Opinion
502697/18
09-09-2020
Marisa RATLIFF, Plaintiff, v. Ena ALMEIDA, Defendant.
Attorney for Marisa Ratliff, Lucas Bernard Franken, The Lambrou Law Firm P.C., 45 Broadway, Suite 3120, New York, NY 10006,(212) 285-2100 Attorney for Ena Almeida, Loris Zeppieri, Kelly Rode Kelly, 330 Old Country Rd, Mineola, NY 11501, (516) 739-0400
Attorney for Marisa Ratliff, Lucas Bernard Franken, The Lambrou Law Firm P.C., 45 Broadway, Suite 3120, New York, NY 10006,(212) 285-2100
Attorney for Ena Almeida, Loris Zeppieri, Kelly Rode Kelly, 330 Old Country Rd, Mineola, NY 11501, (516) 739-0400
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 29, 2020 under motion sequence number five by defendant Ena Almeida (hereinafter defendant or Almeida) for an order: (1) pursuant to CPLR 3212, allowing an extension of defendant's time to move for summary judgment for good cause shown; and then (2) granting summary judgment in favor of defendant and dismissing the complaint of Marissa Ratliff (hereinafter plaintiff or Ratliff) upon the grounds that plaintiff has not sustained a serious injury as a result of the subject accident as defined by Insurance Law § 5102 (d) ; and (3) precluding the plaintiff from offering any evidence on the issue of causal relationship between the automobile accident of November 20, 2017 and the alleged loss of fetus as being unsupported by generally held principles in the medical community.
Notice of motion
Affirmation in support
Exhibits A-F
Affirmation in opposition
Exhibits 1-6
Affirmation in reply
BACKGROUND
On February 8, 2018, the plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer filed on April 2, 2018, the defendant joined issue.
The plaintiff's verified complaint, bill of particulars and annexed affidavit allege the following salient facts. On November 20, 2017, at approximately 9:10 A.M., the plaintiff was operating a 2013 Hyundai type motor vehicle bearing New York State license plate number HPL9388 and the defendant was operating a 2005 Nissan type motor vehicle bearing New York State license plate number DFN4886. On that date and time, the plaintiff was driving north on 68th Avenue and the defendant was traveling on Ingram Street. Ingram Street was controlled by a stop sign. The defendant went through that stop sign to enter the intersection. Upon doing so, the defendant struck the plaintiff's vehicle causing a collision which seriously injured the plaintiff.
On June 7, 2019, the plaintiff filed a note of issue. On December 12, 2019, the defendant conducted an independent medical examination of the plaintiff. On January 29, 2020, the defendant made the instant motion.
LAW AND APPLICATION
The instant motion was made on January 29, 2020, more than 90 days after the note of issue was filed. Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make a motion for summary judgment no later than sixty days after the filing of the note of issue, unless he or she obtained leave of the court on good cause shown (Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; CPLR 3212 [a] ; Goldin v New York and Presbyterian Hosp. , 112 AD3d 578, 579 [2nd Dept 2013] ; Dallal v Kantrowitz, Goldhamer & Graifman, P.C., 48 AD3d 508 [2nd Dept 2008] citing Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 [2004] ; Brill v City of New York , 2 NY3d 648, 652 [2004] ; Pierre v Feldman , 41 AD3d 454, 455 [2nd Dept 2007] ).
This motion is clearly untimely. The defendant seeks leave to make late summary judgment motion claiming good cause. The purported good cause is that they did not conduct an independent medical examination of the plaintiff until December 12, 2019.
Although the defendant alleged that prior scheduled appointments for the independent medical examination were missed and required rescheduling, the defendant did not explain why this prevented him from seeking court intervention to either strike the note of issue or extend the defendant's time to make a summary judgment motion. The Court finds that the proffered excuse does not constitute good cause for the delay ( Brill , 2 NY3d at 652 ; Pierre , 41 AD3d at 455 ). The defendant's motion for leave to make a late summary judgment motion is denied.
The plaintiff has alleged, among other things, that the defendant negligently operated a motor vehicle and caused an accident which seriously injured her. In the complaint and bill of particulars, the plaintiff alleged that the subject accident caused her to suffer, among other injuries, a miscarriage.
The defendant seeks an order precluding the plaintiff from offering any evidence on the issue of causal relationship between the automobile accident of November 20, 2017 and the alleged loss of fetus as being unsupported by generally held principles in the medical community. CPLR 2214 (a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor ( Abizadeh v Abizadeh , 159 AD3d 856, 857 [2nd Dept 2018] ). The defendant, however, did not provide any legal authority for the relief he was seeking. This motion does not comply with the requirements of CPLR 2214 (a).
Moreover, the defendant has offered no evidence to show that in the medical community, and in particular, in the specialty of obstetrics and gynecology, that it is generally accepted that an automobile collision cannot be the competent producing cause of a miscarriage. It is noted that this position would be contrary to Insurance Law § 5102 (d) in which the legislature included the loss of a fetus as a recognized serious injury in a motor vehicle accident.
Rather, the defendant offered the opinion of an obstetrician who opined to a reasonable degree of medical certainty that plaintiff did not suffer a miscarriage as a result of the subject accident. The opinion only creates a triable issue of fact on causation, an issue which was part of the defendant's untimely summary judgment motion.
CONCLUSION
The motion of defendant Ena Almeida for an order allowing an extension of defendant's time to move for summary judgment is denied.
The motion of defendant Ena Almeida for an order granting summary judgment in favor of the defendant and dismissing the complaint of Marissa Ratliff is denied as untimely.
The motion of defendant Ena Almeida for an order precluding the plaintiff from offering any evidence on the issue of causal relationship between the automobile accident of November 20, 2017 and the alleged loss of fetus as being unsupported by generally held principles in the medical community is denied.
The foregoing constitutes the decision and order of the Court.