Frys v. Stephenson

2020 NY Slip Op 34685(U)

CLIVE B FRYS AND NORVLETT FRYS, Plaintiffs, v. Paul Stephenson, Defendant,

Index No. 511974/18

Supreme Court, Kings County

August 11, 2020

Unpublished Opinion

PRESENT: HON. BRUCE M. BAITER, JUSTICE.

DECISION AND ORDER

HON BRUCE M. BAITER, JUSTICE

The following e-filed papers read herein: NYSCEF Doc Nos.^[1]

Notice of Motion, Affirmations and Annexed Exhibits ___21-29___

Opposing Affirmations with Annexed Exhibits___ 30-33__

Reply Affirmations____ 34__

Upon the foregoing papers, defendant Paul Stephenson (Stephenson) moves, in motion sequence (mot. seq.) two, for an order pursuant to CPLR 3212, granting him summary judgment dismissing the claims of plaintiffs, Clive B Frys (Frys) and Norvlett Frys on the grounds that they cannot meet the serious injury threshold requirement as mandated by Insurance Law §§ 5104 (a) and 5102 (d). Plaintiffs oppose.

Background Facts and Procedural History

The instant action arises out of a March 1, 2017 automobile accident between the parties in which Mr. Frys allegedly suffered injuries. According to the plaintiffs, Mr. Frys was crossing the street on foot when a vehicle driven by Mr. Stephenson struck him. The car impacted with the right side of Mr. Frys' back, he fell on the bonnet (i.e. the hood) of the car, and then landed on the road striking his right shoulder, arm, and knee. Mr. Frys was taken to the hospital by ambulance, was released later that night and subsequently saw his own physician and a variety of specialists. He thereafter underwent surgery for a torn meniscus in his right knee and for a torn rotator cuff and labrum in his right shoulder. Mr. Frys stated that he was out of work for over a year as a result of his injuries, that he was only able to return on reduced hours, and that he continues to work on this basis. Additionally, Mr. Frys has attested to continuing pain in his right knee, right shoulder, and back and mobility limitations causing both restricted movement speed and difficulty climbing stairs as well as affecting his ability to lift, kneel, and mop.

Filing of a summons and complaint on June 11, 2018 commenced this lawsuit, and issue was joined by the filing of an answer on Mr. Stephenson's behalf in August 2018. A preliminary conference, compliance conference, and final pre-note conference were all held, and a note of issue filed on August 2, 2019. Mr. Stephenson thereafter timely filed the instant summary judgment motion.

Analysis

It is well settled that "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 demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993] citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; see also Zapata v Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the papers in opposition (see Alvarez v Prospect Hospital, 68 N.Y.2d at 324; see also Smalls v AJI Indus., Inc., 10 N.Y.3d 733, 735 [2008]), Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require atrial of the action (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Summary judgment "should not be granted where there is any doubt as to the existence of such issues or where the issue is 'arguable'; issue-finding, rather than issue-determination, is the key to the procedure" (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957], rearg denied 3 N.Y.2d 941 [1957]) [internal citations omitted]). "The court's function on a motion for summary judgment is 'to determine whether material factual issues exist, not resolve such issues'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010] quoting Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... on a motion for summary judgment" (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 315 [2004], quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]; see also Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]).

Pursuant to Insurance Law § 5104 (a),

"[notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."

§ 5102 (d) defines "serious injury," in relevant part, as

"a personal injury which results in ... 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."

In addition, case law recognizes that

"[A] defendant can establish that the plaintiffs 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 plaintiffs claim. 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. The plaintiff in such a situation must present objective evidence of the injury" (Grossman v. Wright, 268 A.D.2d 79, 83-84 [2d Dept 2000][internal citations omitted]).

It is well settled that establishing a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system requires medical evidence providing either a quantitative or qualitative assessment. Indeed, the Court of Appeals in Toure v. Avis Rent A Car Systems, Inc, 98 N.Y.2d 345, 350 [2002]) explained that in seeking objective evidence

"to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury. An expert's qualitative assessment of a plaintiffs condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiffs limitations to the normal function, purpose and use of the affected body organ, member, function or system."

Correspondingly, it is also well established that "[a] defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)" (Kearse v. New York City Tr. Auth, 16 A.D.3d 45, 49-50 [2d Dept 2005]).

The Court of Appeals subsequently addressed a plaintiffs burden opposing a defendant's challenge to a serious injury claim and refined applying the quantitative approach by its unanimous ruling in Perl v. Meher (18 N.Y.3d 208 [2011]). There, it held (id. at 217) that "[u]nder the "quantitative" prong of Toure...numerical measurements are sufficient to create an issue of fact as to the seriousness of [plaintiffs'] injuries." The decision mentioned that Perl's doctor at his initial examination following the accident had only generally observed that Perl's range of motion restriction was "less than 60% of normal in the cervical and lumbar spine" (id. at 217). However, the decision recognized that the doctor again examined him "years later, using instruments to make specific, numerical range of motion measurements" (id.). The Perl decision emphasized that Toure required no quantitative measurements "contemporaneous" to the accident demonstrating restricted range of motion, "and we see no justification for it" (id.). The decision directly states in this regard that "We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery" (id. at 218). Hence, some specific, numerical range of motion measurements suffice.

In support of his motion, Mr. Stephenson offers the affirmations of Drs. Alan J Zimmerman, M.D. and Eric Postal, M.D. Dr. Zimmerman, an orthopedist, examined Mr. Frys and reviewed pertinent medical records. He found that Mr. Frys had full range of motion of his knee/leg, spine, and shoulder and concluded that there were no findings which would result in orthopedic limitations in the use of the body parts examined. Dr. Zimmerman also opined that the arthroscopic surgeries on Mr. Frys' knee and shoulder were unnecessary and carried out for degenerative rather than causally-related conditions.

Dr. Postal, a radiologist, examined the MRIs of Mr. Frys' right shoulder and right knee and concluded that the damage seen therein resulted from preexisting degeneration rather than recent traumatic injury. He noted the absence of a meniscal tear and posited that the presence of bone cysts and lack of swelling show that the low grade, chronic tears in the shoulder tendons were not caused by the accident.

In opposition, plaintiffs present affirmations...