Ulysee v. Hunt
| Decision Date | 29 June 2010 |
| Docket Number | No. 8068/07.,8068/07. |
| Parties | Farah ULYSEE, Plaintiff, v. Pierre HUNT and Marcel Ceres, Defendants. |
| Court | New York Supreme Court |
28 Misc.3d 1205
957 N.Y.S.2d 639
2010 N.Y. Slip Op. 51160
Farah ULYSEE, Plaintiff,
v.
Pierre HUNT and Marcel Ceres, Defendants.
No. 8068/07.
Supreme Court, Kings County, New York.
June 29, 2010.
Thomas Reitz, Esq., Brooklyn, Attorney for Plaintiff.
Deborah Ann Kramer, Esq., Longo & D'Apice, Esqs., Brooklyn, Attorney for Defendant Pierre Hunt.
William B. Stock, Esq., Cheven, Keely & Hatzis Esqs., New York, Attorney for Defendant Marcel Ceres.
FRANCOIS A. RIVERA, J.
By notice of motion filed on November 12, 2009, under sequence number three, defendant Pierre Hunt (Hunt) moves pursuant to CPLR § 3212 for an order dismissing the complaint on the basis that plaintiff Farah Ulysee (Ulysee) did not sustain a serious injury as contemplated by Insurance Law § 5102(d). Defendant Marcel Ceres (Ceres) moves, under sequence number four, for the exact same relief. Ulysee opposes both motions.
On March 8, 2007, Ulysee commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Hunt joined issue by his verified answer with cross-claims, dated March 17, 2008. Ceres joined issue by his verified answer, dated June 15, 2007.
Ulysee's complaint and bill of particulars allege the following salient facts. On April 7, 2005 at approximately 7:00 p.m., she was a passenger in a 1996 Land Rover Suburban owned and driven by Hunt. On that time and date, Hunt drove her suburban in the vicinity of Empire Boulevard and Troy Avenue in Brooklyn, New York where she came into contact with a 1992 Toyota owned and driven by Ceres. The collision was caused by the negligence driving of Hunt and Ceres and resulted in serious physical injury to Ulysee.
Hunt's motion papers consist of a memorandum of law, an affirmation of his counsel and eight annexed exhibits labeled A though H. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is Hunt's answer with cross-claim and various disclosure demands. Exhibit C is Ulysee's verified bill of particulars. Exhibit D is Justice Ruchelsman's order dated June 24, 2009 which, among other things, vacated the note of issue in the instant action. Exhibit E is the affirmed, narrative report of Dr. Lawrence E. Cutler, a gynecologist, of his examination of Ulysee on May 22, 2009. Exhibit F is the affirmed, narrative report by Dr. Daniel J. Feuer, a radiologist, dated January 6, 2009, of his examination of Ulysee. Exhibit G is the affirmed, narrative report by Dr. Eduardo V. Alvarez, an orthopedic surgeon, of his examination of Ulysee on January 12, 2009. Exhibit H is the certified but unsigned transcript of Ulysee's testimony at a deposition conducted on October 20, 2008.
Ceres' motion papers consist of an affirmation of his counsel and three annexed exhibits labeled A though C. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is Ceres verified answer. Exhibit C is Ulysee's verified bill of particulars.
Ulysee opposed both summary judgment motions with an affirmation of her counsel and several annexed exhibits. The first annexed exhibit is a copy of the police accident report (MV–104) of the subject accident. The second is Ulysee's verified bill of particulars. The third is Ulysee's affidavit. The fourth and fifth are affirmed reports of Dr. Nathaniel Shafer dated January 20, 2007 and February 17, 2010, respectively. The sixth exhibit is an excerpt of Ulysee's deposition. The seventh is a memorandum of law.
Hunt and Ceres replied to Ulysee's opposition papers with affirmations of their respective counsels.
CPLR § 3212(b) provides in pertinent as follows: Supporting proof; grounds; relief to...
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