Guinn v Pure Green Carpet Inc 2024 NY Slip Op 34244(U)
November 26, 2024
Supreme Court, Kings County Docket Number: Index No. 518894/2022 Judge: Ingrid Joseph
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY·•,-------------------------------- -----------,-.-, CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 ••...
(I
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024
At At an IASlAS Part
Part 83 of the Supreme
of the Supreme Court
Court of
of
the State
State of New York
of New York held
held in and
and for the
the
County County of of Kings
Kings at 360
360 Adams
Adams ~et,
St~et,
Broo~w Broo~w York, York, on the ~
on the ~ day of of
V'W V'-t).} ,2024.
,2024.
PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH,
JOSEPH, J.S.CJ.S.C...
SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF KINGS KINGS ---------------------- ---------------------------------------------------X -------------------------------------------------------------------------)( Index Index No.:
No.: 518894/2022
518894/2022
DIJON DUON GUINN,
GUINN,
Plaintiff, Plaintiff,
-against- -against- DECISION DECISION AND
AND ORDER
ORDER
PURE PURE GREEN
GREEN CARPET
CARPET INCINC and
and JOHN
JOHN DOE,
DOE, a fictitious
fictitious (Mot.
(Mot. Seq. No.
No.2)2)
name name as true
true name
name is unknown
unknown to the plaintiff
plaintiff at this
this time,
time,
Defendants. Defendants.
---------------------- ---------------------------------------------------X -------------------------------------------------------------------------)( The following
following e-filed
e-filed papers
papers read
read herein:
herein: NYSCEF NYSCEF Doc
Doc Nos.
Nos.
Notice of Notice of Motion/Affirmatio Motion/Affirmation n in Support/ExhibitsSupport/Exhibits................ ................ 32 - 35 32-
Affirmation Affirmation in Opposition/Affid avit/Exhibits...... ................
Opposition/Affidavit/Exhibits...................... 36 - 44 36-44
Reply Rep 1y Affirmation.....
Affirmati on. . . .. . .........................
. . . . . .. . .. .. .. . .. . .. ........................
.. . .. .. . .. . .. .. .. . .. . ....... 45
Upon Upon the foregoing
foregoing papers,
papers, Defendants
Defendants Pure
Pure Green
Green Carpet
Carpet Inc. ("Pure
("Pure Green")
Green") and
Gregory Gregory Lewis
Lewis ("Lewis")
("Lewis") (collectively,
(collectively, "Defendants") move for an order, "Defendants") move order, pursuant pursuant to CPLR
CPLR 3212,
3212,
granting granting them
them summary judgment on the basis summary judgment basis that that Plaintiff
Plaintiff Dijon
Dijon Green
Green ("Plaintiff')
("Plaintiff') did not
not
sustain sustain a "serious
"serious injury" under Insurance injury" under Insurance Law§ Law ~ 5102 (d) (Mot.
(Mot. Seq. No.2).
No. 2). Plaintiff opposes the Plaintiff opposes
motion. motion.
This This action
action arises
arises out
out of
of a motor
motor vehicle
vehicle accident
accident that
that occurred
occurred on September
September 21, 2021.
2021.
According According to her
her complaint,
complaint, Plaintiff
Plaintiff was
was the driver
driver of
of a vehicle
vehicle that
that was
was allegedly
allegedly struck
struck by a
vehicle vehicle operated
operated by "John
"John Doe"
Doe" and owned
owned by Pure
Pure Green.
Green. In Defendants'
Defendants' answer,
answer, they
they
acknowledge acknowledge that
that Gregory
Gregory Lewis
Lewis is "John
"John Doe."
Doe." As a result
result of
of the
the accident,
accident, Plaintiff
Plaintiff seeks
seeks to
recover recover damages
damages for her
her personal
personal injuries.
injuries. Specifically,
Specifically, Plaintiff
Plaintiff alleges
alleges in her
her Bill
Bill of
of Particulars
Particulars
that she sustained
sustained injuries
injuries to her
her lumbar
lumbar spine
spine and cervical
cervical spine,
spine, requiring
requiring medical
medical procedures.
procedures.
Plaintiff Plaintiff seeks
seeks to recover
recover for serious
serious injuries
injuries as defined
defined by Insurance
Insurance Law
Law §~ 5102
5102 ((d) resulting in
d) resulting
(i) a permanent
permanent loss
loss of
of use;
use; (ii) a permanent
permanent consequential
consequential limitation
limitation of
of use;
use; (iii)
(iii) significant
significant
limitation limitation of
of use; and
and (iv) the
the inability
inability to perform
perform substantially
substantially all of
of the material
material acts
acts which
which
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constitute constitute usual
usual and
and customary
customary daily activities for not daily activities than 90 days less than
not less the 180 days during the
days during
immediately immediately following
following the accident. Plaintiff the accident. further avers Plaintiff further was confined that she was
avers that bed or her bed
confined to her
approximately 10 days
home for approximately home following her days following cervical spine her cervical surgery.
spine surgery.
In support of their
support of motion, Defendants their motion, of their report of
Defendants rely on the report expert Dr. Dana medical expert
their medical Dana Manner, an orthopedic Mannor, surgeon. Dr. Mannor orthopedic surgeon. performed an independent Mannor performed independent medical examination of medical examination of
Plaintiff on December Plaintiff measuring Plaintiffs 2023, measuring
December 7, 2023, ranges of Plaintiffs ranges motion using of motion hand-held using a hand-held
goniometer goniometer and comparing
comparing them
them to the AMA guidelines.
the AMA found that Mannor found
guidelines. Dr. Mannor exhibited Plaintiff exhibited
that Plaintiff
range of
full range motion and
of motion that Plaintiff concluded that
and concluded injuries had Plaintiffss injuries resolved. Dr. Mannor had resolved. opined further opined
Manner further
that there is no orthopedic that there Defendants also disability. Defendants
orthopedic disability. on Plaintiffs rely on
also rely testimony. At deposition testimony.
Plaintiffs deposition
Plaintiff testified,
deposition, Plaintiff
her deposition, testified, inter that she (a) received inter alia, that received physical therapy for six months, physical therapy months, (b) last received worked as a COVID 2022, (c) worked
injection in 2022,
received an injection COVID tester the time tester at the of the accident time of accident
December 2021,
until December not work and (d) did not
2021, and December 2021 and between December
work between and July because she 2022 because
July 2022
"needed a break." "needed break." In addition, addition, Defendants assert that Defendants assert gap in treatment, there is a gap
that there such gap is a and such
treatment, and
of treatment
cessation of cessation dismissal.
warranting dismissal.
treatment warranting
In opposition
opposition to the motion, Plaintiff the motion, that she went argues that
Plaintiff argues the hospital went to the on the hospital on of the date of
the date
continued to receive
accident and continued accident treatment for approximately receive treatment seven or eight approximately seven months until her eight months
Plaintiff further
benefits ran out. Plaintiff benefits that she has not argues that
further argues since the accident worked since
not worked applied for accident and applied
unemployment benefits.
received unemployment
and received Plaintiff refers benefits. Plaintiff reports, Dr. Herschel MRI reports,
refers to MRI Kotke's Herschel Kotke's
operative operative records, Deonarine Rampershad's and Dr. Deonarine
records, and report and narrative report
Rampershad's narrative and treatment records.
treatment records.
Plaintiff Plaintiff contends
contends that
that Dr. Rampershad's
Rampershad's physical October 5, 2021, examinations on October
physical examinations December 2, 2021, December
2021, 2021, February 8,2022,
February 8, 2022, and
and March 2022 revealed March 15, 2022 limited ranges revealed limited of motion.
ranges of respect to With respect
motion. With
limitations, Plaintiff
her limitations, Plaintiff points wherein she testified deposition wherein
points to her deposition that she had difficulty testified that difficulty standing for long standing long periods and engaging periods and with children.
play with
physical play
engaging in physical children. Plaintiff submits an Plaintiff also submits
affidavit which she states affidavit in which that during states that after the accident, months after
during the six months accident, her limitations physical limitations
her physical
were more severe were more severe than the time than at the deposition. She states of the deposition.
time of that she was states that could do unable to, or could
was unable
only only with
with great
great difficulty,
difficulty, performing
performing household tasks, lift household tasks, carry, walk lift and carry, distances, stand long distances,
walk long stand for long
long periods,
periods, or care
care for herself and her
herself and daughter.
her daughter.
their reply, In their Defendants ask this Court reply, Defendants consider the MRI Court to not consider reports, Dr. Kotke's MRI reports, Kotke's
records, and the hospital records, records, since hospital records, they are not affirmed since they thus, inadmissible.
affirmed and are thus, inadmissible.
Defendants also ask Defendants ask this Court not this Court Plaintiffs affidavit consider Plaintiffs
not to consider since it is self-serving, affidavit since postself -serving, postdeposition
and deposition and contradicts prior deposition her prior
contradicts her deposition testimony. With respect testimony. With Rampershad's respect to Dr. Rampershad's
2
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records, Defendants records, Defendants note
note that
that the doctor
doctor did not
not identify
identify the method of obtaining method of obtaining the
the measurement
measurement
of of Plaintiffs
Plaintiff s range
range of
of motion
motion or identify
identify the authoritative authoritative guidelines
guidelines for the standard standard of
of normal
normal
ranges. Accordingly, ranges. Accordingly, Defendants Defendants argue that Dr. Rampershad's argue that Rampershad's measurements lack objectivity measurements lack objectivity and are wholly
wholly speculative.
speculative. In addition, addition, Dr. Ramper~had's Rampershad's narrative
narrative report
report failed
failed to include
include any
any recent
recent
findings findings of
of any significant
significant limitation
limitation or restriction.
restriction. Thus,
Thus, Defendants claim that Defendants claim that Plaintiff Plaintiff has failed
failed
to rebut Defendants' prima rebut Defendants' prima facie facie showing
showing of
of no serious
serious injury.
injury. Moreover,
Moreover, Defendants
Defendants contend
contend that
that
they established
established entitlement
entitlement to dismissal
dismissal of
of the 90/180
90/180 claim
claim through
through Plaintiff
Plaintiffss deposition
deposition
testimony testimony and
and Plaintiff's
Plaintiff s failure
failure to demonstrate
demonstrate that
that they
they were
were under
under doctor's
doctor's restrictions
restrictions during
during
that time that time period.
period. Whether a claimed Whether claimed injury falls within injury falls within the statutory statutory definition
definition of
of "serious
"serious injury"
injury" is a
question question of law for the Court of law Court (Licari Elliot, 57 NY2d (Licari v Elliot, NY2d 230 [1982]).
[1982]). The
The movant
movant bears
bears the initial
initial
burden of burden of establishing, the submission establishing, by the submission of of evidentiary
evidentiary proof admissible form, proof in admissible form, a prima prima facie
that a party
case that party has not not suffered
suffered a serious injury proximately serious injury proximately resulting from the subject resulting from subject motor motor
vehicle accident vehicle accident (Toure
(Toure v Car
Car Sys., Inc., 98 NY2d
NY2d 345 [2002];
[2002]; Gaddy
Gaddy v Eyler,
Eyler, 79 NY2d
NY2d 955
[1992]). The failure [1992]). The make such failure to make such a showing requires denial showing requires of the motion, denial of motion, regardless of the regardless of
sufficiency sufficiency of
of the
the opposing papers (Winegradv opposing papers New York (Winegradv New York Univ. Med Ctr., 64 NY2d Med Ctr., [2016]).
NY2d 851 [2016]).
However, where However, where the movant movant has made
made a showing that a party showing that party has
has not suffered a serious not suffered serious injury injury as a
matter matter of
of law,
law, the burden
burden shifts
shifts to the opposing
opposing party
party to submit
submit evidence
evidence in admissible
admissible form
sufficient create a material sufficient to create material issue issue of
of fact warranting
warranting a trial (Franchini v Palmieri, trial (Franchini Palmieri, 1 NY3d NY3d 536
[2003]; Grasso Angerami, 79 NY2d Grasso v Angerami, [1991]).
NY2d 813 [1991]).
"A defendant who "A defendant who submits admissible proof submits admissible proof that that the
the plaintiff
plaintiff has a full range range of
of motion,
motion,
and that
that she or he suffers from no disabilities suffers from disabilities causally causally related
related to the motor
motor vehicle accident, has vehicle accident,
established a prima established prima facie facie case
case that
that the
the plaintiff
plaintiff did
did not
not sustain
sustain a serious
serious injury
injury within
within the meaning
meaning
of of Insurance
Insurance Law S 5102 ((d)"
Law § d)" (Kearse
(Kearse v NY
NY City Tr. Auth.,
City Tr. Auth., 16 AD3d
AD3d 45, 49-50
49-50 [2d Dept 2005]).
Dept 2005]).
According to Dr. Mannor, According Mannor, Plaintiff Plaintiffss physical
physical examination
examination revealed
revealed full range
range of
of motion
motion and that
that
all injuries
injuries had been resolved.
had been resolved. Dr. Mannor Mannor concluded
concluded that
that there was no evidence there was evidence of
of an orthopedic
orthopedic
disability. Thus, disability. Thus, the
the Court
Court finds
finds that
that through
through their
their expert
expert report,
report, Defendants
Defendants have
have established
established a
prima facie prima facie case
case and the burden
burden shifts
shifts to Plaintiff
Plaintiff to demonstrate
demonstrate a triable
triable issue
issue of
of fact.
For Plaintiffs For Plaintiffs claim
claim to survive,
survive, she must
must proffer sufficient evidence proffer sufficient evidence to raise raise a triable
triable issue
issue
of of fact. This
This evidence must be "objective evidence must medical proof "objective medical of a serious proof of serious injury injury causally
causally related
related to the
accident" (Pomme/ls accident" Perez, 4 NY3d (Pommells v Perez, NY3d 566, 574 [2005]).
[2005]). In considering
considering Plaintiffs
Plaintiffs opposition,
opposition, it
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is necessary
necessary to first determine determine the admissibility admissibility of her medical of her medical evidence.
evidence. Here,
Here, Defendants
Defendants did not
submit Plaintiff's medical submit Plaintiffs medical records with their records with their motion;
motion; however,
however, their
their expert
expert Dr. Mannor's
Mannor's report
report
lists numerous
numerous records reviewed, including records reviewed, including the records records Defendants
Defendants deem
deem inadmissible. While
inadmissible. While
unaffirmed or uncertified unaffirmed records alone uncertified records alone would would ordinarily
ordinarily be inadmissible, inadmissible, the Second
Second Department
Department
has determined
determined that
that "even
"even a reference
reference to the unsworn
unsworn or unaffirmed
unaffirmed reports
reports in the moving
moving papers
papers
is sufficient
sufficient to permit
permit the plaintiff
plaintiff to rely upon
upon and submit
submit these
these reports
reports in opposition
opposition to the
motion" (Kearse, motion" AD3d at 47, n 1; Irizarry (Kearse, 16 AD3d Irizarry v Lindor, Lindor, 110 AD3d
AD3d 846, 847 [2d Dept
Dept 2013]
[unsworn [unsworn reports reviewed by defendant'
reports reviewed defendant' expert expert are admissible]).
admissible]). Accordingly, the Court Accordingly, the Court finds the medical medical evidence proffered by Plaintiff evidence proffered Plaintiff is admissible.
admissible.
Nonetheless, Plaintiff's Nonetheless, medical evidence Plaintiffs medical evidence ((or or lack
lack thereof)
thereof) is insufficient
insufficient to raise
raise a triable
triable
issue of issue of fact. First,
First, Plaintiff failed to submit Plaintiff failed submit any recent recent examination her treating examination from her treating doctor.
doctor. Dr.
Rampershad's narrative Rampershad's narrative report report contains
contains no reference
reference to, or results from, a recent results from, recent examination.
examination. The
lack of
of a recent
recent examination
examination of
of Plaintiff
Plaintiff is fatal to any claim claim of permanency (Sharma of permanency (Sharma v Diaz, Diaz, 48
AD3d 442, 443 [2d Dept AD3d 2008]).
Dept 2008]).
Second, neither the narrative Second, neither narrative report report nor
nor the physical
physical therapy records identified therapy records identified the objective objective
tests used
used to measure
measure Plaintiffs range of Plaintiff s range of motion motion (see Gers beck v Cheema, Gersbeck Cheema, 176 AD3d AD3d 684, 686 [2d
Dept Dept 2019] [[where
where objective tests are not identified, objective tests identified, conclusion that plaintiff conclusion that plaintiff sustained sustained a range-ofrange -ofmotion
motion limitation result of limitation as a result of accident accident is unsupported];
unsupported]; see also Bayk v Martini, also Bayk Martini, 142 AD3d AD3d 484,
484 [2d Dept
Dept 2016]; Durand v Urick, 131 2016]; Durand AD3d 920, 920 [2d Dept 131 AD3d Dept 2015]).
2015]). Moreover, while the Moreover, while
records records may reflect
reflect a decreased
decreased range
range of motion as compared of motion compared to "normal,"
"normal," Dr. Rampershad
Rampershad failed
failed
to identify
identify what
what authoritative
authoritative guidelines
guidelines were
were used
used to determine what is normal determine what normal (Whitfield Harris, (Whitfield v Harris,
2021 NY Slip Op 31515[U], 31515[U], *8 [Sup Ct, Kings Kings County
County 2021]
2021] [failure
[failure to identify
identify authoritative
authoritative
guidelines guidelines used
used rendered
rendered examination
examination speculative];
speculative]; Volpini v S S & F Supplies,
Supplies, 2021 NY
NY Slip Op
31319[U], 31319[U], *7 [Sup Ct, Kings Kings County
County 2021]).
2021]).
Third, Plaintiffs Third, Plaintiffs lumbar
lumbar spine
spine MRI reflects disc
MRI reflects bulging at L3-L4 disc bulging L3-L4 and and L4-L5;
L4-L5; however,
however,
the "mere
"mere existence
existence of
of a disc bulge or herniation disc bulge herniation is insufficient insufficient to establish establish a serious
serious injury
injury in the
absence absence of
of objective
objective evidence
evidence of
of the extent
extent of
of alleged physical limitations alleged physical limitations resulting resulting from the disc
injury injury and its duration"
duration" (Kearse,
(Kearse, 16 AD3d
AD3d at 46).
Court will
The Court will now
now address
address the 90/180
90/180 category
category of
of Plaintiffs
Plaintiffs claim.
claim. Under
Under this
this category,
category,
a "serious
"serious injury"
injury" is defined
defined as a plaintiffs
plaintiffs inability
inability to "perform[]
"perform[] substantially
substantially all of
of the material
material
acts which
which constitute
constitute [his or her] usual usual and customary
customary daily
daily activities
activities for not
not less than
than ninety
ninety days
days
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during during the one hundred
hundred eighty
eighty days
days immediately
immediately following
following the date
date of
of the [accident]" (Insurance the [accident]" (Insurance Law Law 5102 [d]). Therefore, Therefore, a plaintiff
plaintiff'ss current
current condition
condition has no bearing
bearing on whether
whether she was
was unable
unable
to carry out her
her normal
normal and
and customary
customary activities
activities during
during the statutory
statutory period. Moreover, a plaintiffs period. Moreover, plaintiffs self-serving self-serving statement
statement or testimony claiming an inability testimony claiming inability to engage engage in customary
customary daily
daily activities
activities
not suffice
will not suffice (Ryan
(Ryan v Xuda,
Xuda, 243 AD2d
AD2d 457,457-458
457, 457-458 [2d Dept
Dept 1997]).
1997]). Instead,
Instead, there
there must
must be
objective objective evidence
evidence of
ofaa medically
medically imposed
imposed limitation
limitation (id.; Jones, 147 AD3d (id; Jones, AD3d at 1280-1281 1280-1281 [3d Dept
Dept
2017]). 2017]).
Through Through Plaintiff's deposition testimony Plaintiff s deposition testimony and Bill of Particulars, Bill of Particulars, Defendants have Defendants have
established prima facie established prima facie entitlement entitlement to dismissal
dismissal of
of the 90/180-day
90/180-day claim.
claim. It is undisputed
undisputed that
that
Plaintiff Plaintiff was confined
confined to her bed or home her bed home for less than than 90 days. 11 In addition, addition, Plaintiff
Plaintiff testified
testified that
that
she continued
continued to work
work after
after the accident. her opposition, accident. In her opposition, Plaintiff argues that Plaintiff argues that she has not not worked
worked
since the accident.
accident. This
This plainly
plainly contradicts
contradicts Plaintiff's deposition testimony Plaintiff s deposition testimony in which which she testified
testified
that she was that was a COVID tester until COVID tester until December December 2021 and at the time time of
of her deposition, was
her deposition, employed was employed
caregiver. 22 Even
as a caregiver. if the Even if Court considers the Court Plaintiffss self-serving considers Plaintiff self-serving affidavit, affidavit, in which
which she states
states
her limitations her limitations during requisite time during the requisite time period, period, Plaintiffs
Plaintiffs subjective
subjective description
description of
of her injuries are
her injuries
insufficient insufficient to make
make out a 90/180-day claim. Plaintiff 90/180-day claim. Plaintiff has proffered proffered no medical
medical evidence
evidence indicating
indicating
that she was that was unable
unable to perform
perform substantially
substantially all of her daily of her daily activities
activities for not less than not less of
than 90 out of
180 days
days following
following the accident
accident (Muzashvili
(Muzashvili v Vicente,
Vicente, 16 Misc
Misc 3d 1140[A]
1140[ A] [Sup
[Sup Ct, Kings
Kings County
County
2007], affd
affd 59 AD3d
AD3d 413,
413, [2d Dept
Dept 2009]).
2009]).
Accordingly, Accordingly, it is hereby hereby
ORDERED, that Defendants' ORDERED, that Defendants' motion motion for summary
summary judgment (Mot. Seq. No.2), judgment (Mot. No. 2), dismissing dismissing the complaint
complaint on the basis
on the that Plaintiff basis that Plaintiff has not sustained sustained a "serious
"serious injury"
injury" is
granted. granted.
All other
other issues not addressed issues not herein are either addressed herein either without without merit
merit or moot.
moot.
This constitutes This constitutes the
the decision
decision and order of the Court.
order of Court.
HON. INGRI HaN. OSEPH, J.S.C.
Hon. Hon.1I rid Joseph
Joseph
Supreme Supreme Court Justice
Court Justice
1
I Plaintiff testified
Plaintiff testified that that she was
was confined
confined for around
around 40 days
days (Plaintiff
(Plaintifftrtr at 68, lines lines 4-25;
4-25; at 69,
69, lines
lines 2-12).
2-12).
2
2 Plaintiff tr at 8, lines Plaintifftr lines 12-18;
12-18; at 9, lines
lines 19-21;
19-21; at 10, line
line 25; at line
line 2-4.
2-4.
5 5of 5