Ferman v. 31 Northern Boulevard, Inc.
| Decision Date | 11 January 2022 |
| Docket Number | Index No. 708294/2019,Motion Seq. No. 1 |
| Citation | 2022 NY Slip Op 32427 (U) |
| Parties | RUTH FERMAN, Plaintiff, v. 31 NORTHERN BOULEVARD, INC., and SOHAIL AHMED Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: September 27, 2021
Present: HONORABLE LOURDES M. VENTURA, J.S.C.
The following electronically filed (EF) papers read on this motion by the defendants, for an Order: pursuant to CPLR 3212 granting defendants' summary judgment and dismissing the complaint of the plaintiff on the grounds that there are no triable issues of fact, in that the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d); and granting such other further relief as the Court deems just and proper.
Notice of Motion - Affirmation - Exhibits…..……… ........ EF 58-68
Affirmation in Opposition - Affirmation - Exhibits… ........ EF 71-74
Upon the foregoing papers, it is Ordered that defendants' motion is determined as follows:
Plaintiff commenced this personal injury action seeking to recover damages allegedly sustained in a motor vehicle collision that occurred on or about August 26, 2016 in the County of Nassau. Plaintiff alleges that as a result of the collision it sustained serious injuries as defined New York Insurance Law ("NYIL") § 5102.
Defendants filed this summary judgment motion pursuant to CPLR 3212 seeking summary judgment and dismissing the complaint of the plaintiff, on the grounds that plaintiff's injuries do not satisfy the "serious injury" threshold requirement of NYIL § 5102(d). In support of defendants' motion, they submit the following evidence summons and complaint, bill of particulars, defendants' answer, plaintiff's examination before trial ("EBT") testimony transcript, a medical report from Thomas P. Nipper, M.D. (hereinafter "Dr. Nipper"), and a medical report from Jessica F. Berkowitz, M.D. (hereinafter "Dr. Berkowitz").
Plaintiff opposes defendants' motion and avers that plaintiff did sustain serious injuries as defined pursuant to NYIL § 5102(d) warranting denial of defendants' motion. In support of plaintiffs opposition papers, it submits the following evidence: plaintiffs affidavit, medical reports from Alan B. Greenfield, M.D. (hereinafter "Dr. Greenfield"), a medical report from Aron D. Rovner, M.D. (hereinafter "Dr. Rovner"), a medical report from Hank Ross, M.D. (hereinafter "Dr. Ross") and medical reports.
"It is well settled that 'the proponent of a summary judgment motions must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (see Pullman v. Silverman, 28 N.Y.3d 1060 [2016]) quoting (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Failure to make such a prima facie "showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]).
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez, 68 N.Y.2d 320; Winegrad, 64 N.Y.2d 851). The burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 A.D.2d 728 [1st Dept 1986], affd, 69 N.Y.2d 701, 512 N.Y.S.2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Lopez v. Senatore, 65 N.Y.2d 1017 [1985]). In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff s examining physician (Pagano v. Kingsbury, 182 A.D.2d 268 [2d Dept 1992]).
Once the burden shifts, it is incumbent upon the plaintiff, in opposition to the defendant's motion, to submit proof of serious injury in "admissible form". (Licari v. Elliott, 57 N.Y.2d 230 [1982]). A medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiffs serious injury is deemed competent medical evidence (see Yunatanov v Stein, 69 A.D.3d 708 [2d Dept 2010]). Thus, in the absence of objective medical evidence in admissible form of serious injury, plaintiffs self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 A.D.2d 288 [2d Dept 2001]).
Pursuant to NYIL § 5102(d), "'serious injury' means 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."
The Court of Appeals has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 [2002] citing (Dufel v Green, 84 N.Y.2d 795 [1995]); see also Licari, 57 N.Y.2d at 234-235). As such, objective proof of a plaintiff s injury is required in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 N.Y.2d at 798; Lopez, 65 N.Y.2d 1017); subjective complaints alone are not sufficient (see e.g. Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Scheer v Koubek, 70 N.Y.2d 678 [1987]). "In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff s loss of range of motion can be used to substantiate a claim of serious injury (Toure, 98 N.Y.2d at 345). "As such, [courts require] objective proof of a plaintiffs injury in order to satisfy the statutory serious injury threshold" [citations omitted] (see Toure, 98 N.Y.2d at 350). "An expert's qualitative assessment of a plaintiffs condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiffs limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Id.).
According to the bill of particulars, plaintiff alleges it sustained injuries to its right shoulder, and cervical and lumbar spine under the following categories: permanent consequential limitation, significant consequential limitation of use of a body organ or member, and 90/180-day.
"Only a total loss of use is compensable under the 'permanent loss of use' exception to the no-fault remedy." (Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]). Without any evidence within the record, this Court will only address the issue of a significant limitation of use of a body function or system.
Defendants argues that plaintiffs injuries do not qualify as a serious injury under the permanent consequential limitation category of NYIL § 5102(d).
On a motion for Summary Judgment alleging plaintiffs injuries are not serious within the meaning of Insurance Law § 5102(d), the defendant bears the burden of establishing that plaintiff did not sustain a serious injury caused by the accident. (Gardner v Spitz, 2021 NY. Misc. LEXIS 4023, at *5-6 [Sup Ct, Queens County May 21, 2021, No. 715199/2018]). Defendant's burden may be satisfied by presenting affirmations by medical experts reciting that "the plaintiff has normal ranges of motion in the affected body parts, and identifies the objective tests performed to arrive at that conclusion." (Id.). Upon making this showing, "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" (Grossman v Wright, 268 A.D.2d 79, 83-84 [2d Dept 2000]).
To determine whether an injury is a "serious injury" under NYIL § 5102(d), the movant must show the injury's duration and its extent, or the degree of limitations associated with it. (Rovelo v Volcy, 83 A.D.3d 1034, 1035 [2d Dept 2011]). Furthermore, "any subjective complaints of pain and limitation of motion must be substantiated by verified objective medical findings based on recent examination of the plaintiff [citations omitted]. (Id.).
Here, defendants submit inter alia a medical report dated December 26, 2020 from Dr. Nipper who examined the plaintiff on October 27, 2020. The medical report in relevant part, reads as follows:
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