Hall-Rosiecki v. Vasile

Full title: GERRI HALL-ROSIECKI and JOSEPH ROSIECKI, Plaintiffs, v. BOBBI JEAN VASILE…

Court: Supreme Court of the State of New York, Orange County

Date published: Apr 12, 2011

2011 N.Y. Slip Op. 31122 (N.Y. Sup. Ct. 2011)

Opinion

9794/2009.

April 12, 2011.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] CATHERINE M. BARTLETT, Judge.

The following papers numbered 1 to 6 were read on the motion for summary judgment by defendant alleging that the plaintiff Joseph Rosiecki did not meet the serious injury threshold as defined in Insurance Law § 5102(d):

Notice of Motion-Affirmation-Exhibits A-F............................. 1-3 Affirmation in Opposition-Exhibits 1-4.................................4-5 Reply Affirmation........................................................6

Upon the foregoing papers it is ORDERED that the motions are disposed of as follows: This is an action stemming from a motor vehicle accident on July 12, 2009 on Route 32 approximately 150 feet south of Hillside Terrace in Newburgh, New York. Plaintiffs allege that a vehicle driven by defendant struck the rear of their vehicle causing a collision. Both plaintiffs allege injuries stemming from this accident, but defendant's motion is as against plaintiff Joseph Rosiecki only. Mr. Rosiecki alleges multiple injuries stemming from the alleged accident, including but not limited to a herniated disc and internal derangement and a tear in his left shoulder and claims an injury claiming a substantial impairment of his daily activities for at least 90 out of the first 180 days following the accident. Mr. Rosiecki further pleads both a permanent consequential limitation of his neck and shoulder and a significant limitation of those parts of the body as well.

"Summary judgment is a drastic remedy that `should not be granted where there is any doubt as to the existence of a triable issue' (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted)." Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3^rd Dept. 1989); See also, Moskowitz v Garlock, 23 AD2d 943, 944 (3^rd Dept., 1965).

While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County, 1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a `day in court.'" Wanger v Zeh, 45 Misc2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3^rd Dept. 1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bakerian v H.F. Horn, 21 AD2d 714 (1^st Dept. 1964); Jones v County of Herkimer, 51 Misc2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957).

The movant has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M M Auto Marine Upholstery, Inc., 256 AD2d 551, 551 (2^nd Dept. 1998). It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 480 (1974). Finkelstein v. Cornell University Medical College, 269 AD2d 114, 117 (1^st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4^th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4^th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4^th Dept. 2000).

The defendant's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers". Winegrad v New York University Medical Center, supra, 64 NY2d at 853; See, also, Miccoli v Kotz, 278 AD2d 460, 461 (2^nd Dept. 2000); Karras v County of Westchester, 272 AD2d 377, 378 (2^nd Dept. 2000); Fox v Kamal Corporation, 271 AD2d 485 (2^nd Dept. 2000); Gstalder v State of New York, 240 AD2d 541, 542 (2^nd Dept. 1997); Lamberta v Long Island Railroad, 51 AD2d 730, 730-731 (2^nd Dept. 1976); Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969 (2^nd Dept. 1974).

In the instant case, defendant failed to make a prima facie showing that Mr. Rosiecki did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345 (2002); Gaddy v Eyler, 79 NY2d 955 (1992); Walker v Village of Ossining, 18 AD3d 867 (2^nd Dept. 2005).

A serious injury is defined in the Insurance Law § 5102(d) 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 must demonstrate that all injuries presented by plaintiff fail to establish a serious injury. Minori v Hernandez Trucking Co. Inc., 239 AD2d 322 (2^nd Dept. 1997). Missing even one will result in the denial of defendant's motion for summary judgment. See, Meyer v Gallardo, 260 AD2d 556, 557 (2^nd Dept. 1999). Failing to affirmatively demonstrate that an alleged injury was not causally related to the subject accident requires a denial of defendant's motion for summary judgment as having failed to make out a prima facie case. See, Lubrano v Brown, 251 AD2d 383 (2^nd Dept. 1998); Fouad v Riser, 246 AD2d 508 (2^nd Dept. 1998), Feuerman v Achtar, 246 AD2d 577 (2^nd Dept. 1998).

Additionally, defendant failed to even address whether plaintiff sustained "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" one of the elements of a serious injury as defined in Insurance Law § 5102(d). In an attempt to support her position, defendant purportedly submits Mr. Rosiecki's deposition transcript. However, defendant failed to submit Mr. Rosiecki's deposition, instead submitted the deposition of co-plaintiff, Gerri Hall-Rosiecki. The fact that a defendant fails to submit any admissible evidence demonstrating that plaintiff could not perform his usual and customary activities for 90 of the first 180 days following the accident necessitates denial of a defendant's motion for summary judgment as a matter of law. See, Russell v Knopp, 202 AD2d 959 (4^th Dept. 1994); see also, Paolini v Sienkiewicz, 262 AD2d 1020 (4^th Dept. 1999).

With respect to the neck and shoulder injuries, defendant's examining physician, Dr. Robert Hendler, stated that plaintiff's range of motion was "with normal values", commenting on the degrees of range of motion he found, but never specifying what the normal range of motion is for someone.¹ As such, one is left with Dr. Hendler's conclusory statement that the range of motion he found is normal but failed to indicate what specifically normal would be. See, Chiara v Dernago, 70 AD3d 746, 747 (2^nd Dept. 2010); Giammalva v Winters, 59 AD3d 595 (2^nd Dept. 2009). Moreover, none of Dr. Hendler's notes indicate the specific objective tests he conducted on the shoulder and cervical spine from which the values he opines were obtained. This failure is fatal to a summary judgment motion of this type. See, Chiara, at 746-747; Giammalva, 59 AD3d at 595-596; Cedillo v Rivera, 39 AD3d 453, 454 (2^nd Dept. 2007).

1 Dr. Hendler failed to state that normal range of motion is "x" degrees and plaintiff exhibited "y" degrees.

Dr. Hendler's report further states that he relied upon prior medical reports from other physicians, but defendant's motion fails to annex a copy of any of such reports. Therefore, the Court is limited to Dr. Hendler's opinions without the benefit of determining the basis thereof. Dr. Hendler refers an MRI of plaintiff's left shoulder on August 10, 2009 wherein he states that the report showed "an undersurface tear of the surpaspinatus tendon", however, no where in his report does he address the tear itself, instead concluding that plaintiff sustained "possibly a sprain to his left shoulder." He does not comment on whether there was indeed a tear and if there was, whether it was causally related to this accident and whether it fell within the categories of serious injury as defined by the Insurance Law. Such failures render his report conclusory and demonstrate defendant's failure to sustain her burden in moving for summary judgment. See, Jimenez v Darden, 290 AD3d 419 (2^nd Dept. 202); Nix v Yang Gao Xiang, 19 AD3d 227 (1^st Dept. 2005).

Since defendant failed to meet her burden in the first instance, it is unnecessary to decide whether plaintiff's opposition raised a triable issue of fact. See, Chiara, 70 AD3d at 747; Giammalva, 59 AD3d at 596.

Therefore, defendant's motion for summary judgment is denied as said defendant failed to prove her prima facie case.

The foregoing constitutes the decision and order of this Court.