Naqvi v. Elkomy

• Docket Number: Index No. 507984/2018,Motion Sequence Nos. 2,4
• Decision Date: 09 October 2020
• Citation: Naqvi v. Elkomy, 2020 NY Slip Op 35409(U), 4, Index No. 507984/2018, Motion Sequence Nos. 2 (N.Y. Sup. Ct. Oct 09, 2020)
• Parties: RAZA NAQVI, Plaintiff, v. MAGDY A. ELKOMY and NOURA HUSSEIN Defendants.
• Court: New York Supreme Court

1

2020 NY Slip Op 35409(U)

RAZA NAQVI, Plaintiff, v. MAGDY A. ELKOMY and NOURA HUSSEIN Defendants.

Index No. 507984/2018, Motion Sequence Nos. 2, 4

Supreme Court, Kings County

October 9, 2020

Unpublished Opinion

PRESENT: CARL J. LANDICINO, J.S.C.

DECISION AND ORDER

CARL J. LANDICINO, J.S.C.

Recitation as required by CPLR 2219(a), of the papers considered in review of this motion:

Papers Numbered (NYSCEF)

Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 19-27, 53-58

Opposing Affidavits (Affirmations).........................................................32-34.

Reply Affidavits (Affirmations)..............................................................60

Upon the foregoing papers, and after oral argument, the Court finds as follows:

This lawsuit arises out of a motor vehicle accident that allegedly occurred on December 14, 2017. Plaintiff Raza Naqvi (hereinafter "the Plaintiff') alleges in his Complaint that on that date he suffered personal injuries after the vehicle he was operating was in a collision with a vehicle operated by Defendant Noura Hussein and owned by Defendant Magdy A. Elkomy (hereinafter referred to individually or collectively as the "Defendants"). The Plaintiff alleges in his complaint that the motor vehicle collision occurred on Cropsey Avenue at or near its intersection with Bay 376 Street in Brooklyn, N.Y. In his Verified Bill of Particulars the Plaintiff alleges injuries to, inter alia, his lumbar, thoracic and cervical spine, and that he suffered a "a medically determined injury or impairment which prevents plaintiff from performing substantially all of the material acts which constituted plaintiffs usual and customary activities for such period of time all as specified by Section 5102 of the Insurance Law Subsection (d)."

Defendants move (motion sequence #2) for an order pursuant to CPLR 3212, granting summary judgment and dismissing the complaint of the Plaintiff on the ground that none of the injuries allegedly sustained by the Plaintiff meet the "serious injury" threshold requirement of Insurance Law § 5102(d). The Plaintiff opposes the motion and cross-moves (motion sequence #4) for an order pursuant to CPLR 3212, granting partial summary judgment on the issue of liability.

It has long been established that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff 14 A.D.3d 493 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974], The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2d Dept 1989], Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994].

Insurance Law 5102 (Motion Sequence 112)

In support of their motion the Defendants proffer an affirmed medical report from Joseph C. Elfenbein, M.D. Dr. Elfenbein examined the Plaintiff on September 19, 2019, more than twenty months after the date of the accident. Dr. Elfenbein states that he conducted range of motion testing of the cervical, lumbar and thoracic/sacroiliac spine, with the use of a goniometer. Dr. Elfenbein found normal range of motion for the cervical and thoracic spine. Dr. Elfenbein, upon examination of the lumbar/sacroiliac spine, found" [r]ange of motion reveals flexion to 60 degrees (60 degrees normal), extension to 15 degrees (25 degrees normal)(40 percent deficit), and right lateral bending to 20 degrees (25 degrees normal)(20 percent deficit) and left lateral bending to 20 degrees (25 degrees normal)(20 percent deficit)." Dr. Elfenbein opined that "[t]here are no positive objective findings noted on today's examination to support subjective complaints of pain, tenderness or decreased range of motion." Dr. Elfenbein causally related the injuries to the subject motor vehicle accident. (Defendants' Motion, Exhibit G)

Turning to the merits of the Defendants' motion, the Court is of the opinion that the Defendants have not met their initial burden of proof. See Che Hong Kim v. Kossoff, 90 A.D.3d 969, 969, 934 N.Y.S.2d 867 [2d Dept 2011]. The Defendants contend that the affirmed report of Dr. Elfenbein supports their contention that the Plaintiff did not suffer a serious injury as defined under Insurance Law § 5102(d). Dr. Elfenbein found limitations in the Plaintiffs range of motion in relation to his lumbar/sacroiliac spine. As part of his report Dr. Elfenbein indicated that the Plaintiffs decreased ranges of motion were subjective, but he "...failed to adequately explain and substantiate his belief that the limitation of motion" "...was self-imposed." India v O'Connor, 97 A.D.3d 796, N.Y.S.2d 678 [2^nd Dept, 2012]; Rivas v. Hill, 162 A.D.3d 809, N.Y.S.3d 225 [2^nd Dept, 2018]; Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757 [2^nd Dept, 2015]; Nash v. MRC Recovery, Inc., 172 A.D.3d 1213, 1215, 101 N.Y.S.3d 376 [2^nd Dept, 2019]; Castro v. Anthony, 153 A.D.3d 655, 656, 57 N.Y.S.3d 895 [2^nd Dept, 2017]; Protonentis v. Battaglia, 150 A.D.3d 1286, 52 N.Y.S.3d 888 [2^nd Dept, 2017].

Moreover, Dr. Elfenbein did not opine on the ability of the Plaintiff to conduct his daily activities during the early post-accident period. Dr. Elfenbein conducted a medical examination of plaintiff on September 19, 2019, more than twenty months after the date of the accident, and did not address Plaintiffs alleged "90/180" claim. The Plaintiffs Verified Bill of Particulars states that the "Plaintiff was incapacitated from employment or occupation from 12/19/2017 to 12/26/2017 and continuing intermittently thereafter." (Defendant's Motion, Exhibit C, Paragraph 10). The Plaintiff, at his examination before trial, clarified his claim and stated that he was unable to return to work and had approximately missed four months of work as a result of his injuries caused by the accident. (Defendant's Motion, Exhibit D, Page 82). The Plaintiff further explained that he was not able to work because his injuries made driving difficult. (Defendant's Motion, Exhibit D, Page 179) As a result, the Court is of the opinion that the motion fails to adequately address, as a matter of law, the Plaintiffs claim set forth in the verified bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented [her] from performing substantially all of the material acts which constituted [her] usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. See Aujour v. Singh, 90 A.D.3d 686, 934 N.Y.S.2d 240 [2d Dept 2011]; Lewis v. John, 81 A.D.3d 904, 905, 917 N.Y.S.2d 575 [2d Dept 2011]; Menezes v. Khan, 67 A.D.3d 654, 889 N.Y.S.2d 54 [2d 2009]; Faun Thai v. Butt, 34 A.D.3d 447, 448, 824 N.Y.S.2d 131, 132 [2d Dept 2006].

Even assuming, arguendo, that the Defendants had met their prima facie burden, the Court finds that the Plaintiff has raised material issues of fact relating to his ability to meet the serious injury' threshold requirements of Insurance Law' 5102. The Plaintiff relies on an initial evaluation from Dr. Kevin H. Weiner. Dr. Weiner examined the Plaintiff on December 13, 2019, having initially seen the Plaintiff on August 1, 2018. He found pronounced limited range of motion in the Plaintiffs cervical spine and...