Horodova v. Richard

2024 NY Slip Op 24188

Nataliya Horodova, Plaintiff, v. Maurice Richard, Defendant.

Index No. 511731/2018

Supreme Court, Kings County

April 15, 2024

Sacco & Fillas, LLP, Brooklyn (Ronny Solomon of counsel), for Plaintiff

Pillinger Miller Tarallo, LLP, Elmsford (Kenneth A. Finder of counsel), for Defendant

HON AARON D. MASLOW, JUSTICE

The following numbered papers were read on these motions:

Submitted by Defendant

NYSCEF Doc No. 56: Notice of Motion

NYSCEF Doc No. 57: Affirmation of Robert J. Gironda, Esq. in Support ("Gironda aff")

NYSCEF Doc No. 58: Exhibit A - Police Report

NYSCEF Doc No. 59: Exhibit B - Summons and Complaint, and Answer

NYSCEF Doc No. 60: Exhibit C - Order and Note of Issue

NYSCEF Doc No. 61: Exhibit D - IME Report of Dr. Daniel J. Feuer ("Dr. Feuer report")

NYSCEF Doc No. 62: Exhibit E - IME Report of Dr. Alexandra Carrer ("Dr. Carrer report")

NYSCEF Doc No. 63: Exhibit F - Plaintiff's EBT Transcript

NYSCEF Doc No. 66: Stipulation of Adjournment of Motion ("adjournment stipulation")

Submitted by Court

NYSCEF Doc No. 67: Interim order denying adjournment ("interim order")

NYSCEF Doc No. 68: Interim order denying adjournment (duplicate copy)

I. Questions Presented

On a defendant's motion for summary judgment dismissing the plaintiff's complaint on the asserted ground of lack of serious injury in a motor vehicle accident, where the defendant relies on medical experts whose reports contradict each other with respect to findings on range of motion testing of the plaintiff on the very same day, has the defendant made out its prima facie case? If said medical experts also differ on the human body norms for range of motion, has the defendant made out its prima facie case? There is little case law on the issue of a party's medical experts contradicting each other with respect to range of motion findings and norms in the context of serious injury summary judgment motions.

On a defendant's motion for summary judgment dismissing the plaintiff's complaint on the asserted ground of lack of serious injury in a motor vehicle accident, where one of the defendant's medical experts opines that findings on her examination were objective, there was no evidence of a pre-existing condition, the plaintiff's injuries were neither resolved nor resolving, and the plaintiff's prognosis was poor, should the defendant's motion be denied and, moreover, should the court search the record and grant summary judgment on the issue of serious injury to the plaintiff if the latter did not interpose opposition and did not cross-move for summary judgment? While no case law exactly on this issue was located, and one case from the Third Department discusses awarding summary judgment to a plaintiff on the serious injury threshold without the plaintiff having moved on the issue, there was at least opposition therein by the plaintiff to a defense motion on serious injury. In the case at bar, there was no written opposition submitted by the plaintiff.

II. Introduction

Plaintiff Nataliya Horodova ("Plaintiff") asserts in this action that on June 28, 2017, she sustained personal injuries while a passenger in a bus rear-ended by a vehicle operated by Defendant Maurice Richard (Defendant) (see NYSCEF Doc No. 59, complaint ¶¶ 4-12; NYSCEF Doc No. 57 Gironda aff ¶ 3).

Defendant moves for summary judgment dismissing Plaintiff's complaint upon the asserted ground that Plaintiff failed to sustain a serious injury per Insurance Law § 5102 (d) (see NYSCEF Doc No. 56, notice of motion), as required by Insurance Law § 5104 (a). The latter provides in pertinent part: "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" (Insurance Law § 5104 [a])." 'Serious injury' 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; 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" (Insurance Law § 5102 [d]).

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). Moving Defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not sustained a serious injury from the subject motor vehicle accident as a matter of law, i.e., that there are no material issues of fact (see Toure v Avis Rent A Car Sys Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851).

If Moving Defendant has made such a showing that Plaintiff Horodova has not suffered a serious injury from the subject motor vehicle accident as a matter of law, the burden shifts to Plaintiff Horodova to submit evidence in admissible form sufficient to create a material issue of fact necessitating a trial (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).

III. Court Appearance

Defendant moved on January 31, 2024, for summary judgment dismissing Plaintiff's complaint, claiming a lack of serious injury (see NYSCEF Doc No. 56, notice of motion). Plaintiff failed to submit opposition papers. Rather, on March 28, 2024, there appeared on NYSCEF a stipulation to adjourn the motion "on consent to June 7, 2024" (NYSCEF Doc No. 66, adjournment stipulation). While the filing of the stipulation met the deadline prescribed by this Court's IAS Part 2 Rules, it was bereft of certain information that the Rules require, in particular, "(a) identify which party seeks the adjournment, (b) set forth the good-cause reason for it, (c) provide details of any prior adjournments of the motion, and (d) list future motion calendar dates for other sequenced motions in the case" (IAS Part 2 Rules, Part I, Subpart D, § 3, https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml). The stipulation, not having complied with these requirements, was rejected and the parties were ordered to appear for oral argument on April 5, 2024, the date on which Defendant's motion was calendared (see NYSCEF Doc No. 67, interim order).

On April 5, 2024, Plaintiff orally applied for an adjournment, which IAS Part 2 Rules do permit: "If an application for adjournment or stipulation of adjournment has not been submitted in the foregoing manner, and counsel still wishes to apply for an adjournment, application shall be made only in person on the scheduled motion date" (IAS Part 2 Rules, Part I, Subpart D, § 2, https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml). This Court denied Plaintiff's application. The issue of serious injury is not a complex one. This Court believes that Plaintiff had an adequate opportunity to interpose opposition, especially considering the lack of merit of Defendant's motion, as described below. This Court confirms its denial at oral argument of Plaintiff's application for an adjournment (see Shmerelzon v Gravesend Mgt., Inc., 80 Misc.3d 1233 [A], 2023 NY Slip Op 51155[U] [Sup Ct, Kings County 2023]). A trial court is entitled to enforce its rules governing practice and procedure before it (see id.; Wade v Khadka, 80 Misc.3d 1222 [A], 2023 NY Slip Op 51058[U] [Sup Ct, Kings County 2023]; Brick&Mortar LLC v Momo Sushi Inc., 79 Misc.3d 1239 [A], 2023 NY Slip Op 50838[U] [Sup Ct, Kings County 2023]).

IV. Bill of Particulars

On its motion, Defendant failed to submit a copy of Plaintiff's bill of particulars in order to disclose which categories of serious injury Plaintiff has claimed. Nonetheless, this is not an impediment to determining the motion. If neither the plaintiff's summons and complaint nor the bill of particulars specify which category of serious injury applies, the court may search the record and make a determination upon the defendant's motion for summary judgment (see Behrman v Geratowski, 23 Misc.3d 1135[A], 2009 NY Slip Op 511110[U] [Sup Ct, NY County 2009]).

This Court notes, however, that Plaintiff did allege in her complaint that she "sustained severe and permanent personal injuries" (NYSCEF Doc No. 59, complaint ¶ 15). In this Court's view that would suffice to assert the serious injury category of "permanent consequential limitation of use of a body organ or member" (Insurance Law § 5102 [d]; see Epstein v MTA Long Island Bus, 161 A.D.3d 821 [2d Dept 2018] [description of injuries need not match statutory language verbatim]).

V. Defendant's Evidence on Its Motion & Discussion

In moving for summary judgment, D...