Facey v. Doe

1

2022 NY Slip Op 34605(U)

Ronald Henry Facey, Plaintiff, v. John Doe #1-5 name fictitious and unknown to Plaintiff, and Sheldon K. Audain, Defendants.

Index No. 717574/2018, Motion Seq. No. 3

Supreme Court, Queens County

October 12, 2022

Unpublished Opinion

Motion Date: 2/2/22^[1]

PRESENT: HONORABLE PHILLIP HOM JUSTICE

Phillip Hom, Judge

The following e-filed documents, listed by NYSCEF document number, were read on this motion by Plaintiff

PAPERS NUMBERED

Notice of Motion-Affidavits-Exhibits ...................... 28-44

Affirmation in Opposition-Affidavits-Exhibits…… 45-48

Reply……………………………………………… 49

Upon the foregoing papers, it is ordered that this motion by Plaintiff for, among other things, vacatur of the summary judgment granted against him, is determined as follows:

Plaintiff Ronald Henry Facey ("Plaintiff") commenced this action to recover for injuries allegedly sustained in a motor vehicle crash which occurred on April 29, 2018, at 137-38 224^thStreet, Queens, NY.

Defendant Sheldon K. Audain ("Defendant") moved for summary judgment on the basis that Plaintiff did not suffer a serious injury under New York's Insurance Law § 5102 (d). Plaintiff did not oppose the motion. This Court granted summary judgment in favor of Defendant in an Order, dated August 24, 2020, and entered August 25, 2020 ("2020 Order"). On August 26, 2020, Defendant served a copy of the 2020 Order with Notice of Entry upon Plaintiff.

On August 27, 2021, Plaintiff filed this motion for an order vacating the 2020 Order and re-calendaring Defendant's summary judgment motion to be decided with Plaintiff's opposition. Defendant opposes, arguing, among other things that Plaintiff fails to set forth a reasonable excuse for his default and potentially meritorious opposition to the underlying motion.

Motion to Vacate the 2020 Order

A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate a reasonable excuse for the default, as well as a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Garcia v City of New York, 189 A.D.3d 788, 788 [2d Dept 2020]; Prakope v Public Storage, 186 A.D.3d 1738, 1739 [2d Dept 2020]; Onyenwe v Hamernick, 185 A.D.3d 1044 1045 [2d Dept 2020]; Campbell v TPK Heating, Ltd. 181 A.D.3d 642, 643 [2d Dept 2020]; 210 East 60 St., LLC v Rahman, 178 A.D.3d 888, 889 [2d Dept 2019]; Seaman v New York Univ., 175 A.D.3d 1578, 1579 [2d Dept 2019]; Bank of New York v Young, 123 A.D.3d 1068, 1069 [2d Dept 2014]). Such motion must be made within one (1) year after the service of a copy of the order with notice of entry (see CPLR 5015 [a][1]). The determination of whether an excuse is reasonable lies within the sound discretion of the trial court (id.).

The court has the discretion to accept law office failure as a reasonable excuse, provided the claim is substantiated by a detailed and credible explanation of the default (see CPLR 2005; Garcia, 189 A.D.3d at 789; Prakope, 186 A.D.3d at 1739; Campbell, 181 A.D.3d at 642; 210 East 60 St., LLC, 178 A.D.3d at 889; Seaman, 175 A.D.3d at 1579; Bank of New York, 123 A.D.3d at 1069). However, mere neglect is not a reasonable excuse (see Campbell, 181 A.D.3d at 643; Seaman, 175 A.D.3d at 1579).

The Court finds that this motion is untimely, as it was made more than a year after the 2020 Order with Notice of Entry was served upon Plaintiff. Thus, Plaintiff must show good cause for why this motion should be considered (see CPLR 2004).

Reasonable Excuse for Untimely Motion, and Failing to Oppose the Underlying Motion

Plaintiff states that, due to the COVID-19 pandemic, Plaintiff Counsel's firm was working remotely and had difficulty obtaining the doctor's affirmation needed to oppose Defendant's motion. Further, Plaintiff asserts that e-courts suspended notifications of adjourned dates and therefore, Plaintiff was unaware of the return date which had been adjourned several times. Additionally, Plaintiff asserts that he did not receive the motion submission form. However, Plaintiff does not deny having had knowledge of the pending motion or access to the New York State Court Electronic Filing ("NYSCEF") system. Plaintiff does not explain how his lack of notification of the various adjourned dates prevented him from opposing the motion, which was originally returnable February 27, 2020, prior to any COVID-19 related shutdowns, and adjourned per Plaintiff's request to April 23, 2020. Plaintiff admits that he had the reports needed to oppose the summary judgment motion by July 30, 2020, prior to the final adjourned date of August 20, 2020. Yet, Plaintiff did nothing with the reports until filing the instant motion on August 27, 2021.

In light of the global COVID-19 pandemic and the Executive Orders in place, including Executive Order 202.8 that was issued March 20, 2020, which suspended, for civil proceedings, "any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding as prescribed by the procedural laws of the state until April 19, 2020," as well as various extensions of that Executive Order until November 4, 2020, and due to the strong public policy of resolving a case on its merits (see Skutelsky v JN Natural Fruit Corp., 138 A.D.3d 1099, 1100 [2d Dept 2016]), the Court finds that Plaintiff establishes a reasonable excuse for his failure to file this motion timely and for his failure to oppose the underlying motion. Therefore, the Court will consider whether Plaintiff has a potentially meritorious opposition to the underlying motion.

Potentially Meritorious Opposition to the Underlying Summary Judgment Motion

Plaintiff asserts that he has a meritorious defense in that he suffered a serious injury under Insurance Law § 5102 (d). The Court finds that Plaintiff demonstrates a potentially meritorious opposition, based upon the issue of whether Plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d) (see Papandrea v Acevedo, 54 A.D.3d 915, 915 [2d Dept 2008]). Thus, the 2020 Order is vacated.

Defendant's Underlying Summary Judgment Motion

In the interests of justice and judicial efficiency, the Court considers Defendant's summary judgment motion, along with Plaintiff's opposition. Defendant moves for summary judgment on the basis that Plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). Plaintiff opposes.

In a summary judgment motion, the movant has the initial burden of submitting sufficient evidence eliminating any material issues of fact and demonstrating a prima facie entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Only when the movant satisfies this prima facie burden does the burden shift to the opponent to show that material issues of fact exist (id.). Thus, where the movant does not satisfy this initial burden, summary judgment is denied regardless of the sufficiency of the opposing papers (see Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014]).

In support, Defendant submits, among other things, the Verified Bill of Particulars (EF Doc. 21), the transcript of the examination before trial ("EBT") of Plaintiff (EF Doc. 24), the affirmation of Dr. Edward Toriello ("Dr. Toriello"), an orthopedist who examined Plaintiff (EF Doc. 22), and the affirmation of Dr. Alan Greenfield ("Dr. Greenfield"), a radiologist who examined the magnetic resonance imaging ("MRI") films of Plaintiff's cervical spine, lumbar spine, bilateral shoulder, and bilateral knee (EF Doc. 23).

In opposition, Plaintiff submits, among other things, uncertified hospital records (EF Doc. 37), medical records of Kamal A. Tadros, M.D. ("Dr. Tadros") (EF Doc. 38), and uncertified and unaffirmed MRI reports of Roman Aulov, D.C. (EF Doc. 40). The hospital records and MRI reports are inadmissible, as they lack the proper certification under CPLR 4518 (see CPLR 4518 [a] and 2106; Nicholson v Kwarteng, 180 A.D.3d 695, 696 [2d Dept 2020]; Irizarry v Lindor, 110 A.D.3d 846, 847 [2d Dept 2013]; Daniels v Simon, 99 A.D.3d 658, 660 [2d Dept 2012]; McLoud v Reyes, 82 A.D.3d 848, 848 [2d Dept 2011]; Bronstein-Becher v Becher, 25 A.D.3d 796, 797 [2d Dept 2006]). Furthermore, Dr. Tadros' records, though certified by Dr. Tadros of NY Wellness Medical P.C. pursuant to CPLR 4518 (c), contain records from Healthy Living Chiropractic PC. The Healthy Living Chiropractic PC records are inadmissible, as they are not certified by a physician or other person enumerated in CPLR 4518 (c). Plaintiff also submits his affidavit (EF Doc. 43), the narrative report of Alexios Apazidis, M.D. ("Dr. Apazidis") (EF Doc. 41), as well as the affirmation of Dr. Apazidis (EF Doc. 42). ^[2]

Of the several categories ("Subcategory" or "Subcategories") of "serious injury" listed in the statutory definition under Insurance Law § 5102 (d), three are relevant here: "[1] permanent consequential limitation of use of a body organ or member [Subcategory: "permanent consequential limitation of use"]; [2] significant limitation of use of body function or system [Subcategory: "significant limitation of use"]; [and] [3] 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 [Subcategory: "90/180"]" (Insurance Law § 5102 [d]).

Subcategories Significant Limitation and Permanent Consequential...