James v. Tucciarone

• Docket Number: Index 16-617296
• Decision Date: 08 January 2020
• Citation: 2020 NY Slip Op 34975 (U)
• Parties: ALICIA A. JAMES, Plaintiff, v. STEVEN TUCCIARONE and MARTIN P. TUCCIARONE, Defendants.
• Court: New York Supreme Court

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2020 NY Slip Op 34975(U)

ALICIA A. JAMES, Plaintiff,
v.
STEVEN TUCCIARONE and MARTIN P. TUCCIARONE, Defendants.

Index No. 16-617296

Supreme Court, Suffolk County

January 8, 2020

Unpublished Opinion

MOTION DATE 6-4-19

ADJ. DATE 7-30-19

LEONICK LAW, PLLC Attorney for Plaintiff

MARTYN & MARTYN Attorney for Defendants

HON. SANFORD NEIL BERLAND, A.J.S.C.

Upon the following papers read on this motion for summary judgment: Notice of Motion and supporting papers by defendant, dated April 18, 2019; Answering Affidavits and supporting papers by plaintiff, dated July 18, 2019; and Replying Affidavits and supporting papers by defendant, dated July 24, 2019, it is

ORDERED that the motion by defendant Steven Tucciarone seeking summary judgment dismissing the complaint is granted to the extent indicated below and is otherwise denied.

Plaintiff Alicia James commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Elwood Road and Clay Pitts Road in the Town of Huntington on November 7, 2015. It is alleged that the accident occurred when the vehicle operated by defendant Steven Tucciarone and owned by defendant Martin Tucciarone^[1] made a left turn directly into the path of the vehicle operated by plaintiff, striking the driver's side of plaintiff s vehicle. Plaintiffs vehicle was traveling northbound on Elwood Road, and defendants' vehicle was traveling southbound on Elwood Road. By her bill of particulars, plaintiff alleges that as a result of the collision, she

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sustained a series of physical injuries, including a tear in the lateral plantar plate of her right foot, internal scarring of her right foot and a concussion, as well as anxiety, depression and cognitive difficulties. Plaintiff further alleges that as a result of the injuries she sustained in the accident, she was incapacitated from her employment.

Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the November 7, 2015 accident ("the accident") do not meet the "serious injury" threshold of Insurance Law § 5102 (d). In support of his motion, defendant submits copies of the pleadings, the transcript of plaintiffs deposition and the sworn medical reports of, respectively, Dr. Matthew Skolnick, Dr, Kishore Ranade and Dr. Sheldon Feit. At defendant's request, Dr. Skolnick conducted an orthopedic examination of plaintiff on October 8, 2018. Also at defendant's request, Dr. Ranade, performed a neurological review of plaintiff s medical records on December 3, 2018. In addition, Dr. Feit performed a radiological review of the magnetic resonance images ("MRI") films of plaintiffs right foot taken on March 8, 2016. Plaintiff opposes the motion on the basis that defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law and that the evidence submitted in opposition to the motion demonstrates that as a result of the subject accident, she sustained injuries that fall within the "limitations of use" and the "90/180" categories of serious injury under the Insurance Law. In opposition to the motion, plaintiff submits the sworn medical reports of Dr, Mark Decker, Dr. Stacey Baptiste and Dr. Jason Feinberg.

Insurance Law § 5102 (d) defines a "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." 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 [1984], affd N.Y.S.2d 681, 485 N.Y.S.2d 526 [2d Dept 1984]).

In order to recover under the "limitations of use" categories, a plaintiff must present objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration (see Magid v Lincoln Servs. Corp., 60 A.D.3d 1008, 877 N.Y.S.2d 127 [2d Dept 2009]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]; Meyers v Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773 [2d Dept 2005]). 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 may also suffice (see Toure v Avis Rent A Car Systems, Inc., supra, Dufel v Green, supra). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]). Further, evidence of pain and discomfort alone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insufficient to sustain a finding of serious injury (see Scheer v Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788 [1987]). Unsworn medical reports of a

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plaintiff s examining physician or chiropractor are insufficient to defeat a motion for summary judgment (see Grasso v Anegarmi, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]). However, a plaintiff may rely upon unsworn MR1 reports if they have been referred to by a defendant's examining expert (see Caulkins v Vicinanzo, 71 A.D.3d 1224, 895 N.Y.S.2d 600 [3dDept 2010]; Ayzen v Melendez, 299 A.D.2d 381, 749N.Y.S.2d 445 [2d Dept 2002]).

A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra, Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on 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 (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiff s own physicians (see Fragale v Geiger, 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 [2d Dept 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]). Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra-, Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff s opposition papers (see Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).

Here, defendant endeavors to establish, based upon plaintiff s deposition testimony and the affirmed reports of his medical witnesses, a prima face case that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of the accident (see Toure v Avis Rent A Car Sys., supra', Gaddy v Eyler, supra-, Davis-Hassan v Siad, 101 A.D.3d 932, 957 N.Y.S.2d 205 [2d Dept 2012]; Torres v Ozel, 92 A.D.3d 770, 938 N.Y.S.2d 469 [2d Dept 2012]). Thus, with respect to plaintiffs claims alleging physical injury meeting the statutory definition of serious injury, defendant offers, first, the report of his examining orthopedist, Dr. Skolnick, who states that as of the time of his examination of the plaintiff in October 2018, she exhibited full range of motion^[2] in her spine, no paraspinal spasms or tenderness upon palpation of the paraspinal muscles, no evidence of atrophy of the intrinsic muscles, normal sensation to light touch and a negative straight leg raising test. Dr....