Opinion
INDEX No. 09-47215 CAL No. 11-00776MV
04-27-2012
GREGORY R. GENSCH and RACHEL GENSCH, Plaintiffs, v. JENNA INTERLIGI, Defendants.
EDELMAN, KRASIN & JAYE, PLLC Attorney for Plaintiffs VERRILL & GOODSTEIN Attorney for Defendant
SHORT FORM ORDER
PRESENT:
Hon. PETER H. MAYER
Justice of the Supreme Court
MOTION DATE 8-2-11
MOTION DATE 8-16-11
MOTION DATE 11-14-11
ADJ. DATE 1-3-12
Mot. Seq. #001 - MD
# 002 - MD
# 003 - XMD
EDELMAN, KRASIN & JAYE, PLLC
Attorney for Plaintiffs
VERRILL & GOODSTEIN
Attorney for Defendant
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defendant, dated June 21, 2011, and supporting papers (including Memorandum of Law dated _); (2) Notice of Motion/Order to Show Cause by the defendant, dated July 8, 2011, and supporting papers (including Memorandum of Law dated_); (3)Cross Motion by the plaintiffs, dated November 11, 2011, supporting papers; (4) Affirmation in Opposition by the plaintiffs, dated June 23, 2011, and supporting papers; (5) Affirmation in Opposition by the defendant, dated December 13, 2011, and supporting papers; (6) Reply Affirmation by the defendant, dated July 29, 2011, and supporting papers; and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (#001) by defendant Jenna Interligi for leave to serve and file a late jury demand, the motion (#002) by defendant Jenna Interligi seeking summary judgment dismissing the complaint, and the cross motion (#003) by plaintiffs Gregory Gensch and Rachel Gensch for leave to amend their bill of particulars hereby are consolidated for purposes of this determination; and it is
ORDERED that the motion (#001) by defendant Jenna Interligi for leave to serve and file a late jury demand is denied: and it is
ORDERED that the motion (#002) by defendant Jenna Interligi seeking summary judgment dismissing the complaint is denied; and it is further
ORDERED that the cross motion (#003) by plaintiffs Gregory Gensch and Rachel Gensch for leave to amend their bill of particulars is denied, without prejudice.
Plaintiffs Gregory Gensch and Rachel Gensch commenced this action to recover damages for injuries they allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Route 112 and County Road 16 in the Town of Brookhaven on June 29, 2007. It is alleged that the accident happened when the vehicle operated by defendant Jenna Interligi attempted to make a left turn onto County Road 16 and struck plaintiffs' vehicle, which was traveling southbound on Route 112. At the time of the accident, Rachel Gensch was a passenger in the vehicle operated by her husband, Gregory Gensch.
By his bill of particulars, Gregory Gensch alleges that he sustained various personal injuries as a result of the subject accident, including a partial tear of the left deltoid ligament; disc herniations at level C6 through T3; disc bulges at level T6 through T9; and cervical and lumbar radiculopathy. Gregory Gensch further asserts that he was incapacitated from his employment for approximately one month. By her bill of particulars, Rachel Gensch alleges that she also sustained various personal injuries as a result of the subject accident, including multiple left rib fractures, disc herniations at levels L4 through SI and T10 through T12, and lumbar radiculopathy. Rachel Gensch further asserts that she has been totally incapacitated from her employment since the date of the accident, and that she missed approximately two days of nursing school.
Defendant now moves for leave to serve and file a late demand for a jury trial pursuant to CPLR 4102 (e) on the bases that she did not evince any intention to waive a jury trial and that her failure to file for a jury trial was inadvertent. Plaintiffs oppose the motion on the grounds that the motion was made almost three months after the note of issue was served upon defendant., the matter has already been placed on the nonjury trial calendar, and a pre-trail conference has already been held. Plaintiffs further assert that a transfer of the action from the nonjury trial calendar will result in a delayed trial, and undue prejudice to them.
CPLR 4102 (a) provides that "(a]ny party served with a note of issue not containing [a demand for a jury trial] may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue." However, a court may relieve a party of the effect of failing to comply with the requirements of CPLR 4102 (a) "if no undue prejudice to the rights of another party would result" (Paternoster v Drehmer, 260 AD2d 867. 870, 688 NYS2d 778 [3d Dept 1999]). A party seeking an extension of the time to file a demand for a jury trial must make a factual showing that the failure to timely file such a demand was the result of inadvertence or other excusable conduct indicating a lack of intention to waive the right to a jury trial (see Caruso, Caruso & Branda, P.C. v Hirsch, 60 AD3d 886, 874 NYS2d 918 [2d Dept 2009]; Fischer v RWSP Realty, LLC, 53 AD3d 595, 862 NYS2d 539 [2d Dept 2008]).
Defendant's application for leave to serve and file a late jury demand is denied. Defendant was served in April 2011 with a note of issue that did not request a jury trial and, thereafter, did not timely request a trial by jury. Instead, defendant waited more than 60 days to file her demand for a jury trial. Therefore, defendant waived her rights to a jury trial (see CPLR 4102 (a); Lackowitz v City of Yonkers, 29 AD3d 744, 813 NYS2d 912 [2d Dept 2006]; Villalba v Citibank (S.D.), N.A., 271 AD2d 601, 707 NYS2d 331 [2d Dept 2000]; Paternoster v Drehmer, supra). Defendant's excuses that clerical error caused counsel to overlook the fact that plaintiffs' note of issue did not request a jury trial, and that counsel tried to file a jury demand on June 14. 2011, but it was rejected as untimely, are inadequate (see Caruso, Caruso & Branda, P.C. v Hirsch, supra; Sumba v Sampaio, 44 AD3d 648. 841 NYS2d 891 [2d Dept 2007]; Matter of Bosco, 141 AD2d 639, 529 NYS2d 541 [2d Dept 1988]).
Defendant also moves for summary judgment in her favor as to the personal injury claim of plaintiff Gregory Gensch (hereinafter referred to as "plaintiff), arguing that the injuries he sustained as a result of the collision fail to meet the "serious injury" threshold requirement of Insurance Law § 5102(d). In support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Barry Katzman, M.D., Chandra Sharma, M.D., and Audrey Eisenstadt, M.D. At defendant's request, Dr. Katzman conducted an independent orthopedic examination of plaintiff and Dr. Sharma conducted an independent neurological examination of plaintiff in October 2010. Also, at defendant's request. Dr. Eisenstadt performed an independent radiological review of the magnetic resonance imaging ("MRI") films of plaintiffs cervical and thoracic spine, and his left ankle performed in September 2007.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 NY2d 795, 798, 622 NYS2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 NY2d 345. 746 NYS2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court; in the first instance (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]; Porcano v Lehman, 255 AD2d 430, 680 NYS2d 590 [2d Dept 1988]; Nolan v Ford, 100 AD2d 579, 473 NYS2d 516 [1984], aff'd 64 NYS2d 681, 485 NYS2d 526 [2d Dept 1984]).
Insurance Law § 5102 (d) defines a "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 eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]: Vignola v Varrichio, 243 AD2d 464, 662 NYS2d 831 [2d Dept 1997]; Torres v Micheletti, 208 AD2d 519,616 NYS2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra: Tornabene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Based upon the adduced evidence, defendant established her prima facie burden that plaintiff did not sustain a serious injury within the meaning of the Insurance Law as a result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Al-Khilwei v Truman, 82 AD3d 1021, 919 NYS2d 361 [2d Dept 2011]; Pierson v Edwards, 11 AD3d 642, 909 NYS2d 726 [2d Dept 2010]; Young Hwan Park v Orellana, 49 AD3d 721, 854 NYS2d 447 [2d Dept 2008]: Cooper v LI Constr., Inc., 45 AD3d 623, 845 NYS2d 454 [2d Dept 2007]). Defendant's examining orthopedist, Dr. Katzman, tested the ranges of motion in plaintiffs spine, shoulders, and left ankle using a goniometer and set forth his specific measurements, and compared plaintiffs ranges of motion to the normal ranges (see Cantave v Gelle, 60 AD3d 988, 877 NYS2d 129 [2d Dept 2009]; Staff v Yshua, 59 AD3d 614, 874 NYS2d 180 [2d Dept 2009]). Dr. Katzman states in his medical report that an examination of plaintiff reveals that he has full range of motion in his spine, shoulders and left ankle. Dr. Katzman opines that the strains plaintiff sustained to his spine, right shoulder, and left ankle as a result of the subject collision have resolved, that he is not disabled, and that he is capable of performing his normal daily living activities. Moreover, the limitation in plaintiffs range of motion in his left ankle noted by Dr. Katzman, i.e. 15 degrees lateral flexion (20 degrees is normal), is insignificant within the meaning of Insurance Law § 5102(d) (see Licari v Elliot, supra; Lively v Fernandez, 85 AD3d 981, 925 NYS2d 650 [2d Dept 2011]). Likewise, defendant's examining neurologist, Dr. Sharma, states in her medical report that plaintiff has full range of motion in the cervical and lumbar regions of his spine, that he is able to place his right foot on his left knee and his left foot on his right knee, and that the sprains to his spine have resolved. Also, Dr. Sharma states that plaintiffs neurological examination was normal, that he does not have a neurological disability, and that there are no neurological manifestations of disc bulges or herniations.
In addition, defendant's reviewing radiologist, Dr. Eisenstadt, ste.tes in her medical report that a review of plaintiff s left ankle MRI examination reveals that no bone contusions, fractures or osteochondral defects were identified. Dr. Eisenstadt states that an MRI of plaintiff s left ankle is normal. Furthermore, Dr. Eisenstadt states that the MRI examinations of plaintiffs thoracic and cervical spine reveal that he suffers from degenerative disc disease in the areas where he alleges to have sustained his injuries, which are preexisting in nature, and are not causally related to the subject accident (see Kreimerman v Stunis, 74 AD3d 753, 902 NYS2d 180 [2d Dept 2010]; Depena v Sylla, 63 AD3d 504, 880 NYS2d 641 [1st Dept 2009], Iv denied 13 NY3d 706, 887 NYS2d 4 [2009]; Valentin v Pomilla, 59 AD3d 184, 873 NYS2d 537 [1st Dept 2009]).
Therefore, defendant has shifted the burden to plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005]; see generally Zuckerman v City of New York. 49 NY2d 557, 427 NYS2d 595 [1980]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]; Mejia v DeRose, 35 AD3d 407, 825 NYS2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 AD3d 996, 821 NYS2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 AD3d 45, 789 NYS2d 281 [2d Dept 2005]). Whether a limitation of use or function is "significant" or "consequential" (i.e. important. . .), relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use"' categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "'qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N Y3d 208, 936 NYS2d 655 [2011 ]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 AD3d 929, 923 N YS2d 530 [2d Dept 201 \};Rovelo v Volcy, 83 AD3d 1034, 921 NYS2d 322 [2d Dept 2011]) A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 AD3d 559, 937 NYS2d 198 ).
Plaintiff opposes the motion on the grounds that defendant failed to meet her prima facie burden of establishing that he did not sustain a serious injury as a result of the subject accident. He contends that he sustained injuries within the "limitations of use" categories and the 90/180" category of the Insurance Law as a result of the collision. In opposition to the motion, plaintiff submits the sworn affidavits of Nunzio Saulle, M.D., John Rigney, M.D., and John Rigney, M.D., his certified medical records, and his own affidavit.
Plaintiff, in opposition to defendant's prima facie showing, has come forward with evidence in admissible form sufficient to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of the Insurance Law as a result of the subject accident (see Pommells v Perez., supra; Purdie v Perdomo, 91 AD3d 929, 937 NYS2d 631 [2d Dept 2012]; Harris v Boudart, 70 AD3d 643, 893 NYS2d 631 [2d Dept 2010]). The medical reports submitted by plaintiff in opposition to the motion indicate that he had significant range of motion limitations in his cervical, thoracic and lumbar spine contemporaneous with the accident, and that those significant limitations were still present when plaintiff was re-examined on October 24. 2011, more than four years post accident. Plaintiffs experts opine that his symptoms are permanent, that his prognosis is guarded, and that he has been advised to continue his home exercise program of stretching and strengthening in order to prevent any significant worsening of his symptoms. Therefore, plaintiff has submitted objective medical proof demonstrating that he sustained significant range of motion limitations in the cervical and thoracolumbosacral regions of his spine as a result of the subject accident (see Perl v Meher, supra; Kanarad v Setter, 87 AD3d 714, 928 NYS2d 782 [2d Dept 2011]; Khaimov v Armanious, 85 AD3d 978, 925 NYS2d 623 [2d Dept 2011]; Jilani v Palmer, 83 AD3d 786, 920 NYS2d 424 [2d Dept 2011]).
In addition, the affirmed medical report of Dr. Rigney slates that an MRI examination of plaintiffs left ankle reveals a small sliver-like opacity of bone density lying above the anterior talus, which is consistent with a small cortical avulsion fracture. Dr. Rigney states that a ganglion cyst along the lateral aspect of the talonavicular articulation is present in plaintiffs left ankle, and that plaintiff also sustained a partial tearing of the deltoid ligament, and posterior tibial tendon tenosynovitis. Dr. Rigney opines that the injuries to plaintiffs left ankle are causally related to the subject accident.
Thus, the affirmed medical reports of plaintiffs experts conflict with those of defendant's experts, who found that plaintiff did not sustain a fracture to his left ankle and that the sprains that plaintiff sustained in the subject accident were resolved. "Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury" (Noble v Acker man, 252 AD2d 392, 395, 675 NYS2d 86 [1st Dept 1998]; see Johnson v Garcia, 82 AD3d 561, 919 NYS2d 13 [1st Dept 2011]; LaMasa v Bachman, 56 AD3d 340, 869 NYS17 [1st Dept 2008]; Ocasio v Zorbas, 14 AD3d 499, 789 NYS2d 166 [2d Dept 2005]; Reynolds v Burghezi. 227 AD2d 941. 643 NYS2d 248 [4th Dept 1996]). Moreover, "where [a] plaintiff establishes that at least some of his injuries meet the 'no-fault threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand [defendant's] motion for summary judgment" (Linton v Nawaz, 14 NY3d 821, 822, 900 NYS2d 239 [2010]; see Rubin v SMS Taxi Corp., 71 AD3d 548, 898 NYS2d 110 [1st Dept 2010]). Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.
Plaintiffs cross-move to amend their bill of particulars to include that Gregory Gensch sustained a "fracture of talus and navicular" as a result of the subject accident. In support of the cross motion, plaintiffs submit copies of the pleadings and a copy of the original verified bill of particulars. Defendant opposes the cross motion on the basis that plaintiffs filed their note of issue on April 11, 2011, and that she will be significantly prejudiced by allowing plaintiffs to include the "fracture of talus and navicular" allegation in their bill of particulars. In particular, defendant asserts that because the left ankle X-ray report from Brookhaven Hospital stated that there was no evidence of a fracture or dislocation, and that the left ankle joint was maintained, no further action was taken to investigate the left ankle fracture. In opposition to the cross motion, defendant submits excerpts of Gregory Gensch's deposition transcript, unsworn copies of Gregory Gensch's medical reports, and a copy of a stipulation dated December 5, 2011, between counsel adjourning the motions on consent to January 3, 2012.
Plaintiffs' application to amend their bill of particulars to include; an allegation of "fracture of talus and navicular" is denied. CPLR 3025 (b) states, in pertinent part, that a party may amend his or her pleading at any time by leave of court or by stipulation of all parties, and that leave shall be freely given upon such terms as may be just (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 471 NYS2d 55 [1983]; Green v Passenger Bus Corp., 61 AD3d 1377; 877 NYS2d 577 [4th Dept 2009]). Moreover, the decision whether to grant leave to amend a pleading is committed solely to the discretion of the court (see Murray v City of New York, 43 NY2d 400, 401 NYS2d 773 [1977]; Anderson v Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 830 NYS2d 882 [4th Dept 2007]). Leave to amend a pleading will be granted so long as it does not prejudice the nonmoving party and where the amendment is not patently lacking merit (see McFarland v Michel, 2 AD3d 1297. 770 NYS2d 544 [4th Dept 2003]; Letterman v Reddington, 278 AD2d 868, 718 NYS2d 503 [2000]). Also, it is a well-established rule that "the legal sufficiency or merits of a proposed amendment of a pleading will not be examined on the motion to amend unless the insufficiency or lack of merit is clear and free from doubt" (see Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512, 455 NYS2d 19 [1982]; De Forte v Allstate Ins. Co., 66 AD2d 1028, 411 NYS2d 726 [1978]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3205). In addition, a defendant must establish prejudice by showing that the defendant "has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position" (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 444 NYS2d 571 [1981]; see Whalen v Kawasaki Motors Corp., 92 NY2d 288, 680 NYS2d 435 [1998]; Vaides v Marbrose Realty. 289 AD2d 28. 734 NYS2d 24 [1st Dept 2001]). However, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted from such delay (see Morris v Queens Long Is. Med. Group., P.C., supra; Cohen v Ho, 38 AD 3d 705. 833 NYS2d 542 [2d Dept 2007]; see also Kyong Hi Wo/in v County of Suffolk, 237 AD2d 412, 654 NYS2d 826 [2d Dept 2003]; Volpe v Good Samaritan Hosp.. 213 AD2d 398, 623 NYS2d 330 [2d Dept 1995]). Likewise, once discovery is complete and the case is certified as ready for trial, a party will not be permitted to amend his or her bill of particulars except upon a showing of "special and extraordinary circumstances" (Schreiber-Cross v State of New York, 57 AD 3d 881, 884, 870 NYS2d 438 [2d Dept 2008]).
In the instant matter, plaintiffs have failed to include a copy of their amended bill of particulars with their moving papers. Thus, plaintiffs have failed to support their motion with any evidentiary proof or to show that their proposed amendment has merit (see Kilkenny v Law Off. of Cushner & Garvey, LLP, 76 AD3d 512, 905 NYS2d 661 [2d Dept 2010]; Ferdinand v Crecca & Blair, 5 AD3d 538, 774 NYS2d 714 [2d Dept 2004], Iv denied 3 NY3d 609, 786 NYS2d 812 [2004]; Farrell v K.J.D.E. Corp., 244 AD2d 905, 665 NYS2d 201 [4th Dept 1997]; cf Dever v DeVito, 84 AD3d 1539, 922 NYS2d 646 [3d Dept 2011]; Manning v Thome, 73 AD3d 1136, 900 NYS2d 900 [2d Dept 2010]; Parametric Capital Mgt., LLC. v Lacher, 33 AD3d, 376, 822 NYS2d 60 [1st Dept 2006]). Accordingly, plaintiffs' motion for leave to amend their bill of particulars is denied.
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PETER H. MAYER, J.S.C.