Upon the foregoing papers, defendant Bernard Torres ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Bigelacio Coleman ("Plaintiff") pursuant to CPLR 3212. Defendant Public Storage, Inc. ("PSI") opposes that branch of the motion seeking summary judgment on the issue of liability but joins in the motion to the extent that it seeks judgment on the grounds that Plaintiff has not sustained a "serious injury" as defined by New York Insurance Law §5102(d). Plaintiff opposes the motion in its entirety.

I. Background

This action arises out of an incident that occurred on August 28, 2013. At the time of the incident Plaintiff was exiting a public storage facility located at 875 Brush Avenue in the Bronx.

The facility has a parking area that is separated from the street by a motorized metal gate. Customers with vehicles access this parking area by entering a code on a keypad which causes the gate to slide open. The gate allegedly had a sensor on it that would normally prevent it from closing if something was in its path.

As Plaintiff was exiting the building he heard a facility employee telling people that it was time to leave. He then heard another employee, nonparty Genisha Ellis ("Ellis"), engaging in a heated argument with a man named "Lucho." Lucho was allegedly with a group of three other people, including Defendant, and this group had a total of three vehicles on the premises. At some point, Lucho got into his vehicle and positioned it within the path of the opened security gate. He then exited the vehicle and continued yelling at Ellis in a threatening manner. Plaintiff stepped in between Ellis and Lucho in an attempt to diffuse the situation and he repeatedly told Lucho to move his vehicle. While Ellis and Lucho were arguing, Defendant was loading something into his vehicle which was parked within the gated parking area. Eventually, Lucho moved his vehicle away from the gate and onto the street.

After Lucho moved his vehicle, Defendant drove his vehicle from the parking area and came to a stop just before the gate. He allegedly threatened to call Ellis' boss and sue the facility. Defendant then moved his vehicle forward and came to a stop within the path of the opened gate. Defendant then attempted to open his driver door. When he did so, Plaintiff approached Defendant in an attempt to intervene in the argument between Defendant and Ellis. As he exchanged words with Defendant, Plaintiff was standing directly in the gate's path. The motorized gate then allegedly began to close automatically, and it came into contact with Plaintiff and pinned him up against Defendant's vehicle. Plaintiff claims that Defendant looked back at Plaintiff and, after seeing what was happening, moved his vehicle forward and to the left. Plaintiff testified that this movement "wrenched" his body and caused him to spin and fall to the ground, resulting in injuries.

Defendant alleges that he moved the vehicle when he heard the gate begin to close in order to get out of its way. He did not think Plaintiff ever touched the vehicle and there was no damage to his vehicle after the incident. Defendant also claims that there was another vehicle parked in front of him at the time that prevented him from moving forward until the gate began to close. The day after this incident, Defendant spoke to someone at the facility to obtain a copy of surveillance footage. Defendant was told, however, that the footage may have been erased.

Ellis testified that a week prior to the accident, she called her district manager to notify him that the gate was not properly closing. However, the gate was never repaired and it was allegedly still malfunctioning as of the date of this accident.

Defendant now moves for summary judgment on the issue of liability and because Plaintiff has failed to satisfy the "serious injury" threshold as required by New York Insurance Law §5102(d). For the reasons that follow, Defendant's motion is granted in part and denied in part.

II. Standard of Review

To be entitled to the "drastic" remedy of summary judgment, the moving party "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 from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). [*2]Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).

III. Applicable Law and Analysis

A. Liability

Defendant claims that he is entitled to summary judgment on the issue of liability pursuant to the "emergency doctrine," because the malfunctioning gate was a "sudden and unexpected circumstance." In response to the closing gate, Defendant immediately pulled his vehicle forward to get out of the way. Defendant argues that this is "sufficient evidence to support the reasonableness of [his] actions."

In order to avail oneself of the "emergency doctrine," a defendant has to demonstrate, among other things, that he or she was "faced with a sudden and unexpected circumstance that was not of [defendant's] own making," (see Mendez v. City of New York, 110 AD3d 421, 422 [1st Dept. 2013]) that leaves "little or no time for thought, deliberation or consideration " (see Dattilo v. Best Transp. Inc., 79 AD3d 432, 433 [1st Dept. 2010]; Rivera v. New York City Transit Authority, 77 NY2d 322 [1991]). Normally, the question of whether a defendant's reaction to an emergency was reasonable is a jury question (Dattilo v. Best Transp. Inc., 79 AD3d at 433), but "summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his actions and there is no evidentiary showing from the opposition sufficient to raise a legitimate issue of fact on the issue" (id., citing Ward v. Cox, 38 AD3d 313 [1st Dept. 2007]).

In this matter, Defendant has failed to demonstrate that the emergency doctrine applies under the circumstances of this case. Even assuming that the closing gate was "sudden and unexpected," Defendant deliberately stopped his vehicle within the gate's path to engage in a verbal altercation, thus raising a question of whether the situation that eventually unfolded was of Defendant's "own making." "A party may not rely on the emergency doctrine if he or she caused or contributed to the emergency" (see Stewart v. Ellison, 28 AD3d 252, 254 [1st Dept. 2006]). Further, there is conflicting testimony concerning whether or not a vehicle was in front of Defendant blocking his ability to move away from the gate's path.

Defendant also asserts that he is entitled to summary judgment because his conduct was not the proximate cause of Plaintiff's injuries, but was the result of the unexpected closing of the gate, which constitutes an unforeseeable superceding and intervening event that breaks the causal connection between Defendant's actions and Plaintiff's injuries. Superceding or intervening conduct does not automatically sever the causal connection between a defendant's conduct and a plaintiff's injuries (see Derdiarian v. Felix Constr. Corp., 51 NY2d 308 [1980]). In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence (Id., citing Parvi v. City of New York, 41 NY2d 553, 560 [1977], Restatement of Torts, 2d, §§443, 449.) "If the intervening act is extraordinary [*3]under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus" (id. [internal citations omitted]). Even if the intervening act is independent of a defendant's conduct, however, a defendant will not be relieved of liability if the intervening act is one that naturally flows from the original, wrongful act, or could reasonably have been foreseen (see Gordon v. Eastern Ry.Supply, Inc., 82 NY2d 555[1993]). Generally, issues of proximate cause including superceding cause are for the trier of fact (see Overseas Shipholding Group, Inc. v. Proskauer Rose, LLP., 130 AD3d 415 [1st Dept. 2015][internal quotations omitted]).

Here, Defendant claims that the malfunctioning gate constituted an unforeseeable superceding event which severed any causal connection between his conduct and Plaintiff's injuries. However, Plaintiff alleges that Defendant contributed to his injuries because after the gate allegedly pinned him against the vehicle, Defendant moved the vehicle forward and to the left, causing Plaintiff's body to spin, become "wrenched," contort, and fall to the ground. Defendant offers no medical opinion asserting that all of Plaintiff's alleged injuries exclusively arose out of being struck by the moving gate. Furthermore, Defendant failed to demonstrate that the gate closing was unforeseeable, as he purposely stopped his vehicle within the gate's path and also he recalled instances in the past where the gate malfunctioned (Defendant EBT at 123). Therefore, there are issues of fact whether the alleged intervening act was a normal consequence of the circumstances created by Defendant's conduct (see Derdiarian v. Felix Constr. Corp., supra).

Finally, Defendant would not be entitled to summary judgment on the grounds that there is missing surveillance footage of the incident, and Defendant does not allege or demonstrate entitlement to spoliation sanctions due to the missing footage.

B. Serious Injury Threshold

When a defendant seeks summary judgment alleging that a plaintiff does not meet the "serious injury" threshold required to maintain a lawsuit, the burden is on the defendant to establish through competent evidence that the plaintiff has no cause of action (Franchini v. Plameri, 1 NY3d 536 [2003]). "Such evidence includes 'affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim'" (Spencer v. Golden Eagle, Inc., 82 AD3d 589, 590 [1st Dept. 2011][internal quotations omitted]). A defendant may also meet his or her summary judgment burden with sufficient medical evidence demonstrating that the plaintiff's injuries are not causally related to the accident (see Farrington v. Go On Time Car Service, 76 AD3d 818 [1st Dept. 2010], citing Pommels v. Perez, 4 NY3d 566, 572 [2005]). Once this initial threshold is met, the burden shifts to the plaintiff to raise a material issue of fact using objective, admissible medical proof (see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

According to Plaintiff's bill of particulars, as a result of this incident, he allegedly sustained injuries to his right shoulder, including a "SLAP" tear and resulting arthroscopic surgery, and injuries to his left wrist and left hand. Defendant met his initial burden of establishing entitlement to summary judgment with respect to Plaintiff's "permanent consequential" and "significant limitation" claims by submitting a sworn report from orthopedist Dr. Martin Barschi. Dr. Barschi conducted a physical examination of Plaintiff and found, among other things, that he had normal range of motion in his elbows, neck and lower back. Upon [*4]examination of Plaintiff's right shoulder, although he found abduction to 160 degrees (normal 160-180), he states "internal rotation of the right shoulder was restricted so that with the left arm he could touch his mid back and with the right arm he could only touch his lower back." Plaintiff allegedly had full range of motion in both wrists with no tenderness or deformity. The doctor ultimately finds that Plaintiff sustained "multiple soft tissue injuries on August 28, 2013" to his upper extremities, as well as to his left hip and right leg that have "clinically resolved." He relates the right shoulder findings and surgery to "chronic impingement in the right shoulder and not related to the accident..." and alleges that further treatment is not necessary. The foregoing demonstrated that Plaintiff's injuries had either resolved, or with respect to the right shoulder, were unrelated to the accident (see Depena v. Sylla, 63 AD3d 504, 505 [1st Dept. 2009], lv. den., 13 NY3d 706 [2009]).

In opposition to the motion, Plaintiff submits a host of medical records and an affirmation from physician Albert Graziosa, M.D. Dr. Graziosa reviewed Plaintiff's treatment records and notes that a little over two weeks after this accident, he presented to an orthopedic clinic with complaints of right arm and bicep pain. Plaintiff was diagnosed with bicep tendonitis after a "crush injury," and MRIs of the right shoulder and right elbow were recommended. Dr. Graziosa examined Plaintiff on October 8, 2013 and he diagnosed Plaintiff with, among other things, a right upper extremity injury contusion with strain of the supraspinatus tendon. The doctor states that a right shoulder MRI revealed a "probable tear of the anterior labrum and subacromial impingement" with only "minimal degenerative changes." An MRI of the left hand revealed tenosynovitis and a complex ganglion cyst with a component extending deep into the carpal tunnel. In May 2014, Plaintiff presented to a sports medicine clinic and demonstrated restricted ranges of motion in the right shoulder and positive objective testing. Eventually, in March 2015, Plaintiff underwent an arthroscopic surgery to his right shoulder where a labral (or "SLAP") tear was identified. Dr. Graziosa states that he examined Plaintiff in September 2017 and he measured restricted range of motion in the right shoulder upon abduction (120 degrees, 180 normal), and forward flexion (130 degrees, 180 normal). After examination and upon review of all medical records, and given the nature of this incident, Dr. Graziosa opines that Plaintiff's right shoulder injuries were causally-related to this incident and permanent in nature. He notes that the "minimal" level of degeneration found would not have resulted in any limitations of shoulder movement prior to the accident. He further asserts that Plaintiff's injuries prevented him from working for approximately five (5) months after the accident.

Dr. Graziosa's opinions, based upon his own examination of plaintiff some five weeks after the accident, his review of hospital and surgical records, and his understanding that plaintiff had sustained no prior similar shoulder injury, is sufficient to raise an issue of fact as to whether Plaintiff's right shoulder injuries are causally-related to this accident (see Lindo v. Brett, 149 AD3d 459, 462 [1st Dept. 2017]). The doctor specifically addressed the degenerative findings in the right shoulder, which he described as "minimal" and "mild," and he stated that such findings would not have resulted in any limitations of movement of the shoulder prior to the accident (see Vaughn v. Leon, 94 AD3d 646, 648 [1st Dept. 2012]; see Giap v. Pham, 2018 NY Slip. Op. 01568 [1st Dept. March 15, 2018], citing McIntosh v. Sisters Servants of Mary, 105 AD3d 672, 673 [1st Dept. 2013]). The unsworn medical records, to the extent not submitted by defendant in support of his motion, may be considered for the limited purpose of opposing summary judgment [*5]since they were not the only admissible evidence submitted in opposition (see Gomez v. Davis, 146 AD3d 456 [1st Dept. 2017]). Contrary to Defendants' contentions, the evidence that Plaintiff sought treatment within weeks at the orthopedic clinic, and then two weeks later with Dr. Graziosia, is sufficiently contemporaneous treatment to demonstrate a causal link between the accident and the right shoulder injuries, despite the fact that he had no formal range-of-motion tests done until January 2014 (see Perl v. Meher, 18 NY3d 208, 218 [2011]; see also Pietropinto v. Benjamin, 104 AD3d 617, 618 [1st Dept. 2013]). Furthermore, the fact that Plaintiff was allegedly never told by his doctors that his injuries were related to this accident is not determinative of the issue.

Plaintiff, however, failed to raise an issue of fact as to whether his right shoulder injury constitutes a "permanent consequential limitation." While both plaintiff and defendant's doctors found limitations in the right shoulder during their respective examinations, Plaintiff does not address his cessation of treatment after his physical therapy sessions ended, approximately 7 ½ weeks after his March 30, 2015 surgery (see Pl. EBT at 181-182). The record demonstrates that Plaintiff did not treat for his injuries until over two years later, when he was examined by Dr. Graziosa for the purpose of opposing this motion. The foregoing circumstances "interrupt[] the chain of causation and renders the finding of permanency speculative" (see Holmes v. Brini Transit, Inc., 123 AD3d 628, 629 [1st Dept. 2014]). Nevertheless, Plaintiff's failure to raise issues as to the permanency of his right shoulder injuries "does not preclude recovery under the 'significant limitation of use' category'" (id.). Plaintiff's expert affirmation and medical records demonstrate that he had significant limitations in the right shoulder, notably upon abduction and forward flexion, that persisted up until the time of his March 2015 surgery, which was approximately 1 ½ years after this accident. Accordingly, Plaintiff has sufficiently raised an issue of fact as to whether his right shoulder injury constitutes a "significant limitation of use" (see Thomas v. NYLL Management, Ltd., 110 AD3d 613, 614 [1st Dept. 2013]). Defendants cannot rely on the alleged 10-month gap in treatment between Plaintiff's clinical visit and his subsequent surgery, as despite the fact that their expert specifically referenced Plaintiff's medical records, this "gap" was only referenced for the first time in Defendants' reply papers (see Tadesse v. Degnich, 81 AD3d 570, 570 [1st Dept. 2011]).

As for his alleged left wrist, left hand, and right elbow injuries, Defendants' expert failed to specifically allege the lack of a causal connection between those injuries and this accident, thus Plaintiff may recover for those injuries even assuming that they do not satisfy the "serious injury" threshold (see Rubin v. SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept. 2010]).

Defendants, however, sufficiently demonstrated that Plaintiff did not sustain a "90/180 day" injury as a result of this accident. Plaintiff admitted at his deposition that he was never confined to bed or his home after the accident Pl. EBT at 201:17-22). Accordingly, even if his injuries prevented him from returning to work for over 90 days, Plaintiff nevertheless has no viable "90/180 day" injury claim, because he was not " restricted from performing substantially all of the material acts that constituted his usual and customary daily activities" during the relevant time period (see Bailey v. Islam, 99 AD3d 633, 634 [1st Dept. 2012]; Streeter v. Stanley, 128 AD3d 477, 478 [1st Dept. 2015]; see also Merrick v. Lopez-Garcia, 100 AD3d 456, 456 [1st Dept. 2012]).

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Defendant's motion for summary judgment on the issue of liability is denied, and it is further,

ORDERED, that those branches of Defendant's motion seeking summary judgment with respect to Plaintiff's "permanent consequential limitation" and "90/180 day" injury claims, is granted, and those claims are dismissed with prejudice, and it is further,

ORDERED, that the remaining branches of Defendant's summary judgment motion are denied.

This constitutes the Decision and Order of this Court.