Opinion
No. 19992/05.
2010-09-27
Jose DIAZ,, Plaintiff, v. Abdul R. CHAUDHRY, et. ano, Defendants.
Eugene D. Zinbarg, Zinbarg & Emanuel, Esqs., Jackson Heights, for Plaintiff. Stacy R. Seldin, Esq., Baker, McEvoy, Morrissey, & Moskovits, P.C ., New York, for Defendants.
Eugene D. Zinbarg, Zinbarg & Emanuel, Esqs., Jackson Heights, for Plaintiff. Stacy R. Seldin, Esq., Baker, McEvoy, Morrissey, & Moskovits, P.C ., New York, for Defendants.
LAWRENCE S. KNIPEL, J.
Defendants Abdul R. Chaudhry and Charles D. Valerus move for an order: 1) vacating this court's order dated January 8, 2010 which granted plaintiff's motion on defendants' default; 2) upon vacatur, denying plaintiff's motion for leave to renew his prior motion and vacate the court's order dated July 21, 2009; and 3) granting defendants' summary judgment motion dismissing the complaint on the grounds that plaintiff has not sustained a “serious injury” within the meaning of Insurance Law § 5102(d).
.Insurance Law § 5102(d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment.”
This is an action to recover for personal injuries allegedly sustained by the plaintiff, when his bicycle made contact with the right rear door of defendant's taxi cab. The accident occurred on June 19, 2003, on West 26th Street, west of its intersection with West Broadway in Manhattan. Plaintiff alleges that when his bicycle made contact with the cab door, as it was opening, he sustained injuries to his right knee, including a torn meniscus, which required surgery, as well as injuries to the left knee and thumbs. He underwent arthroscopic surgery to his right knee on September 23, 2003. Procedural Background
This action has a rather tortured procedural history. On or about December 12, 2008, defendants brought a motion for summary judgment dismissing the complaint on the grounds that plaintiff's alleged injuries cannot meet the “serious injury” threshold requirement mandated by Insurance Law § 5102(d). After multiple requested adjournments,
the motion was scheduled for oral argument to be held on July 21, 2009. On said date, plaintiff's per diem counsel attempted to submit to the court a copy of plaintiff's opposition papers without exhibits. The court declined to accept said papers, and granted defendants' motion for summary judgment as plaintiff “failed to provide evidentiary proof in opposition to said motion.”
The motion was noticed for January 13, 2009, and adjourned, on consent, to: February 18, 2009, March 18, 2009, April 15, 2009 and marked “Final” for May 13, 2009. On May 13, 2009, plaintiff's counsel was ill, and per diem counsel requested an adjournment on plaintiff's behalf. The court granted plaintiff's application, adjourned the motion to June 10, 2009, marked the motion “Final,” and ordered plaintiff's counsel to provide medical documentation of such illness prior to oral argument. Subsequently, the parties stipulated to adjourn the motion to July 21, 2009.
On or about November 17, 2009, plaintiff moved, by order to show cause, for 1) leave to renew and vacate the court's July 21, 2009 order, on the grounds that plaintiff's failure to provide evidentiary proof in opposition to defendants' summary judgment motion was inadvertent and did not prejudice the defendants; and 2) upon vacatur, for an order denying defendants' summary judgment motion on the grounds that there are triable issues of fact as to whether plaintiff suffered a “serious injury” within the meaning of Insurance Law § 5102(d). The parties stipulated to adjourn the motion to January 8, 2010. However, on said date defendants failed to appear. Plaintiff's motion for leave to renew and vacate this court's order dated July 21, 2009 was granted on defendants' default, and defendants' motion for summary judgment on “serious injury” was denied.
The action was restored to the trial calendar in regular order.
Defendants' Motion to Vacate their Default
In seeking to vacate defendants' default defendants contend that due to inadvertence,
an attorney was not assigned to appear on the motion date. Defendants assert that they moved promptly to vacate the default, and that opposition to plaintiff's order to show cause had previously been served upon plaintiff. Further, they contend that: 1) they have a meritorious defense as their underlying summary judgment motion demonstrates that plaintiff did not sustain a “serious injury;” and 2) that there is no prejudice to the plaintiff in vacating the court's order of January 8, 2010 and determining plaintiff's motion on the merits.
Defendants submitted an affirmation of David H. Knel, Esq., an associate at defense counsel's firm, which states that due to a mis-calendaring in their office, he did not see the plaintiff's order to show cause scheduled for January 8, 2010, and as a result he failed to schedule an attorney to appear.
In opposition, plaintiff contends that defendants' unsubstantiated conclusory assertion—that their counsel failed to appear due to law office failure—is insufficient to constitute a reasonable excuse for their failure to appear. Plaintiff points out that his order to show cause was adjourned by stipulation to January 8, 2010, at the request of defense counsel. Furthermore, plaintiff notes that just prior to the adjourned date of the motion, his counsel's firm telephoned defense counsel's office and confirmed their appearance for oral argument scheduled for January 8, 2010.
Accordingly, plaintiff maintains that defense counsel's assertion that the “sole reason” they did not appear was because of a junior associate's calendaring error, is disingenuous.
Plaintiff submitted the affidavit of Eduardo Bonilla, Jr., a paralegal at plaintiff's counsel's firm, to the effect that he spoke with defense counsel's Motion Calendar Clerk on January 6, 2010, and confirmed that defense counsel would appear on January 8, 2010 for oral argument.
A party may move to vacate a default if it is excusable, the motion is made within one year, and there is a meritorious claim or defense ( seeCPLR 5015 [a][1] ). The court may consider law office failure as an excuse ( seeCPLR 2005). The determination of whether there is a reasonable excuse for a default is discretionary, to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits ( see Harcstark v. Drive Variety, Inc., 21 AD3d 876 [2005] ). Here, the court finds that defense counsel's failure to appear at oral argument of plaintiff's motion is excused by law office failure ( seeCPLR 2005), that the motion to vacate the default was promptly made, that defendants have a meritorious defense, and there is no prejudice to the plaintiff. Accordingly, this court vacates its decision and order of January 21, 2009, and plaintiff's order to show cause is restored for a determination on the merits. Plaintiff's Order to Show Cause
Plaintiff seeks leave to renew defendant's prior motion for summary judgment on the grounds that plaintiff's failure to “provide evidentiary proof in opposition” to defendant's motion for summary judgment was inadvertent. Plaintiff contends that opposition containing the original affirmation and medical affidavits was previously served upon the defendants. However, said opposition was not submitted to the court on the return date of the motion, because plaintiff's counsel was absent due to illness, and per diem counsel did not have the opposition papers in court. Plaintiff argues that, although the “new evidence” (the unsubmitted opposition to defendants' motion) contained in its motion to renew was known to plaintiff at the time of defendants' summary judgment application, that plaintiff has shown sufficient grounds to grant his application to renew, and defendants have suffered no prejudice by plaintiff's failure to submit evidence in admissible form to the court. Further, upon renewal, plaintiff contends that this court's July 21, 2009 decision and order should be vacated, and defendants' summary judgment motion should be denied, as plaintiff's evidence demonstrates that there is a triable issue of fact as to whether plaintiff's injuries meet the “serious injury” threshold.
In opposition, defendants contend, among other things, that plaintiff's allegation that his attorney was ill, and that the per diem attorney who appeared did not have a full copy of the opposition papers, is wholly unsubstantiated. Defendants argue that renewal is not warranted because plaintiff has not offered a reasonable excuse for failure to submit the new evidence at the time of the original motion, and that plaintiff has not even presented any new material. Defendants maintain that their motion for summary judgment was repeatedly adjourned at plaintiff's request, and that renewal should not be granted as plaintiff's lack of diligence does not entitle him to have a second chance to make a factual presentation. Further, defendant argues that plaintiff's papers are substantively insufficient to establish that plaintiff sustained a “serious injury.”
The requirement that a motion for renewal be based upon newly discovered evidence is a flexible one, and a court may, in its discretion, grant renewal upon facts known to the moving party (Lupoli v. Venus Laboritories, Inc/ 264 A.D.2d 820 [1999];Oremland v. Miller Minutement Constr. Corp, 133 A.D.2d 816 [1987];Patterson v. Town of Hempstead, 104 A.D.2d 975 [1984] ). Moreover, the requirement that, on renewal, new facts be must be presented need not be applied to defeat “substantive fairness” (Garner v. John Latimer, 306 A.D.2d 209 [2003];Lambert v. Williams, 218 A.D.2d 618 [1995] ). Further, in the absence of prejudice, the court may grant this relief in the interest of justice (Roseman v. Goldberg, 181 A.D.2d 873 [1992];Sciascia v. Nevins, 130 A.D.2d 649 [1987] ), in light of the strong public policy of resolving cases on the merits (Rodney v. New York Pyrotechnic Prods. Co., 112 A.D.2d 410 [1985] ).
Here, the plaintiff has proffered a reasonable excuse for his failure to submit opposition in evidentiary form to defendants' motion for summary judgment, and there is no prejudice to the defendants caused by the delay ( see e.g. Acosta v. Rubin, 2 AD3d 657 [2003] ). Accordingly, plaintiff's application for leave to renew is granted, and the decision and order of July 21,2009 is vacated. Defendants' motion for summary judgment is restored for a determination on the merits.
Defendant's Motion for Summary Judgment
Defendants seek summary judgment on the grounds that plaintiff did not sustain a “serious injury” as that term is defined in Insurance Law § 5102(d). Defendants point out that according to plaintiff's bill of particulars, on the accident date, plaintiff was taken to Cabrini Medical Center Emergency Room, treated and released the same day and confined to bed from June 19, 2003 to October 20, 2003.Defendants point out that plaintiff testified at his October 30, 2008 deposition that he was confined to his bed and home for two or three days following the accident,
and was able to actively seek employment one month following the accident.
Plaintiff's EBT transcript, p. 59, l. 107.
Defendants note that plaintiff further testified that he was unemployed at the time of the accident.
Plaintiff's EBT transcript, p. 88.
Defendants argue that the period of confinement alleged by the plaintiff is not sufficient to meet the minimum statutory requirement that plaintiff must be prevented from performing his usual and customary activities for a period of not less than 90 out of the first 180 days immediately following the accident, and that the confinement be medically determined.
Plaintiff's EBT transcript, p. 63.
Defendants submit a copy of the affirmed report of Dr. Gregory Montalbano, an orthopedic surgeon, who examined plaintiff on defendants' behalf on October 10, 2008. In his report, Dr. Montalbano found that, upon examination, plaintiff's right and left thumbs had full ranges of motion, as compared to normal. There was no deformity or atrophy to either thumb, with normal grip strength. Dr. Montalbano noted that plaintiff voluntarily demonstrated a full range of motion in extension and flexion of his right knee in comparison to normal. On examination of plaintiff's right and left knees, Dr. Montalbano found that there was no effusion or tenderness, the Stability, Lachman and McMurray Examinations were all normal, and plaintiff had full ranges of motion in both knees, as compared to normal. Dr. Montalbano noted that there was bilateral patellofemoral clicking, that the clicking was greater in the left knee, but otherwise this was a normal examination.
After reviewing plaintiff's pertinent medical records and examining plaintiff, Dr. Montalbano concluded that plaintiff sustained a right knee contusion as a result of the accident. Dr. Montalbano points out that the emergency room records do not indicate effusion, nor was plaintiff treated for internal derangement, and plaintiff was discharged without any supportive device. Dr. Montalbano notes plaintiff's MRI examination report reveals no evidence of an internal derangement with only minimal fluid behind the patella, and no evidence of bone or any other signs of traumatic injury. He further notes that his impression is supported by the findings in Dr. Allen Chamberlin's
surgical report, which are consistent with pre-existing degenerative changes. Dr. Montalbano notes that the surgical report indicates that there was impingement on the ACL, which is explained by bone spurs, another indication of a degenerative condition. Further, Dr. Montalbano points out that plaintiff's initial evaluation, 5 days post-accident, is strongly suggestive of pre-existing conditions in both knees, since it would have been unusual to have exactly the same clinical findings for the right and left knee as a result of a traumatic event. These clinical findings are consistent with plaintiff's age, occupation and medical diagnosis of being overweight. Dr. Montalbano also notes that plaintiff terminated his medical treatment in connection with this accident.
Defendant points out that Dr. Allen Chamberlin, plaintiff's orthopedic surgeon, has had his medical license revoked by the Board for Professional Misconduct.
Similarly, Dr. Montalbano concludes that, based upon his examination, testing and review of plaintiff's medical records, that plaintiff did not sustain any continuing or permanent injury/disability as a result of this accident, and that plaintiff is fully capable of performing all of his normal activities.
Plaintiff testified that he had about four or five months of physical therapy, although he did not specify when such therapy ended (Plaintiff's EBT, p. 96, l. 16). Plaintiff's treatment records of Queens–Brooklyn Med. Rehab P.C., indicates that plaintiff's last date of physical therapy was December 11, 2003.
In his opposition papers, plaintiff contends that the objective medical evidence submitted demonstrates that plaintiff suffered a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” under Insurance Law § 5102(d). Plaintiff proffers the affidavit of Dr. Hamid Lalani who examined plaintiff on May 5, 2009.
Dr. Lalani reports that the x-ray of the right knee at the emergency room on the accident date was normal-no fractures, normal alignment and no foreign body, plaintiff was treated and released. A few days later, plaintiff saw Dr. John McGee, D.O. for further evaluation, as plaintiff was still experiencing pain.Dr. Lalani notes that MRI studies of plaintiff's right knee taken at the request of Dr. McGee revealed a torn medial meniscus, synovitis, and a torn lateral meniscus. Plaintiff was referred to Dr. Allen Chamberlin, an orthopedic surgeon, who recommended and performed surgery on plaintiff's right knee on September 23, 2003. At the time of his visit to Dr. Lalani, plaintiff complained of constant pain in the right knee, almost six years after plaintiffs' surgery. Upon examination, Dr. Lalani found tenderness over the right knee, active and passive movements were restricted and painful to palpation over the right knee, with flexion of right knee 100 and left knee 110 (normal 130). Extension of the right and left knees was 10 (normal 15). Dr. Lalani adds that plaintiff was still having severe pain at that time, causing activities of daily living to be extremely difficult. Dr. Lalani concludes that plaintiff's right knee injury was related to June 19, 2003 the accident and that the right knee may be “permanently weakened for an indefinite period of time resulting in significant and permanent restricted mobility.”
The court notes that defendant's motion was served on or about December 12, 2008.
In his affirmation, plaintiff's counsel points out that plaintiff testified at his deposition that he was unable to do much because he was in pain; he was unable to work for the five months following the accident; he was unable to perform his usual and/or customary activities during that time; and, that as result of the injuries sustained, he is now unable to do the work he used to perform.”
Counsel argues that such testimony, with Dr. Lalani's quantitative findings, clearly establishes that plaintiff, due to his injuries in the accident, was substantially limited in the performance of his daily activities for a minimum of 90 of the first 180 days following the accident.
Counsel refers to Exhibit L, plaintiff's deposition transcript dated October 30, 2008, but does not cite to any line or page of plaintiff's testimony to support such claims.
In reply, defendants reiterate that plaintiff's deposition testimony demonstrates that plaintiff's alleged period of confinement is not sufficient to meet the minimum statutory requirement. Moreover, defendants point out that such confinement must be medically directed. Defendants also point out that plaintiff's attorney's affirmation is not admissible as probative evidence on medical issues, nor can plaintiff's self-serving complaints of pain serve as the sole basis for finding serious injury. Defendants contend that plaintiff's medical treatment from the accident date through the most recent examination by Dr. Lalani on May 5, 2009, creates an unexplained gap in treatment of 5 years and 11 months. Defendants argue that Dr. Lalani's examination was performed only in response to defendants' summary judgment motion. Defendants also argue that the stack of medical records submitted in opposition to the defendant's motion are not admissible since they are not affirmed, sworn or certified. Furthermore, defendants maintain that a examining doctor must cite objective evidence that quantifies plaintiff's alleged limitation, and that range of motion must be compared to normal in order to prove a limitation. Lastly, defendants argue that plaintiff has failed to offer any affirmed range of motion testing performed immediately after the accident.
In plaintiff's sur-reply,
plaintiff submits certified copies of the records from Queens–Brooklyn Med. Rehab. P.C.
Defendants' oppose the submission of plaintiff's sur-reply as unauthorized and prejudicial as it was received on May 13, 2010, on the eve of the motion.
which he recently obtained. Plaintiff points out that plaintiff's treating physician, Dr. John McGee, closed his offices at the end of 2003 and that he was unable to locate Dr. McGee and the custodian of plaintiff's medical records until just recently.
Uncertified copies of these records were annexed to plaintiff's opposition papers.
Plaintiff has also submitted an affirmation from Dr. McGee, to the effect that he reviewed these recently obtained medical records and confirmed his previous diagnosis (torn meniscus) and prognosis for a guarded recovery.
Affirmation of Eduardo Bonilla, Jr., (dated April 15, 2010), a paralegal with plaintiff's attorney's firm.
DISCUSSION
The issue of whether plaintiff sustained a serious injury is a matter of law to be determined in the first instance by the court ( see Licari v. Elliott, 57 N.Y.2d 230 [1982] ). The burden is on the defendants to make a prima facie showing that plaintiff's injuries are not serious ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002] ). Defendants herein have met their initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the affirmed report of Dr. Montalbano, an orthopedist, which indicated that plaintiff did not suffer any serious injury as a result of the accident. Specifically, the doctor stated that the objective tests he performed revealed that plaintiff had normal range of motion in his right knee ( see Villalta v. Schechter, 273 A.D.2d 299 [2000] ). Further, defendants' submissions in support of their motion, including plaintiff's bill of particulars, plaintiff's deposition transcript, and the affirmed report of Dr. Montalbano, were sufficient to make a prima facie showing that plaintiff did not satisfy the serious injury threshold with regard to the 90/180 category of the statute.
In opposition, plaintiff failed to submit sufficient evidence to raise a triable issue of fact with regard to whether he sustained a serious injury as a result of the accident. As a threshold issue, an affirmation from counsel, is without evidentiary value and will not be considered herein ( see e.g. Feratovic v. Lun Wah, Inc., 284 A.D.2d 368 [2001];Carpluk v. Friedman, 269 A.D.2d 349 [2000];Sloan v. Schoen, 251 A.D.2d 319 [1998] ). Moreover, subjective complaints of pain described in plaintiff's testimony and in the medical reports lack probative value on the issue of serious injury ( see Nega v. Janella Cab, Inc., 249 A.D.2d 71 [1998] ).
Dr. Lalani has set forth range of motion restrictions in his affirmed report. However, there is no indication that he examined plaintiff at or near the time of the accident. Even assuming, arguendo, the court was to consider plaintiff's unauthorized sur-reply
containing Dr. McGee's affirmation and certified treatment records, there is no range of motion testing as compared to normal, contemporaneous with the accident. Since Dr. Lalani examined plaintiff nearly six years after the accident, and since there is no admissible evidence of measurements taken contemporaneously with the accident, Dr. Lalani's opinion regarding loss of range of motion is insufficient to prove serious injury ( see Jason v. Danar, 1 AD3d 398 [2003];Nemchyonok v. Ying; 2 AD3d 421 [2003];Pajda v. Pedone, 303 A.D.2d 729 [2003] ).
There is no right to respond to a reply ( Pinkow v. Herfield, 264 AD 356 [1999]; Kushaqua Estates Inc. v. Bonded Concrete Inc., 215 A.D.2d 140 [1995] ). Affidavits submitted after reply papers have been served are not to be given any consideration (Sean M. v. City of New York, 20 AD3d 146 [2005] ). The court may, in its discretion, consider a sur-reply submitted without leave, provided the adversary has had an opportunity to respond (Held v. Kaufman, 91 N.Y.2d 425 [1998] ). Here, however, plaintiff's sur-reply was served on the eve of oral argument of defendants' motion. Defendants were not afforded the opportunity to respond and they have not waived their claim of prejudice. Therefore, plaintiff's sur-reply is not properly considered.
Because plaintiff has not demonstrated that the limitations of motion of his left knee was a result of the June 19, 2003 accident ( see Crespo v. Kramer, 295 A.D.2d 467, 468 [2002] ), his claims under the “permanent consequential limitation of use of a body organ or member” and “a significant limitation of use of a body function or system” must fail.
Moreover, in light of the fact that Dr. Lalani first examined plaintiff nearly six years after the accident, five and one-half years after the last treatment for these injuries—a gap in treatment that is not adequately explained-his “opinion[s] as to permanence and significance [are] properly rejected as conclusory and speculative, and seemingly tailored to meet the statutory definition” (Arjona v. Calcano, 7 AD3d 279, 279 [2004] ).
According to plaintiff's deposition, he was treated for his injuries until approximately four or five months following the accident, and saw Dr. Lalani in May 2009. Plaintiff's doctor fails to explain this 6 year gap in treatment. Therefore, in the present case, the so-called gap in treatment was, in reality, a cessation of all treatment when plaintiff sought no other treatment until years later, when he visited Dr. Lalani in connection with this case. “While a cessation of treatment is not dispositive—the law surely does not require a record of needless treatment in order to survive summary judgment—a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury,' must offer some reasonable explanation for having done so” ( see Pommells v. Perez, 4 NY3d 566, 574 [2005] ).
In the alternative, plaintiff must prove that he sustained a medically determined injury or impairment which prevented him from performing “substantially all” of the material acts which constituted his usual and customary activities for 90 out of the 180 days immediately following the accident ( see Gaddy v. Eyler, 79 N.Y.2d 955, 958;Licari, 57 N.Y.2d at 236;Crandall v. Sledziewski, 260 A.D.2d 754, 757 [1999] ).
Plaintiff admitted that was confined to bed and home for about two or three days, and that he looked for work about one month post-accident. Although plaintiff claims he still has pain in his knee, he fails to demonstrate that he suffered from a medically-determined injury which prevented him from performing substantially all of his customary and usual activities for at least 90 days during the 180 days immediately following the accident ( see Millar v. Town of Oyster Bay, 7 AD3d 588 [2004] ).
Conclusion
Accordingly, based on the foregoing, plaintiff has failed to raise an issue of fact as to whether he sustained a serious injury as set forth in Insurance Law 5102(d), and as such defendants' motion for summary judgment is granted, and the complaint is dismissed.
This constitutes the decision, order and judgment of this court.