Opinion
Index No. 715426/2019 Mot Seq :001
01-10-2022
MATTHEW SANDERS and NATANYA WHITE, Plaintiffs, v. ROBERT SAURO and ANTONETTA SAURO, Defendants.
Unpublished Opinion
Present: HON. PAM JACKMAN BROWN Justice
HON. PAM JACKMAN BROWN, JSC
Recitation, as required by CPLR § 2219(a), of the following papers read on this motion by Defendants for an Order: pursuant to CPLR §3212 granting Defendants summary judgment and dismissing the Plaintiff MATTHEW SANDERS' Complaint against Defendants on the grounds that Plaintiff MATTHEW SANDERS did not incur a "serious injury" as defined under NY Insurance Law §5102(d), and as such, has no cause of action under NY Insurance Law §5104(a), and for such other and further relief as this Court deems just, proper and equitable.
PAPERS E-FILED NUMBERED
Papers
Exhibits
Notice of Motion, Statement of Materials, Affirmation/Affidavit in Support, Affidavit of Service
10-12, 18
14-17
Affirmation/Affidavits in Opposition, Affidavit of Servic Affidavit/ Affirmation in Reply
20,26
21-25
After oral argument on November 16, 2021, and a review of the submissions herein, the Court finds as follows:
This is an action by Plaintiffs to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident, which occurred on July 23, 2019 on Francis Lewis Blvd and 231 Street, Queens, New York. Plaintiff Matthew Sanders (hereinafter referred to as "Plaintiff Sanders") was the driver of the vehicle and Plaintiff Natanya White (hereinafter referred to as "Plaintiff White") was the passenger. Plaintiffs were allegedly stricken by the vehicle driven by Defendant Robert Sauro (hereinafter referred to as "Defendant R. Sauro") but owned by Defendant Antonetta Sauro (hereinafter referred to as "Defendant A. Sauro"). Plaintiffs commenced this action with the filing of a Summons and Verified Complaint on March 26, 2018.
Now, upon motion, both Defendants claim an entitlement to summary judgment and seek dismissal of the compliant on the grounds that Plaintiff Sanders did not suffer a serious injury as required by Insurance Law Section 5102(d). Plaintiff Sanders opposes the application.
"The proponent of a summary judgment motion must make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [Ct App 1986]). Thereafter, the opponent to the motion must show that there are issues of fact to be determined.
In support of the instant motion, Defendants provided the transcript of Plaintiff Sanders, the Bill of Particulars and the medical report of Dr. Stuart Singer. Dr. Stuart
Springer, Board Certified Orthopedic Surgeon, examined Plaintiff Sanders on July 14, 2020. After the examination, Dr. Springer concluded his impression of Plaintiff Sanders indicates the cervical spine sprain/strain is resolved as well as the lumbar spine sprain/strain. Further, Dr. Springer states the left shoulder sprain/strain is resolved. In his professional opinion, Plaintiff Sanders is able to work and perform all activities of daily living without restriction. Dr. Springer indicates the decreased range of motion in the left shoulder is subjective. He further states that based on the information provided, Plaintiff Sanders was at one point receiving therapy for his injuries but is no longer receiving therapy.
The transcript of Plaintiff Sanders states no surgery was recommended for his injuries. He received treatment for his neck. After Plaintiff Sanders stopped treatment, his neck was" a lot better than what it was." On a scale of zero to ten (zero being the lowest), Plaintiff Sanders stated his neck remained at a constant eight when he first received treatment. At the time of the deposition, the pain was rated as a "five." Further, Plaintiff Sanders also stated he does not really feel pain in his right knee. At the time of the deposition, Plaintiff Sanders was no longer receiving treatment from Dr. Bayner, the doctor who treated his initial injuries. Plaintiff Sanders further testified that after the accident, he was limited in his daily activities such as washing dishes, making the bed and vacuuming. He was further limited in activities involving the rotation of his shoulder.
Plaintiff Sanders further testified due to the alleged injuries sustained as a result of the July 2019 accident, he missed a month and a half of work. He was able to work, do dishes, vacuum, make the bed, and lift items prior to the accident but struggled with those tasks after the accident. Plaintiff Sanders testified he still has pain within his neck, but he is able to use his neck. He also testified to the same in regard to his knees and left shoulder.
Based on the above, Defendant has established prima facie that Plaintiff Sanders did not sustain a serious injury and has met the requirement for summary judgment. However, Plaintiff Sanders must then show that there is a serious injury, a connection to the accident and that there are issues of fact to be determined at trial.
Plaintiff Sanders has submitted in support of the opposition, the report of Dr. Stephanie Bayner and the MRIs of Plaintiff Sanders' left shoulder, cervical spine and lumbar spine.
Dr. Stephanie Bayner, the physician who examined Plaintiff Sanders on May 21, 2021 combined both the examination as well as previous medical records and statements in reaching her professional opinion regarding the alleged injuries. Dr. Bayner states in her opinion, within a reasonable degree of medical certainty, Plaintiff Sanders' injuries include but are not limited to lumbago, thoracalgia, post-traumatic headaches, myofascial pain syndrome, cervicalgia and were casually related to the accident in question. Dr. Bayner further disputed that the alleged injuries are not completely resolved.
Accordingly, the instant motion filed by Defendants, to dismiss Plaintiffs' complaint for failure to meet the serious injury threshold according to Insurance Law § 5102 and as such has no cause of action under NY Insurance Law § 5104, is denied upon finding that there is a disagreement between the medical experts regarding the nature and context of the serious injury warranting a trial. The foregoing constitutes the Decision and Order of this Court resolving motion sequence #001. Dated: January 10, 2022 Jamaica, NY HON. PAM JACKMAN BROWN, JSC