Alexander v. Guzman

Full title: GWENDOLYN M. ALEXANDER, Plaintiffs, v. SILVERIO GUZMAN, Defendant.

Court: Supreme Court, Bronx County

Date published: Jan 25, 2022

2022 N.Y. Slip Op. 34667 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 25971/2019E

01-25-2022

GWENDOLYN M. ALEXANDER, Plaintiffs, v. SILVERIO GUZMAN, Defendant.

Ben R. Barbato Judge

Unpublished Opinion

DECISION

Ben R. Barbato Judge

The instant action sounds in personal injury sustained from a motor vehicle accident occurring on September 1, 2018, on Burke Avenue at or near its intersection with Boston Road, in the County of Bronx, City and State of New York. The Defendant, Silverio Guzman, moves this court for an Order pursuant to CPLR § 3212 awarding Summary Judgment in favor of the Defendant, dismissing Plaintiff s Complaint, claiming that the Plaintiff, Gwendolyn Alexander, cannot meet the serious injury threshold requirement mandated by Insurance Law §§ 5102(d) and 5104(a).

Defendant offers the affirmed statement of Dr. John H. Buckner, Board Certified Orthopaedic Surgeon who examined Plaintiff on October 5, 2020. Dr. Buckner determined that the examination of Plaintiff revealed no objective findings of cervical, lumbar or left shoulder injury as a result of the September 1, 2018 accident.

Defendant also offers the affirmed report of Dr. Scott A. Singer, a Board Certified Radiologist, who reviewed the MRI of Plaintiff s lumbar spine taken at Westchester Radiology and Imaging P.C. on October 10, 2018. Dr. Singer opines that the MRI's reveal disc desiccation L4/5 and L5/S1, disc bulge at L4/5 and chronic disc herniation at L5/S1 with no posttraumatic changes resulting from the September 1, 2018 accident.

Plaintiff offers the affirmation of Dr. Wendell Joseph Gorum, a Board Certified Orthopedic Surgeon, who performed right shoulder surgery on May 5, 2019 on Plaintiff. Dr. Gorum States that the necessity for the surgery on Plaintiffs right shoulder was related to the accident of September 1, 2018. Dr. Gorum goes on to state that the surgery corrected a partial tear of the rotator cuff and tear of the glenoid labrum. Dr. Gorum also notes loss of range of motion in the lumbar spine.

Plaintiff also offers the Affirmation of Dr. Steve B. Losik, a Board Certified Radiologist who reviewed the MRIs of Plaintiff s cervical and lumbar spine finding disc bulge at C3/4 and disc herniations at C4/5 and C5/6, disc bulge at L5/S1 with encroachment and disc herniation at L5/S1 compressing the thecal sac and impingement of the descending interspinal nerve root. Dr. Losik notes no pre-existing degeneration in the lumbar spine.

It is settled law that on a motion for summary judgment, the moving party has the initial burden of demonstrating, by admissible evidence, their right to judgment. The burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists warranting a trial. CPLR §1129(b); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Singer v. Friedman, 220 A.D.2d 574 (2^nd Dept 1995). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient to raise a triable issue of fact. Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276 (1978) Further, issue finding rather than issue determination is the function of the court on motions for summary judgment. Esteve v. Abad, 271 A.D. 725 (1^st Dept 1947); Stillman v. Twentieth Century Fox F. Corp., 3 N.Y.2d 395 (1957); Clearwater Realty Co. v. Hernandez, 256 A.D.2d 100 (1^st Dept 1998). Additionally, the role of the court is not to resolve issues of credibility. Knepka v. Tallman, 278 A.D.2d 811 (4^th Dept 2000) Since summary judgment is a drastic remedy it should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). Thus, where the existence of an issue of fact is arguable summary judgment should not be granted. Stone v. Goodson, 8 N.Y.2d 8 (1960). Viewing the evidence in the light most favorable to the party opposing the motion for summary judgment, namely the Plaintiff, there exists triable issues of material fact for determination by a jury. See: Bacon v. County of Westchester, 149 A.D.2d 451 (2^nd Dept 1989); Mutschnik v. Summit Brokerage Corp., 148 A.D.2d 427 (2^nd Dept 1989). Accordingly

The Defendants' motion for an Order pursuant to CPLR § 3212 awarding Summary Judgment in favor of the Defendants dismissing Plaintiff s Complaint for failure to comply with the threshold requirement of Insurance Law § 5102(d) is denied.

Settle Order.