, Abdalla, and and a Police Police Accident Accident Report. Report. As an initial initial matter, matter, the Police Police Defendant Accident is not not admissible admissible given given that that the the report report is not not certified. certified. See See Yassin Yassin v. v. Blackman, AD3d Blackman, 188 AD3d Accident 62,64, Dept 2020]. 2020]. Defendant Defendant Abdalla Abdalla states states in his his affidavit affidavit that that "[o]n "[o]n N.Y.S.3d 53, 55 [2d Dept 62, 64, 131 N.Y.S.3d 9/22/2019, I was was driving driving livery livery plate T618152C. I had had one one female female passenger seated at the back back plate## T618152C. passenger seated 9/22/2019, right side." side." Defendant Defendant Abdalla Abdalla also stated stated that, that, "[a]s "[a]s I approached approached the the intersection intersection of of Kings Kings on the right Highway & Farragut Farragut Road Road in Brooklyn, Brooklyn, I had had the red light." light." Defendant Defendant Abdalla Abdalla then then stated stated that that he Highway "was the first vehicle vehicle waiting waiting for the green green light. light. Suddenly Suddenly without without any any warning, warning, vehicle vehicle #2 rear rear "was ended my vehicle." vehicle." (See (See Abdalla Abdalla Defendants' Defendants' Motion, Motion, Affidavit Affidavit of of Defendant Defendant Abdalla, Abdalla, NYSCEF NYSCEF ended Doc. 57). Plaintiff sat for deposition deposition on October October 4, 2021 (NYSCEF (NYSCEF Doc. 55). The Plaintiff 5 5). During During her deposition, when when asked asked about about the traffic conditions prior prior to the accident, stated that, deposition, traffic conditions accident, the Plaintiff Plaintiff stated 8 [* 8] 8 of 11 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 ,; INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 "[t]here was "[t]here was a red light, light, he was was stopped stopped full at the red light." light." (NYSCEF (NYSCEF Doc. Doc. 55, Page Page 27). When When asked whether the the traflic traditional signal signal with with a red, yellow yellow and and green green light, light, the asked whether traffic signal signal was a traditional Plaintiff stated, yes." (Page (Page 28) When When asked asked if if her taxi was was involved involved in an accident accident Plaintiff stated, "I believe believe so, yes." with another the Plaintiff Plaintiff stated stated that that ·'[t]he green cab stopped stopped at the light light for about about 30 with another vehicle, vehicle, the "[t]he green seconds then a car came back." (Page (Page 30). This This testimony testimony is sufiicient seconds steady steady and then carne and hit us in the back." sufficient Defendants to establish prima facie facie showing. showing. See Martinez Martinez v. v. Allen, Allen, 163 AD3d AD3d for the Abdalla Abdalla Defendants establish a prima 951, 82 N.Y.S.3d N.Y.S.3d 130 [2d Dept Dept 2018]. 2018]. This This is because because "[a] rear-end rear-end collision collision with with a stopped stopped or prima facie facie case of of negligence negligence against against the the operator operator of of the rear rear vehicle, vehicle, stopping stopping vehicle vehicle creates creates a prima thereby requiring that operator to rebut rebut the inference inference of of negligence negligence by providing providing a non-negligent non-negligent thereby requiring that operator .to v. City of o/New AD3d 1084,49 1084, 49 N.Y.S.3d N. Y.S.3d 739 explanation explanation for the collision." collision." Tumminello Tumminello v. New York, 148 AD3d [2d Dept Dept 2017]; 2017]; Klopchin Klopchin v. Masri, 45 AD3d AD3d 737, 846 N.Y.S.2d N.Y.S.2d 311 [2d Dept Dept 2007]. 2007]. v. Masri, The Lyken Lyken Defendants Defendants argue Abdalla Defendants Defendants motion motion should should be denied denied as the argue that the Abdalla Lyken Defendants' Defendants' vehicle vehicle struck the Abdalla Abdalla Defendants' Defendants' vehicle vehicle when when the the Abdalla Abdalla Defendants' Defendants' Lyken struck the vehicle made while driving driving through through the intersection, intersection, shortly shortly after after the light light turned turned vehicle made a sudden sudden stop stop while their opposition, opposition, the Lyken Lyken Defendants Defendants rely on the the deposition deposition of of Defendant Defendant green. green. In support support of of their Dwyght Lyken. Dwyght Lyken Lyken sat for a deposition deposition on October October 5, 2021 (NYSCEF (NYSCEF Doc. Dwyght Lyken. Defendant Defendant Dwyght When asked asked how how much time had occurred occurred between between when when he stopped stopped for a red light light and the 56). When much time accident occurred, Lyken stated, stated, "I carne came to a complete complete stop stop at a red light light and then then the accident occurred, Defendant Defendant Lyken accident When asked asked how how much much distance distance separated separated his and and the Abdalla Abdalla accident occurred occurred after after that." that." When Defendants' vehicle vehicle while stopped at the traffic signal, Defendant Defendant Lyken stated, "[t]hree "[t]hree Defendants' while they they were were stopped traffic signal, Lyken stated, feet." (NYSCEF (NYSCEF Doc. Doc. 56, Page Page 25). When When asked asked to describe describe the the accident, accident, Defendant Defendant Lyken Lyken to five feet." stated, "I was was at a stoplight stoplight completely completely stopped. stopped. The The light light changed changed green, green, traffic traffic began began to flow. stated, The car in front front of of me me released released their their brake brake and and applied applied their their brake. brake. I released released mine. mine. As I start start to The 9 [* 9] 9 of 11 INDEX NO. 516923/2020 FILED: KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 06/16/2023 accelerate, brake I hit my brake brake and that's accelerate, I see the the brake that's it." (Page (Page 26). When When asked asked the speed speed of of the Abdalla prior to the accident, believe he Abdalla Defendants' Defendants' vehicle vehicle prior accident, Defendant Defendant Lyken Lyken stated stated that, that, "I don't don't believe really moved brake and then moved at all. He released released his· his' brake then apply apply ·again." 'again." (Page (Page 29). "Pursuant "Pursuant to VTL VTL § 9 1129(a), 1129(a), a driver driver of of a motor motor vehicle vehicle may may not follow follow another another vehicle vehicle 'more 'more closely closely than than is reasonable prudent,' depending Fuchs v. reasonable and and prudent,' depending on the speed speed and traffic traffic .conditions -conditions on the road." road." Fuchs v. of New Misc. 3d 778, 781, 60 N.Y.S.3d [Supreme Court, Court, Kings, Kings, City of New York, 57 Misc. N.Y.S.3d 654, 657 [Supreme nd Dept 2017), ajj'd, afJ'd, 186 A.D.3d A.D.3d 459, 459, 126 N.Y.S.3d [2nd Dept 2020]. 2020]. Additionally, Additionally, Lyken Lyken did not 2017), N.Y.S.3d 652 [2 indicate whether whether the stop stop was was unexpected unexpected due to traffic traffic conditions. conditions. Further, Further, Lyken's Lyken's description description indicate of the accident accident does does not not indicate indicate that that the Abdalla Abdalla vehicle vehicle made made a short short stop that that would would constitute constitute of a non-negligent part or fault part of non-negligent act on his part fault on the part of the Abdalla Abdalla vehicle's vehicle's driver. driver. Accordingly, Accordingly, the Lyken Lyken Defendants Defendants have have failed failed to raise raise a non-negligent non-negligent explanation explanation for the collision. collision. "Conclusory "Conclusory assertions assertions of of a sudden sudden and unexpected insufficient to rebut rebut the unexpected stop are insufficient inference inference of of negligence." negligence." Shamah Shamah v. v. Richmond County Ambulance Serv., 279 AD2d AD2d 564, 719 Richmond County Ambulance Serv., N.Y.S.2d 107 [2d Dept N.Y.S.2d 287 [2d Dept Levine v. N.Y.S.2d Dept 2001]; 2001]; see Levine v. Taylor, 268 AD2d AD2d 566, 702 N.Y.S.2d Dept 2000]; Corbly Corbly v. v. Butler, 226 AD2d AD2d 418, 418,641 Dept 1996]; 1996]; Benyarko v. Avis Butler, 226 641 N.Y.S.2d N.Y.S.2d 71 [2d Dept Benyarko v. Avis Rent Rent N.Y.S.2d 761 [2d Dept A Car Sys., 162 AD2d AD2d 572, 572, 556 N.Y.S.2d Dept 1990]; Young Young v. v. City City of of New New York, 113 AD2d 833,493 833, 493 N.Y.S.2d Dept 1985]. As part of his deposition, deposition, Defendant Defendant Dwyght Dwyght Lyken Lyken AD2d N.Y.S.2d 585 [2d Dept part of did not indicate indicate why why the stop of of Abdalla Abdalla Defendants Defendants stop was was unexplained. Tumminello v. v. City unexplained. See Tumminello of New AD3d 1084, 1085, 1085,49 Dept 2017]. 2017]. Accordingly, Accordingly, the motion motion of New York, 148 AD3d 49 N.Y.S.3d N.Y.S.3d 739 [2d Dept (motion sequence sequence #4) is granted granted and and the action action is dismissed dismissed as against against the Abdalla Abdalla Defendants. Defendants. (motion Turning to the the merits merits of of the motion motion by the Plaintiff Plaintiff (motion (motion sequence sequence #5) the Court Court finds Turning that the Plaintiff passenger free Plaintiff has has met met her her burden. burden. The The Plaintiff Plaintiff argues argues that that she is an innocent innocent passenger liability. As stated stated above, above, the Lyken Lyken Defendants Defendants have have failed failed to provide non-negligent from liability. provide a non-negligent 10 [* 10] 10 of 11 FILED: •. KINGS COUNTY CLERK 06/16/2023 02:32 PM NYSCEF DOC. NO. 137 INDEX NO. 516923/2020 RECEIVED NYSCEF: 06/16/2023 explanation for the collision. collision. The The Lyken Lyken Defendants'· Defendants' conclusory· conclusory claim claim of of a sudden sudden stop is explanation insufficient to establish establish a non-negligent non-negligent defense defense or raise raise an issue issue of of comparative comparative negligence negligence insufficient New York, between the the Lyken Lyken Defendants Defendants and the Abdalla Abdalla Defendants. Defendants. See Tumminello Tumminello v. v. City City of of New between AD3d 850,965 739 [2d Dept Dept 2017]; 2017]; Cajas-Romero Cajas-Romero v. v. Ward, 106 AD3d 850, 965 N.Y.S.3d 739 AD3d 1084, 49 N.Y.S.3d 148 AD3d Dept N.Y.S.3d 512 [2d Dept N.Y.S.2d 559 [2d Dept Dept 2013]; 2013]; Waide v. v. ARI AD3d 975, 39 N.Y.S.3d LT, 143 AD3d ARI Fleet, LT, N.Y.S.2d 2016]. 2016]. Based on the foregoing, foregoing, it is hereby hereby ORDERED ORDERED as follows: follows: Based relation to judgment in relation The Lyken Lyken Defendants' (motion sequence sequence #2) for summary summary judgment motion (motion Defendants' motion Insurance Law Law 5102( 5102( d) is denied. denied. Insurance judgment in relation Abdalla Defendants' Defendants' motion motion (motion (motion sequence sequence #3) for summary summary judgment relation to The Abdalla Insurance Law Law 5102( 5102( d) is denied. denied. Insurance judgment is granted. The Abdalla Abdalla Defendants' Defendants' motion motion (motion (motion sequence sequence #4) for summary summary judgment granted. The complaint and and any cross-claims cross-claims as against against the Abdalla Abdalla Defendants Defendants are dismissed. dismissed. complaint Plaintiff is an innocent that the Plaintiff (motion sequence sequence #5) is granted granted to the extent that innocent the extent motion (motion Plaintiffss motion The Plaintiff Plaintiff to granted is passenger, free from from liability liability and summary summary judgment the issue issue of of liability liability granted Plaintiff judgment on the passenger, against the Lyken Lyken Defendants. Defendants. as against foregoing constitutes constitutes the the Decision Decision and Order Order of of the Court. Court. The foregoing ENTER: ENTER: 11 [* 11] 11 of 11

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