Opinion
Index No. 717574/2018 Motion Seq. No. 3
10-12-2022
Ronald Henry Facey, Plaintiff, v. John Doe #1-5 name fictitious and unknown to Plaintiff, and Sheldon K. Audain, Defendants.
Unpublished Opinion
This motion was originally submitted to Hon. Darrell L. Gavrin. It was later referred to this Part.
PRESENT: HONORABLE PHILLIP HOM JUSTICE
Phillip Hom, Judge
The following e-filed documents, listed by NYSCEF document number, were read on this motion by Plaintiff
PAPERS NUMBERED
Notice of Motion-Affidavits-Exhibits ...................... 28-44
Affirmation in Opposition-Affidavits-Exhibits…… 45-48
Reply……………………………………………… 49
Upon the foregoing papers, it is ordered that this motion by Plaintiff for, among other things, vacatur of the summary judgment granted against him, is determined as follows:
Plaintiff Ronald Henry Facey ("Plaintiff") commenced this action to recover for injuries allegedly sustained in a motor vehicle crash which occurred on April 29, 2018, at 137-38 224thStreet, Queens, NY.
Defendant Sheldon K. Audain ("Defendant") moved for summary judgment on the basis that Plaintiff did not suffer a serious injury under New York's Insurance Law § 5102 (d). Plaintiff did not oppose the motion. This Court granted summary judgment in favor of Defendant in an Order, dated August 24, 2020, and entered August 25, 2020 ("2020 Order"). On August 26, 2020, Defendant served a copy of the 2020 Order with Notice of Entry upon Plaintiff.
On August 27, 2021, Plaintiff filed this motion for an order vacating the 2020 Order and re-calendaring Defendant's summary judgment motion to be decided with Plaintiff's opposition. Defendant opposes, arguing, among other things, that Plaintiff fails to set forth a reasonable excuse for his default and potentially meritorious opposition to the underlying motion.
Motion to Vacate the 2020 Order
A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate a reasonable excuse for the default, as well as a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Garcia v City of New York, 189 A.D.3d 788, 788 [2d Dept 2020]; Prakope v Public Storage, 186 A.D.3d 1738, 1739 [2d Dept 2020]; Onyenwe v Hamernick, 185 A.D.3d 1044, 1045 [2d Dept 2020]; Campbell v TPK Heating, Ltd., 181 A.D.3d 642, 643 [2d Dept 2020]; 210 East 60 St., LLC v Rahman, 178 A.D.3d 888, 889 [2d Dept 2019]; Seaman v New York Univ., 175 A.D.3d 1578, 1579 [2d Dept 2019]; Bank of New York v Young, 123 A.D.3d 1068, 1069 [2d Dept 2014]). Such motion must be made within one (1) year after the service of a copy of the order with notice of entry (see CPLR 5015 [a][1]). The determination of whether an excuse is reasonable lies within the sound discretion of the trial court (id.).
The court has the discretion to accept law office failure as a reasonable excuse, provided the claim is substantiated by a detailed and credible explanation of the default (see CPLR 2005; Garcia, 189 A.D.3d at 789; Prakope, 186 A.D.3d at 1739; Campbell, 181 A.D.3d at 642; 210 East 60 St., LLC, 178 A.D.3d at 889; Seaman, 175 A.D.3d at 1579; Bank of New York, 123 A.D.3d at 1069). However, mere neglect is not a reasonable excuse (see Campbell, 181 A.D.3d at 643; Seaman, 175 A.D.3d at 1579).
The Court finds that this motion is untimely, as it was made more than a year after the 2020 Order with Notice of Entry was served upon Plaintiff. Thus, Plaintiff must show good cause for why this motion should be considered (see CPLR 2004).
Reasonable Excuse for Untimely Motion, and Failing to Oppose the Underlying Motion
Plaintiff states that, due to the COVID-19 pandemic, Plaintiff Counsel's firm was working remotely and had difficulty obtaining the doctor's affirmation needed to oppose Defendant's motion. Further, Plaintiff asserts that e-courts suspended notifications of adjourned dates and, therefore, Plaintiff was unaware of the return date which had been adjourned several times. Additionally, Plaintiff asserts that he did not receive the motion submission form. However, Plaintiff does not deny having had knowledge of the pending motion or access to the New York State Court Electronic Filing ("NYSCEF") system. Plaintiff does not explain how his lack of notification of the various adjourned dates prevented him from opposing the motion, which was originally returnable February 27, 2020, prior to any COVID-19 related shutdowns, and adjourned per Plaintiff's request to April 23, 2020. Plaintiff admits that he had the reports needed to oppose the summary judgment motion by July 30, 2020, prior to the final adjourned date of August 20, 2020. Yet, Plaintiff did nothing with the reports until filing the instant motion on August 27, 2021.
In light of the global COVID-19 pandemic and the Executive Orders in place, including Executive Order 202.8 that was issued March 20, 2020, which suspended, for civil proceedings, "any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding as prescribed by the procedural laws of the state until April 19, 2020," as well as various extensions of that Executive Order until November 4, 2020, and due to the strong public policy of resolving a case on its merits (see Skutelsky v JN Natural Fruit Corp., 138 A.D.3d 1099, 1100 [2d Dept 2016]), the Court finds that Plaintiff establishes a reasonable excuse for his failure to file this motion timely and for his failure to oppose the underlying motion. Therefore, the Court will consider whether Plaintiff has a potentially meritorious opposition to the underlying motion.
Potentially Meritorious Opposition to the Underlying Summary Judgment Motion
Plaintiff asserts that he has a meritorious defense in that he suffered a serious injury under Insurance Law § 5102 (d). The Court finds that Plaintiff demonstrates a potentially meritorious opposition, based upon the issue of whether Plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d) (see Papandrea v Acevedo, 54 A.D.3d 915, 915 [2d Dept 2008]). Thus, the 2020 Order is vacated.
Defendant's Underlying Summary Judgment Motion
In the interests of justice and judicial efficiency, the Court considers Defendant's summary judgment motion, along with Plaintiff's opposition. Defendant moves for summary judgment on the basis that Plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). Plaintiff opposes.
In a summary judgment motion, the movant has the initial burden of submitting sufficient evidence eliminating any material issues of fact and demonstrating a prima facie entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Only when the movant satisfies this prima facie burden does the burden shift to the opponent to show that material issues of fact exist (id.). Thus, where the movant does not satisfy this initial burden, summary judgment is denied regardless of the sufficiency of the opposing papers (see Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014]).
In support, Defendant submits, among other things, the Verified Bill of Particulars (EF Doc. 21), the transcript of the examination before trial ("EBT") of Plaintiff (EF Doc. 24), the affirmation of Dr. Edward Toriello ("Dr. Toriello"), an orthopedist who examined Plaintiff (EF Doc. 22), and the affirmation of Dr. Alan Greenfield ("Dr. Greenfield"), a radiologist who examined the magnetic resonance imaging ("MRI") films of Plaintiff's cervical spine, lumbar spine, bilateral shoulder, and bilateral knee (EF Doc. 23).
In opposition, Plaintiff submits, among other things, uncertified hospital records (EF Doc. 37), medical records of Kamal A. Tadros, M.D. ("Dr. Tadros") (EF Doc. 38), and uncertified and unaffirmed MRI reports of Roman Aulov, D.C. (EF Doc. 40). The hospital records and MRI reports are inadmissible, as they lack the proper certification under CPLR 4518 (see CPLR 4518 [a] and 2106; Nicholson v Kwarteng, 180 A.D.3d 695, 696 [2d Dept 2020]; Irizarry v Lindor, 110 A.D.3d 846, 847 [2d Dept 2013]; Daniels v Simon, 99 A.D.3d 658, 660 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848, 848 [2d Dept 2011]; Bronstein-Becher v Becher, 25 A.D.3d 796, 797 [2d Dept 2006]). Furthermore, Dr. Tadros' records, though certified by Dr. Tadros of NY Wellness Medical P.C. pursuant to CPLR 4518 (c), contain records from Healthy Living Chiropractic PC. The Healthy Living Chiropractic PC records are inadmissible, as they are not certified by a physician or other person enumerated in CPLR 4518 (c). Plaintiff also submits his affidavit (EF Doc. 43), the narrative report of Alexios Apazidis, M.D. ("Dr. Apazidis") (EF Doc. 41), as well as the affirmation of Dr. Apazidis (EF Doc. 42).
Plaintiff also submits the first pages of Plaintiff's EBT transcript, which contain only answers regarding Plaintiff's name and address and nothing more (EF Doc. 33).
Of the several categories ("Subcategory" or "Subcategories") of "serious injury" listed in the statutory definition under Insurance Law § 5102 (d), three are relevant here: "[1] permanent consequential limitation of use of a body organ or member [Subcategory: "permanent consequential limitation of use"]; [2] significant limitation of use of body function or system [Subcategory: "significant limitation of use"]; [and] [3] 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 [Subcategory: "90/180"]" (Insurance Law § 5102 [d]).
Subcategories: Significant Limitation and Permanent Consequential Limitation
"[T]o prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury […] An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350 [2002]). Evidence of a herniated disc, a bulging disc, a shoulder impingement, a tear in tendons or a tear in a ligament alone is insufficient to establish a serious injury; there must be additional objective medical evidence establishing that the accident resulted in significant physical limitations (see Pommells v Perez, 4 N.Y.3d 566, 574 [2005]; McLoud, 82 A.D.3d at 849; Larson v Delgado, 71 A.D.3d 739, 740-41 [2d Dept 2010]; Garcia v Solbes, 41 A.D.3d 426, 427 [2d Dept 2007]).
Use of a handheld goniometer to determine range of motion is a sufficient objective test on its own to determine whether a party has sustained a serious injury as long as the results are compared to what is a normal range of motion (see Munoz v Salcedo, 170 A.D.3d 735, 736 [2d Dept 2019]; Chichester v Chichester, 174 A.D.3d 846, 847 [2d Dept 2019]; Washington v County of Nassau, 176 A.D.3d 903, 904 [2d Dept 2019]; Gersbeck v Cheema, 176 A.D.3d 684, 686 [2d Dept 2019] [granting summary judgment where defendant's expert measured plaintiff's range of motion with a goniometer but plaintiff's expert failed to mention how he measured plaintiff's range of motion]; Cho v Demelo, 175 A.D.3d 1235, 1236 [2d Dept 2019] [denying summary judgment for failure to identify objective tests utilized by party's expert where expert affirmed "all ranges of motion are done visually and/or with the use of a hand held goniometer"]; Paez v Osborne, 167 A.D.3d 766, 767 [2d Dept 2018]; Alexander v Annarumma, 166 A.D.3d 715, 716 [2d Dept 2018]; Fioruci-Melosevich v Harris, 166 A.D.3d 581, 581 [2d Dept 2018]; Martin v Portexit Corp., 98 A.D.3d 63, 67-68 [1st Dept 2012]; Lee v McQueens, 60 A.D.3d 914, 915 [2d Dept 2009]; Kerzhner v N.Y. Ubu Taxi Corp., 17 A.D.3d 410, 410 [2d Dept 2005]; Desulme v Stanya, 12 A.D.3d 557, 558 [2d Dept 2004]).
While there is no bright-line rule for what constitutes a serious injury under Insurance Law § 5102 (d), courts have required more than a "minor, mild or slight limitation of use" under the permanent consequential limitation of use and significant limitation of use Subcategories (see Gaddy v Eyler, 79 N.Y.2d 955, 957 [1992]; Licari v Elliot, 57 N.Y.2d 230, 236 [1982]; Ramirez v L-T. & L. Enterprise, Inc., 189 A.D.3d 1636, 1637-38 [2d Dept 2020] [finding a triable issue of fact where plaintiff's evidence showed a 33% deficit in cervical spine range of motion and 27% deficit in left shoulder range of motion]; Nash v MRC Recovery, Inc., 172 A.D.3d 1213, 1215 [2d Dept 2019] [finding a triable issue of fact where evidence showed that the left ankle had a 25% deficit in dorsiflexion and 33% deficit in plantar flexion]; Broadwood v Bedoya, 170 A.D.3d 795, 796 [2d Dept 2019] [finding insignificant within the no-fault statute where plaintiff suffered "no more than 10 percent" deficit in range of motion]; Kholdarov v Hyman, 165 A.D.3d 1087, 1088 [2d Dept 2018] [finding a triable issue of fact where neurologist found a 20% deficit in flexion of plaintiff's cervical spine]; Hiotidis v Ramuni, 161 A.D.3d 955, 956 [2d Dept 2018] [upholding jury verdict where testimony showed deficits of 33% in cervical and lumbar range of motion and 38% in right shoulder range of motion]; Greenidge v United Parcel Service, Inc., 153 A.D.3d 905, 906 [2d Dept 2017] [finding triable issue of fact where evidence showed a 25% deficit in cervical spine range of motion]).
Where the movant provides evidence of a preexisting and/or degenerative condition, the party opposing the motion must rebut said evidence (see Pommells, 4 N.Y.3d at 578-80). A treating physician's affirmation, based upon his contemporaneous and most recent examinations of the plaintiff, opining that the plaintiff's injuries and range of motion limitations observed are significant and permanent, and causally related to the accident, is sufficient to rebut said evidence (see Cavitolo v Broser, 163 A.D.3d 913, 914 [2d Dept 2018]; Young Chool Yoo v Rui Dong Wang, 88 A.D.3d 991, 992 [2d Dept 2011]; Dixon v Fuller, 79 A.D.3d 1094, 1094-95 [2d Dept 2010]; Gussack v McCoy, 72 A.D.3d 644, 644-45 [2d Dept 2010]; Sforza v Big Guy Leasing Corp., 51 A.D.3d 659, 660 [2d Dept 2008]; Doran v Sequino, 17 A.D.3d 626, 626 [2d Dept 2005]).
On September 12, 2019, Dr. Toriello conducted an independent orthopedic examination of Plaintiff. Dr. Toriello provided a qualitative assessment, compared the results to what would be considered normal range of motion ("ROM"), and reported full ROM of Plaintiff's cervical spine, thoracic spine, lumbar spine, bilateral shoulder, and bilateral knee. Dr. Toriello used a goniometer and inclinometer to measure ROM. Dr. Toriello found no shoulder girdle muscle atrophy or weakness, no instability of the shoulders or impingement, and cross-arm tests were within normal limits. Dr. Toriello found a well-healed scar from a prior surgery, but no erythema, ecchymosis, swelling, tenderness, or ligamentous laxity in the bilateral knees. Dr. Toriello further conducted the McMurray's and Lachman's tests on Plaintiff's knees, which were within normal limits.
Dr. Greenfield reviewed the MRI films of Plaintiff's cervical spine, lumbar spine, bilateral shoulder, and bilateral knee. Dr. Greenfield concluded that there is no causal relationship between the crash and Plaintiff's alleged injuries to each body part. He found degenerative disc disease in Plaintiff's cervical spine, as well as minor or mild degenerative changes in his lumbar spine. Dr. Greenfield found chronic intrasubstance degenerative tendinosis of the supraspinatus and infraspinatus tendons, degenerative subcortical cyst of the humeral head, degenerative narrowing of the glenohumeral joint space in Plaintiff's right shoulder. He opined that these findings were considered "chronic and longstanding, degenerative in nature, and unrelated to the accident." The MRI film of Plaintiff's left shoulder revealed chronic tendinosis of the distal anterior supraspinatus tendon, without tendinitis or tear. Dr. Greenfield opined that this finding is most likely due to degenerative arthrosis contributing to direct mechanical friction against the tendon. Dr. Greenfield further noted a ganglion cyst which is idiopathic and cannot be attributed to the car accident. In Plaintiff's bilateral knee, Dr. Greenfield found chronic intrasubstance degenerative tendinosis of the distal quadriceps and patellar tendons as well as a developmentally shallow trochlear groove representing a developmental anomaly existing since childhood.
As such, Defendant meets his burden by proving that Plaintiff did not sustain a serious injury under the Subcategories of permanent consequential limitation of use and significant limitation of use. Thus, it is incumbent upon Plaintiff to raise a triable issue of fact (see Giuffrida, 100 N.Y.2d at 81; Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562).
In opposition, Dr. Tadros first examined Plaintiff using an inclinometer on May 2, 2018, less than a week after the crash. Dr. Tadros provided a qualitative assessment and reported loss of ROM in the following body parts: (i) Plaintiff's cervical spine, i.e., flexion of 25 degrees (45 being normal)-44% deficit, extension of 30 degrees (55 being normal)-44% deficit, right rotation of 40 degrees (70 being normal)-43% deficit, left rotation of 40 degrees (70 being normal)-43% deficit, right lateral flexion of 20 degrees (40 being normal)-50% deficit, and left lateral flexion of 20 degrees (40 being normal)-50% deficit; (ii) Plaintiff's lumbar spine, i.e., flexion of 45 degrees (90 being normal)-50% deficit, extension of 15 degrees (30 being normal)-50% deficit, right rotation of 15 degrees (30 being normal)-50% deficit, left rotation of 15 degrees (30 being normal)-50% deficit, right lateral flexion of 20 degrees (35 being normal)-43% deficit, and left lateral flexion of 20 degrees (35 being normal)-43% deficit; (iii) Plaintiff's right shoulder, i.e., elevation of 100 degrees (180 degrees being normal)-44% deficit, extension 30 degrees (50 being normal)-40% deficit, abduction of 100 degrees (180 being normal)-44% deficit, adduction 30 degrees (50 being normal)-40% deficit, internal rotation 50 degrees (90 being normal)-44% deficit, and external rotation 50 degrees (90 being normal)-44% deficit; (iv) Plaintiff's left shoulder, i.e., elevation of 90 degrees (180 degrees being normal)-50% deficit, extension 25 degrees (50 being normal)-50% deficit, abduction of 90 degrees (180 being normal)-50% deficit, adduction 25 degrees (50 being normal)-50% deficit, internal rotation 45 degrees (90 being normal)-50% deficit, and external rotation (90 being normal)-50% deficit; and (v) Plaintiff's bilateral knee, i.e., flexion 100 degrees (130 being normal)-23% deficit, and extension 10 degrees (15 being normal)-33% deficit. Dr. Tadros opined "THAT THE CONDITION DESCRIBED ABOVE IS RELEVANT TO THE [crash]."
Dr. Tadros examined Plaintiff several times after and on October 11, 2018, he reported the following: (i) full ROM in Plaintiff's cervical spine; (ii) full ROM in Plaintiff's lumbar spine; (iii) full ROM in Plaintiff's right shoulder; (iv) full ROM in Plaintiff's left shoulder; (v) full ROM in Plaintiff's right knee; and (vi) loss of ROM in Plaintiff's left knee, i.e., flexion 125 degrees (130 being normal)-4% deficit, and full ROM in extension.
The Court finds that Dr. Tadros' records are insufficient to raise a triable issue of fact, as he reported full ROM in Plaintiff's cervical spine, lumbar spine, bilateral shoulder, and right knee on October 11, 2018. Dr. Tadros further reported a mere 4% deficit in Plaintiff's left knee, which is insignificant within the no-fault statute (see Gaddy, 79 N.Y.2d at 957; Licari, 57 N.Y.2d at 236; Ramirez, 189 A.D.3d at1637-38; Nash, 172 A.D.3d at 1215; Broadwood, 170 A.D.3d at 796; Kholdarov, 165 A.D.3d at 1088; Hiotidis, 161 A.D.3d at 956; Greenidge, 153 A.D.3d at 906). Moreover, Dr. Tadros' records show that Plaintiff did not suffer permanent injuries.
Dr. Apazidis opined that Plaintiff suffered an injury to Plaintiff's cervical spine, lumbar spine, bilateral knee, and bilateral shoulder, which were causally related to the April 29, 2018, crash. He affirmed that he first examined Plaintiff on May 29, 2018, approximately one (1) month after the accident; however, he failed to provide any measurements for ROM in any of the alleged injured body parts, or identify any method utilized to measure ROM.
Dr. Apazidis' most recent examination of Plaintiff was conducted on February 3, 2020, using a handheld goniometer, and he merely reported ROM measurements for Plaintiff's bilateral shoulder and bilateral knee. He found full ROM in Plaintiff's right knee. Dr. Apazidiz reported a loss of ROM in Plaintiff's following body parts: (i) left knee, i.e., 130 degrees (135 being normal)-4% deficit; (ii) bilateral shoulder, i.e., adduction 20 degrees (25 being normal)-20% deficit, extension 55 degrees (60 being normal)-8% deficit, internal rotation 85 degrees (90 being normal)-6% deficit, and external rotation 85 degrees (90 being normal)-6% deficit.
Dr. Apazidis reported that Plaintiff had a 20% reduction in ROM in his bilateral shoulder almost two years after the crash; however, his report is directly contradicted by the findings of Plaintiff's own treating physician, i.e., full ROM in Plaintiff's bilateral shoulder, made less than six months after the crash. Dr. Apazidis fails to explain or reconcile the apparent inconsistencies of his report and Dr. Tadros' records. Therefore, Plaintiff fails to raise a triable issue of fact regarding the Subcategories of permanent consequential limitation of use and significant limitation of use (see McLoud, 82 A.D.3d at 849; Rabolt v Park, 50 A.D.3d 995, 996 [2d Dept 2008]; O'Shea v Johnson, 49 A.D.3d 614, 615 [2d Dept 2008]; Brown v Tairi Hacking Corp., 23 A.D.3d 325, 326 [2d Dept 2005]; Doran, 17 A.D.3d at 626).
Subcategory: 90/180 Day
Defendant asserts that Plaintiff fails to meet the criteria for serious injury under the 90/180 subcategory. In support, Defendant submits Plaintiff's EBT transcript wherein Plaintiff averred that he stopped working one week prior to the accident due to lay-offs at his former employer. He further testified that the accident did not affect his ability to work on his business, Don's Clothing. Plaintiff stated that he was confined to bed for about two (2) weeks after the accident and one (1) week after his surgery. Additionally, the Plaintiff's Verified Bill of Particulars reveal that he was confined to his bed for one (1) day following the accident and seven (7) days following his knee surgery (see Strenk v Rodas, 111 A.D.3d 920, 920 [2d Dept 2013]; Kabir v Vanderhost, 105 A.D.3d 811, 811 [2d Dept 2013]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 1071 [2d Dept 2012]; Parise v New York City Transit Authority, 94 A.D.3d 839, 840 [2d Dept 2012]; Valera v Singh, 89 A.D.3d 929, 930-31 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 831 [2d Dept 2011]; Jean v Labin-Natochenny, 77 A.D.3d 623, 624 [2d Dept 2010]; McIntosh v O'Brien, 69 A.D.3d 585, 587 [2d Dept 2010]). Thus, Defendant demonstrates that Plaintiff did not sustain a serious injury under the 90/180 subcategory (id.).
In opposition, Plaintiff submits a self-serving affidavit stating that he was "incapacitated for an extensive period of time" and is "still prevented from performing virtually all of [his] daily activities to this day." Plaintiff's conclusory and self-serving statements, which contradict his own EBT testimony, fail to raise a triable issue of fact because he does not set forth any competent medical evidence substantiating his claims (see Gaddy, 79 N.Y.2d at 958; Pryce v Nelson, 124 A.D.3d 859, 860 [2d Dept 2015]; John v Lindon, 124 A.D.3d 598, 599 [2d Dept 2015]; Strenk, 111 A.D.3d at 921; Leeber v Ward, 55 A.D.3d 563, 563-64 [2d Dept 2008]; Jackson v New York City Transit Authority, 217 A.D.2d 200, 201 [2d Dept 2000]). Additionally, on May 2, 2018, less than a week after the crash, Dr. Tadros concluded that Plaintiff was merely "SOMEWHAT LIMITED IN ACTIVITIES OF DAILY LIVING." Dr. Apazidis also stated that Plaintiff was "somewhat limited in his activities of daily living," at the time of his initial consultation on May 29, 2018, approximately a month after the accident. Thus, Plaintiff fails to raise a triable issue of fact as to his inability to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (id).
In accordance with the foregoing, it is hereby ORDERED that Plaintiffs motion is granted to the following extent:
It is ORDERED that this Court's prior 2020 Order is vacated; and it is further
ORDERED that, having considered Plaintiffs opposition, Defendant's motion for summary judgment is granted; and it is further
ORDERED that Plaintiffs Complaint is dismissed; and it is further
ORDERED that Defendant shall serve a copy of this Order with Notice of Entry upon Plaintiff, within twenty (20) days from the date of entry.
This constitutes the Decision and Order of this Court.