Opinion
300083 TS 2007.
Decided September 10, 2007.
Matthew Gaisi, Esq., Steven R. Harris Associates, New York, NY, for plaintiff.
Kevin J. McGinnis, Esq., Robin, Harris, King, Fodera Richman, New York, NY, for defendant.
Defendant moves pursuant to CPLR 3212 for an order granting him summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
I. FACTS
On August 31, 2005, the parties were involved in a motor vehicle accident which, plaintiff alleges, was caused by defendant. In his verified bill of particulars, plaintiff alleges that as a result of the accident, he sustained protruded disc herniations with adjacent spondylitic changes at C3-C4, C4-C5, C5-C6, and C6-C7, a left shoulder sprain, pain in his left leg, neck and lower back, numbness, swelling, and limitation of range of motion, resulting in his serious injury within the meaning of Insurance Law § 5102(d), that he was confined to bed for 12 days, and that he was confined to home for approximately one month. (Affirmation of Kevin J. McGinnis, Esq., dated Jan. 11, 2007 [Jan. 11 McGinnis Aff., Exh. B). He underwent twice-weekly physical therapy from September 12, 2005 to January 16, 2006 and did not go to his janitorial job from August 31, 2005 to January 18, 2006, or 138 days. ( Id.).
At his deposition, plaintiff admitted that he first sought medical treatment for a stiff neck and limited range of motion in his arm on September 7, 2005, that all treatment ended on January 17, 2006, that herniated discs he had suffered from previously were aggravated by the accident, and that he had sustained work-related injuries in February 1999, August 2001, and October 2001, and received Workers' Compensation benefits. He testified that he is unable to sit or stand for longer than an hour or lift heavy items. ( Id., Exh. C).
In a report prepared the day of his November 24, 2006 orthopedic examination of plaintiff, Robert Israel, MD, affirms that plaintiff's injuries were resolved, that plaintiff requires no orthopedic or physical therapy, and that plaintiff is capable of working without restriction, and his physical examination revealed no abnormalities. Israel relied upon a magnetic resolution image (MRI) of plaintiff's cervical spine taken on September 16, 2005 and unsworn correspondence and evaluations of plaintiff's doctors. ( Id., Exh. E).
II. PROCEDURAL BACKGROUND
On November 16, 2005, plaintiff commenced the instant action in Supreme Court, on or about March 30, 2006, defendant interposed his answer, and on or about April 25, 2006, plaintiff served defendant with his verified bill of particulars.
In paragraph eight of a case scheduling order dated May 10, 2006, Supreme Court required, pursuant to Uniform Rule 202.17, that the physical examination of the plaintiff be completed by October 10, 2006, that the examining party notify all other parties of the identity of the examining physician at least 20 days prior to the examination, that copies of the medical reports be served by plaintiff at least 15 days before the examination, and that a copy of the report of the examining physical be served on all parties within 21 days of the examination. (Affirmation in Opposition of Matthew Gaisi, Esq., dated May 31, 2007 [Gaisi Aff., Exh. I). In paragraphs 11 through 13, the court required that the note of issue be filed by October 23, 2006 and that summary judgment motions be made no later than 60 days after the filing of the note of issue. A mandatory compliance conference was scheduled for October 16, 2006. The order also provided that "[n]one of the dates in the order may be extended without advance approval by the court." ( Id.).
Plaintiff was deposed on August 23, 2006. (Jan. 11 McGinnis Aff., Exh. C), and he filed a note of issue on October 13, 2006. (Gaisi Aff., Exh. H).
In a stipulation so-ordered by Supreme Court on October 16, 2006, the parties observed that the note of issue had been filed and they agreed that defendant would designate a doctor to conduct an independent medical examination of plaintiff by November 27, 2006 and that a compliance conference would be held on December 11, 2006. (Jan. 11 McGinnis Aff., Exh. D). Defendant does not claim to have moved to vacate the note of issue or to have sought to extend the deadline for filing his summary judgment motion.
Plaintiff appeared for his independent medical examination on November 24, 2006, and defendant received the examination report on January 3, 2007 and filed a motion for summary judgment with Supreme Court on January 11, 2007. ( Id.). On January 8, the action was transferred to this court pursuant to CPLR 325(d).
III. CONTENTIONS OF THE PARTIES
Noting that plaintiff's note of issue was filed before the completion of discovery and that the October 16 stipulation required plaintiff to appear for the independent medical examination by November 27, 2006, and having received the examination report some six weeks later, defendant sought summary judgment soon thereafter, maintaining that based on plaintiff's bill of particulars, deposition, and the Israel report, plaintiff sustained neither a permanent consequential limitation of use of a body organ, member, function or system nor a significant limitation of the use of a body function or system, and was not prevented from performing substantially all of his usual and customary activities for not less than 90 days during the 180 days following the accident. (Jan. 11 McGinnis Aff., Exhs. B, C, E).
In opposition, plaintiff contends that defendant's motion must be denied as untimely, having been made 30 days beyond the 60-day limitation set forth in the May 2006 case scheduling order and absent any assertion of good cause for the delay. (Gaisi Aff.). Alternatively, he argues that as his doctors had determined that due to his injuries, he could not return to work for 138 days, and that upon his return he was placed on light duty, as Dr. Elena Robert had examined him on January 15, 2007 and found limitations in the range of motion of his cervical spine, muscle spasm, marked tenderness at C2 through C7, and diminished sensation on the left C5 to C6 dermatones and the potential for frequent exacerbations, and given Dr. Robert's findings based on the MRI, he suffered serious injury within the meaning of Insurance Law § 5102(d). ( Id., Exhs. B-G).
In reply, defendant claims that as plaintiff filed his note of issue before the completion of discovery, he was entitled to file the instant motion upon completion of the independent medical examination which was conducted after the note of issue was filed, and did so a mere eight days after his receipt of the examination report. (Reply Affirmation of Kevin Joseph McGinnis, Esq., dated June 4, 2007). He also asks that I disregard plaintiff's exhibits B, C, D, E, and F as they are unsworn and thus inadmissible and assign minimal probative value to Dr. Robert's January 15 report as stale. ( Id.).
IV. ANALYSIS
Section 3212(a) of the CPLR was amended in 1996 to set forth a limitations period beyond which a motion for summary judgment may not be made. The statute permits the court to set the deadline and if no deadline is set, then the motion may be made no later than 120 days after the filing of the note of issue, "except with leave of court on good cause shown." ( Brill v City of New York, 2 NY3d 648; Gonzalez ex rel. Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128). Although one court has held that the time limitation set forth in CPLR 3212(a) is inapplicable to the New York City Civil Court ( Panicker v Northfield Savings Bank, 12 Misc 3d 1153 [Civ Ct, Richmond County 2006]; but see Santana v City of New York, 6 Misc 3d 642 [Civ Ct, New York County 2004] [applying time limitation]), since the deadline was imposed and expired while the action pended in Supreme Court, the deadline remains applicable here.
Defendant did not seek leave before making the instant motion and does not set forth good cause for the delay in his motion beyond observing that the note of issue was filed before the completion of discovery. He also fails to explain why he never moved for an order striking the note of issue. ( See Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, C3212:12 [remedy for party unprepared to make motion due to pending discovery is to move to strike note of issue]).
Perhaps most importantly, however, defendant never sought an extension of the time to make the summary judgment motion and does not explain his failure to do so. As the May 2006 order precludes any extensions of the deadline for summary judgment motions without advance approval, and as the same court so-ordered the October 2006 stipulation authorizing the post-note independent medical examination, to permit defendant to proceed with this motion would violate that court's order. ( Cf Hernandez ex rel. Hernandez v 620 West 189th Ltd. Partnership, 7 Misc 3d 198 [Sup Ct, New York County 2004] [courts have discretion to disregard self-imposed deadline for filing summary judgment motion to accommodate genuine need]). I finally observe that defendant does not rely exclusively on the Israel report which is, in any event, not dispositive. Thus, its late receipt does not constitute good cause for the delay, especially since that delay was not attributable to plaintiff.
Consequently, I may not consider the merits of the motion and need not address the admissibility of plaintiff's exhibits.
V. CONCLUSION
For the foregoing reasons, defendant's motion is denied. The parties are directed to proceed to trial on November 21, 2007, as previously scheduled.
This constitutes the decision and order of the court.