Dombalic v Cornelius

Supreme Court, Richmond County

Decided on March 19, 2026

Index No. 151145/2021

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following papers were considered in the determination of Defendant Yevgeni Kaniayev's motion for summary judgment pursuant to CPLR § 3212 dismissing the complaint of plaintiff Bajram Dombalic on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102[d]: Notice of Motion and Affirmation in Support with annexed exhibits; Plaintiff's Affirmation in Opposition with annexed exhibits; and the reply papers. Oral argument was conducted in person at the courthouse on March 19, 2026.

II. Findings of Fact

This action arises from a motor vehicle collision that occurred on June 11, 2020, at approximately 8:40 p.m., at or near 213 Park Avenue South, in New York County. At the time of the occurrence, plaintiff Bajram Dombalic was an on-duty New York City Police Department officer, seated as a passenger in a marked police vehicle operated by co-plaintiff Samuel Garcia. The vehicle was proceeding northbound when it was struck head-on by a vehicle owned by defendant Yevgeni Kaniayev, which was traveling in the wrong direction on a one-way roadway.

The force of the impact was significant. Plaintiff's body was thrust forward, causing his lower extremities to strike the dashboard, and he sustained a loss of consciousness. Emergency medical services responded to the scene, and plaintiff was transported by ambulance to Bellevue Hospital. Upon arrival, plaintiff reported pain in multiple anatomical regions, including the cervical spine, lumbar spine, bilateral wrists, shoulders, lower extremities, and head. Hospital records document abrasions to the forehead and bilateral anterior tibia, as well as complaints of right wrist pain. Diagnostic imaging was performed, and plaintiff was advised that he had sustained sprains, particularly of the wrists, and was prescribed a brace.

Within approximately one week, plaintiff sought orthopedic evaluation. He continued to complain of pain in his wrists, neck, shoulders, and shins. Further diagnostic studies were ordered, including an MRI of the right wrist, which confirmed a sprain. Plaintiff was thereafter prescribed and undertook a course of physical therapy at a frequency of two to three times per week for approximately three months. The therapy regimen consisted of rehabilitative exercises, ultrasound therapy, stretching, and strengthening modalities directed at the affected body regions.

The contemporaneous treatment records reflect objective findings, including tenderness, muscle spasm, effusion, and restricted ranges of motion. Plaintiff was also diagnosed with a concussion. His disability was documented as total during the acute phase of treatment, and he was advised to avoid activities requiring exertion, including lifting and physical training. The records further indicate that plaintiff had trouble performing exercises such as push-ups due to wrist pain and instability.

Plaintiff remained out of work for approximately one month. Upon his return, he was placed on restricted duty for an additional period of approximately two to three months. During this time, he was precluded from engaging in core police functions, including operating a police vehicle, responding to calls, or engaging in prisoner contact. His duties were limited to administrative tasks. Plaintiff testified that during the first six months following the accident, he was unable to perform activities involving lifting, bending, prolonged sitting or standing, or [*2]physical exertion, and that he was unable to engage in gym activities or weight training.

Although formal physical therapy concluded after approximately three months, plaintiff continued with home-based exercises. He testified that he continues to experience intermittent pain, stiffness, and soreness in his wrists, neck, and lower back, particularly with activity, including prolonged standing, sitting, bending, and lifting.

In support of the motion, defendant submits the report of Dr. Arnold Berman, who conducted an independent orthopedic examination on January 23, 2024. Dr. Berman diagnosed right and left wrist sprains/strains, cervical and lumbar sprains/strains, and bilateral knee sprains/strains, all of which he opined had resolved without residuals. He concluded that plaintiff's examination was entirely normal and that there was no objective evidence of disability or permanency.

In opposition, plaintiff submits the affirmation of Dr. Ali Guy, who examined plaintiff on March 2, 2026. Dr. Guy conducted a comprehensive physical examination and performed range-of-motion testing utilizing a goniometer. He documented significant limitations in the cervical spine, with deficits ranging from 22% to 34%, and in the lumbar spine, with deficits up to 50%. He further identified diffuse tenderness, muscle spasm, and trigger points, and diagnosed cervical and lumbar radiculopathy, traumatic myofascial pain syndrome, and persistent sprains and strains. Dr. Guy opined, within a reasonable degree of medical certainty, that plaintiff sustained a permanent partial disability causally related to the subject accident.

Plaintiff also challenges the admissibility of defendant's expert submission, asserting that Dr. Berman's affirmation fails to comply with CPLR § 2106, as amended, insofar as it omits the statutorily required acknowledgment that false statements are punishable by fine or imprisonment.

III. Conclusions of Law

The Court begins with the well-settled principles governing motions for summary judgment. A movant must establish, by admissible evidence, prima facie entitlement to judgment as a matter of law, eliminating all material issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Only upon such a showing does the burden shift to the opposing party to demonstrate the existence of triable issues of fact (see Coscia v. 938 Trading Corp., 283 AD2d 538 [2d Dept 2001]; Tillman v. Metropolitan Suburban Bus Auth., 289 AD2d 397 [2d Dept 2001]; Julemis v. Gates, 281 AD2d 396 [2d Dept 2001]; Mariaca-Olmos v. Mizrhy, 226 AD2d 437 [2d Dept 1996]). Summary judgment is to be denied where there is any doubt as to the existence of such issues.

In the context of Insurance Law § 5102 [d], the movant bears the burden of demonstrating that the plaintiff did not sustain a serious injury under any of the statutory categories alleged. A failure to address any category is, in and of itself, fatal to the motion.

A. Admissibility of Defendant's Proof

As a threshold matter, the Court finds that defendant has failed to submit its medical evidence in admissible form. CPLR § 2106, as amended effective January 1, 2024, mandates that an affirmation include language acknowledging that false statements are punishable by fine or imprisonment. The statute provides that such affirmation "shall be in substantially" the prescribed form. The Court of Appeals has unequivocally held that the use of the term "shall" denotes a mandatory requirement (see Matter of Lazalee v. Wegman's Food Markets, Inc., 40 NY3d 458 [2023]; People v. Golo, 26 NY3d 358 [2015]).

The record demonstrates that Dr. Berman's affirmation omits this required language. [*3]This defect is not technical, but substantive, as it goes to the statutory reliability of the affirmation. Accordingly, the report is inadmissible and cannot be considered (see Gottlieb v Wynne, 159 AD3d 799 [2d Dept 2018]). On this basis alone, the motion must be DENIED.

B. Failure to Establish Prima Facie Entitlement

Even were the Court to consider defendant's submissions, the motion fails on substantive grounds.

With respect to the 90/180-day category, defendant has wholly failed to meet its prima facie burden. It is well settled that a defendant must present competent medical evidence addressing the plaintiff's condition during the first 180 days following the accident (see Sayers v. Hot, 23 AD3d 453 [2d Dept 2005]; Buford v. Fabrizio, 8 AD3d 784 [3d Dept 2004]). Examinations conducted years after the accident are not probative of the plaintiff's condition during the statutory period (see Toussaint v Claudio, 23 AD3d 268 [1st Dept 2005]; Webb v Johnson, 13 AD3d 54 [1st Dept 2004]; Scott v Roudellou, 291 AD2d 550 [2d Dept 2002]).

Here, defendant's expert conducted an examination more than three years after the accident and offered no opinion whatsoever as to plaintiff's condition during the first 180 days. This omission is dispositive. Defendant's failure to address this category mandates denial of the motion, irrespective of the sufficiency of plaintiff's opposition.

C. Permanent Consequential and Significant Limitation Categories

Turning to the remaining categories, the Court finds that plaintiff has raised triable issues of fact sufficient to defeat summary judgment.

The Court of Appeals has held that a plaintiff must present objective medical evidence of the extent and duration of the alleged limitation (see Lopez v Senatore, 65 NY2d 1017 [1985]; Gaddy v Eyler, 79 NY2d 955 [1992]). Such evidence may include quantified range-of-motion limitations or qualitative assessments supported by objective findings (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Perl v Meher, 18 NY3d 208 [2011]).

Here, Dr. Guy's affirmation satisfies these requirements. His findings of 22% to 34% limitations in the cervical spine and up to 50% limitations in the lumbar spine, measured by goniometer, constitute objective, quantified evidence of significant limitation. Courts have repeatedly held that comparable deficits are sufficient to raise triable issues of fact (see Howard v King, 307 AD2d 278 [2d Dept 2003]; Negrete v Hernandez, 2 AD3d 511 [2d Dept 2003]; Mazo v Wolofsky, 9 AD3d 452 [2d Dept 2004]).

Moreover, Dr. Guy's conclusions are supported by clinical findings, including muscle spasm and tenderness, as well as MRI evidence. His opinion that plaintiff sustained a permanent partial disability causally related to the accident is not conclusory but grounded in objective medical evidence.

In contrast, defendant's expert merely concludes that plaintiff's injuries have resolved, without specifying when such resolution occurred. The absence of any temporal framework renders the opinion insufficient to negate the existence of a serious injury (see Bowen v Dunne, 306 AD2d 929 [4th Dept 2003]). Furthermore, defendant's expert acknowledges that plaintiff sustained injuries causally related to the accident, thereby undermining the assertion that no serious injury was sustained.

D. Triable Issues and Credibility Determinations

The Court is presented with competing medical opinions regarding the nature, extent, and duration of plaintiff's injuries. Such a conflict raises issues of credibility that cannot be resolved on a motion for summary judgment (see Eiminian v Sasson, 51 AD3d 623 [2d Dept 2008]; [*4]Harper v St. Luke's Hosp., 224 AD2d 350 [2d Dept 1996]; Morsellino v Frankel, 161 AD2d 748 [2d Dept 1990]).

Additionally, plaintiff's testimony and affidavit regarding his functional limitations during the relevant period, including his inability to perform full police duties and engage in physical activities, further support the existence of triable issues of fact. The Court notes that a plaintiff need not demonstrate a complete inability to perform daily activities, but rather a substantial curtailment (see Licari v Elliott, 57 NY2d 230 [1982]). The evidence presented herein meets that threshold.

IV. Conclusion and Decretal Paragraphs

The Court finds that defendant has failed to establish prima facie entitlement to summary judgment, both procedurally and substantively. In any event, plaintiff has raised multiple triable issues of fact under several categories of Insurance Law § 5102 [d], including the 90/180-day, significant limitation, and permanent consequential limitation categories.

Accordingly, it is hereby

ORDERED that the motion by defendant Yevgeni Kaniayev for summary judgment pursuant to CPLR § 3212 dismissing the complaint of plaintiff Bajram Dombalic is DENIED in its entirety; and it is further

ORDERED that the action shall proceed.

This constitutes the Decision and Order of the Court

Dated: March 19, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT