Opinion
Index 612649/2018
03-01-2021
JANAE DAVINO, Plaintiff, v. JOHN POMARICO, JENNIFER SEMENDOFF and COURTNEY SEMENDOFF, Defendants. Cal No. 202000164MV Mot. Seq. Nos. # 001 MD; # 002 XMD, #003 MG, # 004 MD
RAPPAPORT GLASS LEVINE & ZULLO Attorney for Plaintiff. MILBER MAKRIS PLOUSADIS & SEIDEN, Attorney for Defendant Pomarico. GENTILE &TAMBASCO Attorney for Defendants Semendoff.
Unpublished Opinion
MOTION DATE 6/11/20 (001).
MOTION DATE 10/1/20 (002).
MOTION DATE 10/22/20(003).
MOTION DATE 10/29/20 (004).
ADJ. DATE 11/5/20 (001 &002).
ADJ. DATE 10/29/20 (003 & 004).
RAPPAPORT GLASS LEVINE & ZULLO Attorney for Plaintiff.
MILBER MAKRIS PLOUSADIS & SEIDEN, Attorney for Defendant Pomarico.
GENTILE &TAMBASCO Attorney for Defendants Semendoff.
PRESENT: Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court.
Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court.
Upon the following papers read on this motion and cross motion for summary judgment and these motions to strike the pleadings: Notice of Motion/ Order to Show Cause and supporting papers by defendant Pomarico, dated May 6, 2020, by defendant Pomarico, dated October 15, 2020, and by defendants Semendoff, dated October 21, 2020; Notice of Cross Motion and supporting papers by plaintiff, dated September 9, 2020; Answering Affidavits and supporting papers by plaintiff, dated October 22, 2020, by defendant Pomarico, dated October 15, 2020, and by defendants Semendoff, dated October 21, 2020; Replying Affidavits and supporting papers by defendant Pomarico, dated October 29. 2020; Other it is
ORDERED that the parties' motions are consolidated for purpose of this determination; and it is
ORDERED that the motion by defendant John Pomarico seeking summary judgment dismissing the complaint is denied; and it is
ORDERED that the cross motion by plaintiff Janae Davino seeking summary judgment in her favor on the ground that she sustained a serious injury within the meaning of Section 5102 (d) of the Insurance Law is denied; and it is
ORDERED that the motion by defendant John Pomarico for, inter alia, an order striking plaintiffs supplemental verified bill of particulars is granted; and it is further
ORDERED that the motion by defendants Jennifer Semendoff and Courtney Semendoff for, inter alia, an order striking the supplemental verified bill of particulars is denied, as moot.
Plaintiff Janae Davino commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Smithtown Avenue and South 2 Street in the Town of Islip on August 7, 2015. Plaintiff, by her complaint, alleges that while she was riding as a front seat passenger in the vehicle owned by defendant Jennifer Semendoff and operated by defendant Courtney Semendoff, the vehicle was struck in the rear right passenger side by the vehicle owned and operated by defendant John Pomarico as it attempted to make a left turn from South 2
Street onto Smithtown Avenue. The force of the impact allegedly caused the Semendoff vehicle to flip over and land on its roof. By her bill of particulars, plaintiff alleges, among other things, that she sustained a left wrist central triangular fibrocartilage disc tear and intrasubstance tear of the left dorsal scapholunate ligament as a result of the accident.
Defendant Pomarico now moves for an order striking plaintiffs supplemental bill of particulars dated September 8, 2020. In particular, defendant Pomarico asserts that, approximately eight months after the filing of the note of issue, plaintiff, in an attempt to undermine his defenses and to oppose his motion for summary judgment, served an amended bill of particulars, improperly denoted as a supplemental bill of particulars, alleging new claims. Defendant Pomarico further contends that plaintiff was required to obtain leave of the Court to serve the new bill of particulars after the note of issue was filed. Alternatively, defendant Pomarico seeks an order, pursuant to CPLR 3043, precluding plaintiff from presenting evidence at the time of trial as to the new injury set forth in the supplemental bill of particulars. Defendants Jennifer Semendoff and Courtney Semendoff also move to strike the supplemental bill of particulars on the same grounds as defendant Pomarico and rely on the same evidence as defendant Pomarico.
Plaintiff opposes the motion on the ground that the supplemental bill of particulars does not contain any new injuries. Rather, plaintiff asserts, the injuries set forth in the supplemental bill of particulars evince the continuing consequence of injuries that were previously suffered by her as a result of the subject accident, and that defendants were aware of the claimed injury of significant disfigurement and scarring, since she was questioned extensively on the issue at her deposition, and cannot claim they are being prejudiced by its inclusion.
"The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial" (Jones v LeFrance Leasing Ltd. Partnership, 61 A.D.3d 824, 825, 877 N.Y.S.2d 424 [2d Dept 2009]; see Jurado v Kalache, 93 A.D.3d 759, 940 N.Y.S.2d 300 [2d Dept 2012]). While a party may serve a bill of particulars once, as of right, before the filing of a note of issue (CPLR 3042 [b]), once discovery is complete and the case is certified as ready for trial, a party will not be permitted to amend his or her bill of particulars except upon a showing of "special and extraordinary circumstances" (Schreiber-Cross v State of New York, 57 A.D.3d 881, 884, 870 N.Y.S.2d 438 [2d Dept 2008]).
Furthermore, a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided that no new causes of action are alleged or new injuries claimed (see CPLR 3043 [b]; Erickson v Cross Ready Mix, Inc., 98 A.D.3d 717, 950 N.Y.S.2d 717[2d Dept 2012]; Alami v 215 E6th St., L.P., 88 A.D.3d 924, 931 N.Y.S.2d 647 [2d Dept 2011]). Thus, a supplemental bill of particulars may be served without leave of the court when a plaintiff is updating continuing claims of special damages or alleging continuing consequences of the injuries allegedly suffered and described in the original bill of particulars (see Kraycar v Monahan, 49 A.D.3d 507, 856 N.Y.S.2d 123 [2d Dept 2008]; Aversa v Taubes, 194 A.D.2d 580, 598 N.Y.S.2d 801 [2d Dept 1993]). However, where a supplemental bill of particulars asserts new injuries, a new theory of liability or a new category of damages, it will be deemed an amended bill of particulars (see Pearce v Booth Mem. Hosp., 152 A.D.2d 553, 543 N.Y.S.2d 157 [2d Dept 1989]), requiring the plaintiff to obtain leave of the court (see CPLR 3025 [b]).
In the instant matter, plaintiff served defendant Pomarico with a purported supplemental verified bill of particulars after the filing of the note of issue. "A plaintiff cannot simply avoid the application of the rule that a supplemental pleading does not supersede the original pleading, but is in addition to it (see Lovisa Constr. Co. v Facilities Dev. Corp., 148 A.D.2d 913, 539 N.Y.S.2d 541 [2d Dept 1989]), by denominating as a 'supplemental' pleading one that asserts new injuries [or] a new category of damages, and which is therefore properly an amended pleading" (Mendrzycki v Cricchio, 58 A.D.3d 171, 175, 868 N.Y.S.2d 107 [2d Dept 2008], quoting Fuentes v City of New York, 3 A.D.3d 549, 550, 771 N.Y.S.2d 178 [2d Dept 2004]). Here, plaintiffs supplemental bill of particulars was, in reality, an amended bill of particulars, as it sought to add a new category of injury (see Kyong Hi Wohn v County of Suffolk, 237 A.D.2d 412, 654 N.Y.S.2d 826 [2d Dept 1997]). As a consequence, the bill of particulars served in September 2020 was a nullity (see Bartkus v New York Methodist Hosp., 294 A.D.2d 455, 742 N.Y.S.2d 554 [2d Dept 2002]; Golub v Sutton, 281 A.D.2d 589, 723 N.Y.S.2d 59 [2d Dept 2001]).
Plaintiffs original bill of particulars, dated November 9, 2018, alleged, among other things, that she sustained a left wrist central triangular fibrocartilage disc tear and an intrasubstance tear of the left dorsal scapholunate ligament. Plaintiffs original bill of particulars does not state that she sustained a significant disfigurement or any scarring to her left wrist or to any part of her body. However, plaintiff, in the September 2020 bill of particulars, alleges for the first time that she suffered an injury within the "significant disfigurement" and the "permanent consequential limitation of use" categories of Insurance Law § 5102 (d) (see Brackenbury v Franklin, 93 A.D.3d 423, 939 N.Y.S.2d 63 [2d Dept 2012]; DeNicola v Mary Immaculate Hosp., 272 A.D.2d 505, 708 N.Y.S.2d 152 [2d Dept 2000]; cf Alicino v Rochdale Vil., Inc., 142 A.D.2d 937, 37 N.Y.S.3d 557 [2d Dept 2016]). Defendant Pomarico has shown that the inclusion of a claim of a serious disfigurement in the "supplemental" bill of particulars served upon him, approximately eight months after the filing of the note of issue, is not merely sequelae of plaintiff s original injuries, but is an entirely new claim; therefore, it cannot be said that plaintiff merely was particularizing her originally pleaded allegations in the amended verified bill of particulars, which can be asserted, as of right, pursuant to CPLR 3043 (b) (see Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 26 N.Y.S.3d 231 [2015]; Pines v Muss Dev. Co., 172 A.D.2d 600, 568 N.Y.S.2d 422 [2d Dept 1991]). Rather, plaintiff is adding a new claim for significant disfigurement, that was not in the original complaint or bill of particulars, and consequently, such attempt was improper (see Castleton v Broadway Mall Props., Inc., 41 A.D.3d 410, 837 N.Y.S.2d 732 [2d Dept 2007]; Fuentes v City of New York, 3 A.D.3d 549, 771 N.Y.S.2d 178 [2d Dept 2004]). Nor can it be said that defendant Pomarico was put on notice that such a category of injury would be claimed, and as a result, plaintiff was required to seek and obtain the Court's permission to serve an amended bill of particulars (see CPLR 3043; Hewitt v Palmer Veterinary Clinic, PC, 35 N.Y.3d 541, 134 N.Y.S.3d 312 [2020]; Marrero v 720 DeGraw Funding Corp., 150 A.D.2d 762, 542 N.Y.S.2d 211 [2d Dept 1989]; Kurnitz v Croft, 91 A.D.2d 972, 457 N.Y.S.2d 560 [2d Dept 1983]). Accordingly, defendant Pomarico's motion for, inter alia, an order striking plaintiffs supplemental bill of particulars is granted.
Since the Court has granted defendant Pomarico's motion to strike plaintiffs supplemental bill of particulars, the Semendoff defendants' cross motion for the same relief is denied, as moot.
Defendant Pomarico also moves for summary judgment on the basis that the alleged injuries sustained by plaintiff as a result of the subject accident fail to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendant Pomarico submits copies of the pleadings, plaintiffs deposition testimony, uncertified copies of plaintiffs medical records concerning the injuries at issue, a certified copy of the police accidet report, and the sworn medical report of Dr. Anthony Spaturo, who conducted an independent orthopedic examination of plaintiff on August 16, 2015.
The purpose of New York State's No-Fault Insurance Law is to "assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trial[s]" (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]), and requiring every case, even those with minor injuries, to be decided by a jury would defeat the statute's effectiveness (see Licari v Elliott, supra). Therefore, the No-Fault Insurance law precludes the right of recovery for any "non-economic loss, except in the case of serious injury, or for basic economic loss" (see Insurance Law § 5104 [a]; Martin v Schwartz, 308 A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]). Any injury not falling within the definition of "serious injury" is classified as an insignificant injury, and a trial is not allowed under the No-Fault statute (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Martin v Schwartz, supra).
Insurance Law § 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiff s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment, using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2d Dept 2003]; Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). However, if a defendant does not establish a prima facie case that the plaintiff s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff s opposition papers (see Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Defendant Pomarico, by submitting competent medical evidence and plaintiffs deposition transcript, has established a prima facie case that plaintiff s alleged injuries sustained as a result of the subject collision do not meet the serious injury threshold requirement of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., supra-, Gaddy v Eyler, supra-, Luckey v Bauch, 17 A.D.3d 411, 792 N.Y.S.2d 624 [2d Dept 2005]). Defendant Pomarico's examining orthopedist, Dr. Spaturo, used a goniometer to test the ranges of motion in plaintiffs lumbar spine and left wrist, and compared his respective findings to the normal range of motion values for each region (see e.g. Cantave v Gelle, 60 A.D.3d 988, 877 N.Y.S.2d 129 [2d Dept 2009]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]; Desulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]). Dr. Spaturo states in his medical report that an examination of plaintiff reveals she has full range of motion in her left wrist, that there is no swelling or tenderness observed, that there is no evidence of deformity or atrophy in her left wrist, and that the Tinel sign is negative. Dr. Spaturo opines that the sprains plaintiff sustained to her left wrist as a result of the accident have resolved. Dr. Spaturo further states that plaintiff does not require any further orthopedic treatment, and that she is capable of performing her normal activities of daily living without restrictions.
Plaintiff testified at an examination before trial that at the time of the accident she was a student and did not miss any time from school. Plaintiff testified that she did not receive any treatment for the injuries she sustained to her left wrist until approximately two and a half years after the subject accident, because she had been admitted into Silver Oaks Behavioral Hospital to treat her schizoaffective disorder condition. She testified that she underwent surgery on her left wrist on August 30, 2018, but that she continues to have pain in the left wrist. She testified that she was discharged from physical therapy after approximately four months, that her no-fault insurance already had been terminated, that she paid for her treatment with her private healthcare coverage, and that she does not currently have any appointments scheduled for any treatment for the injuries she sustained in the accident. Plaintiff further testified that when she was nine years old she sustained injuries to her neck and back in a prior motor vehicle accident, and that, although she received physical therapy for the injuries to those regions following the prior accident, she was not receiving any medical treatment for those injuries and was asymptomatic at the time of the subject accident.
Therefore, defendants have shifted the burden to plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether they sustained an injury within the meaning of the Insurance Law (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important. . .), relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra', Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
Plaintiff opposes the motion, arguing that defendant Pomarico failed to establish a prima facie case that she did not sustain an injury within the "limitations of use" category of the Insurance Law, and that the evidence submitted in opposition demonstrates that she sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law. In opposition to motion, plaintiff submits the sworn medical report of Dr. Justin Mirza and photographs of the scar on her left wrist.
In opposition, plaintiff has submitted competent medical evidence raising a triable issue of fact as to whether she sustained a serious injury to her left wrist under the limitations of uses categories of the Insurance Law (see Foy v Pieters, __ A.D.3d __, 135 N.Y.S.3d 899 [2d Dept 2021]; Ledee v Matthes, 188 A.D.3d 857, 132N.Y.S.3d311 [2d Dept 2020]; Reyes v Kashem, 187 A.D.3d 1080, 131 N.Y.S.2d 175 [2d Dept 2020]). A plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is within the serious injury threshold of Insurance Law § 5102 (d), but also that the injury was casually related to the subject accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see Valentin v Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [1st Dept 2009]). Plaintiff has submitted the affirmed medical report of Dr. Justin Mirza, her treating orthopedic surgeon, who opines that she suffers from a left wrist ulnar impaction syndrome, left carpal and cubital tunnel syndrome, and tears in the central triangular fibrocartilage disc and the left dorsal scapholunate ligament of the left wrist, that her prognosis is guarded, and that such injuries were causally related to the subject accident (see Vaughan-Ware v Darcy, 103 A.D.3d 621, 959 N.Y.S.2d 698 [2d Dept 2013]; Bykova v Sisters Trans, Inc., 99 A.D.3d 654, 952 N.Y.S.2d 95 [2d Dept 2012]; Kanard v Setter, 87 A.D.3d 714, 928 N.Y.S.2d 782 [2d Dept 2011]; Harris v Boudart, 70 A.D.3d 643, 893 N.Y.S.2d 631 [2d Dept 2010]; Pearson v Guapisaca, 61 A.D.3d 833, 876 N.Y.S.2d 890 [2d Dept 2009]). Dr. Mirza further states that, although plaintiff has undergone surgery, she continues to have limited range of motion in her left wrist, and that she will require additional surgery in the future. Thus, Dr. Mirza's affidavit is sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury to her left wrist within the limitations of use categories of the Insurance Law as a result of the subject accident (see Young Chool Yoi v Rui Dong Wang, 88 A.D.3d 991, 931 N.Y.S.2d 373 [2d Dept 2011]; Gussack v McCoy, 72 A.D.3d 644, 897 N.Y.S.2d 513 [2d Dept 2010]).
Consequently, the affirmed medical report of plaintiff's expert conflicts with that of defendant's experts, who found that there were no significant limitations in the plaintiffs range of motion in her left wrist, and that she did not have an orthopedic disability causally related to the subject collision. "Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury" (Noble v Ackerman, 252 A.D.2d 392, 395, 675 N.Y.S.2d 86 [1998]; see LaMasa v Bachman, 56 A.D.3d 340, 869 N.Y.S. 17 [1st Dept 2008]; Ocasio v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Reynolds v Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 [4th Dept 1996]). Thus, plaintiff has submitted sufficient evidence to raise a triable issue of fact as to whether her injuries are causally related to the subject accident (see Barry v Valerio, 72 A.D.3d 996, 902 N.Y.S.2d 97 [2d Dept 2010]; Paula v Natala, 61 A.D.3d 944, 879 N.Y.S.2d 153 [2d Dept 2009]; Azor v Torado, 59 A.D.3d 367, 873 N.Y.S.2d 655 [2d Dept 2009]).
Having determined that there is a triable issue of fact as to whether the plaintiff sustained a serious injury within the meaning of the Insurance Law, plaintiff s cross motion for summary judgment in her favor on the same issue is denied.