Collymore-Maynard v. Gayle-Lyken
| Docket Number | Index No. 516923/2020,Motion Sequence Nos. 2,3,4,5 |
| Decision Date | 13 June 2023 |
| Citation | 2023 NY Slip Op 32022 (U) |
| Parties | JEAN COLLYMORE-MAYNARD, Plaintiff, v. NATASHA GAYLE-LYKEN, DWYGHT LYKEN, BAKHIT MOUMENIZA, CURB MOBILITY, LLC, NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA NEW YORK CITY TRANSIT AUTHORITY DIVISION OF PARATRANSIT and MOHIELDIN ABDALLA Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
PRESENT; CARL J. LANDICINO, J.S.C.
DECISION AND ORDER
Recitation as required by CPLR 2219(a), of the papers considered in review of this motion: Papers Numbered (NYSEF)
Opposing Affidavits (Affirmations) 65-77, 79-90, 93-94, 115-116, 117-118.
Reply Affidavits (Affirmations)...................................... 103, 114, 119.
Upon the foregoing papers, and after oral argument, the Court finds as follows:
This lawsuit arises out of a motor vehicle accident that purportedly occurred on September 22, 2019. Plaintiff Jean Collymore-Maynard (hereinafter "the Plaintiff') alleges in her Complaint that on that date she suffered personal injuries after the vehicle she was a passenger in was involved in a collision with two other vehicles. In her Verified Bill of Particulars the Plaintiff alleges injuries to her cervical and lumbar spines, right shoulder and right knee. The Plaintiff also states that she suffered a "a medically determined injury or impairment of a non-permanent nature which prevents Plaintiff from performing substantially all of the material acts which constitute Plaintiff s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury." (90/180 claim)
Defendants Natasha Gale Lyken and Dwyght Lyken (hereinafter the "Lyken Defendants") move (motion sequence #2) for an order pursuant to CPLR 3212, granting summary judgment and dismissing the complaint of the Plaintiff on the ground that none of the injuries allegedly sustained by the Plaintiff meet the "serious injury" threshold requirement of Insurance Law § 5102(d).[1] The Plaintiff opposes the motions and argues that the Defendants have failed to meet their burden and as a result the motion should be denied.
Defendants Bakhut Moumeniza and Mohieldin Abdalla (hereinafter referred to collectively as the "Abdalla Defendants") cross-move (motion sequence #4) for an order pursuant to CPLR 3212, granting summary judgment and dismissing the complaint on the grounds that they were not liable as a matter of law for the collision at issue. The Abdalla Defendants argue that the complaint should be dismissed as against them as the evidence shows that their vehicle was struck in the rear by the Lyken Defendants' vehicle while the Abdalla Defendants' vehicle was stopped at a red traffic signal. The Plaintiff does not oppose this motion. The Plaintiff moves (motions sequence #5) for an order pursuant to CPLR 3212 granting her summary judgment on the issue of liability as against the Lyken Defendants. The Lyken Defendants' oppose both motions (motion sequence #4, 5) and argue that there are issues of fact regarding whether the Abdalla Defendants' vehicle stopped suddenly at the time of collision.
It has long been established that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff, 14 A.D.3d 493 [2nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974], The proponent for the summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64N.Y.2d 851, 853, 487N.Y.S.2d 316, 476 N.E.2d 642 [1985], Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"Garn/?a/M &Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2nd Dept, 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2nd Dept, 1994].
Threshold (Insurance Law 5102)
In support of their motion the Lyken Defendants proffer an affirmed medical report from Howard A. Kiernan, M.D. Dr. Kiernan examined the Plaintiff on November 15, 2021, more than two years after the date of the accident. Dr. Kiernan conducted range of motion testing with the use of a goniometer. He examined the Plaintiffs cervical, thoracic and lumbar spine, right shoulder and right knee and found no limitation in the Plaintiffs range of motion in relation to those areas, except for limited flexion of the right knee, "...flexion at 120 degrees (150 degrees normal)." Dr. Kiernan found that the cervical spine sprain had resolved, the lumbar sprain had resolved, the right shoulder sprain had resolved, and the right knee sprains had resolved. He also causally relates the diagnoses to the subject accident. Dr. Kiernan also found that "[t]here is evidence of contributing preexisting arthritis of the knee that impacting on the current injuries." Dr. Kiernan does not indicate the basis for this determination. Additionally, Dr. Kiernan does not address the Plaintiff s condition in relation to the 180 day period immediately following the accident. (See Lyken Defendants' Motion, Report of Dr. Kiernan, NYSCEF Doc. 45).
When the Bill of Particulars contains conclusory allegations of a 90/180 claim and the deposition and/or affidavit of Plaintiff does not support, or reflects that there is no such claim, the Defendant may utilize those factors in support of its motion for summary judgment. See Master v. Boiakhtchion, 122 A.D.3d 589, 590, 996 N.Y.S.2d 116, 117 [2d Dept 2014]; Kuperberg v. Montalbano, 72 A.D.3d 903, 904, 899 N.Y.S.2d 344, 345 [2d Dept 2010]; Camacho v. Dwelle, 54 A.D.3d 706, 863 N.Y.S.2d 754 [2d Dept 2008], In this case, the Verified Bill of Particulars states, at Paragraph 10, that the Plaintiff "was incapacitated from employment from approximately September 23, 2019 to March 13, 2020." During her deposition, when asked when she returned to work after her accident, the Plaintiff stated, "I've been back to work two weeks in March and then on the 17th, I believe, and then the COVID hit and the hotel closed." (NYSCEF Doc. 44, Page 95). When asked if she performed her regular duties, the Plaintiff stated "[m]y regular duties, yes." (Page 96). When asked if she was out of work from September to March, the Plaintiff stated (Page 96).
Assuming that the Defendants had made a prima facie establishing that the Plaintiff did not sustain a serious injury as defined by the statute, it becomes incumbent upon the Plaintiff to establish that there are triable issues of fact as to whether the Plaintiff suffered serious injuries, in order to avoid dismissal of the action. See Jackson v United Parcel Serv., 204 A.D.2d 605 [2d Dept 1994]; Bryan v Brancato, 213 A.D.2d 577 [2d Dept 1995], In this regard, the Plaintiff must submit quantitative objective findings, in addition to opinions as to the significance of the Plaintiffs injuries. See Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001 ]; Candia v. Omonia Cab Corp., 6 A.D.3d 641, 642, 775 N.Y.S.2d 546, 547 [2d Dept 2004]; Burnett v Miller, 255 A.D.2d 541 [2d Dept 1998]; Beckett v Conte, 176 A.D.2d 774 [2d Dept 1991].
As an initial matter, some of the records that the Plaintiff relied upon, such as some of the records are often illegible and as a result have no probative value. See CPLR 2106 and Parente v. Kang, 37 A.D.3d 687, 831 N.Y.S.2d 430 [2nd Dept, 2007]; See Mora v. Riddick, 69 A.D.3d 591, 591, 893 N.Y.S.2d 149, 150 [2nd Dept 2010]; Washington v. Mendoza, 57 A.D.3d 972, 871 N.Y.S.2d 336 [2nd Dept, 2008], Dr. Yolande Bernard examined the Plaintiff, with the first examination occurring on October 15, 2019, less than a month after the Plaintiffs accident. The final examination occurred on March 2, 2022. Each examination involved range of motion testing with the use of a hand held goniometer. The range of motion testing on the subject body areas on October 15, 2019 reflect limitations in the cervical spine, the right knee and right shoulder. The doctor stated that "[a]fter approximately ten month's of regular treatment, Ms. Collymore Maynard's treatment stopped." "...as she plateaued in treatment and it was determined that further therapy would be palliative." The March 2, 2022 examination reflects that Dr. Bernard found, as to the cervical spine, "flexion was 45 degrees, normal 50 degrees [10 percent loss]; extension was 45 degrees, normal 60 degrees [25 percent loss]; rotation to the right was 50 degrees, to the left was 50 degrees, normal 80 degrees [38 percent loss, bilaterally]." As to the right shoulder, Dr. Bernard found "abduction was 100 degrees [44 percent loss], forward flexion was 85 degrees [56 percent loss], normal abduction and forward...
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