Testa v. Lorefice
| Citation | 2019 NY Slip Op 34569 (U) |
| Decision Date | 10 October 2019 |
| Docket Number | Index 620412/2016E |
| Parties | Joseph Testa and Julie Testa, Plaintiff, v. Elaina M. Lorefice, Erik A. Karlund, Arben B. Cekovic and Nafije Cekovic Defendants. |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
Motion Sequence No.: 002; MD Motion Date: 10/11/18 Submitted 1/23/19
Motion Sequence No.: 003; MG Motion Date: 12/2618 Submitted: 1/23/19
Motion Sequence No.: 004; XMD Motion Date: 1/2/19 Submitted: 1/23/19
Attorney for Defendants
Elaina M. Lorefice and Erik A. Karlund
Bello & Larkin
Attorney for Plaintiff:
Salenger, Sack, Kimmel & Bavaro, LLP
Attorney for Defendants
Arben B. Cekovic and Nafije Cekovic:
Law Offices of Karen L. Lawrence
Upon the following papers read on these e-filed motions and cross-motion for summary judgment: Notice of Motion and supporting papers dated September 4, 2018 and November 30, 2018; Notice of Cross-Motion and supporting papers dated December 11, 2018; Answering Affidavits and supporting papers dated January 9, 2019 and January 16, 2019; Replying Affidavits and supporting papers dated January 21, 2019 and January 23, 2019; it is
ORDERED that these motions and the Cross-Motion are hereby consolidated for purposes ORDERED that the motion by defendants Elaina Lorefice and Erik Karlund for an order granting summary judgment dismissing the complaint on the ground that plaintiff Joseph Testa did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied; and it is further
ORDERED that the cross-motion by defendants Arben Cekovic and Nafije Cekovic for an order granting summary judgment dismissing the complaint on the ground that plaintiff Joseph Testa did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied.; and it is further
ORDERED that the motion by plaintiffs for summary judgment in their favor on the issue of liability against defendants is granted.
This is an action to recover damages for injuries sustained by plaintiff Joseph Testa ("plaintiff) when his vehicle collided with a vehicle owned by defendant Nafije Cekovic and operated by defendant Arben Cekovic. It is alleged that immediately prior to colliding with plaintiffs vehicle, the Cekovic vehicle collided with a vehicle owned by defendant Erik Karlund and operated by defendant Elaina Lorefice. The accident allegedly occurred on January 7, 2016, at approximately 12:05 p.m., at the intersection of Jericho Turnpike and Eldorado Drive, in the Town of Huntington, New York. By his bill of particulars, plaintiff alleges that, as a result of the subject accident, he sustained serious injuries and conditions, including bulging and herniated discs in the spine, sprains and strains in the spine, and radiculopathy in the cervical and lumbar regions. Plaintiff claims that he sustained a serious injury within the 90/180-day category of Insurance Law § 5102 (d). Plaintiffs wife, Julie Testa, seeks damages for loss of services.
Defendants Lorefice and Karlund move for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d) and defendants Arben Cekovic and Nafije Cekovic also move for summary judgment on the same grounds.
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."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiff s 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]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Aklitar v Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiff s deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
Here, defendants Lorefice and Karlund failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002], Spann v City of New York, 145 A.D.3d 932, 43 N.Y.S.3d 143 [2d Dept 2016]). In his bill of particulars, plaintiff alleges that he had sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the subject accident. However, defendants Lorefice and Karlund failed to show, prima facie, that plaintiff did not sustain such an injury. At his deposition, plaintiff indicated that following the accident, he missed 82 days of work (see Aujour v Singh, 90 A.D.3d. 686, 934 N.Y.S.2d 240 [2d Dept 2011]; Takaroff v A.M. USA, Inc., 63 A.D.3d 1142, 882 N.Y.S.2d 265 [2d Dept 2009]; Shaw v Jalloh, 57 A.D.3d 647, 869 N.Y.S.2d 189 [2d Dept 2008]). On January 17, 2 018, approximately two years after the subject accident, defendants' examining orthopedist, Dr. Gary Kelman, examined plaintiff He did not relate any of his findings to the period of time immediately following the accident. Dr. Kelman's report is insufficient to sustain defendants' burden of proof to establish prima facie that plaintiff has not sustained a serious injury by reason of having been incapacitated from performing substantially all of his customary and daily activities for 90 of the first 180 days following the accident (see Cabey v Leon, 84 A.D.3d 1295, 923 N.Y.S.2d 713 [2d Dept 2011]; Mugno v Juran, 81 A.D.3d 908, 917 N.Y.S.2d 892 [2d Dept 2011]; Ali v Rivera, 52 A.D.3d 445, 859 N.Y.S.2d 713 [2d Dept 2008]). Defendants failed to negate the existence of a factual issue as to whether plaintiffs injury prevented him from performing substantially all of his usual and customary daily activities for at least 90 of the first 180 days following the accident.
Inasmuch as defendants Lorefice and Karlund failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiffs in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deoh Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Accordingly, the motion by defendants Lorefice and Karlund for summary judgment dismissing the complaint is denied.
The cross-motion by defendants Arben Cekovic and Nafije Cekovic for summary judgment dismissing the complaint on the basis that plaintiff has not sustained a serious injury as defined in Insurance Law § 5102 (d) is also denied. The Cekovic defendants attempt to incorporate by reference the proof submitted by defendants Lorefice and Karlund in support of their motion. Inasmuch as the court has already determined that defendants Lorefice and Karlund failed to establish that plaintiff did not sustain a serious injury, the cross-motion must be denied, as without substantive merit.
Plaintiffs move for summary judgment in their favor on the issue of liability on the ground that plaintiff was not negligent, and that the subject accident was solely caused by the operation of defendants' vehicles, which collided with each other before the Cekovic vehicle collided with plaintiffs vehicle. In support, plaintiffs submit, inter alia, the pleadings and the transcripts of the parties' deposition testimony. Plaintiff suggests herein that he is an irmocent driver and entitled to summary judgment (see Jung v Glover, 169 A.D.3d 782, 93 N.Y.S.3d 390 [2d Dept. 2019]; Medina v. Rodriguez, 92 A.D.3d 850 [2d...
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