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| Galarza v Baci |
| 2007 NY Slip Op 50039(U) [14 Misc 3d 1215(A)] |
| Decided on January 9, 2007 |
| Supreme Court, Kings County |
| Rivera, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Kings County
Evelyn Galarza, Robert Olivarez and Tiffany Nieves, an infant over the age of 14 years, by her mother and natural guardian, Iris Nieves and Iris Nieves, Individually, Plaintiffs,
against
Fatmir Baci and Amarildo Baci, Defendants.
|
2854/04
Francois A. Rivera, J.
By notice of motion filed on November 15, 2005, defendants Fatmir Baci and Amarildo Baci, move pursuant to CPLR §3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint of Robert Olivarez (Olivarez), Tiffany Nieves and Iris Nieves on the basis that they did not sustain a serious injury.
By notice of cross-motion filed on November 25, 2005, plaintiff Evelyn Galarza (Galarza) cross-moves pursuant to CPLR §3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint of Olivarez, Tiffany Nieves and Iris Nieves on the basis that they did not sustain a serious injury. She further seeks dismissal of defendants' counterclaim against her premised on the alleged injuries sustained by these plaintiffs.
Defendants and Galarza appeared in Part 52 of this court for oral argument on their respective motions for summary judgment on December 14, 2005, January 6, February 10, March 17, May 12 and July 14, 2006.
On July 14, 2006, during oral argument on the motion and cross-motion, Jay H. Tannenbaum, counsel for all plaintiffs, orally requested an adjournment. As of that date plaintiffs had not yet submitted opposition to the motion or cross-motion. Counsel's explanation for the adjournment was his desire to make a motion to be relieved as counsel for Olivarez and Galarza and, upon being relieved, to submit a medical affirmation and an affidavit of Tiffany Nieves.
Inasmuch as nothing prevented counsel from either moving to be relieved as counsel or submitting opposition to the motion or cross-motion prior to July 14, 2006, the court denied the request on that basis..
Rather than granting the motion and cross-motion on default, the court issued an order dated July 14, 2006 which gave counsel the opportunity to submit opposition addressed to the [*2]legal sufficiency of the motion but precluded the submission of medical or party affidavits. Plaintiffs' counsel was directed to serve its opposition papers by August 4, 2006. Any replies were to be served by August 17, 2006, and oral argument was scheduled for August 18, 2006.
By notice of cross-motion filed on July 31, 2006, plaintiffs' moved for an order vacating that part of this court's order of July 14, 2006,which precluded the submission of medical or party affidavits. By reply filed on August 16, 2006 defendants opposed plaintiffs' cross-motion to vacate the court order of July 14, 2006. On August 18, 2006, this court reserved decision on the motion and cross-motions.
On January 29, 2004, plaintiffs commenced this action for personal injuries by filing a summons and verified complaint. Issue was joined by defendants' verified answer, dated February 24, 2004. The answer included a counterclaim against plaintiff Galarza. By reply dated April 7, 2004, Galarza generally denied the allegations of fact in defendants' counterclaim. On October 18, 2005, a note of issue was filed with the Kings County Clerk's office.
Plaintiffs' underlying complaint is for personal injuries sustained in a motor vehicle collision. Plaintiffs' complaint and bill of particulars allege that on September 20, 2003, Galarza was driving her 2002 Toyota southbound on Woodhaven Boulevard in Queens county with Olivarez and Tiffany Nieves as passengers. Amarildo Baci was operating a 1998 Nissan owned by Fatmir Baci. At around 7:30 pm, Amarildo Baci made a left turn in front of and across the path of Galarza's vehicle causing a collision and serious injury to her and her passengers. Iris Nieves cause of action is for the derivative loss of the services of Tiffany Nieves, her infant daughter.
Defendants' Motion Papers
Defendants' motion papers consists of their attorney's affirmation and seven exhibits. Exhibit A is plaintiffs' summons and verified complaint. Exhibit B is defendants' verified answer. Exhibit C is plaintiffs' verified answer. Exhibit D is the affirmation and report of Doctor Ravi Tiko, a neurologist, pertaining to his independent medical examination of Olivarez on September 14, 2005. Exhibit E is the affirmation and report of Doctor Robert J. Orlandi, an orthopaedic surgeon, pertaining to his independent medical examination of Olivarez on September 14, 2005. Exhibit F is the affirmation and report of Doctor Edward M. Weiland, a neurologist, pertaining to his independent medical examination of Tiffany Nieves on August 3, 2005. Exhibit G is the affirmation and report of Doctor Robert J. Orlandi, an orthopaedic surgeon, pertaining to his independent medical examination of Tiffany Nieves on August 4, 2005.
Dr. Tiko's affirmation states that Olivarez missed three months of work as a computer engineer after the accident. Dr. Tiko finds a full range of motion in the cervical spine but does set forth the test utilized, the specific findings on range of motion or the comparison between his findings and normal range.
Dr. Orlandi's affirmation also states that Olivarez missed three months of work as a network engineer after the accident. He finds a range of motion limitation in Olivarez' thoracic spine, namely, thoracolumbar flexion to seventy degrees with normal being eighty degrees. He also finds a limitation of forward flexion in the lumbar spine of seventy degrees with normal being eighty degrees. He concludes that the orthopeadic findings are essentially normal and offers no opinion regarding his condition during the first six months following the accident.
Dr. Weiland's affirmation states that Tiffany Nieves is seventeen years old and complains [*3]of episodic neck and lower back pain as well as right knee discomfort provoked by flexion and extension movements and minimal weight bearing activity. He finds full range of motion of the neck, back, both shoulders and torso. He does not set forth the specific test he utilized, the specific range of motion findings and the comparison of those findings to normal range.
Dr. Orlandi's affirmation states that Tiffany Nieves missed two weeks of school after the accident. He found no range of motion limitations. He states the test utilized, his specific range of motion findings and he compares the findings to normal range. He finds no neurological deficits or orthopaedic anomalies. He offers no opinion regarding her condition during the first six months following the accident.
Galarza's Cross-Motion Papers
Evelyn Galarza's motion papers consists of the affirmation of Umberto O. Corrieia, her counsel and her reply to defendants' counterclaim as an annexed exhibit. Her counsel's affirmation adopts and incorporate the facts, legal arguments, exhibits and procedural history set forth in defendants' instant motion.
Plaintiffs' Cross-Motion Papers
Plaintiffs' cross-motion papers consists of an affidavit of their counsel and four annexed exhibits. Exhibit A is an affidavit of Dr. David S. Krasner pertaining to his examination of Tiffany Nieves. Exhibit B is an affidavit of Tiffany Nieves. Exhibit C is and affidavit of Robert Olivarez. Exhibit D is an affidavit of Dr. Douglas Schwartz pertaining to his examination of Robert Olivarez.
Defendants' Reply Papers
Defendants' reply papers to plaintiffs' cross motion consist solely of an affirmation of their counsel. The affirmation is silent on the request to vacate that part of the order which precludes the use of medical or party affidavits. Instead, defendants address the merits of their underlying motion to dismiss the complaint and the plaintiffs failure to raise an issue of fact even with the use of the affidavits of the plaintiffs and their doctors. The defendants reply, in essence, does not oppose plaintiffs' request to vacate this courts' order precluding plaintiffs use of medical and party affidavits.
Law and Application
Plaintiffs' cross-motion to vacate that portion of this court's order of July 14, 2006, which precluded their use of medical or party affidavits is granted as unopposed. This court may therefore consider the medical and party affidavits annexed to their cross- motion. It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., supra., 68 NY2d at 324).
In order for the defendants and Galarza to prevail on their respective motions for dismissal of the complaint of Olivarez, Tiffany Nieves and Iris Nieves they must establish a prima facie entitlement to judgment that Olivarez and Tiffany Nieves did not sustain a serious [*4]injury within the meaning of Inurance Law 5102(d) as a result of the subject motor vehicle accident (Toure v. Avis Rent a Car Sys., 98 NY2d 345 [2002]). Iris Nieves claim is derivative to her infant daughter and must be dismissed if her daughter Tiffany's case is dismissed.
Defendants and Galarza failed to make a prima facie showing that Olivarez did not sustain a serious injury. Dr Tiko, their examining neurologist, stated in his affirmed report that Olivarez had full range of motion in the cervical spine. However, he did not set forth the test utilized to reach this conclusion. Nor did he provide either the specific range of motion findings or a comparison between his findings and normal range. (Mondi v. Keahon, 32 AD3d 506 [2nd Dept. 2006]). Dr Orlandi, their orthopaedic surgeon, stated in his affirmed report, a finding of a ten degree loss of range in motion in the thoracic spine and in forward flexion in the lumbar spine. Although he concludes that the orthopeadic findings were essentially normal, he offered no opinion regarding Olivarez' condition during the first six months following the accident. Therefore, defendants and Galarza do not adequately address Olivarez' claim that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (Talabi v. Diallo, 32 Ad3d 1014 [2nd Dept 2006]).
Defendants and Galarza also failed to make a prima facie showing that Tiffany Nieves did not sustain a serious injury. The affirmed report of their neurologist Doctor Weiland, found that Tiffany Nieves had full range of motion of the neck, back, both shoulders and torso. However, he failed to set forth the test utilized to reach this conclusion. Nor did he provide either the specific range of motion findings or a comparison between his findings and normal range. (Mondi v. Keahon, 32 AD3d 506 [2nd Dept. 2006]). The affirmed report of Doctor Robert J. Orlandi, their orthopaedic surgeon was based on his independent medical examination of Tiffany Nieves on August 4, 2005. He found no neurological deficits or orthopaedic anomalies. He offered no opinion regarding her condition during the first six months following the accident. Neither Dr Weiland nor Dr. Orlandi addressed Tiffany Nieves' claim that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.(Talabi v. Diallo, 32 AD3d 1014 [2nd Dept 2006]). Therefore, their affirmed reports do not rule out the possibility that Tiffany Nieves may have sustained a medically determined injury or impairment of a non permanent nature for not less than 90 days during the 180 days immediately following the accident.(Talabi v. Diallo, supra; Sayers v. Hot, 23 AD3d 453 [2nd Dept. 2005]). Inasmuch as Tiffany Nieves' cause of action survives the motion and cross-motion, her mother Iris Nieves' derivative claim also survives.
Since the defendants and Galarza failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact.(Mondi v. Keahon, supra 32 AD3d 506 [2nd Dept. 2006]).
In sum, defendants' motion to dismiss the complaint of Olivarez, Tiffany Nieves and Iris Nieves is denied. Galarza's cross-motion to dismiss the complaint of Robert Olivarez, Tiffany Nieves and Iris Nieves and to dismiss defendants' counterclaim against her is denied. Plaintiffs' cross-motion to vacate part of this courts order of July 14, 2006 is granted.
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The foregoing constitutes the decision and order of this court.
Enter forthwith
_____________________________x
J.S.C.