Opinion
Index 618564/2018
01-12-2021
NICHOLAS TAYLOR, Plaintiff, v. MDATIQUZ ZAMAN, JEB TECH, INC., and CBERGQUIST, Defendants.
CARL P. MALTESE, ESQ. Attorney for Plaintiff BAKER MCEVOY MORRISSEY, P.C. Attorney for Defendants Zaan and Jeb Tech SCAHILL LAW GROUP, P.C. Attorney for Defendant
Unpublished Opinion
MOTION DATE 8/7/20 (002), 9/24/20 (003)
ADJ. DATE 10/29/20
CARL P. MALTESE, ESQ. Attorney for Plaintiff
BAKER MCEVOY MORRISSEY, P.C. Attorney for Defendants Zaan and Jeb Tech
SCAHILL LAW GROUP, P.C. Attorney for Defendant
PRESENT: Hon. JOSEPHA. SANTORELLI Justice of the Supreme Court
HON. JOSEPH A. SANTORELLI, JUSTICE
Upon the following papers read on this motion and cross motion for summary judgmen: Notice of Motion/ Order to Show Cause and supporting papers by Zaman defendants, dated July 10, 2020; Notice of Cross Motion and supporting papers by defendant Bergquist. dated August 26, 2020; Answering Affidavits and supporting papers by plaintiff, dated September 15, 2020; Replying Affidavtts and supporting papers by defendants, dated September 22, 2020. and October 27, 2020; Other ___; it is.
ORDERED that the motion by defendants Mdatiquz Zaman, and JEB Tech, Inc. seeking summary judgment dismissing the complaint is denied; and it is further
ORDERED that the cross motion by defendant C. Bergquist seeking summary judgment dismissing the complaint is denied.
Plaintiff Nicholas Taylor commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Montauk Highway and Lambert Avenue in the Town of Brookhaven on April 25, 2017. It is alleged that the accident occurred when the vehicle operated by defendant Mdatiquz Zaman and owned by defendant JEB Tech, Inc. struck the rear of the vehicle owned and operated by plaintiff while it was stopped at a red light on westbound Montauk Highway. Following the impact with the Zaman vehicle, the rear of plaintiff s vehicle was struck by the vehicle owned and operated by defendant C. Bergquis.. As a result of the impact between defendant Bergquistss vehicle and plaintiffs vehicle, plaintiffs vehicle was propelled forward into the preceding stopped vehicle. At the time of the accident, defendant Zaman was acting within the scope of his employment with defendant JEB Tech, Inc. By his bill of particulars, plaintiff alleges, among other things, that he sustained various personal injuries as a result of the subject collision, including multilevel disc bulges of the cervical and lumbar spines, an aggravation and exacerbation of a pre-exisiing cervical spine condition.
Defendants Mdatiquz Zaman, and JEB Tech, Inc. (hereinafter the Zaman defendants) now move for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law 9 5102 (d). In support of the motion, the Zaman defendants submit, among other things, copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Mark Decker and Dr. Jesu Jacob. Dr. Jacob, at the Zaman defendants' request, conducted an independent orthopedic examinaiion of plaintiff on March 6, 2020. Dr. Decker, also at the Zaman defendants' request, performed an independent radiological review of the magnetic resonance images ("MRI") films of plaintiff s cervical and lumbar spines taken on August 22, 2017. Plaintiff opposes the motion on the grounds that defendants have failed to meet their prima facie burden, and that the evidence submitted in opposition demonstrates that he sustained an injuries within the "limitations of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits his own affidavit, uncertified copies of his medical records pertaining to the injuries at issue, and the sworn medical reports of Dr. Brian McNulty, Dr. Mindy Pfeffer, and Dr. Musarrat Iqbal.
It has long been established that the "legislative intent underlying the No-Fautt Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 600 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984], affd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law 9 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismembermen;; significant disfiguremen;; a fracture; loss of a fetus; permanent loss of use of a body organ member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such personss usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fautt Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewsk,, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Based upon the adduced evidence, the Zaman defendants have failed to satisfy their prima facie burden that plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; McGee v Bronne,, 188 A.D.3d 1033, 132 N.Y.S.3d 692 [2d Dept 2020]). The Zaman defendants failed to proffer competent medical evidence to establish that plaintiff did not sustain a serious injury to his spine within the meaning of the limitations of use categories of the Insurance Law, since their orthopedic expert, Dr. Jacob, found significant range of motion limitations in this region during his examinaiion of plaintiff (see Williams v Maleachern, 186 A.D.3d 1462, 128 N.Y.S.3d 851 [2d Dept 2020]; Singleton vF&R Royal, Inc., 166 A.D.3d 837, 88 N.Y.S.3d 81 [2d Dept 2019]; Nurjez v Teel, 162 A.D.3d 1058, 75 N.Y.S.3d 541 [2d Dept 2018]), and failed to explain or substantiate with any objective medical evidence his opinion that such limitations were voluntary (see Quiceno v Mendoza, 72 A.D.3d 669, 897 N.Y.S.3d 643 [2d Dept 2010]; Chun Ok Kim v Orouke, 70 A.D.3d 995, 893 N.Y.S.2d 892 [2d Dept 2010]; Moriera v Durango, 65 A.D.3d 1024, 886 N.Y.S.2d 45 [2d Dept 2009]). In addition, despite the Zaman defendants' radiologic expert, Dr. Decker, stating in his report that plaintiffs alleged injuries to his cervical and lumbar regions are longstanding and degenerative in nature and not causally related to the subject accident, his conclusions fail to show that the limitations noted by Dr. Jacob were not the result of an exacerbation caused by the subject accident (see Rodgers v Duffy, 95 A.D.3d 864, 944 N.Y.S.2d 175 [2d Dept 2012]; Edouazin v Champlain, 89 A.D.3d 892, 933 N.Y.S.2d 85 [2d Dept 2011]). In fact, neither Dr. Decker nor Dr. Jacob addressed plaintiffs allegations in his bill of particulars that the subject accident exacerbated/aggravated a pre-exisiing spinal condition (see Little v Ajah, 97 A.D.3d 801, 949 N.Y.S.2d 109 [2d Dept 2012]; Pero v Transervice Logisiics, Inc., 83 A.D.3d 681, 920 N.Y.S.2d 364 [2d Dept 2011]; Rabinomtz v Kahl, 78 A.D.3d 678, 910 N.Y.S.2d 216 [2d Dept 2010]). Therefore, the proof submitted by the Zaman defendants failed to objectively demonstrate that plaintiff did not suffer a permanent consequential or significant limitation of use of her spine as a result of the subject accident (see Pupko v Hassan, 149 A.D.3d 988, 50 N.Y.S.3d 295 [2d Dept 2017]; Fudol v Sullivan, 38 A.D.3d 593, 831 N.Y.S.2d 504 [2d Dept 2007]; Abraham v Bella, 29 A.D.3d 497, 816 N.Y.S.2d 118 [2d Dept 2006]).
Since the Zaman defendants have failed to meet their prima facie burden, it is unnecessary for the Court to consider whether plaintiffs papers in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867 [2d Dept 2011]; Gibson-Wallace v Dalessandro, 58 A.D.3d 679, 872 N.Y.S.2d 156 [2d Dept 2009]). Accordingly, the Zaman defendants' motion for summary judgment dismissing the complaint is denied.
Defendant Bergquist cross-moves for summary judgment on the basis that plaintiffs injuries do not come within the meaning of the serious injury threshold requirement of the Insurance Law. In support of the motion, defendant submit copies of the pleadings, plaintiffs deposition transcript, and the sworn medical report of sworn medical reports of Dr. David Weissberg, Dr. Mathew Chacko, and Dr. Jonathan Lerner. At defendant Bergquistss request, Dr. Weissberg conducted an independent orthopedic examination of plaintiff on November 27, 2019. Also at defendant Bergquist request, Dr. Chacko conducted an independent neurologic examination of plaintiff on January 20, 2020. Lastly, Dr. Lerner, at defendant Bergquistss request, performed an independent radiologic review of the MRI studies of plaintiffs cervical spine taken on August 22, 2017. Plaintiff opposes the motion on the grounds that defendant Bergquist failed to meet his prima facie burden, and that the evidence submitted in opposition demonstrates that he sustained an injuries within the limitations of use and the 90/180 categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits his own affidavit, uncertified copies of his medical records pertaining to the injuries at issue, and the sworn medical reports of Dr. Brian McNulty, Dr. Mindy Pfeffer, and Dr. Musarrat Iqbal.
Here, defendant Bergquist has failed to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Section 5102(d) of the Insurance Law (see Hernandez v Pagan Corp., 174 A.D.3d 513, 101 N.Y.S.3d637 [2d Dept 2019]; Mercado v Mendoza, 133 A.D.3d 833, 19 N.Y.S.3d 757 [2d Dept 2015]; Farrah v Pinos, 103 A.D.3d 831, 959 N.Y.S.2d 741 [2d Dept 2013]). Defendant Bergquist has submitted contradictory evidence in support of his motion. While Dr. Weissberg concludes, following an examinaiion of plaintiff, that plaintiff has full range of motion in his spine and that the spinal injuries he allegedly sustained have resolved, Dr. Chacko found significant range of motion limitations in plaintiffs cervical and lumbar regions during his examinaiion of plaintiff, which occurred almost three years after the subject accident (see Britt v Bustamante, 77 A.D.3d 781, 909 N.Y.S.2d 138 [2d Dept 2010]; Kjono v Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157 [2d Dept 2010]; Held v Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246 [2d Dept 2009]). Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significan,, and varying inferences may be drawn, an issue of credibility for the jury has been presented (see Barrett v New York City Tr. Auth,, 80 A.D.3d 550, 914 N.Y.S.2d 269 [2d Dept 2011]; Jacobs v Rolon, 76 A.D.3d 905, 908 N.Y.S.2d 31 [1st Dept 2010); Mercado-Arif v Garcia, 74 A.D.3d 446, 902 N.Y.S.2d 72 [1st Dept 2010]). The discrepancies between defendant Bergquist's experts create an issue of fact for the jury to determine (see Martinez v Pioneer Transp. Corp., 48 A.D.3d 306, 851 N.Y.S.2d 194 [1st Dept 2008]; Martin v Schwartz, 308 A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]; Velasquez v Quijada, 269 A.D.2d 592, 703 N.Y.S.2d 518 [2d Dept 2000]).
Additionally, defendant Bergquist's examining radiologis,, Dr. Lerner, states in his report that plaintiff suffers from osteoarthritis and degenerative disc disease, which are chronic degenerative process changes, and not attributable to an acute traumatic event. Dr. Lerner further states that there is no causal relationship between the subject accident and plaintiffs alleged injuries. Dr. Lerner also obliquely states that the findings, such as disc bulges, spondylolisthesis, disc degeneration and disc loss are so common in patients in plaintiff s age group that they must be interpreted with caution and in the context of a clinical setting. However, like Drs. Weissberg and Chacko, Dr. Lerner fails to address plaintiffs allegation that the subject accident exacerbated his pre-exisiing cervical spin~ condition (see D'Augustino v Bryan Auto Parts, Inc., 152 A.D.3d 648, 59 N.Y.S.3d 104 [2d Dept 2017]; Washington v Asdotel Enters., Inc., 66 A.D.3d 880, 887 N.Y.S.2d 623 [2d Dept 2009]). Consequently, Dr. Lerner's conclusions are speculative, unsubstantiated, and without probative value (see Irizarry v Lindor, 110 A.D.3d 846, 973 N.Y.S.2d 296 [2d Dept 2013]; Casimir v Bailey, 70 A.D.3d 994, 896 N.Y.S.2d 112 [2d Dept 2010].. As a result, defendant Bergquitss evidence raises triable issues of fact as to whether plaintiff sustained an injury within the limitations of use or the 90/180 categories of the Insurance Law (see 0ffman v Singh, 27 A.D.3d 284, 833 N.Y.S.2d 56 [1st Dept 2006]; Korpalski v Lau, 17 A.D.3d 536, 793 N.Y.S.2d 195 [2d Dept 2005]). Further, defendant Bergquistss evidentiary submissions demonstrated the existence of a triable issue of fact as to whether the alleged injuries sustained by plaintiff were caused by the subject accident (see Straussberg v Marghub, 108 A.D.3d 694, 968 N.Y.S.2d 898 [2d Dept 2013]; Synderv Rivera, 98 A.D.3d 1104, 951 N.Y.S.2d 233 [2d Dept 2012]).
Inasmuch as defendant Bergquist failed to meet his prima facie burden of establishing entitlement to judgment as a matter of law, the Court need not address the sufficiency of the papers submitted in opposition to the motion by the plaintiff (see Werthner v Lems, 120 A.D.3d 490, 990 N.Y.S.2d 267 [2d Dept 2014]; Keenum v Atkins, 82 A.D.3d 843, 918 N.Y.S.2d 547 [2d Dept 2011]). Accordingly, defendant Bergquist's motion for summary judgment dismissing the complaint is denied.