Opinion
INDEX NO. 152704/2017
07-18-2019
GLORIA LIVINGSTON, LESLIE BURCH, Plaintiff, v. MOUSTAPHA AIDARA, CHEIKH BEYE, EMILY WHITE, TYQUAN BROWN, Defendant.
NYSCEF DOC. NO. 61 PRESENT: HON. ADAM SILVERA Justice MOTION DATE 10/31/2018 MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 49, 50, 51, 52, 54, 56, 57, 60 were read on this motion to/for JUDGMENT - SUMMARY.
Before the Court is defendant Moustapha Aidara and defendant Cheikh Beye's motion for summary judgment, for an Order pursuant to CPLR §3212 granting summary judgment in favor of defendants and to dismiss plaintiffs' complaint on the grounds that plaintiff Gloria Livingston and plaintiff Leslie Burch have failed to demonstrate that they suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law. Plaintiffs' oppose the motion.
This matter stems from a motor vehicle incident which occurred on January 1, 2016, at the intersection of 3rd Avenue and East 118th Street, in the County, City, and State of New York which allegedly led to the serious injury of plaintiffs.
Summary Judgment (Serious Injury)
Defendants' motion for summary judgment, pursuant to CPLR 3212, against plaintiffs on the issue of "serious injury" as defined under Section § 5102(d) of the Insurance Law is denied in part and granted in part. "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" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
In order to satisfy their burden under Insurance Law § 5102(d), a plaintiff must meet the "serious injury" threshold (Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 352 [2002] [finding that in order to establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury, plaintiff must establish the existence of either a "permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system"]).
Plaintiff Gloria Livingston
Defendants allege that plaintiff Gloria Livingston has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendants allege that the injuries plaintiff is seeking relief for to the cervical spine, lumbar spine, and thoracic spine are degenerative in nature and not related to the accident at issue. In support of their motion, defendants submit the October 8, 2018 independent medical evaluation report of Dr. Mark Decker, the February 22, 2018 independent medical evaluation report of Dr. Elizabeth Ortof and plaintiff's deposition (Mot, Exh E, F, G).
Dr. Ortof's report notes that plaintiff has a normal range of motion in both the cervical and lumbar spine (id, Exh E). Dr. Decker's report notes that plaintiff Livingston's injuries are not causally related to the date of the accident and that plaintiff suffers from degenerative disc disease of the cervical spine and the thoracic spine (id., F) Thus, defendants have made a prima facie showing of entitlement to summary judgment on the issue of serious injury and the burden now shifts to plaintiffs.
In opposition, plaintiffs' responding medical submissions fail to raise a triable issue of fact as to the thoracic and cervical spine. Plaintiff's medical reports fail to note that the accident at issue exacerbated plaintiff's degenerative conditions. In Rosa v Delacruz, 32 NY3d 1060, 2018 N.Y. Slip Op. 07040 [2018], the Court of Appeals found that where a plaintiff's doctor opined that tears were causally related to the accident, but did not address findings of degeneration or explain why the tears and physical deficits found were not caused by the preexisting degenerative conditions, plaintiff failed to raise a triable issue of fact as it "failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident" (See id.).
Here, plaintiff's medical reports fail to address plaintiff's supposed degenerative conditions to the cervical spine and thoracic spine. Plaintiff does not address the degenerative disease in both the cervical spine and thoracic spine as having been exacerbated by the accident. However, plaintiff does raise an issue of fact as to the lumbar spine. Plaintiff submits the January 9, 2019 medical report of Dr. Mark S. McMahon who recorded that after the accident, upon examination of plaintiff on May 6, 2016, that plaintiff suffered from a decrease in range of motion of 10 degrees to the lumbar spine (Aff in Op, Exh A). Pursuant to Lopez v Senatore, 65 NY2d 1017, 1020 [1985], the Court of Appeals has found that where the treating physician sets forth the injuries and course of treatment, a limitation of only 10 degrees is sufficient evidence for the denial of summary judgment to defendants. Thus, plaintiff has raised an issue of fact solely as to the lumbar spine and has failed to raise an issue of fact as to the cervical and thoracic spine. The branch of defendants' motion of summary judgment to dismiss plaintiff Gloria Livingston's complaint on the grounds that plaintiff has failed to demonstrate that she suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law is granted solely as to plaintiff's alleged cervical spine and thoracic spine injuries and denied as to plaintiff's lumbar spine injury.
Plaintiff Leslie Burch
Defendants allege that plaintiff Leslie Burch has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendants allege that the injuries plaintiff is seeking relief for to the cervical spine and lumbar spine are degenerative in nature and not related to the accident at issue. In support of their motion, defendants submit the October 23, 2018 independent medical evaluation report of Dr. Mark Decker, the February 22, 2018 independent medical evaluation report of Dr. Elizabeth Ortof and plaintiff's deposition (Mot, Exh H, I, & J).
Dr. Ortof's report notes that plaintiff has a normal range of motion in both the cervical and lumbar spine (id, Exh H). Dr. Decker's report notes that plaintiff's injuries are not causally related to the date of the accident and that plaintiff suffers from degenerative disc disease of the cervical spine and the lumbar spine (id., F) Thus, defendants have made a prima facie showing of entitlement to summary judgment on the issue of serious injury and the burden now shifts to plaintiff.
In opposition, plaintiffs' responding medical submissions fail to raise a triable issue of fact as to the cervical spine and lumbar spine. The medical reports fail to note that the accident at issue exacerbated plaintiff's degenerative conditions and is deficient pursuant to Rosa, 32 NY3d 1060 [2018]. Thus, plaintiffs have failed to raise an issue of fact as to plaintiff Leslie Burch's injuries and the branch of defendants' motion for summary judgment to dismiss the complaint of Leslie Burch for failure to demonstrate that she suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law is granted.
Accordingly, it is
ORDERED that the branch of defendants' motion for summary judgment, on the grounds that plaintiff Gloria Livingston has not sustained a "serious injury" as defined in 5102 and 5104 of the Insurance Law, is granted solely as to the cervical and thoracic spine and denied as to the lumbar spine; and it is further
ORDERED that the branch of defendants' motion for summary judgment, on the grounds that plaintiff Leslie Burch has not sustained a "serious injury" as defined in 5102 and 5104 of the Insurance Law is granted; and it is further
ORDERED that the complaint of Leslie Burch is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption read as follows:
GLORIA LIVINGSTON Plaintiff,
-against-
MOUSTAPHA AIDARA, CHEIKH BEYE, EMILY P. WHITE and TYQUAN BROWN Defendants
Index No. 152704/2017
and it is further;
ORDERED that within 30 days of entry, defendants Moustapha Aidara and Cheikh Beye shall serve a copy of this decision/order upon all parties with notice of entry.
This constitutes the Decision/Order of the Court. 7/18/2019
DATE
/s/ _________
ADAM SILVERA, J.S.C.