Opinion
500426/17
10-01-2020
Crispin MEJIA-MORAN and German Mejia-Moran, Plaintiff, v. Jean K. CORRIELUS and Taki Good Taxi, LLC, Defendants.
Attorney for Crispin Mejia-Moran and German Mejia-Moran, Elefterakis Elefterakis & Panek, P.C., 80 Pine Street, New York, NY 11208. Attorney for Jean K. Corrielus and Taki Good Taxi, LLC., Baker, McEvoy, Morrissey & Moskovits, P.C., One Metrotech Center, Brooklyn, NY 11201, (212) 857-8230.
Attorney for Crispin Mejia-Moran and German Mejia-Moran, Elefterakis Elefterakis & Panek, P.C., 80 Pine Street, New York, NY 11208.
Attorney for Jean K. Corrielus and Taki Good Taxi, LLC., Baker, McEvoy, Morrissey & Moskovits, P.C., One Metrotech Center, Brooklyn, NY 11201, (212) 857-8230.
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on August 20, 2019, under motion sequence number two, by plaintiffs Crispin Mejia-Moran (hereinafter Crispin M. M.) and German Mejia-Moran (hereinafter German M. M.), (hereinafter collectively as the plaintiffs or the Morans) for an order: (1) precluding defendants Jean K. Corrielus and Taki Good Taxi, LLC, Corp., for failing to appear for an examination before trial; or (2) in the alternative, upon preclusion, granting the plaintiffs summary judgment against the defendants on the issue of liability pursuant to CPLR 3212 ; and (3) striking the defendants' second and fourth affirmative defenses. The defendants oppose the motion.
Notice of Motion
Affirmation in Support
Affirmation of Good Faith
Exhibits A to I
Opposition by the Plaintiffs
Exhibits A to C
Affirmation in Reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on August 20, 2019, under motion sequence number one, by defendants Jean K. Corrielus (hereinafter Corrielus) and Taki Good Taxi, LLC, Corp. (hereinafter Taki) (collectively as defendants), for an order pursuant to CPLR 3212 granting summary judgment in favor of the defendants and dismissing the complaint of the Morans on the grounds that, among other things, that plaintiffs cannot meet the serious injury threshold requirement as mandated by Insurance Law §§ 5104 (a) and 5102 (d). The plaintiffs oppose the motion.
Notice of Motion
Affirmation in Support
Exhibits A to K
Affirmation in Opposition to Defendants' Motion
Exhibits A to J
BACKGROUND
On January 9, 2017, the Morans commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office.
The Morans' verified complaint and deposition testimony allege the following salient facts among others. On April 19, 2014, at 2:30 A.M., Corrielus was operating a livery car bearing license plate number 6V44A (hereinafter the defendants' vehicle) with the knowledge and permission and within the scope of his employment with Taki. On that date and time, the Morans were back seat passengers in the defendants' vehicle. Corrielus was driving on Amsterdam Avenue at or near its intersection with West 119th Street in New York County, State of New York. Corrielus collided with a parked vehicle bearing license plate number FDT9367, due to his negligent operation of the defendants' vehicle. The collision caused each of the Morans to sustain serious physical injury.
LAW AND APPLICATION
The Morans' Motion for Preclusion
The relief requested in the Morans' notice of motion and in their counsel's affirmation in support state that they seek an order precluding the defendants for failing to appear for an examination before trial. CPLR 2214 (a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor ( Abizadeh v Abizadeh , 159 AD3d 856, 857 [2nd Dept 2018] ). The Morans, however, did not explain what they are seeking to preclude. By their failure to explain what they were seeking to preclude, their motion failed to comply with CPLR 2214 (a).
Assuming for the sake of argument that the Morans were seeking to preclude the defendants from offering evidence in defense of the action, the motion contains another procedural defect.
Uniform Court Rule § 202.7 provides that no motion relating to disclosure shall be filed with the court unless it is accompanied by an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. Such affirmation must indicate the time, place and nature of the consultation and the issues discussed and any resolutions (see 22 NYCRR 202.7 [c] ).
The affirmation of good faith submitted by the Morans consisted of two allegations of fact. The first allegation identified the affiant as counsel to the Morans. The second allegation of fact stated in sum and substance that the affiant attempted to resolve by agreement the outstanding discovery without the intervention of the Court and was unable to do so. The affirmation of good faith submitted by Morans' counsel does not satisfy 22 NYCRR 202.7 (c), as it did not refer to any communications between the parties that would evince a diligent effort by the Morans to resolve the present discovery dispute or indicating good cause why no such communications occurred ( Murphy v. County of Suffolk , 115 AD3d 820 [2nd Dept 2014], citing 22 NYCRR 202.7 [c]; Matter of Greenfield v. Board of Assessment Review for Town of Babylon , 106 AD3d 908 [2nd Dept 2013] ). Accordingly, this branch of the Morans' motion should be denied.
The second branch of the Morans' motion states that upon preclusion, the Morans should be granted summary judgment in their favor on the issue of liability. This branch of the motion is ambiguous because it is unclear whether the Morans are seeking summary judgment, if preclusion is denied or if they seeking summary judgment only if preclusion is granted. The defendants' opposition papers demonstrate that they understood that the second branch of the motion was only triggered if the Court granted the Morans' preclusion request. The Court resolves the ambiguity in the manner that the defendants understood it. Consequently, the Court finds that this branch of the motion, as stated, is solely triggered if the Court grants the Morans' motion for preclusion. Inasmuch as the Court is denying the Morans' request for preclusion, this branch of the Morans' motion is not reached.
The third branch of the Morans' motion seeks an order striking the second and third affirmative defenses for failing to appear for an examination before trial. As previously stated, the affirmation of good faith did not comply with 22 NYCRR 202.7 (c). It should be denied on that basis. However, the same ambiguity applies to the third branch of the Morans' motion. Once again, the defendants understood that this branch was also only triggered by the Court granting preclusion in the first branch of the motion. Once again, the Court resolves the ambiguity in the manner that the defendants understood it. Consequently, the Court does not reach the third branch of the Morans' motion.
Defendants' Motion for Summary Judgment Seeking Dismissal
The defendants seek an order pursuant to CPLR 3212 dismissing the verified complaint on the basis that the plaintiffs did not suffer a serious injury as defined by New York State's Insurance Law § 5102 (d). As the moving party, the defendants initially have the burden to establish that plaintiffs did not sustain a "serious injury" within the meaning of the statute (see Nolasco-Ochoa v. Kollanethu, 181 AD3d 689 [2nd Dept 2020] , citing Toure v. Avis Rent A Car Sys. , 98 NY2d 345 [2002] ; see e.g . Gaddy v. Eyler, 79 NY2d 955, 956—957[1992] ).
"A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" ( Nunez v. Teel , 162 AD3d 1058, 1059 [2nd Dept 2018], quoting Grossman v. Wright , 268AD2d 79, 83 [2nd Dept 2000] ). "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" ( Grossman , 268 AD2d at 84 ).
In support of the motion the defendants submitted, among other things, the affirmed independent medical examination report of Dr. Barbara Freeman (hereinafter Dr. Freeman), an orthopedist hired to examine plaintiffs Crispin M. M. on February 5, 2019 and German M.M. on April 3, 2018.
Crispin M.M. claimed, among other things, injuries to both shoulders. Dr. Freeman who examined Crispin M.M. nearly five years after the accident, performed range of motion testing, the results of which were submitted in Dr. Freeman's affirmed report. Dr. Freeman found range of motion restrictions in flexion and in abduction on both shoulders (see Mullen v. Lauffer , 31 AD3d 402, 403 [2nd Dept 2006] ; see also Mondesir v. Ahmed , 175 AD3d 1291, 1291 [2nd Dept 2019] ). Dr. Freeman stated what was normal for extension and adduction but did not compare what was normal with the findings of the plaintiff (see Frasca-Nathans v. Nugent 78 AD3d 651, 652 [2nd Dept 2010] ).
Dr. Freeman performed range of motion testing on German M. M.'s cervical spine and concluded that the test results were within normal limits. Dr. Freeman's affirmed report, however, did not compare the test findings to what was normal (see Frasca-Nathans , 78 AD3d 651 ).
For all the foregoing reasons, the defendants failed to meet their prima facie burden of showing that the plaintiffs did not sustain serious injuries within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002] ; Gaddy v. Eyler, 79 NY2d 955, 956—957 [1992] ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the Morans in opposition were sufficient to raise a triable issue of fact (see Mondesir , 175 AD3d at 1291-92 ).
CONCLUSION
The motion by plaintiffs Crispin Mejia-Moran and German Mejia-Moran for an order precluding defendants, Jean K. Corrielus and Taki Good Taxi, LLC, Corp for failing to appear for an examination before trial is denied.
The motion by plaintiffs Crispin Mejia-Moran and German Mejia-Moran for an order, upon preclusion, granting the plaintiffs summary judgment against the defendants on the issue of liability is not reached.
The motion by plaintiffs Crispin Mejia-Moran and German Mejia-Moran for an order, upon preclusion, striking the defendants' second and fourth affirmative defenses is not reached.
The motion by defendants Jean K. Corrielus and Taki Good Taxi, LLC, Corp. for an order granting summary judgment and dismissing the complaint of plaintiffs Crispin Mejia-Moran and German Mejia-Moran on the grounds that, among other things, that plaintiffs cannot meet the serious injury threshold requirement as mandated by Insurance Law §§ 5104 (a) and 5102 (d) is denied.
The foregoing constitutes the decision and order of this Court.