Opinion
Index No. 25187/2018E
08-24-2022
CHAKIMA SCOTT and HOPE S. GOODE, Plaintiffs, v. TAMOOR J. MUHAMMAD, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. MARY ANN BRIGANTTI, JUDGE.
Upon the foregoing papers, the plaintiffs Chakima Scott ("Scott") and Hope S. Goode ("Goode")(collectively, "Plaintiffs") move for an order (1) vacating this Court's order dated May 14, 2021, which granted the defendant's motion for summary judgment on the issue of "serious injury" threshold without opposition and on default, and restoring the same for argument on the merits, and. after argument, an order denying the motion, and (2) pursuant to CPLR 3212. granting Plaintiffs summary judgment on the issue of liability and finding the defendant was totally liable for the accident without there being any comparative negligence on the part of Plaintiffs, together with such other and further relief as this Court deems just and proper. The defendant Tamoor J. Muhammad ("Defendant) opposes the motion.
Plaintiffs' Motion to Vacate their Default
By order of th is Court dated May 14. 2021. this Court granted Defendant's unopposed motion for summary judgment, dismissing the complaint of the plaintiff Scott on the ground that she failed to satisfy the "serious injury" threshold as defined by New York Insurance Law §5102(d). To vacate an order entered on default, the movant must show a reasonable excuse for failing to oppose the motion, and a meritorious defense to the motion (CPLR 5015[a][l]; see Bear Stern Asset-Backed Securities I Trust 2006-IM1 v. Cessay, 180 A.D.3d 504 ; Marston v. Cole, 147 A.D.3d 678 [1st Dept. 2017]).
In this case, Plaintiffs established that their failure to oppose the prior motion was attributable to inadvertent law office failure, Plaintiffs promptly moved to vacate their default, and the submissions annexed establish a potentially meritorious defense to the motion (see Mejia v. Ramos, 113 A.D.3d 429, 430 [1st Dept. 2014]). Moreover, strong public policy of this state favors the disposition of cases on their merits (id., citing Chevalier v. 368 E. I48'h St. Assoc.. SO A.D.3d 411.413-414 [Is1 Dept. 2011 ]). 1 he Court notes that Defendant does not explicitly oppose vacatur of Plaintiffs' default - counsel states "[i]f this Court consents to [vacatur]... [Defendant] respectfully request[s], in the interests of justice, this Court render a decision based on the merits of the cases versus the procedural default error as [Defendant] will suffer severe prejudice if this application is denied" (Defendant's Aff. in Opp. At Par. 4). The Court thus turns to the merits of Defendant's summary judgment motion on the issue ot "serious injury" threshold, and Plaintiffs motion for summary judgment against Defendant on the issue of liability and Plaintiffs' alleged lack of comparative fault.
Serious Injury Threshold
As previously determined. Defendant established, prima facie, that Scott did not sustain permanent or significant injuries as a result of the subject accident. Defendant submitted a sworn report from a radiologist who examined MRI reports of Scott's cervical spine, lumbar spine, right knee, and right shoulder. The radiologist opined that the MRI films were either unremarkable or revealed only non-traumatic degenerative conditions unrelated to the accident (see Walker v. Whitney, 132 A.D.3d 478 [1st Dept. 2015]).
Defendant also provided a sworn report from an orthopedist who reviewed Scott's treatment records and conducted a physical examination. While he declined to compare range- oi motion measurements to normal values, the orthopedist opined that Scott presented with no evidence of causally-related injuries or disabilities after administering diagnostic objective tests (see Rodriguez v. Konate, 161 A.D.3d 565, 566 [1st Dept. 2018]). The orthopedist noted that the right knee examination was "mildly abnormal" but he opined after review of the operative report and "EMS records that the accident was not the cause of the knee condition.
In opposition, Scott submits affirmed records indicating that within days of the accident she sought treatment for pain in the neck, middle and lower back, right shoulder, and right knee. Scott was then prescribed a course of physical therapy and underwent MRI examinations. The cervical spine and lumbar spine MRIs revealed inter alia disc bulges at multiple levels and a disc herniation in the lumbar spine. Subsequent EMG/NCV testing revealed cervical and lumbar radiculopathy. In January 2018, Scott underwent MRIs of the right shoulder and right knee. Those tests showed moderate right shoulder rotator cuff tendinitis and bursitis without tear, and a right knee sprain injury with linear partial thickness tear involving the distal anterior cruciate ligament. On January 30, 2018, Scott was evaluated and referred for surgical intervention with respect to her right knee as she had "failed conservative treatment." On February 9. 2018, Scott underwent right knee arthroscopic surgery. Her postoperative diagnosis included lateral meniscal tears and patella chondral injury.
Scott also submits an affirmation from Howard I. Baum. M.D. Dr. Baum reviewed Scott's medical records and physically examined her on November 18, 2020. Upon examination. Dr. Baum measured significant limitations in the cervical spine and lumbar spine, as well as right shoulder limitations (140 degrees active motion, 150 degrees passive motion, where 160-180 degrees is normal), and a 20-degree restriction in the right knee upon flexion. Dr. Baum states that he disagrees with Defendant's expert reports and opines that the alleged injuries as depicted in Plaintiff s MR1 reports were related to the subject accident and not the result of any degenerative condition. He further opines that Scott's injuries are permanent and she now has a partial disability related to her cervical spine, lumbar spine, right shoulder, and right knee.
The above submissions, demonstrating treatment shortly after the accident and recently, coupled with positive MR1 test results and persisting range-of-motion limitations, raise triable issues of fact as to causation with respect to all injuries, and as to whether Plaintiff sustained "permanent consequential" or "significant" limitations to her right knee, cervical spine, and lumbar spine. Scott provided evidence of contemporaneous treatment to all allegedly injured body parts and MRI examinations revealed positive findings. The unsworn MRI reports are properly before the Court since they were specifically referred to and examined by Defendant's expert orthopedist in his report (Brown v. Achy, 9 A.D.3d 30. 32 [1st Dept. 2004]; Thompson v. Abbasi, 15 A.D.3d 95. 97 [1st Dept. 2005]). Dr. Baum's affirmation opining that the spine, right shoulder, and right knee injuries are related to the accident and disagreeing with the conclusions of Defendant's expert, raises an issue of fact as to causation (Yuen v. Arka Memory Cab Corp.. 80 A.D.3d 481,481-82 [1st Dept. 2011). Dr. Baum measured significant limitations in the cervical and lumbar spine at his November 18, 2020 examination, which post-dated Defendant's expert orthopedic examination by some ten (10) months, raising fact issues as to whether Scott sustained a "permanent consequential" or "significant" limitation with respect to her cervical and lumbar spine (Encarnacion v. Castillo, 146 A,D.3d 600, 601 [1st Dept. 2017]). Defendant's expert never shifted the burden to Scott with respect to the permanence or significance of her right knee injuries - he only opined that the injuries were unrelated to the accident. Since Dr. Baum has raised an issue of fact as to causation, it is for the jury to decide whether Scott sustained a "permanent consequential" or "significant" limitation with respect to her right knee (see generally Collazo v. Anderson, 103 A.D.3d 527 [1st Dept. 2013]; Perez v. Vasquez, 71 A.D.3d 531, 532 [1st Dept. 2010]). Scott also provided an explanation for her alleged cessation of medical treatment, as Dr. Baum noted that she had reached maximum medical improvement following physical therapy and her recovery had reached a plateau (see, e.g.. Wenegieme v. Harriott, 157 A.D.3d 412, 412-13 [1st Dept. 2018]).
Scott, however, did submit any objective evidence of injury to her thoracic spine, therefore any claim relating to that body part remains dismissed. Furthermore, Scott's claim of post-traumatic headaches do not constitute "serious injuries" within the meaning of Insurance Law (see Licari v. Elliott, 57 N.Y.2d 230, 238-239 [ 1982]). In addition, the limitations in the right shoulder measured by Dr. Baum are too minor to support a finding of serious injury (see Style v. Joseph, 32 A.D.3d 212 n [1st Dept. 2006]; Arrowood v. Lowinger, 294 A.D.2d 315 [1st Dept. 2002]; Gaddy v. Eyler, 79 N.Y.2d 955 [1992]). Therefore, any claim of "serious injury" to the right shoulder remains dismissed. Nevertheless, if a jury determines that Scott has met the threshold for serious injury as to her cervical spine, lumbar spine, or right knee, she may recover for all injuries causally-related to the accident, including those that do not meet the threshold - e.g.. the alleged right shoulder and headache injuries (Gordon v. Reyes Hernandez. 181 A.D.3d 424, 425 [1st Dept. 2020], citing Rubin v. SMS Taxi Corp.. 71 A.D.3d 548. 550 [1st Dept. 2010]).
Scott's "90/180 day" injury' claim also remains dismissed. Scott admitted at her examination before trial that, following the accident, she was never confined to her home (PI. EBT at 145) (Chowdhury v. 3511 Systems Inc., 193 A.D.3d 541 [1st Dept. 2021 ]). Contrary to Scott's contentions, her unsigned but certified deposition transcript is admissible as a party admission in support of Defendant's motion (Morchik v. Trinity School, 257 A.D.2d 534, 536 [Is1 Dept. 1999]). Scott also failed to rebut Defendant's submissions further demonstrate the absence of a "permanent loss of use' claim, which requires a "total" loss of use (Swift v. New York City Transit Authority, I 15 A.D.3d 507, 509 [1st Dept. 2014]). Finally, Scott only conclusorily pleaded a "significant disfigurement" category' of injury without elaboration, therefore that claim are also dismissed.
Plaintiffs' Summary Judgment Motion on Liability
Plaintiffs' motion for summary judgment on the issue of Defendant's liability is granted. 1 he testimony of Scott along with her affidavit establish that at the time of the accident, she was operating a vehicle, with co-plaintiff Goode as her passenger. Scott states that Defendant's vehicle suddenly backed up and collided with the front passenger side of her vehicle, and she was unable to take any evasive action to avoid the impact, thus establishing Defendant's liability and Plaintiffs' lack of comparative fault (see Rodriguez v. City of New York, 161 A.D.3d 575, 577 [Pl Dept. 2018]; Garcia v. Verizon New York, Inc., 10 A.D.3d 339. 340 [1st Dept. 2004]: Vehicle and Traffic Law §121 Ha]).
In opposition. Defendant failed to raise any triable issue of fact. Defendant's contention that the motion is premature is unavailing because he has personal know ledge of relevant facts but submitted no affidavit in opposition to the motion. Accordingly, Defendant "failed to meet [his] obligation of laying bare [his] proof and presenting evidence sufficient to raise a triable issue of fact" (Avant v. Cepin Livery Corp., 74 A.D.3d 533, 534 [1st Dept. 2010]).
Conclusion
Accordingly, it is hereby
ORDERED, that Plaintiffs' motion to vacate their default in opposing Defendant's prior morion for summary judgment is granted, and this Court's order dated May 14, 202 I, is vacated, and is further, ORDERED, that upon vacatur, Defendant's motion for summary judgment is granted only to the extent of dismissing Scott's claims that she sustained a ''permanent loss of use," a "90/180 day" injury, a "significant disfigurement," and dismissing any claim with respect to the thoracic spine, and dismissing any claim of "serious injury" with respect to post-traumatic headaches and the right shoulder, and it is further.
ORDERED, that Defendant's motion for summary judgment is otherwise denied with respect to Scott's claims that she sustained a "permanent consequential" or "significant" limitation to her cervical spine, lumbar spine, and right knee, and it is further, ORDERED, that Plaintiffs' motion for summary judgment on the issue of liability and their lack of comparative negligence is granted, and any affirmative defense asserting comparative negligence on the part of Plaintiffs is dismissed.
This constitutes the Decision and Order of this Court.