Opinion
No. 020081/05.
2007-10-28
John McINTOSH, PlaintiffS, v. Dennis O'BRIEN, Garden State Engine & Equipment, David Delgado, Summit Restaurant Reps & Sales, Anthony Genduso, The New York City Department of Education, The City of New York, Broadway Neon Sign Corporation and Broadway National Sign Corporation, Defendants.
Steven Krentsel, Esq., Napoli, Bern, Krentsel & Guzman LLP, New York, for Plaintiff. John J. Bello, Jr., Esq., Martyn, Toher & Martyn, Mineola, for Dennis O'Brien, Garden State Engine & Equipment, Broadway Neon Sign Corporation and Broadway National Sign Corporation.
Steven Krentsel, Esq., Napoli, Bern, Krentsel & Guzman LLP, New York, for Plaintiff. John J. Bello, Jr., Esq., Martyn, Toher & Martyn, Mineola, for Dennis O'Brien, Garden State Engine & Equipment, Broadway Neon Sign Corporation and Broadway National Sign Corporation.
David A. Harrison, Esq., Stewart H. Friedman, Esq., Lake Success, for Summit Restaurant Reps & Sales and David Delgado.
Rebecca Marcus, Esq., Michael A. Cardozo, Corporation Counsel, Jamaica, for The New York City Department of Education and The City of New York.
KEVIN KERRIGAN, J.
The following papers numbered 1 to 19 read on this motion by defendants Dennis O'Brien, Garden State Engine & Equipment, Broadway Neon Sign Corporation and Broadway National Sign Corporation for summary judgment dismissing the complaint against said defendants, cross-motion by Summit Restaurant Repairs & Sales (s/h/a Summit Restaurant Reps & Sales)and David Delgado for summary judgment dismissing the complaint against said defendants and cross-motion by defendants Anthony Genduso, the Board of Education of the City of New York (s/h/a the New York City Department of Education) and the City of New York for leave to file a late motion for summary judgment and for summary judgment dismissing the complaint against said defendants.
+---------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +----------------------------------------------------+----------¦ ¦Notice of Motion–Affirmation–Exhibits ¦1–4 ¦ +----------------------------------------------------+----------¦ ¦ ¦ ¦ +----------------------------------------------------+----------¦ ¦Notice of “ross–Motion”–Affirmation–Exhibits ¦5–8 ¦ +----------------------------------------------------+----------¦ ¦ ¦ ¦ +----------------------------------------------------+----------¦ ¦Notice of “ross–Motion”–Affirmation–Exhibits ¦9–12 ¦ +----------------------------------------------------+----------¦ ¦ ¦ ¦ +----------------------------------------------------+----------¦ ¦Affirmation in Opposition–Memorandum of Law–Exhibits¦13–16 ¦ +----------------------------------------------------+----------¦ ¦ ¦ ¦ +----------------------------------------------------+----------¦ ¦Reply Affirmation–Exhibits ¦17–19 ¦ +---------------------------------------------------------------+
Upon the foregoing papers it is ordered that the motion and “cross-motions” are decided as follows:
Motion by O'Brien, Garden State and Broadway for summary judgment dismissing the complaint as against them based upon plaintiff's failure to sustain a serious injury is granted.
Plaintiff's contention that the instant motion is untimely is without merit. Although the note of issue was filed on March 20, 2007 and the instant motion was served on July 19, 2007, which is one day past the 120–day period within which a summary judgment motion must be made in the absence of any other date set by the Court ( seeCPLR 3212[a] ), the parties entered into a stipulation dated June 7, 2007 in the Compliance Conference Part that summary judgment motions may be made by August 17, 2007. Therefore, the instant motion is timely.
In order to obtain summary judgment, the movants must make a prima facie showing that they are entitled to said relief, by tendering evidentiary proof in admissible form sufficient to eliminate any material issues of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985];Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). Movants have met their burden. They have submitted evidence, in admissible form, to establish prima facie that plaintiff did not sustain a serious injury ( seeInsurance Law § 5102[a]; Gaddy v. Eyler 79 N.Y.2d 995 [1992] ).
Movants submit an affirmed report of their examining orthopedist, dated November 20, 2006, relating full ranges of motion of plaintiff's cervical and lumbar spines, left shoulder, left knee and left ankle by stating the ranges of motion in degrees and comparing these findings to the normal ranges of motion in degrees and stating the objective tests used to measure the ranges of motion. The orthopedist does note as part of plaintiff's medical history that a left shoulder MRI was performed on April 12, 2005 showing a “partial tear tendinosis distal supraspinatus tendon” (sic) and a “SLAP lesion”. However, the orthopedist found no limitations in plaintiff's left shoulder and opined that there was no correlation between the MRI readings and the examination.
The affirmed report of defendants' neurologist, dated August December 11, 2006, also relates full ranges of motion in plaintiff's cervical and lumbar spines by setting forth the ranges of motion in degrees and comparing same to the normal ranges of motion in degrees and also stating the objective tests used to measure the ranges of motion.
The burden then shifted to plaintiff to come forward with sufficient evidence to demonstrate that he did sustain a serious injury ( see Gaddy v. Eyler, supra ). Plaintiff has not met his burden.
In opposition to the motion, plaintiff submits an affirmed report of his examining orthopedist, dated August 22, 2007. The orthopedist states that plaintiff has a full range of motion in his cervical spine and there is no indication in the report that plaintiff complained of any pain or limitation with regard to his cervical spine.
He relates ranges of motion of plaintiff's shoulders but fails to compare these results with the normal ranges of motion or otherwise describe any limitations in the ranges of motion or functionality of plaintiff's shoulders.
Plaintiff's orthopedist relates range of motion restrictions in plaintiff's lumbar spine by comparing same to the normal ranges of motion. However, he fails to describe what objective tests he utilized to measure the ranges of motion ( see Hernan v. Church, 276 A.D.2d 471, 714 N.Y.S.2d 87 [2nd Dept 2000] ). He states that a straight-leg raising test was positive at 50 degrees, but fails to state what the normal ranges of motion should be.
His reference to the MRI study of plaintiff's lumbar spine, showing disc bulging, which study is annexed to the moving papers, in and of itself, does not create any questions of fact sufficient to defeat summary judgment ( see Kearse v. NYC Transit Authority, 16 A.D.3d, 45, 789 N.Y.S.2d 281 [2nd Dept 2005] ). His reference to the MRI study of plaintiff's left shoulder showing the partial tear tendinosis distal supraspinatus tendon and SLAP lesion and his conclusion that said tear was caused by the accident fail to raise an issue of fact as to serious injury in the absence of any admissible objective findings in his report of limitations in his shoulder.
Moreover, even had the report set forth admissible objective findings of limitations, it recites that subsequent to the accident on March 4, 2005, plaintiff was under the care of his treating physician and received physical therapy for approximately one month but fails to explain the gap or cessation in treatment. Therefore, the report is insufficient to raise triable issues of fact ( see Grossman v. Wright, 268 A.D.2d 79 [2000];Flores v. Singh, 13 A.D.3d 203, 786 N.Y.S.2d 491 [1st Dept 2004] ).
Furthermore, plaintiff submitted no medical affidavits or reports from any of his treating physicians. He failed to submit any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions that he sustained ( see Nemchyonok v. Ying, 2AD3d 421 [2nd Dept]; Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866 [2nd Dept]; Pajda v. Pedone, 303 A.D.2d 729, 757 N.Y.S.2d 452 [2nd Dept] ). Plaintiff's examination by his non-treating orthopedist on August 22, 2007, solely for the purpose of opposing the instant motion, was almost two and one-half years after March 4, 2005, the date the accident took place and is, therefore, in and of itself, insufficient to raise an issue of fact.
Counsel for plaintiff annexes to the opposition papers certified hospital records, but fails to discuss these records in any respect. Perusal of these records fails to reveal to this Court any indication of serious injury so as to raise an issue of fact.
Finally, plaintiff may not rely upon his claim that he sustained serious injury under the 90/180 category, inasmuch as he admits in his deposition (p. 8) that he was out of work from March to May 2005 and that in May 2005 he returned to work full time. In order to rely upon the 90/180 category, plaintiff must demonstrate “substantially all” of his usual activities were curtailed for a total of 90 out of 180 days immediately following the accident ( see Gaddy v. Eyler, 79 N.Y.2d 955 [1992];Licari v. Elliott, 57 N.Y.2d [1982] ). Being out of work for only two months precludes reliance on this category of serious injury ( see, Baker v. Zelem, 202 A.D.2d 617, 609 N.Y.S.2d 330 [2nd Dept 1994] ). Plaintiff has also failed to submit medical evidence connecting the inability to work with the alleged accident-related injuries ( see Di'Nunzio v. County of Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406 [2nd Dept 1998]; Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102 [2nd Dept 1991] ).
Accordingly, plaintiff has failed to rebut movants' prima facie showing that he did not sustain a serious injury.
Motion by Summit and Delgado (also erroneously denominated a “cross-motion”) for summary judgment dismissing the complaint as against them based upon plaintiff's failure to sustain a serious injury is also granted, for the reasons heretofore stated. Summit and Delgado rely upon the arguments presented in the motion by O'Brien, Garden State and Broadway.
The notice of “cross-motion” of Genduso, the Board of Education(s/h/a the Department of Education) and the City is deemed a notice of motion, since plaintiff was not a moving party ( seeCPLR 2215). Motion by said defendants for leave to file a late motion for summary judgment is denied.
Plaintiff filed a note of issue on March 20, 2007 and the instant motion was not served until September 13, 2007, fifty-seven days after the 120–day period for making summary judgment motions and 27 days past the stipulated deadline of August 17, 2007.
The explanation proffered for the failure to make the motion in a timely fashion—namely, that the City has an enormous caseload that places a challenging burden upon it to make timely summary judgment motions—does not constitute good cause so as to allow the instant cross-motion on such ground ( see Brill v. City of New York, 2 N.Y.3d 648 [2004] ).
Accordingly, motion by O'Brien, Garden State and Broadway for summary judgment is granted and the complaint is dismissed as against them, motion by Summit and Delgado is granted solely to the extent that plaintiff's cause of action with respect to the 90/180 day category of serious injury is dismissed, and motion by Genduso and the City for leave to move for summary judgment is denied.