Singh v. BQB Car Servs.
| Decision Date | 04 April 2022 |
| Docket Number | Index 510790/2018 |
| Parties | Kean R. Singh, Plaintiff, v. BQB Car Services Inc, Udoka S. Ezenwa Elumelu, Kevon N. Edwards and Amjad Habib, Defendants |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION / ORDER
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Cross Motion and Affidavits (Affirmations)___
31-38; 40-45; 52-55; 57-68; 69-78; 79-98
Opposing Affidavits (Affirmations)___
99-100; 103; 104-110; 113; 115; 117; 121-126
Reply Affidavits (Affirmations)___
Upon the foregoing papers in this personal injury action, all of the defendants, Amjad Habib (Habib), Kevon N. Edwards (Edwards), BQB Car Services Inc. (BQB Car) and Udoka S Ezenwa Elumelu (Ezenwa Elumelu) move, respectively, (in motion sequence [mot. seq.] nos. two, three, and four) pursuant to CPLR 3212, for orders granting each summary judgment and dismissing the action on the grounds that plaintiff Kean R. Singh's alleged injuries fail to satisfy the "serious injury" requirement established by Insurance Law § 5102 (d).
Defendant Edwards also moves (in mot. seq. no. five) for an order pursuant to CPLR 3212, granting him summary judgment and dismissing the action as against him on the basis that he was not negligent in the happening of the accident.
Defendant Habib similarly moves (in mot. seq. no. six) for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the action against him on the basis that he bears no responsibility for the accident or plaintiff's injuries.
Plaintiff Singh cross-moves (in mot. seq. no. seven) for an order, pursuant to CPLR 3212, granting summary judgment in her favor on the issue of liability as against all defendants.
Plaintiff commenced this negligence action, alleging she sustained serious injuries as a result of an automobile accident which involved three motor vehicles. On February 17, 2017, plaintiff Singh was riding on Eastern Parkway in Brooklyn, New York, as a rear-seated passenger in a 2013 Toyota, owned by BQB Car and operated by Ezenwa Elumelu. As Ezenwa Elumelu approached the intersection of St. John Place and Eastern Parkway (the "Intersection") he caused his motor vehicle to come to a complete stop behind a 2016 Hyundai owned and operated by Habib. Habib was stopped at the intersection at a red traffic signal. The traffic signal then changed to green, but Habib did not move. After waiting 15 to 30 seconds behind Habib, Ezenwa Elumelu used his right-side view mirror and then turned to look behind him before employing his right turn signal to indicate he was going to move his vehicle into the right lane. Prior to beginning the maneuver to change lanes, Ezenwa Elumelu observed a 2003 Chevy Tahoe, owned and operated by defendant Edwards, approaching in the right lane. Edwards was traveling straight in the lane to the right of the Ezenwa Elumelu and Habib vehicles. Ezenwa Elumelu moved right, and the front driver's side of Edwards' 2003 Chevy Tahoe came into contact with the middle passenger side of the 2013 Toyota operated by Ezenwa Elumelu and occupied by plaintiff. The impact caused the 2013 Toyota to move forward, resulting in it coming into contact with the front passenger side of Habib's 2016 Hyundai.
During and prior to the two collisions, plaintiff was seated behind Ezenwa Elumelu on the driver's side of the 2013 Toyota. She was not wearing a seatbelt. Upon the first impact, between the 2003 Chevy Tahoe and the 2013 Toyota, plaintiff claims she was propelled towards the front of her seat, resulting in her right knee coming into contact with the center console of the motor vehicle.[1] The second impact caused plaintiff to fall into the "footwell" between the rear seats and front seats. No ambulance or medical attention was provided to plaintiff immediately following the accident.
On February 19, 2017, two days after the accident, Singh sought treatment from Dr. Sayeedus Salehin (Dr. Salehin) due to, among other physical concerns, pain and movement limitations relating to her right knee. Dr. Salehin prescribed physical therapy, acupuncture, and chiropractic treatment. Dr. Salehin also directed follow-up appointments for re-examination and referred plaintiff to have MRI films of her right knee. An MRI was performed on February 23, 2017. Following the conservative treatment of Dr. Salehin, plaintiff was referred to an orthopedist who recommended that Singh undergo arthroscopic knee surgery. On July 27, 2017, Dr. Stanislav Avshalumov (Dr. Avshalumov) performed arthroscopic knee surgery on plaintiff and confirmed that she had a posttraumatic dislocated radial tear coming from the posterior horn of the medial meniscus, bursitis, and synovitis. Following the surgery, plaintiff underwent a course of physical therapy and appeared for follow up examinations by Dr. Avashalumov and Dr. Salehin.
On May 24, 2018, plaintiff filed a summons and verified complaint asserting negligence causes of action against each named defendant, seeking monetary damages for her pain and suffering and economic loss resulting from the accident. Each defendant subsequently appeared with the filing of an answer asserting various affirmative defenses and cross claims against his/its co-defendants. Thereafter discovery commenced and a final pre-note order, dated January 26, 2021, included a preclusion order against Habib, precluding him from offering personal testimony. On January 26, 2021, plaintiff filed the note of issue, attesting that all discovery was complete and seeking a jury trial.
Presently before this court are six (6) motions. Three motions (mot. seq nos. two, three, and four) are brought by the defendants seeking summary judgment dismissing the action, pursuant to Insurance Law § 5104 (a), on the basis that plaintiff's injuries fail to reach the serious injury threshold within the meaning of Insurance Law § 5102 (d). Defendants Edwards and Habib also respectively move, in motion seq nos. five and six, for orders, granting each summary judgment dismissing the action on the basis that neither defendant is liable to plaintiff for the occurrence of the accident. Plaintiff also cross- moves, in mot. seq. seven, for an order, pursuant to CPLR 3212, granting her summary judgment on the issue of liability against all defendants.
Defendants each contend that plaintiff cannot maintain the instant negligence action, as her alleged injuries fail to meet the serious injury threshold established by Insurance Law § 5102 (d). [2] They argue that Insurance Law § 5104 (a) provides that a plaintiff has no right of recovery for non-economic loss, except where there are serious injuries as defined by Insurance Law § 5102 (d). Defendants maintain that plaintiff's right knee injuries do not constitute a permanent loss of use, a permanent consequential limitation or a significant limitation of use of her right knee, nor did they result in a substantial curtailment of all of her activities for 90 out of the first 180 days. As a consequence, defendants insist she fails to satisfy the serious injury requirement, necessitating dismissal of the action.
Supporting their positions, defendants proffer, among other evidence the deposition testimony of Singh, her verified bill of particulars, and the expert evidence from Drs. Mark Decker and Dana A. Mannor. They first address the claim that plaintiff suffered a serious injury due to substantial curtailment of all activities for 90 out of the first 180 days immediately following the accident, defendants argue that plaintiff testified that she returned to work shortly after the accident. Additionally, plaintiff averred to have only missed approximately two to three weeks of work cumulatively after the accident.
Defendants accordingly maintain that such evidence defeats any claim by plaintiff Singh that she suffered a serious injury on the basis that she was substantially curtailed from performing all of her routine activities for 90 out of the first 180 days following the accident.
Addressing Singh's allegations that she suffered a permanent, consequential, and/or significant limitation to her right knee as a result of the accident, defendants principally rely on the expert reports of radiologist Dr. Mark Decker and orthopedist Dr. Dana A. Mannor [Doc 38]. Dr. Decker's report [Doc 37] attests that on January 5, 2020, he reviewed MRI images of plaintiff's right knee taken on February 23, 2017. He averred that his review of these images allowed him to conclude that there was no evidence of any tears, fractures, or an acute traumatic injury to plaintiff's right knee. He also states that he observed, in the right knee, "patella alta with lateral subluxation and thickened medial plica," which he states is longstanding and not related to the accident.
Dr. Mannor attests that she performed an orthopedic examination of plaintiff's right knee. Dr. Mannor concluded that plaintiff's right knee had no orthopedic limitations in use and that Singh was able to have functional use of the right knee for normal activities. She determined the range of motion for both flexion and extension of plaintiff's right knee was normal and that passive range of motion was full.
Based upon the expert evidence, defendants assert that they have each established a prima facie case entitling them to dismissal of the action, as plaintiff did not sustain a permanent loss of use, a permanent consequential limitation and/or a significant limitation to her right knee as a result of the accident. Additionally, defendants argue that evidence of surgery to repair tears to portions of plaintiff's right knee is alone...
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