Opinion
No. TS300216/14.
04-08-2016
Harry LAGREDELLE, Plaintiff, v. Joseph DIDIER and Theresa R. Gallo, Defendant.
Sacco & Fillas, LLP by Jeremy S. Ribakove, Esq., Astoria, for Plaintiff, Harry Lagredelle. By Kathleen E. Fioretti, Esq., Jericho, for Defendant, Theresa R. Gallo.
Sacco & Fillas, LLP by Jeremy S. Ribakove, Esq., Astoria, for Plaintiff, Harry Lagredelle.
By Kathleen E. Fioretti, Esq., Jericho, for Defendant, Theresa R. Gallo.
MOJGAN C. LANCMAN, J.
Upon the foregoing cited papers, the decision and order on this motion by plaintiff, pursuant to CPLR § 5015(a), to vacate and set aside the judgment entered on January 29, 2015 dismissing the plaintiff's complaint, is disposed of as follows:
By order dated October 20, 2014, the Hon. Ulysses Leverett granted the motion of defendant, Theresa R. Gallo, for summary judgment dismissing the plaintiff's complaint for failure to sustain a serious injury, as defined in Insurance Law § 5102(d), from the subject accident of April 20, 2009. The plaintiff appeared on the submission date of the summary judgment motion with opposition papers. However, as Judge Leverett states in his order, the plaintiff failed to produce adequate proof of service of the opposition by September 19, 2014 and “the defendant's motion was marked submitted with no opposition.” Thus, the relief requested therein was granted without opposition.
In order to vacate the order signed by Judge Leverett, the plaintiff is required to demonstrate a reasonable excuse for his default and a meritorious cause of action (see Cadim Stonehenge 56th Assoc., LLC v. 57 Dry Clean Inc., 77 AD3d 876 ; Katsnelson v.. Elrac, Inc., 304 A.D.2d 619 ; Melo v. Pagano, 297 A.D.2d 717 ; Burns v. Casale, 276 A.D.2d 734 ). The record shows that plaintiff was afforded several adjournments to serve his opposition to the motion for summary judgment. Therefore, proof of timely service of the opposing papers on or before September 19, 2014 was required in order for the opposition to be considered. The plaintiff now moves to provide proof of such service, which he contends was not presented to Judge Leverett, and evidence that the plaintiff sustained a serious injury.
Service by “mailing” is complete as of the date of actual mailing. Proof of such mailing raises a presumption that a proper mailing occurred which is not rebutted by a mere denial of receipt or a later postmark. (CPLR 2103[b][2] ; Kihl v. Pfeffer, 94 N.Y.2d 118 ; Glendora v. Gallicano, 206 A.D.2d 456 ; Jenny Oil Corp. v. Petro Rods. Distribs., 121 A.D.2d 687 ). In this case, the affidavit of service by mail of the plaintiff's opposition papers, allegedly made on September 19, 2014, is countered by the envelope that contained the papers which displays a dated postage stamp of September 22, 2014. This dated postage rebuts the presumption that a proper mailing occurred on September 19, 2014 and there is an issue regarding the proof of timely mailing of plaintiff's opposition to defendant's summary judgment motion
CPLR § 2103(f)(1) defines mailing as meaning “the deposit of a paper enclosed in a first class postpaid wrapper ... in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state.” (Ortega v.. Trefz, 44 AD3d 916 ). The plaintiff's attorney alleges in his affirmation that the opposing papers were mailed to the attorneys for defendant on Friday, September 19, 2014, when he placed the papers in an envelope for mailing and put it in a postal service container in the office of plaintiff's attorneys. Photographs that were submitted as exhibits by the plaintiff's attorney, establish that the papers were placed in an open container and not in a sealed official depository, such as a mailbox. Not only was the open container not in the exclusive care and custody of the postal service, but the attorney also conceded that, in accordance with his office's customary practice, the papers in the container are taken out and postage stamped by a clerk in the office before they are returned to the container and picked up by a Postal Clerk. Therefore, the deposit of the opposing papers in the open postal service container, without postage, on the evening of Friday, September 19, 2014 did not constitute a “mailing” of the papers.
Service of the plaintiff's opposition was made and the “mailing” was completed on Monday, September 22, 2014 when the postal service container was picked up by a Postal Clerk. This was after the dated postage was stamped on the subject envelope by a clerk in the office. “Mailing is not accomplished by dropping the envelope into a box or open bin labeled U.S. Mail,' unless it is closed under the exclusive custody of the Postal Service, and not accessible to the public. It is important to observe these requirements and note them in the affidavit of service. The affidavit should be by the last person in contact with the papers before the United States Postal service takes over.” (Thomas F. Gleason, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C:2103:3, CPLR2103[f], p. 454). The affidavit of service was thus deficient in two respects. The open container was not in the exclusive custody of the Postal Service and the envelope containing the papers had no postage. Accordingly, the plaintiff's attorney failed to comply with the “mailing” requirements despite the what his office, and many other law offices, consider to be a “mailing”.
On a substantive review of the opposing papers, the Court finds that plaintiff's opposition to the underlying summary judgment motion is not sufficient to raise a question of fact as to whether plaintiff sustained a “serious injury”, within the meaning of Insurance Law § 5102(d). The 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. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 ; Short v. Meza, 17 AD3d 664 ; Boone v. New York City Tr. Auth., 263 A.D.2d 463 ).However, when defendant provides proof demonstrating, prima facie, the absence of any condition in plaintiff which might arguably meet the serious injury threshold of Insurance Law § 5102(d), the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Baez v. Rahanatali, 6 NY3d 868 ; Gaddy v. Eyler, 79 N.Y.2d 955 ; Staff v. Yshua, 59 AD3d 614 ). This Court agrees with Judge Leverett's determination that the plaintiff's deposition, his medical records and reports and the affirmed reports of defendant's experts satisfied the defendant's burden of proof for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. Therefore, it was plaintiff's burden to establish that a question of fact exists as to whether he sustained a serious injury.
The bill of particulars in this action alleges that the plaintiff sustained an injury to his right shoulder and cervical and lumbar sprain and strain with radiculopathy. The medical reports submitted in plaintiff's opposition to the summary judgment motion are dated in April and May, 2009, more than six years before this motion was made. Also submitted are MRI and ultrasound reports from tests performed in May of 2010. In the absence of a recent examination, projections of permanent limitations in those reports have no probative value (Hand v. Bonura, 283 A.D.2d 608 ; also see Perez v. Santiago, 59 AD3d 692 ; Batista v. Olivo, 17 AD3d 494 ).
The plaintiff has submitted a medical report of an examination of the plaintiff conducted on September 11, 2014 by Dr. Gautam Khakhar who found a right shoulder tendinopathy with limitations of motion which he attributes to the 2009 accident. This doctor concludes that the plaintiff “may continue to experience symptoms in the right shoulder,” since the plaintiff continued to have right shoulder pain five years post trauma. Dr. Khakhar also found that subsequent injuries in 2013 had exacerbated plaintiff's neck and low back injuries, but he does not describe the first subsequent accident which actually occurred on May 3, 2010, nor does he evaluate the seriousness of plaintiff's neck and back injuries. Therefore, the only injury which this doctor attributed to the 2009 accident was plaintiff's right shoulder tendinopathy.
Although the plaintiff testified that he did not injure his shoulder in the 2010 accident, there was no evidence that his right shoulder injury was not claimed in an action to recover for his 2010 injuries, which has now been settled. The plaintiff also ceased treatment for the injuries claimed in this action in less than six months after the subject 2009 accident because, as he testified at his deposition, it was not doing him any good. However, neither the plaintiff nor his doctors have provided a reasonable explanation for his cessation of treatment while claiming a “serious injury.” (See Pommells v. Perez, 4 NY3d 566, 574 ; Islam v. Apjeet Singh Makkar, 95 AD3d 1277 ; Hall v. Hecht, 92 AD3d 721 ; Torres v. Posy, 92 AD3d 676 ;). Therefore, the plaintiff's opposition to defendant's motion for summary judgment fails to demonstrate that the plaintiff sustained a “serious injury” within the requirements of Insurance Law § 5102(d).
Based upon all of the above, the plaintiff's motion to vacate and set aside the judgment, entered on January 29, 2015, dismissing the action is denied.
This action has been discontinued against the defendant, Joseph Didier.
This constitutes the decision and order of the Court.