Opinion
513392/2016
01-30-2018
Jaquan T. WASHINGTON, Plaintiff, v. Shaquille K. LAWRENCE and Prabdeep Kaur, Defendants.
Prado & Tuy, LLP, 305 Broadway—7th Floor, New York, NY 10007, 212–688–8888, Attorney for Plaintiff Fawziyyah W. Madyun, Esq., Adams & Kaplan, One Executive Boulevard, Suite 280, Yonkers, NY 10701, (914) 233–1880, Attorney for Defendants
Prado & Tuy, LLP, 305 Broadway—7th Floor, New York, NY 10007, 212–688–8888, Attorney for Plaintiff
Fawziyyah W. Madyun, Esq., Adams & Kaplan, One Executive Boulevard, Suite 280, Yonkers, NY 10701, (914) 233–1880, Attorney for Defendants
Francois A. Rivera, J.
By notice of motion electronically filed on December 18, 2017, under motion sequence number two, defendants Shaquille K. Lawrence and Prabdeep Kaur (hereinafter the moving defendants), have moved pursuant to CPLR 3212 and Insurance Law § 5102 (d) for an order granting summary judgment dismissing the complaint of plaintiff Jaquan T. Washington (hereinafter Washington) on the basis that he did not sustain a serious injury. Washington did not submit opposition to the motion.
BACKGROUND
On August 3, 2016, Washington commenced this action for damages for personal injuries by filing a summons and verified complaint. Issue was joined by the moving defendants' joint answer, dated August 8, 2016.
Washington's verified complaint is for personal injuries sustained in a motor vehicle collision. The verified complaint and verified bill of particulars allege, among other things, that at 7:52 am of the morning of November 17, 2015, Washington was driving his 2012 Infiniti motor vehicle on Exit 15 Corona Avenue off the Southern State Parkway, in the Town of Hempstead, County of Nassau, when he was struck by a 2002 BMW owned and operated by the defendants. Washington claims the collision was due to the defendants' negligent operation of their vehicle.
DEFENDANTS' MOTION PAPERS
Defendants' motion papers consists of their attorney's affirmation and seven exhibits labeled A through G. Exhibit A is a copy of the summons, verified complaint and the moving defendants joint answer. Exhibit B is Washington's verified bill of particulars. Exhibit C is described as emergency room records of Brookdale Hospital. Exhibit D is an unaffirmed report of Dr. Michael L. Russ, a pain management specialist, pertaining to his examination of Washington on May 3, 2016. Exhibit E is an affirmed report of Dr. Kim, a chiropractor and acupuncturist, pertaining to his examination of Washington on May 10, 2016. Exhibit F is described as Washington's deposition transcript. Exhibit G is the affirmed report of Dr. Jeffrey Passick, an orthopaedic surgeon, pertaining to his examination of Washington on July 5, 2017.
Although the affirmation of the moving defendants' counsel states that the report is affirmed it actually is not.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank , 100 NY2d 72 [2003] ).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio , 81 NY2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez , 68 NY2d at 324 ).
"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion ( Marine Midland Bank v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2nd Dept 1990] )" ( People ex rel. Spitzer v. Grasso , 50 AD3d 535, 544 [1st Dep 2008] ).
There is no opposition to the motion. However, a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., "defaulted" ( Liberty Taxi Mgt., Inc. v. Gincherman , 32 AD3d 276 [1st Dept 2006] ). A movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers ( Cugini v. System Lumber Co., Inc. , 111 AD2d 114 [1st Dept 1985]citing, Winegrad v. New York Univ. Med. Center, 64 NY2d 851[1985] ).
Insurance Law § 5102 (d) defines serious injury as:
A personal injury which results in death; dismemberment; significant disfigurement; 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 person's 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 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" (see Grossman v. Wright , 268 AD2d 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. The plaintiff in such a situation must present objective evidence of the injury" ( Id. at 84 ).
In support of the instant motion, the defendants have submitted what they described as records from Brookdale Hospital emergency room. These records are not affirmed or certified and the moving defendants have offered no foundation for their admissibility. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment ( Kearse v. New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005] ). The affirmation of the moving defendants' counsel does not set forth the basis for counsel's knowledge that the Brookdale Hospital emergency room records are what counsel purports them to be. The records are, therefore, disregarded.
They have also submitted the unaffirmed report of Dr. Michael L. Russ, a pain management specialist, pertaining to his examination of Washington on May 3, 2016. The report is not in admissible form and is also disregarded.
They have also submitted the affirmed report of Dr. Kim, a chiropractor and acupuncturist, pertaining to his examination of Washington on May 10, 2016. Although Dr. Kim affirmed his report, reports of a chiropractor must be subscribed before a notary or other authorized official to be in admissible form ( Barry v. Arias, 94 AD3d 499 [1st Dept 2012] ). Consequently, the report is not in admissible form and is disregarded.
They have also submitted what they purport to be Washington's deposition transcript. The annexed transcript, however, is not signed by Washington or certified by the court stenographer. Nor have the moving defendants established that the transcript should be deemed signed by Washington pursuant to CPLR 3116 (a). Consequently, the transcript is not in admissible form and is disregarded (see Montalvo v. United Parcel Service, Inc. , 117 AD3d 1004 [2nd Dept 2014] ; see also, Pavane v. Marte, 109 AD3d 970 [2nd Dept 2013] ).
They have also submitted the affirmed report of Dr. Jeffrey Passick, an orthopaedic surgeon, pertaining to his independent medical examination of Washington conducted on July 5, 2017. Dr. Passick conducted the examination more than one year after Washington's accident. Dr. Passick offered no opinion regarding Washington's physical condition during the first six months after the accident. Nor did he examine or offer an opinion regarding Washington's head laceration and residual scar. Dr. Passick performed a straight leg raise test of Washington. Dr. Passick, however, did not compare his findings of Washington's range of motion to what was is normal. Consequently, Dr. Passick could not establish that Washington did not sustain a serious injury as set forth in Insurance Law § 5102 ( Shirman v. Lawal , 69 AD3d 838 [2nd Dept 2010], citing Walker v. Public Adm'r of Suffolk County , 60 AD3d 757 [2nd Dept 2007] ).
In light of the foregoing, the moving defendants' motion papers failed to adequately address Washington's claim that he sustained serious physical injuries to his head, cervical and lumbar spine and shoulders under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) ( Youn Koo Lyu v. Aleksandr , 110 AD3d 715 [2nd Dept 2013] ; citing Bove v. Zanelli , 102 AD3d 644 [2nd Dept 2013] ), and that Washington sustained a serious injury under the 90/180–day category of Insurance Law § 5102 (d).
Accordingly, although the motion is unopposed, it is denied for the moving defendants' failure to demonstrate their entitlement to judgment as a matter of law.
CONCLUSION
Defendants Shaquille K. Lawrence and Prabdeep Kaur's motion for an order pursuant to CPLR 3212 dismissing the complaint of plaintiff Jaquan T. Washington on the basis that he did not sustain a serious injury as defined in Insurance Law § 5102 is denied.
The foregoing constitutes the decision and order of this Court.