TOLKACH v. SEN XI LIN (2018)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 28, 2018, under motion sequence six, by defendants Sen Xi Lin (hereinafter Lin) and Hi-Rite Electric Corp.'s (hereinafter Hi-Rite), (hereinafter collectively as defendants) for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint of Vadim Tolkach (hereinafter the injured plaintiff) and Valentina Bondarenko (hereinafter Bondarenko and collectively as the plaintiffs) on the ground that the injured plaintiff's alleged injuries do not satisfy the serious injury threshold requirement of the New York Insurance Law § 5102 (d). Plaintiffs have opposed the motion.

Notice of Motion

Supporting Affirmation

Exhibits A to H

Affirmation in Opposition

Exhibits A to D

Reply Affirmation

Exhibit 1

MOTION PAPERS

Defendants' motion papers consist of an affirmation of counsel and eight annexed exhibits labeled A through H. Exhibit A is described as an E-Law printout showing that on January 9, 2018, the plaintiffs filed a note of issue. Exhibit B is a copy of plaintiffs' summons and verified complaint. Exhibit C is a copy of the defendants' verified answer. Exhibit D is a copy of plaintiffs' verified bill of particulars. Exhibit E is a copy of the transcripts of the injured plaintiff's deposition conducted on September 29, 2016. Exhibit F is described as an MRI report from Professional Health Imaging, P. C. dated May 30, 2012. Exhibit G is described as an NCV/EMG report of the injured plaintiff dated June 12, 2012. Exhibit H is the affirmed report of the examination of the injured plaintiff by Dr. Edward A. Toriello conducted on July 5, 2017.

Plaintiffs' opposition papers consist of an affirmation of counsel and four annexed exhibits labeled A through D. Exhibit A is described as a letter from Dr. Robert Alperin, the physician of plaintiff's counsel dated May 31, 2018. Exhibit B is described as a copy of a New York City Incident Information Slip dated June 28, 2018. Exhibit C includes a copy of the plaintiffs' verified bill of particulars and attachments. Exhibit D contains copies of several medical reports of Dr. Joseph Sciortino, the injured plaintiff's physiatrist.

BACKGROUND

On May 15, 2014, the injured plaintiff and Bondarenko, his wife suing derivatively, commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office. Defendants joined issue by a verified answer dated July 16, 2014. On January 9, 2018, plaintiffs filed the note of issue.

Plaintiffs' verified complaint and verified bill of particulars allege the following salient facts. On April 30, 2012, at approximately 8:30 a.m., a vehicle operated by Lin and owned by Hi-Rite collided with a vehicle operated by the injured plaintiff at the intersection of 66th Street and Fourth Avenue in Brooklyn, New York (hereinafter the subject accident). Plaintiffs claim that the subject accident was caused by the defendants negligent operation and maintenance of their vehicle. Plaintiffs also claims that the subject accident caused the injured plaintiff to sustain serious physical injuries.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003] ).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

“Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, “that there is no defense to the cause of action or that the cause of action or defense has no merit.” Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990] )” (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ).

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.

“A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim” (Nunez v. Alies, 162 AD3d 1058, 1059 [2nd Dept 2018] quoting Grossman v. Wright, 268 AD2d 79, 83 [2nd Dept 2000] ). “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law” (Grossman, 268 AD2d at 84). The plaintiff in such a situation must present objective evidence of the injury” (Id.) In the instant action, plaintiffs' verified bill of particulars alleges, among other things, that the injured plaintiff sustained injuries to his cervical and lumbosacral spine.

Defendants contend, inter alia, that the injured plaintiff has not sustained a serious injury to his cervical or lumbar spine due to the subject accident. In support of this claim, defendants have annexed what they describe as the MRI Report of his Cervical Spine and an NCV/EMG Report. Neither one of the items is affirmed or certified and the defendants have offered no foundation for their admissibility. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v. New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005] ). The affirmation of defendants' counsel, however, does not set forth the basis for counsel's knowledge that the MRI Report of the Cervical Spine and NCV/EMG Report are what counsel purports them to be. They are, therefore disregarded.

The defendants failed to meet their prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955, 956—957 [1992] ). On July 5, 2017, more than five years after the date of the subject accident, Dr. Toriello conducted an orthopedic examination of the injured plaintiff on behalf of the defendants. In his affirmed report, Dr. Torriello set forth, inter alia, his range-of-motion findings for the injured plaintiff's spine. However, when he performed a straight leg raise test of the injured plaintiff's lumbosacral spine he failed to compare his findings to what is normal (see Shirman v. Lawal, 69 AD3d 838 [2nd Dept 2010], citing Walker v. Public Adm'r of Suffolk County, 60 AD3d 757 [2nd Dept 2007] ). Instead, Dr. Toriello, stated “straight leg raising test is bilaterally full and pain free.”

Inasmuch as the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Espinal v. Shortis, 164 AD3d 1217 [2nd Dept 2018] citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ).

CONCLUSION

Defendants Sen Xi Lin and Hi-Rite Electric Corp.'s joint motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiffs' complaint on the ground that the injuries claimed do not satisfy the serious injury threshold requirement of the New York Insurance Law § 5102 (d) is denied.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.