Adjei v. Bassey

• Decision Date: 15 August 2013
• Citation: 2013 NY Slip Op 31941
• Parties: Nana Adjei, Plaintiff, v. Peter Bassey, Defendant.
• Court: New York Supreme Court

2013 NY Slip Op 31941

Nana Adjei, Plaintiff,
v.
Peter Bassey, Defendant.

Index No.: 20796/11
Motion Cal. No.: 3
Motion Seq. No.: 2

NEW YORK STATE SUPREME COURT - QUEENS COUNTY IAS TERM, PART 19

Motion Date: May 21, 2013
Dated: August 15, 2013

Short Form Order

Present: HONORABLE BERNICE D. SIEGAL
Justice

The following papers numbered 1 to 12 read on this motion for an order granting defendant Peter Bassey summary judgment pursuant to CPLR §3212, dismissing the complaint and any and all cross claims against him on the basis that plaintiff did not sustain a "serious injury" under Insurance Law §5102(d).

PAPERS NUMBERED
Notice of Motion - Affidavits-Exhibits	1 - 4
Affirmation in Opposition	5 - 9
Reply Affirmation	10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

The defendant moves for summary judgment pursuant to CPLR § 3212 on the grounds that plaintiff did not sustain a serious injury under Insurance Law §5102(d).

Facts

Plaintiff Nana Adjei ("Adjei") was involved in a motor vehicle accident with defendant on July 8, 2011. The Bill of Particulars alleges that as a result of the accident, plaintiff suffered the

Page 2

following injuries: scarring and burns to his left hand, lumbar spinal central and right disc herniation and cervical spine herniations.

Threshold

Defendant moves for summary judgment in its favor on the ground that plaintiff did not sustain a "serious injury" within the meaning of the Insurance law. That statutory provision states, in pertinent part that a "serious injury" is defined as:

A personal injury which results in...significant disfigurement;...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 party from performing a substantially all of the material acts which constitute such person's customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrences of the injury or impairment.

(Insurance Law §5102 (d)).

Defendant contends that Adjei did not sustain a serious injury based on the medical report of Dr. Parisien, an Orthopedic Surgeon. The issue of whether Adjei sustained a serious injury is a matter of law to be determined in the first instance by the court. (Licari v. Elliott, 57 N.Y. 2d 230 [1982]; Porcano v. Lehman, 255 A.D. 2d 430 [2^nd Dept. 1998]; Brown v. Stark, 205 A.D. 2d 725 [2^nd Dept. 1994]). The burden is on the defendant to make a prima facia showing that plaintiff's injuries are not serious (Toure v. Avis Rent A Car Sys., 98 N.Y. 2d 345 [2002]; Sealy v. Riteway-1, Inc., 54 A.D. 3d 1018 [2^nd Dept. 2008]; Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D. 3d 456 [2^nd Dept. 2005]). A defendant can meet his or her prima facie burden by submitting the affidavits or affirmations of medical experts, who, through objective medical testing, conclude that plaintiff's

Page 3

injuries are not serious within the meaning of Insurance Law § 5102(d). (See Magarin v. Kropg, 24 A.D. 3d 733 [2^nd Dept. 2005]; see also Gaddy v. Eyler, 79 N.Y. 2d 955 [1992]; Morris v. Edmond, 48 A.D. 3d 432 [2^nd Dept. 2008]).

Defendant met its initial burden of establishing that Adjei did not sustain a serious injury through the submissions of the affirmations from Dr. Parisien stating that he utilized a goniometer to determine that plaintiff exhibited full range of motion in his cervical and lumbar spine and bilateral wrists. (Gonzales v. Fiallo, 47 A.D. 3d 760 [2^nd Dept 2008]). The diagnosis by Dr. Parisien was that plaintiff had post cervical and lumbar sprain or strain that has been resolved; as well as, resolved post lateral wrist sprain. (Diaz v....