Pashalides v. Gliksman
| Docket Number | Index No. 714009/2019,Motion Seq. No.1 |
| Decision Date | 03 February 2022 |
| Parties | FANI PASHALIDES, Plaintiff, v. SABELLE KATHERINE GLIKSMAN, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: December 6, 2021
Present: HONORABLE LOURDES M. VENTURA, J.S.C.
AMENDED SHORT FORM ORDER
This matter is recalled, and this Court's decision filed with the County Clerk on January 12, 2022 is amended hereto only to the extent that the second to last sentence is stricken as it was inadvertently and in error placed in the decision.
The following electronically filed (EF) papers read on this motion by defendant for an Order: pursuant to CPLR 3212 dismissing the plaintiff's Complaint as a matter of law and for such other and further relief as this Court may deem just and proper.
Notice of Motion - Affirmation - Memorandum in Support - Exhibits...... EF 9-17
Opposition to Motion - Exhibits - Affirmation of Service........................ EF 19-29
Affirmation in Reply to Motion................................................... EF 35
Upon the foregoing papers, it is Ordered that defendant's motion is determined as follows:
Plaintiff commenced this personal injury action seeking to recover damages allegedly sustained in a motor vehicle collision that occurred on or about August 28, 2018, at or near the Northern State Parkway 1 mile west of exit 25, in the County of Nassau, State of New York where a vehicle operated by defendant, while intoxicated, made contact with a vehicle operated by plaintiff. Plaintiff alleges that as a result of the collision she sustained serious injuries as defined New York Insurance Law ("NYIL") § 5102.
Defendant filed this summary judgment motion pursuant to CPLR 3212 seeking summary judgment and dismissing the complaint of the plaintiff, on the grounds that plaintiff's injuries do not satisfy the "serious injury" threshold requirement of NYIL § 5102(d). In support of defendant's motion, it submits the following evidence: a copy of the summons, complaint, and answer; a copy of the verified bill of particulars; a copy of plaintiff's examination before trial ("EBT") testimony transcript; medical report by Howard V. Katz, M.D (hereinafter "Dr. Katz"); and Radiologist MRI report Jeffrey Warhit, M.D, (hereinafter "Dr Warhit").
Plaintiff opposes defendant's motion and avers that plaintiff did sustain serious injuries as defined pursuant to NYIL § 5102(d) warranting denial of defendant's motion. In support of plaintiff's opposition papers, it submits the following evidence: copy of the plaintiff's affidavit; a copy of the verified bill of particulars; police accident report; property damage photos of plaintiff's and defendant's cars; medical report by Manish Mammen, M.D. (hereinafter "Dr. Mammen"); Radiologist MRI report by Matthew Diament, M.D. (hereinafter "Dr. Diament"); medical report by Yakov Perper, M.D. (hereinafter "Dr. Perper"); and medical report and examination by Mike Pappas, M.D. (hereinafter" Dr. Pappas").
"It is well settled that 'the proponent of a summary judgment motions must make 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'" (see Pullman v. Silverman, 28 N.Y.3d 1060 [2016]) quoting (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Failure to make such a prima facie "showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]).
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law (Alvarez, 68 N.Y.2d 320; Winegrad, 64 N.Y.2d 851). The burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury" (Lowe v. Bennett, 122 A.D.2d 728 [1st Dept 1986], affd, 69 N.Y.2d 701, 512 N.Y.S.2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury (Lopez v. Senatore, 65 N.Y.2d 1017 [1985]). In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of plaintiff's examining physician (Pagano v. Kingsbury, 182 A.D.2d 268 [2d Dept 1992]).
Once the burden shifts, it is incumbent upon the plaintiff, in opposition to the defendant's motion, to submit proof of serious injury in "admissible form". (Licari v. Elliott, 57 N.Y.2d 230 [1982]). A medical affirmation or affidavit which is based on a physician's personal examination and observations of plaintiff, is an acceptable method to provide a doctor's opinion regarding the existence and extent of a plaintiff's serious injury is deemed competent medical evidence (see Yunatanov v Stein, 69 A.D.3d 708 [2d Dept 2010]). Thus, in the absence of objective medical evidence in admissible form of serious injury, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Fisher v. Williams, 289 A.D.2d 288 [2d Dept 2001]).
Pursuant to NYIL § 5102(d), "'serious injury' means 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 Court of Appeals has long recognized that the "legislative intent underlying the No Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 [2002] citing (Dufel v Green, 84 N.Y.2d 795 [1995]); see also Licari, 57 N.Y.2d at 234-235). As such, objective proof of a plaintiff's injury is required in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 N.Y.2d at 798; Lopez, 65 N.Y.2d 1017); subjective complaints alone are not sufficient (see e.g.Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Scheer v Koubek, 70 N.Y.2d 678 [1987]). "In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury (Toure, 98 N.Y.2d at 345). "As such, [courts require] objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold" [citations omitted] (see Toure, 98 N.Y.2d at 350). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Id.).
According to the bill of particulars, plaintiff alleges she sustained injuries to her lumbar spine and, as a result, suffered serious injuries as prescribed pursuant to NYIL § 5102(d), under the following categories: permanent consequential limitation and 90/180-day.
"Only a total loss of use is compensable under the 'permanent loss of use' exception to the no-fault remedy." (Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]). Without any evidence within the record, this Court will only address the issue of a significant limitation of use of a body function or system.
Defendant argues that plaintiff's injuries do not qualify as a serious injury under the permanent consequential limitation category of NYIL § 5102(d). First, defendant avers that plaintiff's injuries do not constitute a permanent limitation nor significant limitation. Second, defendant avers that the chain of causation broke due to a year and six months gap in medical treatment. Third, defendant further avers that plaintiff's injuries are due to pre-existing conditions.
On a motion for summary judgment alleging plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d), the defendant bears the burden of establishing that plaintiff did not sustain a serious injury caused by the accident. (Gardner v Spitz, 2021 N.Y. Misc. LEXIS 4023, at *5-6 [Sup Ct, Queens County May 21, 2021, No. 715199/2018]). Defendant's burden may be satisfied by presenting affirmations by medical experts reciting that "the plaintiff has normal ranges of motion in the affected body parts, and identifies the objective tests performed to arrive at that conclusion." (Id.). Upon making this showing, "the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" (Grossman v Wright, 268 A.D.2d 79, 83-84 [2d Dept 2000]).
To determine whether an injury is a "serious injury" under NYIL § 5102(d), the movant must show the injury's duration and its extent, or the degree of limitations associated with it. (Rovelo v Volcy, 83 A.D.3d 1034, 1035 [2d Dept 2011]). Furthermore, "any subjective complaints of pain and limitation...
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