Shin v. Ahmed
| Decision Date | 09 November 2021 |
| Docket Number | Index 700847/2019 |
| Parties | YOUNG S. SHIN, Plaintiff, v. MOJEEB AHMED and AFTAB AHMED, Defendants. Motion Seq. No. 001 |
| Court | New York Supreme Court |
DECISION & ORDER
DONNA-MARIE GOLIA JUDGE.
The following electronically filed papers numbered EF12 to EF21 and EF24 to EF30 read on this motion by defendants for summary judgment pursuant to New York Civil Practice Law and Rules ("CPLR") 3212:
Papers Numbered
Affirmation in Opposition, Exhibits......................................................... EF24 - EF28
Affirmation in Reply, Affidavit................................................................ EF29-EF30
Defendants Mojeeb Ahmed and Aftab Ahmed ("defendants") move, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a "serious injury" under New York Insurance Law ("NYIL") § 5102(d). Plaintiff Young S. Shin ("plaintiff) opposes the motion. Upon the papers submitted, defendants' motion is granted in part and denied in part, as discussed more fully below.
Plaintiff commenced this action for personal injuries she sustained as a result of an alleged motor vehicle accident that occurred on October 28, 2018 at or near the intersection of Booth Street and 65th Road in Queens, New York. Plaintiff alleges injuries to her cervical, thoracic and lumbar spine, bilateral shoulders, bilateral knees and pelvis.
In her bill of particulars, plaintiff avers that she satisfies the following serious injury categories under NYIL § 5102(d): 1) significant disfigurement, 2) fracture, 3) a permanent loss of use of a body organ, member, function or system, 4) a permanent consequential limitation of use of a body function or system, 5) a significant limitation of use of a body function or system and 6) a medically determined injury or impairment preventing her from performing all of the material acts substantiating her usual and customary daily activity for not less than 90 days of the 180 days following the alleged accident ("90/180 category").
In their motion, with regard to plaintiffs claim of a serious injury under the 90/180 category, defendants assert that plaintiff has failed to satisfy the 90/180 category of NYIL § 5102(d). Specifically, defendants aver that plaintiff testified that she was not employed at the time of the alleged accident and did not undergo surgery as a result of the alleged accident. Defendants also note that plaintiff testified that there are no activities that she could no longer do as a result of the alleged accident.
Additionally, with regard to plaintiff's claim of a serious injury under the permanent loss of use of a body organ, member, function or system, the permanent consequential limitation of use of a body function or system and the significant limitation of use of a body function or system categories of NYIL § 5102(d), defendants annex the medical report of Dr. Jessica F. Berkowitz ("Dr. Berkowitz"), a radiologist, who examined the MRI films of plaintiffs cervical and lumbar spine and left shoulder. Defendants also annex the medical report of Dr. Dana A. Mannor ("Dr. Mannor"), an orthopedist who conducted an independent medical examination of plaintiff on February 4, 2021 and determined that plaintiff had normal ranges of motion.
In opposition, plaintiff argues that while Dr. Mannor examined her on February 4, 2021, Dr. Mannor never reviewed her medical records. Plaintiff also asserts that Dr. Mannor's findings are contradicted by those of her treating physician, Dr. Sang Lee ("Dr. Lee"), thereby raising a question of fact as to whether she suffered range of motion limitations as a result of the alleged accident.
Additionally, plaintiff argues that she sustained a serious injury under the 90/180 category since her neck and back complaints affect her daily life. Plaintiff also notes that she treated with Dr. Lee for complaints to her neck, back and left shoulder for six months and received chiropractic and acupuncture treatment three-to-four times a week.
In support of her opposition, plaintiff annexes Dr. Lee's medical records as well as the medical reports of Dr. Brijesh V. Reddy ("Dr. Reddy") and Dr. Daniel Schlusselberg ("Dr. Schlusselberg"), radiologists who performed MRIs on her cervical and lumbar spine and left shoulder. Plaintiff contends that the MRIs confirm her neck, back and left shoulder injuries.
In reply, defendants argue that contrary to plaintiffs assertion, Dr. Mannor was not required to review her medical records before forming her opinion. Defendants also contend that plaintiffs radiologists failed to causally connect the etiologies noted in her MRI films to the alleged accident. Similarly, defendants aver that Dr. Lee's May 30, 2021 report is devoid of evidentiary value as Dr. Lee failed to quantify any loss or limitation in the range of motion to plaintiffs left shoulder and failed to identify any objective tests he used to measure any range of motion deficits. Likewise, defendants assert that Dr. Lee failed to quantify any loss or limitation in the range of motion to plaintiffs left shoulder during her initial visit on November 14, 2018 despite noting that her left shoulder had "limited range of motion."
Additionally, defendants argue that plaintiffs experts did not address or refute Dr. Berkowitz's finding that plaintiffs cervical spine MRI showed multi-level disc bulges and hypertrophic joint changes, which were chronic and degenerative in nature.
As a threshold matter in personal injury actions involving an automobile accident, a plaintiff is "required to plead and prove that he or she sustained a 'serious injury' as defined in the No-Fault Law" (Zecca v Riccardelli, 293 A.D.2d 31, 33 [2d Dept 2002] citing Licari v. Elliott, 57 N.Y.2d 230, 236 [1982]; NYIL § 5102(d)).
Under NYIL § 5102(d), a "serious injury" is defined as one which results in, inter alia, significant disfigurement, 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" (see, Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295, 298 [2d Dept 2001]).
As the "'legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries, '" courts "have required objective proof of a plaintiffs injury in order to satisfy the statutory serious injury threshold" (Toure v. Avis Rent A Car Svs., Inc., 98 N.Y.2d 345, 350 [2002] [citations omitted]). Therefore, a "defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)" (Akhtar v. Santos, 57 A.D.3d 593 [2d Dept 2008]; Farozes v. Kamran, 22 A.D.3d 458, 458 [2d Dept 2005]). In doing so, where a defendant "relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a 'prima facie showing of entitlement to judgment as a matter of law'" (Pagano v. Kingsbury, 182 A.D.2d 268, 270 [2d Dept 1992] [citation omitted]).
Once defendant has made a prima facie showing, the burden shifts to "the plaintiff to come forward with sufficient evidence that [he or] she sustained a serious injury" (Lisa v. Pastor, 262 A.D.2d 368 [2d Dept 1999]). Similarly, "a plaintiffs opposition, to the extent that it relies solely on the findings of the plaintiffs own medical witnesses, must be in the form of affidavits or affirmations, unless an acceptable excuse for failure to comply with this requirement is furnished" (Paoano, 182 A.D.2d at 270, supra).
Under NYIL § 5102(d), a significant disfigurement is established where a plaintiff has suffered an injury that "a reasonable person" would regard as "unattractive, objectionable, or as the object of pity and scorn" (Maldonado v. Piccirilli, 70 A.D.3d 785, 786 [2d Dept 2010]). The defendant bears "the initial burden of establishing as a matter of law" that the plaintiff did not suffer a significant disfigurement (see, Borguist v. Hyde Park Cent. Sen. Dist., 107 A.D.3d 926 [2d Dept 2013]).
Here defendants have failed to establish, prima facie, that plaintiff did not sustain a significant disfigurement as a result of the alleged accident (see, id. Indeed, in their moving papers, defendants failed to address plaintiffs claim that she sustained a significant disfigurement, let alone proffer any argument, evidence or authority under which to satisfy their initial prima facie burden (see, Ballard v. Cunneen, 76 A.D.3d 1037, 1038 [2d Dept 2010]; Perez v. Hilarion, 36 A.D.3d 536, 537 [1st Dept 2007]; Onder v. Kaminski, 303 A.D.2d 665, 666 [2d Dept 2003]). As defendants have failed to establish their prima facie entitlement to judgment as a matter of law as to plaintiffs claim of a significant disfigurement, the Court "need not consider the sufficiency" of plaintiffs opposition papers (see, Onder, 303 A.D.2d at 666, supra; Ballard, 76 A.D.3d at 1038, supra). Accordingly, the branch of defendants' motion seeking...
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