grounds. First, defendant argues that the plaintiff has failed to establish a prima facie case

Transcription

1 SHORT FORM ORDER Present: COLEEN D. FISHER, SUPREME COURT - STATE OF NEW YORK HON. DANIEL PALMIERI Acting Justice Supreme Court TRIAL PART: NASSAU COUNTY -against- Plaintiffs, INDEX NO: FRANK WILLIAM&PETER HATZIOANNIDES, and PETER SANTOS, Defendants. MOTION DATE: MOTION SEQ. NOS: 004,005,006 and 007 The following papers having been read on this motion: Notice of Motion, dated **... 1 Plaintiff s Affidavit In Opposition, dated Cross-Motion of Defendant Santos, datedll Cross Motion of Defendant Williams, dated ll Plaintiff s Order to Show Cause, dated Reply Affidavit, dated Plaintiff s Opposition, dated Plaintiff s Opposition, dated Defendant Santos Reply, dated l Defendant Williams Opposition to OSC, dated l This action arises from a three-car intersection collision. The plaintiff was a passenger in the car operated by defendant Santos. Defendant, Hatzioanides moves for an Order granting summary judgment and dismissing the complaint against him on two separate grounds. First, defendant argues that the plaintiff has failed to establish a prima facie case against him. Additionally, defendant argues the plaintiff has failed to establish a serious injury as defined by Insurance Law, (d) and therefore has no cause of action under

2 New York Insurance Law $ 5104(a) and as a result, this action must be dismissed. The plaintiff opposes the motion. Both defendants, Santos and Williams III through their respective attorneys, cross move and join in defendant Hatzioannides application for an Order granting summary judgment as to the issue of the plaintiffs failure to have sustained a serious injury and defendant Santos also joins in the application on the issue of liability. The plaintiff opposes these cross motions as well. Finally, the plaintiff moves by Order to Show Cause seeking to strike the answer of defendant Williams for willfully failing to provide a response to discovery demands. Defendant Williams opposes this motion. The Court first addresses the serious injury question raised by all three defendants. On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law [see, Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988), Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v. Whitmore, 172 AD2d 600 (2nd Dept. 1991)]. The party opposing the motion, on the other hand, must produce evident&y proof in admissible form sufficient to require a trial of material questions of fact (Frank Corp. v. Federal Ins. Co., supra at 967; GTF Mktg. V. Colonial Aluminum Sales, 66 NY2d 965 (1985); Rebecchi v. Whitmore, supra at 601. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see, Frank Colp. v. Federal Ins. Co., supra). Further to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court deciding this type of motion is not to resolve 2 r

3 issues of fact or determine matters of credibility but merely to determine whether such issues exist [see, Barr v. County of Albany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312,317 (2nd Dept. 1989)]. In addressing the serious injury issue as defined by the New York State Insurance Law $5102(d), the Court first looks at the plaintiffs pleadings. Plaintiff, Coleen D. Fisher, alleges various multiple injuries to her cervical, thoracic and lumbar spine, as well as post concussion syndrome with mild traumatic brain injury which have resulted in pain, permanent and significant limitation of a use of a body function and/or system and/or a medically determined injury or impairment of a non permanent nature which prevented her from performing substantially all of her usually and customary daily activities for no less than 90 days during the first 180 days immediately following the event from which this claim arises. As the Court of Appeals noted in Winegrad v. New York Univ. Med. Center, (64 NY2d 851,853 (1985): The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case... Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Serious injury as definedby $5102(d) of the New York State Insurance Law means 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; 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 irnmediately following the occurrence of the injury or impairment. Defendants argue that the plaintiff did not sustain a serious injury as defined by statute under any section. Defendants application is supported by affirmed reports of 3

4 defendants examining orthopedist, Leon Sultan, M.D., dated March 14, 2000, and defendants examining neuro-psychiatrist, Michael Melamed, M.D., dated May 21,200O. Both doctors reviewed the available medical records and each examined the plaintiff. Defendants also submit with their papers the reports and narratives referenced in Dr. Melamed s affirmation. In opposition, the plaintiff has submitted her own affidavit and the only medical evidence offered are two unsworn reports of Deborah Benson, Ph. D., the plaintiffs treating Clinical neuro-psychologist dated February, 10 and August 2,1999. These reports are insufficient to raise a triable issue of fact on the issue of the period of plaintiff s disability as they were not notarized and unsworn thus they do not constitute competent evidence. Santoro v. Daniel, 713 N.Y.S.2d 699 (AD_, 2d Dept., 2000): As such, the plaintiff has failed to raise a triable issue of fact. [CPLR 3212(b)]. While a mental or emotional impairment may in certain circumstances constitute a significant limitation of use of a body function or system under Insurance Law (d), plaintiffs lack of competent evidence fails to provide that objectively measured quantum of evidence necessary to satisfy this category of injury. Sellitto v. Casey, 268 AD2d 753 (3rd Dept., 2000). In a motion for summary judgment seeking to dismiss the case, the defendant is required to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law (d). Gaddy v. Eyler, 79 NY2d 955 (1992). Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence in admissible form to demonstrate the existence of a question of fact on the issue. G&y, supra. The court must than decide whether plaintiff established a prima facie case of sustaining serious injury. Licari v. Elliott, 57 NY2d 230 (1983). 4

5 In the instant case, the medical reports of submitted by the defendant in support of the motion Dr. Leon Sultan and Dr. Melamed were affirmed under the penalty of perjury (see, CPLR 2106) and made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law $ 5102(d). Delinda v. Coronamos Cab Colp, 244 AD2d 397 (2nd Dept. 1997). The movant s submission in support of the motion established entitlement to judgment thus shifting the burden to the plaintiff to rebut the movant s case by submitting proof in evidentiary form showing the existence of triable issues of fact. Zuckennan v. City of New York, 49 NY2d 557 (1980); Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). Plaintiff has failed to submit any evidence in admissible form. The plaintiffs unsubstantiated proof of the duration and extent of her injuries is insufficient as to whether she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the first 180 days immediately following the occurrence of her impairment. Davis v. Brightside Fire Protection., Inc., 712 NYS2d 567 (_AD2d_ 2 d Dept., 2000), Traugott v. Konig, 184 AD2d 765.(2nd Dept., 1992). There is no evidence in either admissible or inadmissible form submitted by plaintiff to support her orthopedic injuries nor is there any competent testimony causally connecting these injuries to the accident. Notably absent from plaintiffs submission are affidavits from the physicians referred to in her affidavit who treated the plaintiff following the accident. Consequently, there is no evidence causally linking the plaintiffs injuries to the claim against this defendant. Nadich v. Woodcrest Country Club, 250 AD2d 1017 (2nd Dept., 1998), Daliendo v. Johnson, 147 AD2d 312 (2nd Dept., 1989). None of the above information has been offered by the plaintiff insupport of her position. 5

6 Thus, plaintiff has failed to meet her burden and the motions to dismiss for failure to meet the threshold statutory requirements are granted. Having dismissed this action, it is not necessary to decide plaintiffs motion to compel discovery from defendant Williams. However, the Court notes that defendant William s has provided the address of the location requested and thus this issue needs no further discussion. As to the issue of summary judgment with regards to liability, the Court need not address this as it is moot based on the Courts findings as to damages. Having found no material issues of fact, defendants motions for summary judgment on the issue of damages must be granted and the case is dismissed as to all defendants. This constitutes the Order and Decision of this DATED: February 8, 2001 ENTE R HON. DANIEL PALMIERI Acting J.S.C. TO: CURTIS, VASILE, DEVINE & McELHENNY Attorneys for Defendant HATZIOANNIDES 2174 Hewlett Ave. Merrick, NY ATT: HUGH J. LARKIN, ESQ. FEB 15 2ou TO: KROHN, ROSENBLUM & HAM.ETZ, WALDMAN, & WATTERS, LLP Attorneys for Plaintiff Williams, III 25 Menick Ave. PO Box 99 Merrick, NY ATT: IVAN W. HAMETZ, ESQ. 6

7 TO: RUBIN & FIORELA, LLP Attorneys for Defendant WILLIAMS, III 90 Park Avenue New York, NY ATT: KENNETH S. FIORELLA, LLP TO: MARTYN, TOHER, ESPOSITO & MARTYN, ESQS. Attorneys for Defendant SANTOS 330 Old Country Road, Suite 211 Mineola, NY *- ATT: JACQUELINE R. FUTERMAN, ESQ.