Opinion
Index Nos. 16-604382 001-MD 002-MD
09-25-2018
LAQUANA LOVE, Plaintiff, v. RAYMEIL HARGIS, BEST RIDE OF HAMPTON, INC., BRIAN VINCENT and THE SALVATION ARMY, Defendants.
Attorney for Plaintiff: DINO J. DOMINA, ESQ. Attorney for Defendants: Hargis & Best Ride of Hampton, Inc. BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. Attorney for Defendants: Vincent & Salvation Army ALFRED P. LUCIA, JR., ESQ.
Unpublished Opinion
MOTION DATE 5-18-18, 5-24-18
ADJ. DATE 8-23-18
Attorney for Plaintiff: DINO J. DOMINA, ESQ.
Attorney for Defendants: Hargis & Best Ride of Hampton, Inc. BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C.
Attorney for Defendants: Vincent & Salvation Army ALFRED P. LUCIA, JR., ESQ.
HON. WILLIAM G. FORD JUSTICE
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers dated April 20, 2018 and May 11. 2018: Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers dated August 10. 2018: Replying Affidavits and supporting papers dated August 20. 2018: Other; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by defendants Raymeil Hargis and Best Ride of Hampton, Inc. for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied; 1 ofit4is further
ORDERED that the motion (improperly denominated as a cross motion) by defendants Brian Vincent and The Salvation Army for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff when the taxi in which she was a passenger collided with a vehicle owned by defendant The Salvation Army ("Salvation Army") and operated by defendant Brian Vincent. The accident allegedly occurred on November 24, 2013, at the intersection of West Main Street and Forge Road, in Riverhead, New York. At the time of the accident, plaintiff was a passenger in a taxi owned by defendant Best Ride of Hampton, Inc. ("Best Ride") and operated by defendant Raymeil Hargis. By the bill of particulars, plaintiff alleges that, as a result of the accident, she sustained various serious injuries and conditions, including herniated and bulging discs in the cervical and lumbar regions, radiculopathy at C7 and L5, and post-traumatic anxiety.
Defendants Hargis and Best Ride move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d). In support of their motion, Hargis and Best Ride submit, inter alia, the sworn medical report of their examining neurologist, Dr. Edward Weiland.
Insurance Law § 5102 (d) defines "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."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, 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]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v. Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore 2 of 4n, 25 A.D.3d 672,811 N.Y.S.2d 724 [2d Dept 20061; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., supra; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
Here, Hargis and Best Ride failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Reitz v Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173 [2d Dept 2010]). On September 28, 2017, approximately four years after the subject accident, moving defendants' examining orthopedist, Dr. Edward Weiland, examined plaintiff and performed certain orthopedic and neurological tests, including the foraminal compression test, Soto-Hall test, Valsalva's maneuver, Romberg's test, Babinski's test, and the straight leg raising test. Dr. Weiland found that all the test results were negative or normal, and that there was no spasm or tenderness in plaintiffs cervical, thoracic and lumbar regions. Dr. Weiland also performed range of motion testing on plaintiffs cervical, thoracic and lumbar regions, using a goniometer to measure her joint movement. Dr. Weiland found that plaintiff exhibited normal joint function in those regions. However, Dr. Weiland's report failed to adequately address plaintiffs claim, clearly set forth in the bill of particulars, that she sustained post-traumatic anxiety as a result of the subject accident (see Cohn v Khan, 89 A.D.3d 1052, 933 N.Y.S.2d 403 [2d Dept 2011]; Smith v Quicci, 62 A.D.3d 858, 880 N.Y.S.2d 652 [2d Dept 2009]; Volpetti v Kap, 28 A.D.3d 750, 814 N.Y.S.2d 236 [2d Dept 2006]). A causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Kranis v Biederbeck, 83 A.D.3d 903, 920 N.Y.S.2d 725 [2d Dept 2011]; Villeda v Cassas, 56 A.D.3d 762, 871 N.Y.S.2d 167 [2d Dept 2008]). Dr. Weiland's report did not indicate that he performed any psychological tests with respect to plaintiffs alleged emotional injury (see Robinson v Lawrence, 99 A.D.3d 980, 952 N.Y.S.2d 468 [2d Dept 2012]; Rahman v. Sarpaz, 62 A.D.3d 979, 880 N.Y.S.2d 125 [2d Dept 2009]; Joseph v. Hampton, 48 A.D.3d 638, 852 N.Y.S.2d 335 [2d Dept 2008]). Moreover, Hargis and Best Ride have not submitted any evidence to rule out the claimed emotional injury (see McFadden v Barry, 63 A.D.3d 1120, 883 N.Y.S.2d 83 [2d Dept 2009]; Browdame v Candura, 25 A.D.3d 747, 807 N.Y.S.2d 658 [2d Dept 2006]; Lawyer v Albany OK Cab Co., 142 A.D.2d 871, 530 N.Y.S.2d 904 [3d Dept 1988]), such as a report from a psychologist who examined plaintiff or the testimony of others who observed him (see Hill v Cash, 117 A.D.3d 1423, 985 N.Y.S.2d 345 [ 4th Dept 2014]; Krivit v Pitula, 79 A.D.3d 1432, 912 N.Y.S.2d 789 [3d Dept 2010]).
Inasmuch as Hargis and Best Ride failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong DeokLee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Accordingly, the motion by defendants Hargis and Best Ride for summary judgment dismissing the complaint is denied.
Defendants Vincent and Salvation Army move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d). In support of their motion, Vincent and Salvation Army submit, inter alia, the sworn medical report of their examining orthopedist, Dr. Teresa Habacker, the sworn medical report of their examining neurologist, Dr. Howard Reiser, and Dr. Weiland's September 28, 2017 medical report.
Here, defendants Vincent and Salvation Army failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Reitz v Seagate Trucking, Inc., supra). On January 10, 2018, Dr. Habacker examined plaintiff and performed certain orthopedic and neurological tests, including the straight leg raising test. Dr. Habacker found that all the test results were negative or normal, and that there was no spasm in plaintiffs cervical, thoracic and lumbar regions. Dr. Habacker also performed range of motion testing on plaintiffs cervical and thoracolumbar regions, using a goniometer to measure her joint movement. Dr. Habacker found that plaintiff exhibited normal joint function in those regions. However, Dr. Habacker's report failed to adequately address plaintiffs claim, clearly set forth in the bill of particulars, that she sustained post-traumatic anxiety as a result of the subject accident (see Cohn v Khan, supra; Smith v Quicci, supra; Volpetti v Kap, supra). Dr. Habacker's report did not indicate that she performed any psychological tests with respect to plaintiffs alleged emotional injury (see Robinson v Lawrence, supra; Rahman v Sarpaz, supra; Joseph v Hampton, supra). On March 28,2018, Dr. Reiser examined plaintiff and performed certain orthopedic and neurological tests. Dr. Reiser found that all the test results were negative or normal, and concluded that plaintiffs post-traumatic symptoms were subjective. Although Dr. Reiser indicated that plaintiffs post-traumatic anxiety was subjective, he failed to explain or substantiate, with objective medical evidence, the basis for that conclusion (see Mercado v Mendoza, 133 A.D.3d833, 834, 19N.Y.S.3d757[2d Dept 2015]; Uvaydov v Peart, 99 A.D.3d 891, 951 N.Y.S.2d 912 [2d Dept 2012]; Iannello v Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654 [2d Dept 2010]). In view of the foregoing, the reports of Dr. Habacker and Dr. Reiser are insufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Inasmuch as Vincent and Salvation Army failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, supra; Yong Deok Lee v Singh, supra). Accordingly, the motion by defendants Vincent and Salvation Army for summary judgment dismissing the complaint is denied.