Morseman v. Richardson

• Decision Date: 27 December 2020
• Docket Number: 625017/2018,Mot. Seq. 001 MD
• Citation: 2020 NY Slip Op 35078 (U)
• Parties: JOAN M. MORSEMAN, Plaintiff, v. SAUNDRA O. RICHARDSON and CHINYERE RICHARDSON, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 35078(U)

JOAN M. MORSEMAN, Plaintiff,
v.
SAUNDRA O. RICHARDSON and CHINYERE RICHARDSON, Defendants.

No. 625017/2018, Mot. Seq. #001 MD

Supreme Court, Suffolk County

December 27, 2020

Unpublished Opinion

FABER & TROY, ESQS. Attorney for Plaintiff

ROE & ASSOCIATES Attorney for Defendants

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

Upon the following papers read on this e-filed motion for summary judgment; Notice of Motion and supporting papers by defendants, filed June 2, 2020;; Answering Affidavits and supporting papers by plaintiff, filed July 21. 2020; and Replying Affidavits and supporting papers by defendants, filed August 3, 2020, it is

ORDERED that the motion by defendants for summary judgment dismissing the complaint is denied.

Plaintiff Joan Morseman commenced this action to recover for damages she allegedly sustained as a result of a motor vehicle accident that occurred on July 17, 2018, on Old Town Road, approximately 100 feet south of Sheep Pasture Road, in Brookhaven, New York. According to plaintiff, the accident occurred when a vehicle operated by defendant Saundra Richardson and owned by defendant Chinyere Richardson backed out of a driveway onto Old Town Road and struck plaintiffs vehicle. By her complaint, as amplified by her verified bill of particulars, plaintiff alleges the she sustained various injuries and symptoms as a result of the subject accident, including, a disc herniation at C7-T1, and disc bulges at T5-T6, T6-T7, L3-L4, L4-L5, and L5-S1. Plaintiff also claims that the subject accident aggravated a degenerative condition in her cervical spine.

Defendants now move for summary judgment dismissing the complaint. They contend that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5 102 (d). In support of their motion, defendants submit, among other things, the affirmed report of their examining physician, Dorothy

1

Scarpinato, M.D., and excerpts of the transcript of plaintiff's deposition testimony. In opposition, plaintiff argues that triable issues of fact exist as to whether she sustained a serious injury as a result of the subject accident. In support of her opposition, plaintiff submits, among other things, various medical records and the affirmed report of her treating physician, Matthew Kalter, M.D.

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."

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 of establishing, prima facie, that the 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., 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]; Bong An v Villas-Familia, 183 A.D.3d 582, 121 N.Y.S.3d 675 [2d Dept 2020]). 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 (see Loadholt v New York City Tr. Auth., 12 A.D.3d 352, 783 N.Y.2d 660 [2d Dept 2004]; Marsh v Wolfson, 186 A.D.2d 115, 587 N.Y.S.2d 695 [2d Dept 1992]; 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 uncertified records prepared by the plaintiffs treating medical providers (see Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Pryce v Nelson, 124 A.D.3d 859, 2 N.Y.S.3d 214 [2d Dept 2015]; Estaba v Quow, 74 A.D.3d 734, 902 N.Y.S.2d 155 [2d Dept 2010]; Guzman v New York City Tr. Auth., 15 A.D.3d 541, 790 N.Y.S.2d 217 [2d Dept 2005]).

A plaintiff who is opposing a defendant's motion for summary judgment under Insurance Law § 5102 (d) and claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based upon a recent examination or a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra, McEachin v City of New York, 137 A.D.3d 753, 25 N.Y.S.3d 672 [2d Dept 2016]). Proof of a herniated disc or a bulging disc is insufficient to establish a "serious injury" within the meaning of the statute without objective medical evidence establishing the extent and duration of the alleged limitation (see Catalano v Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759 [2d Dept 2010]; Stevens v Sampson, 72 A.D.3d 793, 898 N.Y.S.2d 657 [2d Dept 2010]; Keith v Duval, 71 A.D.3d 1093, 898 N.Y.S.2d 184 [2d Dept 2010]). Further, an injury must be medically

2

determined and must be casually related to the accident to qualify as a serious injury under the 90/180-day category (see Dembowski v Morris, 184 A.D.3d 741, 124 N.Y.S.3d 245 [2d Dept 2020]; Nicholson v Rader,...