Liranzo v Shehu2017 NY Slip Op 32355(U)

September 19, 2017Supreme Court, Queens County

Docket Number: 8243/2015Judge: Pam B. Jackman-Brown

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8243'2015 ORDER SIGNEO SEQUENCE f4

NEW YORK SUPREME COURT - COUNTY OF QUEENS

IAS PART 19

Present: Hon. Pam Jackman Brown, JSC

------------------------------------------------------------------)( NICAULIS LIRANZO and OMAR GUZ

Plaintiffs,

-against-

ELVIT SHEHU and YAN SOON SENG,

Defendant .

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Index No. 8243/2015

Motion Date: 05/19/17

Cal. No. 58 Mot. Seq. No.: 004

Recitation, as required by CPLR § 2219(a), o pers numbered I to 6 read on this motion by Defendant Elvit Shehu seeking an Order: (I) pursuant to CPLR § 3212, dismissing the action in its entirety on the ground that the injuries claimed by Plaintiffs fail to satisfy the "serious injury" requirement of Insurance Law§§ 5 I 04(a) and 5102(d) thus barring Plaintiffs' claims for non-economic loss; and (2) granting such other and further relief as this Court deems just and proper; and Cross Motion filed by Defendant Seng for an order seeking (a) vacatur of the Note of Issue and Certificate of Readiness, (b) striking the case from the trial calendar and keeping it off the calendar until such time as discovery has been completed, (c) compelling the plaintiff to provide the defendants with HIPAA authorizations to obtain all medical, hospital, no-fault, employment, MRI films, (d) extending Defendant's time to move for summary judgment until all discovery is completed, and (e) for such other and further relief which this Court may deem just and proper is denied

PAPERS E-FILE NUMBERED

Papers Exhibits

Notice of Motion - Exhibits, Affirmations, and Affidavits 1-2 A-I Annexed

Notice of Cross-Motion - Exhibits, Affirmations, and 3-4 . A-B Affidavits Annexed

Affirmation in Opposition to Defendants' Motion for 5 A-E Summary Judgment - Exhibits, Affirmations, and Affidavits Annexed

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Affirmation in Opposition to Defendants' Motion for 6 A-D Summary Judgment - Exhibits, Affirmations, and Affidavits Annexed

Upon the papers listed above, this Notice of Motion and Notice of Cross-Motion is hereby decided in accordance with this Decision/Order.

On April 3, 2015, Plaintiffs and Defendants were involved in a motor vehicle accident near the intersection of Grand Central Parkway and Union Turnpike, within the County of Queens. As a result of the accident, Plaintiffs claim that they sustained serious physical injuries. Specifically, Plaintiff Liranzo claims that he sustained injuries to his right and left knees and his neck and lower back. Plaintiff Guzman claims that he sustained injuries to his neck and lower back. Defendants move by motion and cross motion pursuant to CPLR § 3212, for an order granting summary judgment in favor of Defendants and argue that Plaintiffs did not sustain a "serious injury" as defined under Insurance Law § 5102( d) . Defendants further argue that the Complaint fails to meet the "serious injury" threshold of Insurance Law § 5102( d) and that it did not have a cause of action under NY Insurance Law § 5104(a). Plaintiffs oppose the motion and cross motion.

The proponent of a motion for summary judgment, where the issue is whether Plaintiffs have sustained serious injuries as defined by Insurance Law§ 5102(d), has the initial burden of establishing, by competent evidence, that Plaintiffs did not sustain serious injuries causally related to the subject accident (see Franchini v Palmieri, 1 NY3d 536 [2003]).

Defendants argue that Plaintiffs have not shown that they suffered a permanent loss of use of a body organ, member, function or system; permanent or consequential limitation of the use of a body function or system; or significant limitation of the use of a body organ or member or that they could not perform substantially all of their usual and customary daily activities for at least 90 days of the 180 days following the accident.

In support of their motions, Defendants submitted the affirmed report, dated October 4, 2016, of Thomas P. Nipper, M.D., F.A.C.S., a board certified orthopedic surgeon, who conducted an independent physical examination of Plaintiff Liranzo. Dr. Nipper also reviewed medical reports submitted by Dr. Rikki dated August 11 , 2016. Based on the review and examination, Dr. Nipper concluded that there was no objective clinical finding indicative of a present disability or functional impairment, which prevents Plaintiff Liranzo from engaging in his daily living and usual activities. Dr. Nipper further concluded that any injuries to Plaintiff Liranzo's bilateral knees did not have any acute

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traumatic origin and thus were not caused by the accident.

In further support of their motions, Defendants submitted the affirmed report, dated August 11, 2016, of Dr. Lane, who reviewed the verified bill of particulars, the supplemental bill of particulars, and the emergency department hospital record for Plaintiff Liranzo. Dr. Lane concluded that the claimed injuries are inconsistent with the records that they do not have an acute traumatic origin, and that they were not causally related to the subject accident.

Defendants also annexed, inter alia, Plaintiff Liranzo's deposition testimony, sworn on August 17, 2016, in support of their motions.

Plaintiff Liranzo opposes the motion. Plaintiff Liranzo argues that Defendants failed to meet their burden of proof to establish summary judgment and further argued that his injuries meet the "serious injury" threshold set forth by§ 5102(d) and§ 5104(a). Plaintiff Liranzo submitted the affirmation, dated April 25, 2017, of Steve B. Losik, M.D., a board certified radiologist who supervised the MRI examinations of Plaintiff Liranzo's left knee and lumbar spine on May 16, 2015, and PlaintiffLiranzo's right knee and a cervical spine on May 2, 2015, together with reports regarding same. Dr. Losik determined that the findings are consistent with a sprain in the left knee, a tear in the right knee, disc herniation, disc bulges and straightening of the lumbar lordosis.

In further support of Plaintiff Liranzo's opposition to Defendants' motions, he submitted the affirmation, dated April 27, 2017, of Shahid Mian, M.D. together with the surgical report, dated June 19, 2017 and the affirmed report, dated April 29, 2017, of Dr. Mian who measured limitations in PlaintiffLiranzo's range of motion in his cervical and lumbar spine and left and right knees.

In further support of PlaintiffLiranzo's opposition to Defendants' motions, he submitted the affirmation, dated May 4, 2017, of Dr. Gamil Kostandy, M.D., a physician, who treated Plaintiff Liranzo in connection with the injuries he claimed he suffered as a result of the subject accident. Dr .. Kostandy concluded that Pla!ntiff Liranzo's injuries to his cervical and lumbar spine and his knees are causally related to the subject accident.

Plaintiff Liranzo, also, submitted his affidavit, sworn to on April 24, 2017.

Jn reviewing all the papers for and against the motions, Plaintiff Liranzo raises a triable issue of material fact by submitting, inter alia, the affirmed medical reports and his sworn statement in affidavit format regarding his injuries caused by the accident to meet the serious injury threshold and raise the issue of fact. (See, Mazo v Wolofsky, 9 AD3d

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452, 453 [2d Dept 2004]; Toure v Avis Rent A Car Sys., Inc. 98 NY2d 345, 351 [2002]). Considered in the light most favorable t<;> Plaintiff Liranzo, Defendants have failed to show entitlement to summary judgment pursuant to CPLR § 3212. There are issues of fact raised in the Plaintiff Liranzo opposition papers. Also, Defendants have failed to show that Plaintiff Liranzo did not sustain a "serious injury" within the meaning of Insurance Law § 5102( d) and that the there is no cause of action under NY Insurance Law § 5104(a) causally related to the subject accident, (See Id.) , Therefore, Defendants' motions against Plaintiff Liranzo are denied.

In support of their motions to dismiss against Plaintiff Guzman, Defendants submitted the afftnned report of Dr. Nipper, dated September 8, 2016 and January 20, 20 I 7, after reviewing the report of Dr. Lane dated July 19, 2016. Dr. Nipper concluded that Plaintiff Guzman's reported injuries have fully resolved. Although, Dr. Nipper stated "There are objective clinical findings which substantiate that the examinee had incurred traumatic insults to the neck and low back at the time of the motor vehicle accident'', Dr. Nipper concluded that there was no objective clinical finding indicative of a present disability or functional impainnent, which prevents Plaintiff Guzman from engaging in his daily Jiving and usual activities.

In addition, Defendants submitted the affinned report, dated July 19, 2016, of Dr. Lane, who reviewed the verified bill of particulars, the supplemental bill of particulars, and the emergency department hospital record for Plaintiff Guzman and concluded the same with Dr. Nipper.

Defendants also annexed, inter alia, Plaintiff Guzman's deposition testimony dated August 17, 2016.

Plaintiff Guzman opposes the motion. Plaintiff Guzman argues that Defendants failed to meet their burden of proof to esta_blish summary judgment and further argued that his injuries meet the "serious injury" threshold set forth by§ 5102(d) and§ 5104(a). Plaintiff Guzman submitted the affinnation, dated March 28, 2017, of Steve B. Losik, M.D., a board certified radiologist who supervised the MRI examinations of Plaintiff Guzman's cervical spine on May 2, 2015, and Plaintiff Guzman's lumbar spine on May 16, 2015, together with other reports regarding Plaintiff Guzman's injuries. Dr. Losik detennined that Plaintiff Guzman injuries revealed, inter a/ia, disc bulge, with compression of anterior thecal sac and partial effacement of anterior subarachnoid space at each level and disc bulge with impingement on the neural foramina at each level.

In further support of Plaintiff Guzman's opposition to Defendants' application, he submitted the affirmed report, dated April 13, 20 17, of Paul Lerner, M .D. After review of

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various medical reports related to Plaintiff Guzman's injuries and examination of Plaintiff Guzman on April 13, 2017, Dr. Lerner measured no limitations, which he quantified in records, in Plaintiff Guzman's range of motion in his cervical and lumbar spine with the exception of slight limitation in the extension of his lumbar spine. Further, Or. Lerner noted that there is "discomfort reported to percussion of the lumbar spine and palpation of the paravenebral muscles" and that the straight leg test is negative. Moreover, Dr. Lerner stated that "spasm is present at the lumbar paraspinal muscles." Dr. Lerner concluded that Plaintiff Guzman's injuries result in a "moderate degree of impainnent and disability at the lumbar spine". Further, Dr. Lerner stated Plaintiff Guzman's conditions are "considered pennanent" and are "causally related to the motor vehicle accident" at issue.

In further support of Plaintiff Guzman's opposition to Defendants' motions, he submitted the affinned report, dated May 4, 2017, of Gamil Kostandy, M.D., a physician, who treated Plaintiff Guzman in connection to the injuries from the subject accident. Dr. Kostandy stated that Plaintiff Guzman's injuries are casually related to the accident.

Considered in the light most favorable to Plaintiff Guzman, Defendants have failed to show that there is no issue of fact for summary judgment pursuant to CPLR §3212. In addition, Defendants have failed to show that Plaintiff Guzman did not sustain a "serious injury" within the meaning ofinsurance Law§ 5102(d) and that there is no cause of action under NY Insurance Law § 5104(a) causally related to the subject accident (see Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345 [2002) (supra); Vaughan v Leon, 94 AD3d 646, 650 [l5t Dept 2012]). Therefore, Defendants' motions against Plaintiff Guzman are denied.

The transcript submitted by Defendants of Plaintiff Guzman's deposition was not certified pursuant to CPLR § 3116. Defendants failed to meet their burden to show that the transcript was sent to the witness to be reviewed for any corrections and that sufficient time to do so passed (Siegel, 1993 Supp Practice Commentaries, McKinney's Cons Law ofNY, Book 7B, CPLR § 3116:1, 199701998 Pocket Part, at 94). These defects fail to support in showing evidence in admissible form to established a prima facie entitlement to summary judgment (see Lalli v Abe, 234 AD2d 346, 34 7 [2d Dept 1996)). The use of the transcript was improper and the branch of Defendants application seeking dismissal of Plaintiff Guzman's 9011 80 claim based on the deposition testimony is denied.

Based on all of the above,

It is ordered that the motions by Defendants for an Order, pursuant to CPLR § 3212, granting summary judgment in favor of Defendants are denied. And

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It is further ordered that the motions by Defendants to dismiss the Complaint, on the grounds that Plaintiffs ' injuries do not meet the "serious injury" threshold of Insurance Law§ 5102(d) and do not have a cause of action under NY Insurance Law§ 5104(a), are denied.

The Cross Motion filed by Defendant Seng for an order seeking (a) vacatur of the Note of Issue and Certificate of Readiness, (b) striking the case from the trial calendar and keeping it off the calendar until such time as discovery has been completed, ( c ) compelling the plaintiff to provide the defendants with HIPAA authorizations to obtain all medical, hospital, no-fault, employment, MRI films, (d) extending Defendant's time to move for summary judgment until all discovery is completed, and (e) for such other and further relief which this Court may deem just and proper is denied.

The Court has denied Defendants' motion for summary judgment above. In addition, Defendant interposes "Defendant" with "Defendants" in the cross motion. However, there is no motion filed by Defendant Shehu for this relief. In addition, Defendant Seng has failed to show demands to Plaintiff or indicate which Plaintiff has failed to respond. Therefore the cross motion is denied in its entirety.

All applications not specifically granted or denied are deemed denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: September 19, 2017 Jamaica, New York HON. PA BROWN,JSC

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