Surujdin v. Zaman

Full title: ABIGALE SURUJDIN, Plaintiff, v. SHAFIQ ZAMAN and JAC CAR SERVICES, INC.…

Court: Supreme Court, Queens County

Date published: Sep 30, 2019

2019 N.Y. Slip Op. 35192 (N.Y. Sup. Ct. 2019)

Opinion

Index No. 716738/17 Motion Cal. No. 74 Motion Seq. No. 1

09-30-2019

ABIGALE SURUJDIN, Plaintiff, v. SHAFIQ ZAMAN and JAC CAR SERVICES, INC., Defendants. SHAFIQ ZAMAN and JAC CAR SERVICES, INC., Third-Party Plaintiffs, v. GORDON RODRIGUEZ, Third-Party Defendant.

Unpublished Opinion

Motion Date: 9/12/19

SHORT FORM ORDER

The following papers numbered E 18 to E 90 read on Defendants I Third-Party Plaintiff JAC Car Services, Inc., and Shafiq Zaman's motion for an order pursuant to CPLR §3212 granting defendants summary judgment and dismissing the complaint of plaintiff, Jose Rodriguez, in as much as plaintiff fails to meet the serious injury threshold requirement mandated by Insurance Law §5102; and further on plaintiffs cross-motion for an Order, pursuant to CPLR §3212, granting summary judgment as to liability for plaintiff, since no triable issue of fact exists.

PAPERS NUMBERED

Notice of Motion-Affidavits-Exhibits............................................ E 18 - E 30

Answering Affidavits-Exhibits....................................................... E 66 - E 77

Reply............................................................................................... E 82 - E 83

Cross Motion- Affidavits- Exhibits................................................ E 62 - E

Answering Affidavit-Exhibits........................................................ E 84 - E

Reply.............................................................................................. E 88 - E

Upon the foregoing papers, it is hereby ordered that the motion is disposed of as follows:

Plaintiff commenced this action to recover for injuries sustained in a motor vehicle accident which occurred on August 11,2017in Queens County, New York. Defendants, JAC Car Services, Inc., and Shafiq Zaman, ("Defendants") move inter alia for summary judgment and dismissal of plaintiffs Complaint, arguing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Defendants present the pleadings, plaintiffs Bill of Particulars, and defendant doctors' reports in support of the motion. Plaintiffs Bill of Particulars states that plaintiff sustained two tears in the right wist, two tears in the right shoulder, disc herniations at L5-S, C2 through C7, disc bulges at L3 through L5, strains and other injuries which confined plaintiff to bed for three days and home for three weeks following the accident. Dr. Chirurgi compared plaintiffs bill of particulars and plaintiffs emergency room records and based upon the comparison opines that "the Bill of Particulars alleges injuries unsupported by the patient's own claims to the ER staff, and unsupported by their findings and examination." Dr. Nipper reviewed plaintiffs MRI reports and acknowledges two tears in plaintiffs wrist and a tear in plaintiffs right shoulder, but fails to address the MRI reports with respect to plaintiffs spine. Dr. Nipper, upon examination, found plaintiff to have a decreased range of motion in the lumbar spine but opines that the restrictive range is subjective rather than objective and further opines that the plaintiff did not sustain any significant or permanent injury as a result of the subject motor vehicle accident. Dr. Springer reviewed the MRI films of plaintiffs cervical spine, lumber spine, right shoulder and right wrist. Dr. Springer acknowledges the disc herniations and bulges in plaintiffs spine but opines that the injures are degenerative in nature. Upon review of the MRI films of plaintiff s right wrist and shoulder Dr. Springer again states the injuries are degenerative and not acute in nature. Plaintiffs deposition testimony states that plaintiff received injections in the right shoulder and wrist due to pain and did not have any prior accidents or injuries of her neck, back or shoulder prior to the subject accident. Plaintiff testified that she wears a back brace due to pain in her back and can no longer stand, sit or walk for long periods of time. Plaintiff further stated that she has trouble getting out of bed, playing with her children, cleaning, cooking climbing steps and feels pins, needles and shooting pain in her back and legs. Based upon the above evidence, defendant argues that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Plaintiff opposes defendant's motion, arguing that there are issues of fact as to plaintiffs injuries that preclude summary judgment. In opposition to defendant's motion, plaintiff presents the pleadings, plaintiffs deposition testimony and medical reports from Dr. Katzman and Dr. Lefcort. Dr. Katzman has examined plaintiff regularly since the accident and upon recent examination found plaintiff to have a decreased range of motion in the right wrist and right shoulder. Dr. Katzman opines that based upon his examination, and the MRI films, plaintiff has sustained a right shoulder intrasubstance tear and a probable scapholunate tear in the right wist which are both causally related the the subject accident and permanent in nature. Dr. Lefcort has been providing plaintiff with chiropractic care since the accident and upon a recent examination found plaintiff to have a decreased range of motion in her spine and opines that plaintiff sustained a 25% whole body impairment which is permanent in nature and causally related to the subject accident.

Under the No Fault Law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. (Licari v. Elliot, 57 N.Y.2d 230 [1982].) In moving for summary judgment, the proponent must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Winegrad v. New York Univ. v. Medical Center, 64 N.Y.2d 851 [1985].) In the present matter, the movants have the burden of proving, by submitting competent evidence in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v. Bennett, 122 A.D.2d 728 [l^sl Dept. 1986], affirmed, 69 N.Y.2d 701 [1986].) If the movant's papers are sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of "serious injury." (Licari, supra, Lopez v. Senatore, 65 N.Y.2d 1017 [1985].)

Defendant presented a prima facie case of entitlement to summary judgment under Insurance Law § 5102(d), through review of plaintiffs Bill of Particulars and defendant's medical evidence. (See Ceglian v. Chan, 283 A.D.2d 536 [2^nd Dept. 2001].) Further, Dr. Springer reviewed plaintiffs MRI films and opines that the injuries shown therein are degenerative in nature and not causally related to the accident.

However, plaintiff submitted sufficient evidence to rebut defendant's prima facie case. (See Woods v. Ko/e5,201 A.D.2d 724 [2^nd Dept. 1994].) Dr. Katzman reviewed plaintiffs medical records, and examined plaintiff, and opined that the decreased range of motion and injuries in plaintiffs right shoulder and wrist are permanent in nature and directly related to the subject accident. Dr. Lefcourt also opined t hat the disc bulges and herniations in plaintiffs spine are permanent in nature and causlayy related to the accident. Further, plaintiffs deposition testimony specifies the limitations in daily activities both at work and home, which began only after the accident, and plaintiff testified to having no preexisting injuries to her neck, back, wright wrist and right shoulder. (See Toure v. Avis Rent-A-Car Systems, 98 N.Y.2d 345 [2002].) As such, in as much as plaintiff sufficiently presented objective evidence that her injuries are permanent and serious, summary judgment is not warranted. (See Gaddy v. Eyler, 79 N.Y.2d 955 [1992].)

Accordingly, defendant JAC Car Services, Inc., and Shafiq Zaman's motion for summary judgment pursuant to Insurance law 5102 (d) is denied.

Plaintiffs motion for summary judgment on the issue of liability is granted. Movant established a prima facie entitlement to summary judgment by demonstrating that on August 11, 2017 the stopped vehicle plaintiff was a passenger, was struck in the rear by defendants' vehicle. (See Comiskey v. Pisano, 10 A.D.3d 441 [2^nd Dept. 2004]; Martin v. Pullafico, 272 A.D.2d 305 [2^ndDept. 2000].) Defendants' have failed to present a non-negligent excuse for the accident. (See Vlachos v. Saueracker, 10 A.D.3d 683 [2^nd Dept. 2004].) Rather, defendants' speculate that there are issues of fact, without presenting an affidavit of merit or other objective evidence to support their argument. (See Marietta v. Scelzo, 2006 WL 1174066 [2^nd Dept. 5/2/2006].)

Accordingly, plaintiffs cross motion for summary judgment as against defendants on the issue of liability is granted. Upon the completion of discovery on the issue of damages, filing a Note of Issue, the payment of any appropriate fee's, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on damages.