Flor v. Kiam
| Decision Date | 14 October 2020 |
| Docket Number | Index No. 607035/2018,Motion Seq. No. 001 |
| Citation | 2020 NY Slip Op 35145 (U) |
| Parties | ALEXANDER FLOR, Plaintiff, v. RAJHEEN KIAM, Defendants. |
| Court | New York Supreme Court |
PLTF'S/PET'S ATTORNEY: ZLOTOLOW& ASSOCIATES, PC
PEFT'S/RESP ATTORNEY: BAKER, MCEVOY, MORRISSEY & MOSKOWITZ, PC.
Upon the E-file document fist numbered 8 to 24 read on the application of defendant for an Order, pursuant to CPLR 3212, granting defendant summary judgment dismissing the complaint of plaintiff for failure to meet the serious injury threshold requirement of Insurance Law §5102 (d); it is
ORDERED that the motion by defendant for an Order, pursuant to CPLR 3212, granting defendant summary judgment and dismissing the complaint of plaintiff Alexander Flor, inasmuch as plaintiff, Alexander Fior, fails to meet the serious injury threshold requirement mandated by Insurance Law § 5102 (d), is hereby DENIED for the reasons set forth herein.
This is an action to recover damages for injuries allegedly sustained by plaintiff Alexander Flor ("Fior" or "plaintiff") as a result of a motor vehicle accident that occurred on May 1.3, 2017, on the eastbound side of the Belt Parkway, at or around its interchange with Springfield Boulevard, in the County of Queens, City and State of New York, Issue was joined on June 20, 2018. Plaintiff alleges in his verified bill of particulars injuries to his thoracolumbar spine including segmental and somatic dysfunction, subluxation complex (vertebral), radiculopathy, radiculitis, intervertebral disc disorder, sciatica, lumbar facet disorder, lumbar facet effusion, sprain, strain of muscle, fascia and tendon of the lower back, saeral dysfunction, lumbalgia, lumbar derangement, discitis, disc disorder, straightening of the lumbar lordosis, bulging discs at L 1-2, L 2-3, L 3-4, L 4-5, and L5-S1 with lumbar anterior disc extensions and diminished disc space height. Plaintiff further alleges injuries to his cervical spine including sprain, strain, contusion, internal derangement, radiculitis, myositis, myofascitis, myalgia and radiculopathy, bulging discs at C 3-4, C 5-6 with bifatera [foramina I disc herniations, and G 6-7 subligamentous disc bulging. Plaintiff further alleges injuries to his right ankle, including sprain, strain, contusion, internal derangement, intermediate to high-grade partial tear of the anterior talofibular ligament and calcaneal fibular ligament, tendinosis of the posterior tibial tendon, tendinosis of the peroneus brevis tendon, mild to moderate tibiotafar joint effusion and posterior subtalar joint effusion, preoperative diagnosis of right internal ankle derangement, torn anterior talofibular ligament and calcaneal fibular ligament, post operative diagnosis of right internal ankle derangement, torn anterior talofibular ligament, chondral interruption on tibial plafond, torn calcaneal fibular ligament, hypertrophied synovium, and soft tissue impingement, post-surgical scarring, post-traumatic arthritis, aggravation, activation and exacerbation of latent and quiescent cervical and lumbar DGD. Plaintiff further alleges these injuries are all permanent and progressive in nature. Plaintiff alleges that he was confined to his bed and home for three (3) days immediately following the accident, and confined to his home and out of work from November 24, 2017 through February 1, 2018.
Plaintiffs examination before trial was held on June 6, 2019. Plaintiff thereafter was examined by Dr. Darren Fitzpatrick ("Dr. Fitzpatrick"), radiologist, on December 20, 2018 and by Dr. Jesu Jacob ("Dr. Jacob"), orthopedic surgeon, on February 7,2020 on behalf of defendant.
Defendant now moves for summary judgment dismissing the complaint on the grounds that plaintiff has not sustained a serious injury under any of the categories of injuries listed under Insurance Law §5102 (d). In support of his motion, defendant submits an attorney affirmation, a copy of the pleadings, verified bill of particulars, the transcript of plaintiff's examination before trial, the' affirmed reports of Dr. Fitzpatrick, and the affirmed report of Dr. Jacob. Plaintiff opposes the motion and submits an attorney affirmation, the affirmed reports of Dr. Nazarali Visram, physiatrist {"Dr. Visram"), Dr. Steven M. Yager, pediatric surgeon ("Dr. Yager"), Dr. Marc Katzman, radiologist, Dr. Robert Diamond, radiologist, and Dr. Narayan B. Parachuri, radiologist, and plaintiffs hospital records.
Under New York law, there is no right of recovery for non-economie loss in ah action arising out of negligence in the use or operation of a motor vehicle in the absence of evidentiary proof of a "serious injury" as that term is defined in Insurance Law § 5102 (d). It has long-been established that the legislative intent underlying the No-Fault Law, as codified in Article 51 of the Insurance Law, "was to weed out frivolous claims and limit recovery to significant injuries" (Dufel V Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; see also Toute v Avis Rent A CarSys,, 98 N.Y.2d 345, 746 N.Y.S.2d 865 £2002]). The determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984] aff'd 64 N.Y.S.2d 681, 485 N.Y.S.2d 526 [1984]).
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."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either objective evidence of the extent, percentage or degree of plaintiff's limitation or loss of range of motion must be provided or there must be 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 Metier, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011 ]; Toure v Avis Rent A Car Sys., supra). A minor mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d631, 970 N.Y.S.2d 826 [2d Dept 2013]). In order to qualify under the 90/180-days category, an injury must be "medically determined" such that the condition must be substantiated by a physician and the condition must be causally related to the accident (see Damas v Valdes, 84 A.D.3d 87, 93, 921 N.Y.S.2d 114 [2d Dept 2011]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). A defendant can establish that a plaintiffs 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" (Nunez vTeei, 162 A.D.3d 1058, 75 N.Y.S.3d 541 [2d Dept 2018]; see also Brite v Milter, 82 A.D.3d 811, 918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept 1992]; Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v. Kamran, 22 A.D.3d 458, 802N.Y.S.2d 706 [2d Dept 2005]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own expert 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 (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and unsworn medical reports and records prepared by the plaintiffs own physicians (see Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Elshaarawy v U-Haul Co. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010], Fragale vGeiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519,616 N.Y.S.2d 1006 [2d Dept 1994]). The failure to make such a prima...
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