Mahler v. Lewis

• Decision Date: 23 February 2021
• Docket Number: Mot Seq No. 001 MG,Index No. 617410/2017
• Citation: 2021 NY Slip Op 33547 (U)
• Court: New York Supreme Court
• Parties: BRUCE R. MAHLER & JUDITH A. MAHLER, Plaintiff, v. WILDA I. LEWIS, JOHN DOE, AN UNIDENTIFIED INDIVIDUAL AND OPERATOR, Defendants.

2021 NY Slip Op 33547(U)

BRUCE R. MAHLER & JUDITH A. MAHLER, Plaintiff,
v.
WILDA I. LEWIS, JOHN DOE, AN UNIDENTIFIED INDIVIDUAL AND OPERATOR, Defendants.

Index No. 617410/2017, Mot Seq No. 001 MG

Supreme Court, Suffolk County

February 23, 2021

Unpublished Opinion

Motion Submit Date: 12/03/20

PLAINTIFF'S COUNSEL: LAW OFFICE OF JOSEPH B. FRUCHTER

DEFENDANTS' COUNSEL: RUSSO & GOULD, LLP

PRESENT: HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT

HON. WILLIAM G. FORD, JUSTICE

In this electronically filed personal injury action, concerning defendants' motion for summary judgment, the Court considered the following in reaching its determination: NYSCEF Docs. Nos, 7 -28; and upon due deliberation and full consideration of the same; it is

ORDERED that defendant's motion for summary judgment dismissing the complaint is granted as follows; and it is further

ORDERED that defendants' counsel is hereby directed to serve a copy of this decision and order with notice of entry via electronic filing and electronic mail upon plaintiffs counsel; and it is further

ORDERED that, if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required; and it is further

FACTUAL BACKGROUND & PROCEDURAL POSTURE

Plaintiff commenced this personal injury negligence action against defendants arising out of a motor vehicle collision which occurred on January 17, 2015 on Sunrise Highway (Route 27), in the vicinity of Route 112 in the Town of Brookhaven, Suffolk County, New York. The incident arose when plaintiff, the seat-belted operator of his vehicle on his commute home from work was rear-ended

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by a vehicle involved a police pursuit. As a result of the rear-end impact, plaintiff was propelled into a guardrail. By his pleadings, plaintiff seeks damages for personal injury premised on defendants negligence as a proximate cause of the underlying motor vehicle collision and attendant alleged serious injuries.

In his verified bill of particulars, plaintiff alleges in pertinent part that he sustained various serious physical injuries including the following: Head trauma; Head pain; Concussion; Post-concussion syndrome; Major Depressive Disorder; Adjustment Disorder; Dizziness; Encephalopathy; Vestibular dysfunction; Loss of balance; Confusion; Anxiety; Cognitive impairment; Disorder of verbal function(s); Cervical trauma; Cervical pain; Disc herniation at C4/5; Disc herniation at C5/6; Disc bulge at C6/7; Disc herniation at C7/ T1; Ongoing and significant decreased ranges of motion in the cervical spine in all planes; Thoracic trauma; Thoracic pain.; Ongoing and significant decreased ranges of motion in the thoracic spine in all planes; Lumbar trauma; Lumbar pain; Ongoing and significant decreased ranges of motion in the lumbar spine in all planes; Right shoulder trauma; Right shoulder pain, Right hand pain; Left hand trauma; Left hand pain; Left knee trauma; Left knee pain; Left foot trauma; and Left foot pain.

Presently, defendants also seek summary judgment pursuant to CPLR 3212 dismissing plaintiffs complaint on grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d).

Submitted in support of their application annexed to defense counsel's affirmation are inter alia copies of the pleadings, the police accident investigation report, plaintiffs deposition transcript dated January 14, 2019, and affirmed medical reports of neuropsychologist Brian Lebowitz Ph.D.; orthopedist Arnold M. Schwartz, M.D.; radiologist Darren Fitzpatrick, M.D.; and neuropsychologist Edward J, Barnoski, Ph.D. In opposition, as relevant and bearing on defendants' motions, plaintiff submits his counsel's affirmation as well as his sworn affidavit and an affidavit by chiropractor Adam Cohen, D.C.

SUMMARY OF THE ARGUMENTS

Defendants seek judgment as a matter of law on the merits of plaintiff s claims of negligence arguing that plaintiff has failed to prove that he sustained a compensable "serious injury" under Insurance Law. Opposing defendants' motion, plaintiff contends that defendants have failed to make a prima facie case entitling them to judgment as a matter of law dismissing his complaint by failing to address the alleged documented cervical spinal herniations and related decreased range of motions indicated as well as persisting symptoms and effects of post-concussion syndrome and cognitive impairment. Failing that, plaintiff argues that his medical records from his treating chiropractor raise a triable question of fact precluding summary judgment and warranting a trial.

STANDARDS OF REVIEW

The motion court's role on review of a motion for summary judgment is issue finding, not issue determination (Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 A.D.3d 864, 865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]).

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It is well settled that summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 [1980]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]).

The proponent on a motion of summary judgment must make a 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 (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad vNew York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985];]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).

If the moving party fails in meeting this burden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Zuckerman, supra). The function of the court in determining a motion for summary judgment is issue finding, not issue determination (Pantote Big Alpha Foods, Inc. v Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 [1st Dept 1986]).

The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept. 2001]; Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept. 1991]; O'Neill v Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]; Benincasa v Garrubo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [2d Dept. 1988]).

DISCUSSION

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 to establish, prima facie, that the plaintiff did not sustain a "serious injury" (Toure vAvis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 951 N.Y.S.2d 231 [2d Dept 2012]). Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in . . . 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."

Findings of a defendant's own witnesses must be in admissible form, such as affidavits and affirmations, and not unsworn reports, to demonstrate entitlement to summary judgment (Brite v Miller, 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],

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citing Pagano v Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [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 plaintiffs treating medical providers (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]; Fragate v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001 ]; Pagano v Kingsbury, supra). 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 (Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Hayes v Vasilios, 96 A.D.3d 1010, 947 N.Y.S.2d 550 [2d Dept 2012]; Scheker v Brown, 91 A.D.3d 751, 936...