Moran v. Collazo-Kane

• Decision Date: 22 February 2021
• Docket Number: INDEX No. 604574/2019,Mot. Seq. No. 001-Mot D; RTC
• Citation: 2021 NY Slip Op 33484 (U)
• Parties: JAMIE R. MORAN, Plaintiff, v. S. COLLAZO-KANE & PATRICK F. KANE, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33484(U)

JAMIE R. MORAN, Plaintiff,
v.
S. COLLAZO-KANE & PATRICK F. KANE, Defendants.

INDEX No. 604574/2019, Mot. Seq. No. 001-Mot D; RTC

Supreme Court, Suffolk County

February 22, 2021

Unpublished Opinion

Motion Submit Date: 08/06/20

PLAINTIFF'S COUNSEL CANNON & ACOSTA, LLP 1923 NEW YORK AVENUE HUNTINGTON STATION, NY 11746

DEFENDANTS' COUNSEL: DAVID J. SOBEL, P.C. 811 WEST JERICHO TURNPIKE, SUITE 105 SMITHTOWN, NY 11787

SHORT FORM ORDER

HON. WILLIAM G. FORD JUSTICE

In this electronically filed personal injury action, concerning defendants' motion for summary judgment and, in the alternative for dismissal, the Court considered the following in reaching its determination: NYSCEF Docs. Nos. 12-39; and upon due deliberation and full consideration of the same; it is

ORDERED that defendants' motion for dismissal on the grounds of release pursuant to CPLR 3211 & CPLR 3123 is denied as provided below; and it is further

ORDERED that defendant's motion for summary judgment dismissing the complaint is granted in part and otherwise denied 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

ORDERED that counsel shall appear remotely at a discovery certification conference via

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the Microsoft Teams platform, invitation and link to be provided by the Court under separate cover to counsel of record via email at their addresses on file with the Court via NYSCEF, on the previously scheduled date of Thursday, May 6, 2021 at 10:30 a.m.. Counsel may waive appearance provided a proposed compliance conference order certifying all pretrial disclosure as complete is entered into and filed for "so-ordering" by this Court in accord with the following prior to the calendared conference date.

FACTUAL BACKGROUND & PROCEDURAL POSTURE

Plaintiff commenced this personal injury negligence action against defendants arising out of a motor vehicle collision which occurred on April 3, 2018 at the intersection of Peninsula Boulevard and Gordon Road in Valley Stream, Nassau County, New York. By the pleadings filed, 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 that he sustained various serious physical injuries including the following: bulging cervical spinal discs at C5-6 impressing the thecal sac and abutting the cord; C2-3 impressing the thecal sac; C3-4 impressing the thecal sac; L5-S1 disc herniation causing nerve root impression and annular tear; L4-5 disc herniation and annular tear; tendinosis/tendinitis of the supraspinatus and subscapularis tendons of the right shoulder; synovial [sic] fluid within the glenohumeral joint of the right shoulder; and right shoulder impingement for which injection was recommended.

Presently, defendants move pursuant to CPLR 3211 and 3123 for dismissal of plaintiff s complaint on the grounds that a general release had and executed by plaintiff in consideration of the payment of $1, 300.00 by defendants' liability insurance carrier barred the prosecution and maintenance of this action. Failing that, 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, an uncertified copy of the transcript of plaintiff s examination before trial dated January 10, 2020, a general release dated April 4, 2018 and related settlement check dated April 5, 2018; and the affirmation of neurologist Matthew M. Chacko, M.D.

In opposition, as relevant and bearing on defendants' motions, plaintiff submits his counsel's affirmation as well as his sworn translated ^[1] affidavit and copies of the police accident investigation report; property damage photographs, an additional copy of the release; and affirmations by radiologist Ronald Wagner, M.D.; radiologist Steven Winter, M.D.; and the sworn affidavit of treating chiropractor Robert M. Burrma, D.C.

SUMMARY OF THE ARGUMENTS

Defendant first moves to dismiss plaintiffs complaint on grounds that defendants' insurance carrier paid him a settlement and plaintiff in consideration thereof executed a general release and covenant not to sue releasing defendants from liability from the subject incident.

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Alternatively, defendant seeks 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 argues that defendants' release is invalid and should not be enforced on grounds of mutual mistake; i.e. the release was presented to plaintiff before he was represented by counsel and before he had been examined by or treated with a competent medical professional for the injuries he claims he sustained by reason of the incident. Further, plaintiff contends that the release was presented to him in English, not his first language as he is a native Spanish speaker with a GED education.

Lastly, 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 his alleged shoulder injuries at his independent medical examination and the resulting report prepared by Dr. Chacko. Failing that, plaintiff argues that his medical records from his treating chiropractor as well as those of his radiologist raise a triable question of fact precluding summary judgment and warranting a trial.

STANDARDS OF REVIEW

A. Dismissal Based on Release

"In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiffs allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable (Webster v Forest Green Apt. Corp., 174 A.D.3d 668, 669, 104 N.Y.S.3d 688, 689-90 [2d Dept 2019]). "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that... the cause of action may not be maintained because of... [a] release" (CPLR 3211 [a] [5]). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release "should be denied where fraud or duress in the procurement of the release is alleged" (Saccftetti-Virga v Bonilla, 158 A.D.3d 783, 784, 73 N.Y.S.3d 194, 196 [2d Dept 2018]).

B. Summary Judgment

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]).

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

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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 Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New 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...