Opinion
INDEX NO. 158914/2016
09-25-2019
JUSTIN MARTIN Plaintiff, v. AMOS GERMAN, Defendant.
NYSCEF DOC. NO. 43 MOTION DATE 01/03/2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
HON. ADAM SILVERA: The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ORDERED that defendant Amos F. German's motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff, Justin Martin's on the grounds that plaintiff has failed to demonstrate that plaintiff has suffered a "serious injury" as defined under Section 5102(d) of the Insurance Law is denied. Plaintiff opposes the motion.
This matter stems from a motor vehicle incident which occurred on March 22, 2016, in the County, City and State of New York, which allegedly led to plaintiff's serious injury. Defendant's motion for summary judgment, pursuant to CPLR 3212, against plaintiff on the issue of "serious injury" as defined under Section § 5102(d) of the Insurance Law is denied.
"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 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"]).
Defendant alleges that plaintiff has failed to demonstrate the existence of a "serious injury" as defined under Section 5102(d) of the Insurance Law. Defendant alleges that the injuries plaintiff is seeking relief for are not causally related to the underlying accident and are a result of degenerative changes. Defendant attaches the deposition of plaintiff, the affirmations of Dr. Robert S. April, Dr. Barbara Freeman, and Dr. Mark J. Decker (Mot, Exh E, F, G, & H). Defendant notes that plaintiff testified that he was involved in a prior basketball related injury wherein he injured his right wrist in addition to a prior motor vehicle accident as a bicyclist (id., Exh E at 37-41).
The July 17, 2018 report of Dr. April concludes that the accident of record did not produce a neurological diagnosis (Exh F). Dr. Freeman's July 24, 2018 report found that plaintiff had no orthopedic disability, and that the findings regarding plaintiff's right wrist are consistent with a chronic preexisting disease (id., Exh G). Dr. Decker's November 22, 2018 report found that plaintiff's left wrist, right wrist, and left shoulder exhibited degenerative changes and that no evidence suggested a traumatic injury to either hand as well as the cervical spine (id., Exh H). 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, plaintiff's responding medical submissions raise a triable issue of fact as to plaintiff's alleged degenerative injuries. 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, in contrast to the plaintiff in Rosa, plaintiff, submits an opinion from her doctors which address findings of degeneration. Plaintiff submits the certified records and May 2, 2019 affirmed report of Dr. Joyce Goldenberg, certified Lennox Hill radiology records, certified records and May 21, 2019 affirmed report of Dr. Steven Yang, and plaintiff's deposition (Aff in Op, Exh A-D). Dr. Yang found that plaintiff suffered bilateral wrist tears as a result of the accident at issue (id. Exh C). Dr. Yang affirmed that plaintiff sustained a serious injury as a result of the accident at issue.
Dr. Goldenberg concludes that plaintiff suffered permanent injuries to the cervical spine, lumbar spine, left shoulder, and bilateral wrists as a result of the March 22, 2016 accident (Aff in Op, Exh A). Dr. Goldenberg demonstrates losses of range in motion in all the aforementioned body parts (id.). As to plaintiff's alleged degenerative conditions, Dr. Goldenberg specifically addresses the findings of Dr. Decker and states that he disagrees with Dr. Decker's findings after personally reviewing the MRIs which Decker reviewed to come to his diagnosis (id.). Thus, as plaintiff's doctor has contradicted the findings of Dr. Decker and explained how he came to his conclusion that plaintiff's injuries are causally related to the accident at issue and not as a result of degeneration, plaintiff has raised an issue of fact precluding summary judgment on the issue of "serious injury" as defined in 5102 of the Insurance Law.
Accordingly, it is
ORDERED that defendant's motion for summary judgment to dismiss plaintiff's Complaint on the grounds that plaintiff allegedly has not sustained a "serious injury" as defined in 5102 of the Insurance Law is denied; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all defendant with notice of entry.
This constitutes the Decision/Order of the Court. 9/25/2019
DATE
/s/ _________
ADAM SILVERA, J.S.C.