Bailey v. Koop
| Decision Date | 08 July 2019 |
| Docket Number | Index 608834/2017 |
| Citation | 2019 NY Slip Op 34353 (U) |
| Parties | SHADAE BAILEY, Plaintiff, v. JASON KOOP AND RED TOP MANAGEMENT TRANSPORT INC., Defendant(s). Mot. Seq. No. 001-MG |
| Court | New York Supreme Court |
LITE & RUSSELL, PLLC
Attorneys for Plaintiff'
BAKER McEVOY, MORRISSEY & MOSKOVITS, P.C.
Attorneys for Defendants
Upon the following papers read on this motion for an order granting defendants summary judgment dismissing the complaint: Notice of Motion and supporting papers (Doc #9-19); Affirmation in Opposition and supporting papers (Doc #26-29); it is, ORDERED that the motion by defendants Jason Koop and Red Top Management Transport Inc. for summary judgment dismissing the complaint is granted.
This is an action to recover damages for injuries allegedly sustained by plaintiff Shadae Bailey as a result of a motor vehicle accident which occurred on January 6, 2017, in the Town of Islip, Suffolk County, New York, at the intersection of Union Boulevard and Windsor Avenue. The accident allegedly occurred when a vehicle driven by defendant Jason Koop and owned by defendant Red Top Management collided with the front of plaintiffs vehicle as it was traveling westbound on Union Boulevard. By her bill of particulars plaintiff alleges she suffered various injuries, including disc herniations in her cervical spine and lumbar spine, and sprain to her thoracic spine.
Defendants now move for an order granting summary judgment dismissing plaintiff s complaint on the ground that Insurance Law § 5104 precludes plaintiffs from pursuing a personal injury claim, because plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). In support of the motion defendants submit copies of the pleadings, the bill of particulars, the transcript of plaintiffs deposition testimony, and the affirmations of neurologist Edward M. Weiland, M.D., orthopedist Salvatore Corso, M.D., and radiologist Mark Decker, M.D. In opposition plaintiffs argue that issue of fact remain as to whether plaintiff sustained serious injuries. Plaintiffs submit, in opposition, the affidavit of chiropractor John B. Rinaldi the medical records of Stand-Up MRI of Deer Park, P.C, and plaintiffs deposition transcript.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
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 seeking summary judgment on the ground that a plaintiffs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing, prima facie, that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [ 1992]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070 [2d Dept 2012]). When such a defendant's motion relies upon 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 (see Brite v Miller, 82 A.D.3d 811 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268 [2d Dept 1992]). A defendant also may establish entitlement to summary judgment using the plaintiffs deposition testimony and unsworn medical reports and records prepared by the plaintiff s treating medical providers (see Uribe v Jimenez, 133 A.D.3d 844 [2d Dept 2015]; Elshaarawy v U-Haul Co. of Miss., 72 A.D.3d 878 [2d Dept 2010]; Fragale v Geiger, 288 A.D.2d 431 [2d Dept 2001]; Pagano v Kingsbury, supra). Once a defendant meets this burden, the plaintiff must present proof, in admissible form, which raises a material issue of fact (see Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra).
A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Schilling v Labrador, 136 A.D.3d884 [2dDept2016];Rovelo v Volcy, 83 A.D.3d 1034 [2dDept 2011 ]; McLoud v Reyes, 82 A.D.3d 848 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208 [2011]; Toure v Avis Rent A Car Systems, Inc., supra; McEachin v City of New York, 137 A.D.3d 753 [2d Dept 2016]). Proof of a herniated or bulging disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not sufficient to establish a "serious injury" within the meaning of the statute (see Pommells v Perez, 4 N.Y.3d 566 [2005]; Hayes v Vasilios, 96 A.D.3d 1010 [2d Dept 2012]; Scheker v Brown, 91 A.D.3d 751 [2d Dept 2012]; Stevens v Sampson, 72 A.D.3d 793 [2d Dept 2010]; Catalano v Kopmann, 73 A.D.3d 963 [2d Dept 2010]; Casimir v Bailey, 70 A.D.3d 994 [2d Dept 2010]; Keith v Duval, 71 A.D.3d 1093 [2d Dept 2010]). Sprains and strains are not serious injuries within the meaning of Insurance Law § 5102 (d) (see Rabolt v Park, 50 A.D.3d 995 [2d Dept 2008]; Washington v Cross, 48 A.D.3d 457 [2d Dept 2008]; Maenza v Letkajornsook, 172 A.D.2d 500 [2d Dept 1991]). Further, a plaintiff seeking to recover damages under the "90/180-days" category must prove the injury is "medically determined," meaning that the condition must be substantiated by a physician, and the condition must be causally related to the accident (see Pryce v Nelson, 124 A.D.3d 859 [2dDept2015]; Strenk v Rodas, 111 A.D.3d 920 [2dDept2013];Beltran v Powow Limo, Inc., supra). A plaintiff must demonstrate that his or her usual activities were curtailed to a "great extent rather than some slight curtailment" (see Licari v Elliott, 57 N.Y.2d 230 [ 1982]). Moreover, a plaintiff who terminates therapeutic measures following an accident, while claiming "serious injury," must offer some reasonable explanation for having done so to prevail on his or her claim (see Ramkumar v Grand Style Transp. Enters. Inc., 22 N.Y.3d 905 [2013]; Pommells v Perez, supra; David v Caceres, 96 A.D.3d 990 [2d Dept 2012]).
Defendants' submissions establish a prima facie case that the alleged injuries to plaintiffs spine do not constitute "serious injuries" within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Beltran v Powow Limo, Inc., supra). Plaintiffs alleged 90/180-day injury was sufficiently refuted, prima facie, by the bill of particulars and her deposition testimony where she stated that she missed only two days of work (see Ferazzoli v Hamilton, 141 A.D.3d 686 [2d Dept 2016]; Pryce v Nelson, supra; Strenk v Rodas, supra; Beltran v Powow Limo, Inc., supra). Additionally, defendants presented competent evidence that none of plaintiffs alleged injuries fall under the "permanent consequential limitation," "permanent loss," or "significant limitation" of use categories of the statute (see Perl v Meher, supra; Schilling v Labrador, supra; Rovelo v Volcy, supra).
Dr. Weiland's affirmed medical report stated, in relevant part, that during an April 2018 neurological examination plaintiff exhibited normal joint function in her cervical, thoracic and lumbar regions. Dr. Weiland reported that plaintiff tested negative in all objective tests including the Foraminal compression test, the Shoulder decompression test, the Soto-Hall test, as well as the Romberg's, the Babinski's and Clonus objective tests, and the Waddell test, the Fabere-Patrick sign and the Straight leg raise. Finally Dr. Weiland determined that plaintiffs alleged injury to the cervical spine, thoracic spine and lumbosacral spine were resolved and that plaintiff had no neurologic disability.
The affirmed medical report of Dr. Corso stated, in relevant part, that during an orthopedic examination he conducted a little more than one year after the accident, pl...
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