J.S.P. v Congregation Yeshiva Avir Yakov

Supreme Court, Rockland County

Decided on April 13, 2026

Index No. 031222/2023

John P. Collins, Jr., J.

The following papers numbered 1—14 were read and considered in connection with Defendants CONGREGATION YESHIVA AVIR YAKOV and NAFTALI [*2]SCHMELZCER's Notice of Motion (Motion Seq. No. 1) for an Order granting them summary judgment on the issue of liability and partial summary judgment, as to Plaintiff J.S.P., An Infant by his Mother and Natural Guardian, CHANTALE CHARLES only, on the ground that this Plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102(d) in the subject motor vehicle accident on November 18, 2021; and for such other and further relief as this Court may deem just, proper, and equitable; and also read and considered in connection with Defendants PIERRE EXUMA and PIERRE BRUNEL's Notice of Motion (Motion Seq. No. 2) for an Order pursuant to Civil Practice Law and Rules § 3212 granting summary judgment and dismissing the Complaint of Plaintiffs inasmuch as Plaintiffs J.S.P. and CHANTALE CHARLES fail to meet the serious injury threshold requirement mandated by Insurance Law § 5102(d); and granting such other further relief as the Court deems just and proper:

PAPERS NUMBERS

Notice of Motion (Motion Seq. No. 1)/Affirmation of Alexandra Bystritskaya, Esq./ Statement of Material Facts/Memorandum of Law- Exhibits A-L 1

Notice of Motion (Motion Seq. No. 2)/Affirmation of Carol S. Dibari, Esq./Statement of Material Facts/Exhibits A- N 2

Supplemental Affirmation of Alexandra Bystritskaya, Esq. in Support (Motion Seq. No. 1) 3

Affirmation of Jayne C. Dampf, Esq. in Opposition (Motion Seq. No. 1) 4

Affirmation of Reuven Epstein, Esq. in Opposition (Motion Seq. No. 1)/

Exhibits A- C 5

Affirmation of Reuven Epstein, Esq. in Opposition (Motion Seq. No. 2)/

Exhibits A- B 6

Reply Affirmation of Carol S. Dibari, Esq. (Motion Seq. No. 2) 7

Reply Affirmation of Alexandra Bystritskaya, Esq. (Motion Seq. No. 1) 8

Affirmation of Reuven J. Epstein, Esq. in Opposition (Motion Seq. No. 1)/

Exhibits A- D 9

Affirmation of Reuven J. Epstein, Esq. in Opposition (Motion Seq. No. 2)/

Exhibits A- D 10

Letter to the Court from Reuven Epstein, Esq. (NYSCEF Doc. No. 125) 11

Letter to the Court from Alexandra Bystritskaya, Esq.(NYSCEF Doc. No. 126)/

(Motion Seq. No. 1) 12

Sur Reply Affirmation of Alexandra Bystritskaya, Esq.(Motion Seq. No. 1) 13

Affirmation of Carol S. Dibari, Esq.in Reply (Motion Seq. No.2)/Exhibit M 14

PROCEDURAL HISTORY

Plaintiff commenced the instant action against Defendants CONGREGATION [*3]YESHIVA AVIR YAKOV (hereinafter CONGREGATION), NAFTALISCHMELZCER (hereinafter SCHMELZCER), and PIERRE BRUNEL (hereinafter BRUNEL) with the filing of a Summons and Verified Complaint on March 21, 2023. See NYSCEF Doc. No. 1. Defendant CONGREGATION was served personally on March 27, 2023, by service on Phil Buran, managing agent. See NYSCEF Doc. No. 9.FN2 Defendant CONGREGATION and SCHMELZCER joined issue with the filing of a Verified Answer raising fourteen (14) Affirmative Defenses and a cross-claim against Defendant BRUNEL. See NYSCEF Doc. No. 2. Defendant BRUNEL was served pursuant to Civil Practice Law and Rules § 308(2) on July 11, 2023, by service on fifteen (15) year old "Diana Doe" at 7 Twinkle Road, Airmont, New York. See NYSCEF Doc. No. 27.

On June 16, 2023, Plaintiff's counsel filed a Proposed Order -- an affirmation with an executed stipulation annexed to the affirmation. See NYSCEF Doc. Nos. 15-17. The Affirmation of Reuven J. Epstein, Esq. indicates that he was seeking to amend the Summons and Verified Complaint pursuant to Civil Practice Law and Rules § 3025 due to an error in failing to include -- as a defendant -- the owner of the cab, PIERRE T. EXUMA, in which Plaintiffs were passengers. See NYSCEF Doc. No. 16. Further, Attorney Epstein indicated that his time to amend without leave of court had expired and as a result he received consent from Defendants' counsel as demonstrated by the annexed Stipulation. See NYSCEF Doc. Nos. 16 and 17.

Subsequently, on July 6, 2023, Plaintiff filed an Amended Summons and Complaint adding Defendant PIERRE T. EXUMA (hereinafter EXUMA). See NYSCEF Doc. No. 20. Defendant EXUMA was served on July 18, 2023, at 1200 E. 53rd Street, 5Y, Brooklyn, New York pursuant to Civil Practice Law and Rules § 308(2) by service on "Jane Doe." See NYSCEF Doc No. 28. Defendants EXUMA and BRUNEL joined issue with the filing of a Verified Answer to the Amended Complaint raising eight (8) Affirmative Defenses and a cross- claim against Defendants CONGREGATION and SCHMELZCER. See NYSCEF Doc. Nos. 39 and 40. Defendants CONGREGATION and SCHMELZCER joined issue as to the filing of the Amended Complaint raising fourteen (14) Affirmative Defenses and two (2) cross-claims against Defendants EXUMA and BRUNEL. See NYSCEF Doc. No. 62.

The parties engaged in discovery -- including Plaintiff's filing of a Bill of Particulars and Response to Demand. See NYSCEF Doc. Nos. 48 and 50. Based upon a Compliance Conference Stipulation and Order dated May 15, 2024, and uploaded to NYSCEF on May 16, 2024, the following matters were joined for discovery: Brunel v Congregation Yeshiva Avir Yakov, et al., Index # 033055/2022 (companion case) and the instant matter, Matter of J.S.P., et al v Congregation Yeshiva Avir Yakov, et al., Index # 031222/2023. See NYSCEF Doc. No. 47.

On September 10, 2025, the parties appeared for a conference before the Honorable Hal B. Greenwald, J.S.C. (retired) regarding the scheduling of depositions of [*4]Defendants EXUMA and BRUNEL. See NYSCEF Doc. No. 66.FN3 Based upon the transcript of the proceedings, the Plaintiffs informed the Court that they had been unable to depose Defendant BRUNEL for over one (1) year despite contact with BRUNEL's counsel on the related action (Brunel v Congregation Yeshiva Avir Yakov, et al., Index # 033055/2022) and the involvement of an investigator. See NYSCEF Doc. No. 66. As a result of the delay, Plaintiffs' counsel sought preclusion of testimony from Defendant BRUNEL, which was orally granted by Judge Greenwald. See NYSCEF Doc. No. 66. Additionally, during the appearance Plaintiff made an application to strike BRUNEL's Answer, which was denied. See NYSCEF Doc. No. 66.

On September 12, 2025, Plaintiff filed a Note of Issue demanding a jury trial and a Certificate of Readiness for Trial. See NYSCEF Doc. No. 64. On November 11, 2025, Defendants CONGREGATION and SCHMELZCER filed the instant motion for summary judgment on the issue of liability and partial summary judgment (Motion Seq. No. 1). See NYSCEF Doc. No. 67-82. Also on November 11, 2025, Defendants EXUMA and BRUNEL filed a motion for summary judgment and dismissing Plaintiff's Complaint for failure to meet the serious injury threshold mandated by Insurance Law § 5102(d) (Motion Seq. No. 2). See NYSCEF Doc. Nos. 83-100.

On December 16, 2025, Plaintiff's counsel sent a letter to Defendants EXUMA's and BRUNEL's attorney indicating that there was "zero basis" for their motion as to Plaintiff CHANTALE CHARLES (hereinafter CHANTALE) and requested withdrawal of the motion as to CHANTALE and indicated if the motion was not withdrawn Plaintiffs' reply would include an application for sanctions and costs for a frivolous motion.FN4See NYSCEF Doc. No. 102.

On February 10, 2026, Plaintiffs opposed both Defendants' motions (Motion Seq. Nos. 1 and 2) separately. See NYSCEF Doc. Nos. 104-110. Subsequently, on February 19, 2026 -- without the consent or direction of Court -- the Plaintiffs filed an amended opposition to both Defendants' motions (Motion Seq. Nos. 1 and 2), which included additional exhibits not included with the prior opposition. See NYSCEF Doc. No. 115-124. On February 19, 2026, contemporaneously with the amended filings, Plaintiffs' counsel filed a letter via NYSCEF, dated February 18, 2026, which indicated that the amended opposition was filed due to law office failure which resulted in the failure to file opposition papers that included his expert reports and certified medical records and the use of "old language for the affirmation."

Plaintiffs' counsel contended that the errors fell within Civil Practice Law and Rules § 2001. See NSYCEF Doc. No. 125. According to the letter, "none of these administrative errors were substantive and none have prejudiced the defendants, [the] replies were only due less than one week ago, and the motion isn't fully submitted until tomorrow." See NYSCEF Doc. No. 125. Later on February 19, 2026, counsel for Defendants CONGREGATION and SCHMELZCER objected to Plaintiff's amended filings as [*5]untimely as they were filed after Defendants' reply had already been served. See NYSCEF Doc. No. 126. However, given the possibility that the Court may consider Plaintiffs' amended opposition to Defendants' motion, Defendants filed a "sur-reply." See NYSCEF Doc. Nos. 126 and 127. On February 20, 2026, counsel for Defendants EXUMA and BRUNEL submitted an "[a]ffirmation in reply" in which the Plaintiff's amended filing is objected to based upon it being an untimely (the opposition was filed on the return date) and an impermissible sur-reply. See NYSCEF Doc. No. 128.

FACTS

The instant action arises out of a motor vehicle accident that occurred on November 18, 2021, at approximately 8:00 p.m. on Route 45, approximately one hundred (100) feet south of Greenridge Way, Town of Ramapo. See NYSCEF Doc. No. 92. According to Plaintiffs' two (2) e-filed Verified Bill of Particulars filed on July 6, 2023 and June 17, 2024, Plaintiffs were passengers in a 2016 Toyota Sedan owned by Defendant EXUMA and driven by Defendant BRUNEL when the Toyota was struck in the front bumper by the rear end driver's side quarter panel of the 2018 yellow school bus owned by Defendant CONGREGATION and driven by Defendant SCHMELZCER. See NYSCEF Doc. Nos. 21 and 48. Plaintiff CHANTALE alleges she suffered injuries to her shoulder, biceps, neck, and knees which required surgery. See NYSCEF Doc. No. 21and 48. Also, Plaintiff J.S.P., an infant, alleges he suffered a contusion to his right lower leg. See NYSCEF Doc. No. 21.

ARGUMENTS

Defendants CONGREGATION and SCHMELZCER Motion for Summary Judgment (Motion Seq. No. 1)

Defendants' CONGREGATION and SCHMELZCER's Arguments (Motion Seq. No. 1)

Defendants contend that partial summary judgment should be granted as to liability based upon the uncontroverted evidence including the expert affirmation of Dr. Ali M. Sadegh, a biomechanical engineering expert. According to Defendants, Dr. Sadegh has opined that the sole proximate cause of the accident was the reckless way Defendant BRUNEL operated his 2016 Toyota and that no negligence is attributable to Defendants CONGREGATION and SCHMELZCER.

Defendants assert that the testimony of SCHEMLZCER, the police report and Dr. Sadegh's expert affirmation demonstrate that the accident was caused by Defendant BRUNEL driving his vehicle directly into the rear third of a full-size yellow school bus while the bus was in the process of completing a left-hand turn onto the opposite side of the roadway. The Defendants aver that SCHMELZCER was driving the school bus, and that his unrebutted testimony was that he came to a complete stop at the end of the CONGREGATION driveway, looked in both directions and then proceeded with the left turn after he determined the turn could be done safely based upon the distance of the approaching vehicles. Further, Defendants argue that SCHMELZCER testified that when he executed the left hand turn the headlights of the bus were turned on and his turn signal was activated.

Defendants argue that Dr. Sadegh opined that the location of the accident was straight, [*6]level and illuminated and based upon the size and color of the bus it would have been in "plain view" of the oncoming southbound traffic with significant time and distance for Defendant BRUNEL to see and avoid striking the bus. Further, Dr. Sadegh opined that based upon the size of the bus it would take seven (7) to eight (8) seconds to complete its left turn, which would have been recognized by a reasonably inattentive driver, such as Defendant BRUNEL, who was operating as a taxicab driver.

Defendants also contend this is not a case of competing negligence since there is no evidence or testimony provided by Plaintiff to rebut SCHMELZCER's testimony. Ther argue that -- based on Plaintiff CHANTALE's examination before trial (hereinafter EBT) testimony -- CHANTALE did not witness the accident or the events leading up to the accident and Defendant BRUNEL did not appear for his EBT and was subsequently precluded from testifying. As such, Defendants aver that no witness testimony or evidence has been provided by Plaintiffs or any co- defendants, that contradicts Defendant SCHMELZCER's account of how the accident occurred.

Moreover, Defendants assert that partial summary judgment should be granted dismissing the claims by the infant Plaintiff J.S.P. on the ground that he did not sustain a "serious injury" as defined by Insurance Law § 5102(d). Specifically, Defendants contends that medical records, the deposition testimony and the expert report of Dr. Barry Kraushaar, an orthopedist, demonstrate that infant Plaintiff J.S.P. suffered a minor transient contusion to his right lower extremity -- for which he received no medical treatment -- that resolved quickly allowing him to return to school and his activities with no impairment or limitation of any body part, function or system.

As a result of the limited injury suffered by infant plaintiff J.S.P. the Defendants argue that it does not qualify as a "serious" injury under the first five (5) categories of Insurance Law § 5102(d) or the under the permanent consequential limitation (the 90/180-day category). Defendants assert that the infant Plaintiff has failed to provide objective proof of a medical determined and causally related injury of a non-permanent nature or that the injury prevented him from performing substantially all of his material acts of daily living for at least ninety (90) days following the instant accident. Further, Defendants aver that the medical records provided from Montefiore Nyack Hospital provide only subjective complaints of right leg pain on the date of the accident rather than any indication of swelling, bruising or tenderness. Additionally, later records from the infant Plaintiff's pediatrician, Clarkstown Pediatrics, confirmed the absence of an injury and limitation during visits conducted on November 24, 2021, December 21, 2021, and within the two (2) years following the accident.

Defendants EXUMA and BRUNEL's Argument in Opposition (Motion Seq. No. 1)

Defendants, EXUMA and BRUNEL concede that Defendant BRUNEL is precluded from testifying but nonetheless assert that the evidence before the Court, submitted by Defendants CONGREGATION and SCHMELZCER, demonstrates that SCHMELZCER is not without fault as to the subject motor vehicle accident. Specifically, Plaintiff CHANTALE testified at her second EBT that as the back seat passenger in the car driven by Defendant BRUNEL, she observed BRUNEL to be driving normally at a steady speed with his headlights on when the vehicle she was traveling in was struck by the yellow school bus operated by Defendant SCHMELZCER. Further, Defendants EXUMA and BRUNEL note that Plaintiff CHANTALE testified that prior to the subject accident she observed the school bus exit CONGREGATION's parking lot from the right of BRUNEL's vehicle, cross in front of [*7]BRUNEL's vehicle and turn left onto Route 45 to enter the opposite direction of travel without ever using the horn. Additionally, Plaintiff CHANTALE testified that after the accident, the yellow school bus fled the accident scene and that bystanders brought Defendant BRUNEL to where the yellow bus fled.

Defendants EXUMA and BRUNEL assert that the evidence submitted demonstrates that -- on the date of the accident -- Defendant SCHMELZCER was solely responsible for the subject accident due to his violation of Vehicle and Traffic Law § 1143. According to Defendants, co- Defendant SCHMELZCER had an ongoing duty to see what should be seen and to exercise reasonable care to avoid an accident. Specifically, Defendants EXUMA and BRUNEL contend that SCHMELZCER entered the roadway by making a left turn directly in front of Defendant BRUNEL's path without first determining whether the school bus could safely enter the roadway. Based upon the conduct alleged, Defendants EXUMA and BRUNEL contend that there are issues of fact and credibility determinations that are the sole province of a jury.

Arguments in opposition to Defendants CONGREGATION and SCHMELCZER's application for summary judgment as to the infant Plaintiff for failure to demonstrate a serious injury as required by Insurance Law § 5102(d) were reserved for Defendants EXUMA and BRUNEL's motion for summary judgment (Motion Seq. No. 2).

Plaintiffs' Arguments in Opposition (Motion Seq. No. 1)

Plaintiffs contend that Defendants CONGREGATION and SCHMELZCER arguments for summary judgment fails for two (2) reasons — the argument that Defendant BRUNEL's conduct was the sole proximate cause of the accident is not supported by the record as there are issues of material fact as to the conduct and fault of SCHMELZCER; and the conclusions of Dr. Sadegh, the engineering expert, are directly contradicted by Plaintiffs' expert, Jefrey J. Lavelle. However, the only documents annexed to Plaintiffs' opposition filed on February 10, 2026, are the certified police report, an affidavit of Defendant BRUNEL, and medical records for infant Plaintiff J.S.P. On February 19, 2026, Plaintiffs filed their opposition "anew" attaching a Certificate of Business Records, medical records for both Plaintiffs, and an affirmation of Jeffrey J. Lavelle, a Senior Investigator at Northeast Crash Dynamics, LLC. In response to the unauthorized and untimely filing by the Plaintiffs, Defendants CONGREGATION and SCHMELZCER submitted a letter seeking the Court to disregard Plaintiff's second filing along with a sur-reply in case the Court considered Plaintiff's filing.

As to the first argument, Plaintiff asserts that Defendant SCHMELZCER stated in his EBT that he did not recall all the details of the subject accident. SCHMELZCER also testified that he observed BRUNEL's vehicle before and after he made the left turn onto Route 45 but could not estimate the distance of the taxicab before he commenced the left turn. Further, Plaintiff notes that the statements of SCHMELZCER included in the Police Accident Report that he did not see vehicles coming toward the school bus -- contradicts his EBT testimony. Additionally, Plaintiff avers that the preclusion of BRUNEL's EBT is of no moment since the sworn testimony of Defendant BRUNEL, from the companion action (Index No. 033055/2022), provides evidence that the school bus made a sudden and unexpected turn directly in front of BRUNEL's lane of traffic striking his vehicle. As a result of the proffered sworn statement of BRUNEL, Plaintiffs assert that there are material issues of fact that exist as to whether BRUNEL was the sole proximate cause of the subject accident.

In support of their second argument, Plaintiffs assert that the conclusions set forth in Dr. Sadegh's expert report are directly contradicted by Plaintiffs' expert Jeffrey J. Lavelle. Specifically, Plaintiffs contend that based upon the inconsistent testimony upon which Dr. Sadegh's opinion is based, his determinations as to the speed of the bus exiting the driveway and making the left turn are speculative and based upon conjecture. According to Plaintiffs and Lavelle, Dr. Sadegh's report is supported by numerous flawed assumptions, inter alia, (1) the fact that the school bus was visible to the taxicab at the time the bus made the left turn; (2) that there is no evidence that BRUNEL was speeding prior to the accident; (3) the conclusion that school bus turns to the left are inherently visible and should be anticipated by oncoming drivers: and (4) the continued references to southbound traffic despite the taxi cab traveling southbound on Route 45.

Defendants CONGREGATION and SCHMELZCER's Arguments in Reply (Motion Seq. No. 1)

In reply, Defendants CONGREGATION and SCHMELZCER contend again that they satisfied their prima facie burden for entitlement to summary judgment and assert that in opposition the Plaintiffs have failed to submit admissible, non-speculative evidence that raises a triable issue of fact. Defendants also argue that the arguments made by co-Defendants EXUMA and BRUNEL of the existence of a violation of Vehicle and Traffic Law § 1143 are based upon an incorrect assumption that the statute imposes strict liability based only on the nature of the accident without evidential support of wrongdoing and created factual disputes based upon speculation and inadmissible evidence. Further, CONGREGATION and SCHMELZCER assert that the BRUNEL Affidavit from the companion action is not evidence in admissible form and does not raise triable issues of fact.

Defendants EXUMA and BRUNEL's Motion for Summary Judgment (Motion Seq. No. 2)

Defendants EXUMA and BRUNEL's Arguments in Support (Motion Seq. No. 2)

Defendants contend that Plaintiffs infant J.S.P. and CHANTALE have both failed to meet the serious injury threshold requirement mandated by Insurance Law § 5102(d). The Defendants assert that based on the affirmed medical reports of the examining doctors and Plaintiffs' verified pleadings, Plaintiffs' allegations of serious injury are not substantiated by the medical records. Specifically, Defendants contend that Dr. Hugh Selznick, an orthopedist who examined the infant Plaintiff J.S.P., opined that infant Plaintiff's right knee and right leg were all normal and all objective orthopedic tests were negative. As a result, Defendants note that Dr. Selznick opined that there is no objective evidence that the infant Plaintiff has any permanency or disability and is able to perform all of his activities of daily living without restriction. Dr. Selznick also examined Plaintiff CHANTALE and opined that the range of motion testing on her cervical and lumbosacral spine, bilateral shoulders and bilateral knees were all within normal limits and all the objective orthopedic tests were negative. Similar to the infant Plaintiff, Defendants contend that Dr. Selznick opined that there is no objective evidence that Plaintiff CHANTALE has a permanent or disabling injury.

The Defendants also contend that Plaintiff CHANTALE was examined by Dr. Scott A. Springer, a radiologist, who reviewed CHANTALE's MRI and opined that the disc desiccation observed on the MRI was indicative of degenerative disc disease as were disc bulges and [*8]herniations. Similarly, Defendants EXUMA and BRUNEL aver that Springer's review of Plaintiff CHANTALE's thoracic spine MRI demonstrated injuries that are related to CHANTALE's age, not trauma as a result of the subject accident. Defendants also argue that Springer's review of Plaintiff CHANTALE's MRIs of her right shoulder, left knee and left shoulder all demonstrate chronic degenerative disease rather than traumatic or posttraumatic changes.

As a result of the doctor's independent evaluations, Defendants EXUMA and BRUNEL assert that both Plaintiffs have not sustained a serious injury as neither Plaintiff has sustained a permanent loss or permanent or significant limitation of the use of a body organ, members, function or system.

Defendants EXUMA and BRUNEL also contend based upon Plaintiff CHANTALE's EBT testimony, neither she nor the infant Plaintiff were confined for a significant duration after the subject accident, and their activities were not significantly limited such that the serious injury threshold mandated by Insurance Law § 5102(d) has been demonstrated. Additionally, the Defendants assert that the Plaintiffs have been compensated sufficiently by receipt of no-fault benefits.

Plaintiff's Arguments in Opposition to Defendants EXUMA and BRUNEL's Motion for Summary Judgment (Motion Seq. No. 2)

In opposition, Plaintiffs contend that since CHANTALE underwent surgery as a direct result of the accident, Defendants' motion for summary judgment based upon a lack of serious injury is "patently unsustainable." Plaintiff's counsel asserts in his affirmation that since the Defendant's position in the instant motion is "so unfavorable" -- sanctions and costs should be granted to Plaintiff counsel's office for wasting their time and costs along with the Court's "precious time" since the motion is "baseless." Plaintiff asserts that the Defendants' reliance on "self-serving conclusions of the IME reports" that Plaintiff CHANTALE's injuries do not qualify as serious pursuant to the Insurance Law is insufficient to warrant the granting of summary judgment.

Plaintiff CHANTALE contends that based upon her Amended Verified Bill of Particulars, she underwent a right shoulder arthroscopic bursectomy and also has serious and permanent injuries to her back and knee which satisfy the "serious injury threshold."

Plaintiff J.S.P. contends that based upon the Verified Bill of Particulars, he suffered injuries to his lower right leg which impaired his performance of normal activities. He also alleges that he is fearful of a car and was unable to sleep. The infant Plaintiff argues that the medical records from Montefiore Nyack Hospital and his pediatrician support that he was treated for the aforementioned injuries.

Similar to the opposition filed as to Defendants CONGREGATION and SCHMELZCER's motion for summary judgment (Motion Seq. No. 1), Plaintiff's opposition to Defendants EXUMA's and BRUNEL's motion for summary judgment (Motion Seq. No. 2) was filed on February 10, 2026, and included an affirmation of Attorney Epstein, including a copy of a letter that he sent to Defendants' counsel regarding the filing of the instant motion and uncertified medical records as to infant Plaintiff J.S.P. See NYSCEF Doc. Nos. 108-110. Defendants EXUMA's and BRUNEL's counsel filed a reply addressing the deficiencies in the evidence filed with and in support of Plaintiffs' opposition. See NYSCEF Doc. No. [*9]111, ¶ 22-31. In response, and without prior application to the Court or on consent of Defendants, Plaintiff submitted a second set of papers in opposition on February 19, 2026, which is marked "Amended." See NYSCEF Doc. Nos. 120-124. Plaintiff's second submission consists of the initial affirmation filed by Attorney Epstein and includes: (1) a "Certification of Business" records from "Golden Healthcare Chiropractic Diagnostic,"; (2) a bulk filing of medical records for Plaintiff CHANTALE which include records from Golden Healthcare Chiropractic Diagnostic, P.C., Medaid Radiology, LLC and an unknown procedure evaluated by Sans L. Bloch, M.D. at an unknown facility; (3) a bulk filing of medical records with no individual certifications for infant Plaintiff J.S.P. which appear to be from Clarkstown Pediatrics (many records do not delineate from which provider they were provided) and the Montefiore/Nyack Hospital Emergency Department; and (4) an Affirmation of Jeffrey J. Lavelle, Senior Investigator from Northeast Crash Dynamics, LLC. See NYSCEF Doc. Nos. 121-124. The Affirmation of Attorney Epstein in opposition to Defendants EXUMA's and BRUNEL's motion for summary judgment does not reference the Lavelle Affirmation and therefore the Court believes that its inclusion with the second filing in response to Defendants EXUMA's and BRUNEL's motion (Motion Seq. No. 2) is erroneous.

Defendants EXUMA and BRUNEL Arguments in Reply (Motion Seq. No. 2)

Defendants EXUMA and BRUNEL repeat the allegations and arguments raised in their initial motion and include arguments against Plaintiffs' opposition. Defendants contend that the affirmation of Attorney Epstein is defective and inadmissible as it does not contain the proper affirmations pursuant to Civil Practice Law and Rules § 2106.

Next, the Defendants contend that -- if the Court considers Plaintiffs' initial opposition -- then the issue of "serious injury" is properly raised, and each Plaintiff has not suffered a serious injury as defined in Insurance Law § 5102(d). Additionally, Defendants assert that as to the 90/180-day category for serious injury, Plaintiffs CHANTALE and infant Plaintiff have failed to satisfy their burden. Finally, Defendants aver that Plaintiffs' assertion that surgery alone constitutes a "serious injury" is a misapplication of the law as the Plaintiff must still establish that the surgery was causally related to the accident.

Defendants also contend that even if all of Plaintiffs' submissions are considered, they are insufficient to raise a triable issue of fact as the medical records submitted for infant Plaintiff J.S.P. are unsworn and do not contain the required language from Civil Practice Law and Rules § 2106. Specifically, Defendants assert that infant Plaintiff's medical records from Clarkstown Pediatrics and Montefiore Nyack Hospital are unsworn and therefore inadmissible. Similarly, Defendants argue that the medical records for Plaintiff CHANTALE are also unsworn medical evidence. Finally, Defendants note that the records initially submitted by Plaintiffs fail to establish causation since there is no evidence that an initial examination for either Plaintiff was conducted and there is also no evidence of a recent examination, thus creating a gap in the Plaintiffs' evidence.

ANALYSIS

Summary Judgment as to Liability

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject [*10]accident." White v. Adom Rental Transp., Inc., 150 AD3d 938, 939 (2d Dept 2017) (citing Boulos v. Lerner-Harrington, 124 AD3d 709 (2d Dept 2015)). "[T]here can be more than one proximate cause of an accident." Caldwell v. Town of Huntington, 206 AD3d 875, 876 (2d Dept 2022). "Generally, it is for the trier of fact to determine the issue of proximate cause." Kalland v. Hungry Harbor Assoc., LLC, 84 AD3d 889, 889 (2d Dept 2011); See Lukyanovich v. H.L. Gen. Contrs., Inc., 141 AD3d 693 (2d Dept 2016). "A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law." Vainer v. DiSalvo, 79 AD3d 1023, 1024 (2d Dept 2010). Specifically, an operator of a motor vehicle that is traveling in the right-of-way is entitled to assume that the opposing driver, or pedestrian, will obey the traffic laws that require them to stop or yield, but the operator who is traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of their senses to avoid a collision with other vehicles or pedestrians. See Winner v. Star Cruiser Transp., Inc., 95 AD3d 1109 (2d Dept 2012).

Here, in support of their motion for summary judgment as to liability, Defendants CONGREGATION and SCHMELZCER submitted the pleadings, Bill of Particulars, deposition testimony of the Plaintiff (all three [3] dates), the deposition testimony of Defendant SCHMELZCER, the transcript of a September 10, 2025 Compliance Conference precluding the EBT of Defendant BRUNE, and the biomechanical expert report of Dr. Ali M. Sadegh.

The Court has determined that Defendants has failed to satisfy their prima facie entitlement to judgment as a matter of law as to liability with the submissions. Defendant SCHMELZCER testified continuously in his EBT that he did know how much time elapsed from when he exited the driveway to entering Route 45, that he did know the rate of speed of the taxicab driven by Defendant BRUNEL when he observed the car, that he did not know how far away BRUNEL's vehicle was when the bus exited the driveway and entered Route 45 or the rate of speed the school bus was traveling when he turned onto Route 45. Rather, Defendant SCHMELZCER either indicated that he did not know the answer, or that he was unfamiliar with measurements as to distance. Similarly, Plaintiff CHANTALE's EBT testimony is rife with statements indicating she did not recall seeing the school bus until the collision and speculated as to where the school bus came from and the rate of speed Defendant BRUNEL was traveling before the accident. Despite the parties' agreeance on where the impact occurred between the two vehicles, the testimony of Defendant SCHMELZCER failed to demonstrate that Defendant BRUNEL's conduct was responsible for the subject accident, that the school bus had the right of way when it made a left turn onto Route 45 or that Defendant BRUNEL's conduct was the sole proximate cause of the accident.

The Court also considered the expert affirmation submitted with Defendant CONGREGATION and SCHMELZCER's motion. In Dr. Sadegh's expert biomechanical report, he opined that the accident was caused by "the failure of the Toyota operator [BRUNEL] to perceive the school bus, which was plainly visible even at nighttime, and recognizable under the circumstances." Dr. Sadegh also opines that the failure was based on BRUNEL's excessive speed and inattentive driving and "the lack of any observable reaction before impact." However, there is no admissible evidence (testimony or documentary) that demonstrates that Defendant BRUNEL was traveling at an excessive speed or what speed whatsoever he was traveling on Route 45.

Contrary to Dr. Sadegh's opinion, there is no testimony that BRUNEL was distracted while driving and no reference to any such evidence. Nonetheless, Dr. Sadegh remarks that the [*11]"totality of the evidence" demonstrates that the sole cause of the subject accident was the negligent operation of the taxicab by Defendant BRUNEL As such, Defendants CONGREGATION and SCHMELCZER have not demonstrated that the sole proximate cause of the accident was Defendant BRUNEL or that Defendant SCHMELCZER's conduct did not contribute to the accident. Therefore, the Court need not consider the opposition submitted by Plaintiffs and Defendants EXUMA and BRUNEL.

In any event, even if the Court found that Defendants CONGREGATION and SCHMELZCER met their prima facie burden, the papers submitted by Plaintiffs in opposition were insufficient and untimely and therefore could not be considered. Plaintiffs' initial opposition papers submitted on February 17, 2026, referenced an expert affidavit of Jeffrey J. Lavelle, but failed to annex the affidavit to the motion papers. See NYSCEF Doc. No. 104, ¶ 49, 52. Defendants CONGREGATION and SCHMELZCER raised the deficiencies in their reply file on February 5, 2026. See NYSCEF Doc. No. 112, ¶ 13-21. Additionally, the Plaintiffs' resubmitted opposition does not include the previously annexed affidavit of Defendant BRUNEL. See NYSCEF Doc. No. 114, ¶ 8. Annexed to the amended submission by Plaintiff is an expert affirmation of Jeffrey J. Lavelle, Senior Investigator, and partially certified medical records for Plaintiff CHANTALE. See NYSCEF Doc. Nos. 115, 117 and 119. The Court notes that the Lavelle Affirmation references a curriculum vitae (CV) and a "rough drawing" he sketched, however neither of the referenced documents are annexed to the aforementioned affirmation. See NYSCEF Doc. No. ¶ 1, and 5.

Plaintiff correctly notes in his letter that Civil Practice Law and Rules § 2001 allows a court to disregard a party's "mistake, omission, defect or irregularity . . . if a substantial right of a party is not prejudiced." However, in determining whether to consider the materials submitted to correct "procedural, technical, and/or ministerial defects in a party's moving papers," a court must determine if the opposing party suffered prejudice. See Mirzakandov v Mazal U Bracha, LLC, 216 AD3d 966, 967 (2d Dept 2023).

Here, the documents cured by the affirmation language required under Civil Practice Law and Rules § 2106 would not prejudice the Defendants. See Kallo v Kane Street Synagogue, 241 AD3d 522 (2d Dept 2025). Nevertheless, the Defendants would suffer prejudice based upon the filing of the newly filed expert affirmation and partially certified medical records since the submission was made after the time the Defendants were to respond. In any event, even if the Court were to consider the Plaintiffs' untimely submission and Lavelle's Affirmation, the consideration of those documents would not alter the Court's determination as the Lavelle Affirmation is incomplete (missing the referenced curriculum vitae and drawing referenced in the affirmation), lacks Civil Practice Law and Rules § 2106 affirmation language (or any affirmation language) and to a certain extent is inadmissible. As such, this Court is constrained to disregard Attorney Epstein's amended filings including his affirmation and the annexed documents in opposition to Defendants CONGREGATION's and SCHMELZCER's motion for summary judgment as to liability.FN5

[*12]Summary Judgment based upon lack of serious injury pursuant to Insurance Law § 5102(d)

The issue of whether an injury claimed by a plaintiff falls within the statutory definition of "serious injury" is a question of law for the Court. See Licari v. Elliot, 57 NY2d 230 (1982). In order to be entitled to summary judgment it is incumbent upon the defendant to demonstrate that plaintiff did not suffer from any condition defined in Insurance Law §5102(d) as a serious injury. See Healea v. Andriani, 158 AD2d 587 (2d Dept 1990). As the proponent of this summary judgment motion Defendants must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in their favor, as a matter of law. See Civil Practice Law and Rules § 3212(b); Giuffrida v. Citibank Corp., et al, 100 NY2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980); Valdez v. Classic Hauling, LLC, 233 AD3d 959 (2d Dept 2024). Summary judgment will be granted only if there is no triable issue of fact. Issue finding and not issue determination is the key to summary judgment, and the papers on the motion should be scrutinized in the light most favorable to the party opposing the relief. See Judice v. DeAngelo, 272 AD2d 583 (2d Dept 2000). Specifically, a moving defendant bears the initial burden of establishing by the submission of evidentiary proof in admissible form a prima facie case that a plaintiff has not sustained a "serious injury" caused by the subject motor vehicle accident as a matter of law and that there are no material issues of fact. See Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345 (2002); See also Gaddy v. Eyler, 79 NY2d 955 (1992).

Once a moving defendant has made a showing that a plaintiff has not suffered a "serious injury" from the subject accident as a matter of law, then the burden shifts to the plaintiff to submit evidence in admissible form sufficient to create a material issue of fact necessitating a trial. See Franchini v. Palmieri, 1 NY3d 536 (2003); See also Perl v. Meher, 18 NY3d 208 (2011). By establishing that any one of several injuries sustained in an accident is a serious injury within the meaning of Insurance Law §5102 (d), a plaintiff is entitled to seek recovery for [*13]all injuries incurred as a result of the accident. See Linton v. Nawaz, 14 NY3d 821 (2d Dept 2010); See also Santos v. Fitkus, 222 NYS3d 126 (2d Dept 2024).

First, Defendants CONGREGATION and SCHMELZCER have met their prima facie burden in providing the Affirmation of Barry Kraushaar, M.D, an orthopedic surgeon. Dr. Kraushaar opined that he examined the infant Plaintiff on July 28, 2025, and observed him walking with a normal gait and having no difficulty climbing on to the examination table. Further, Dr. Kraushaar opined that the infant Plaintiff suffered a contusion to his right lower extremity from the accident and any current pain is from tendonitis that is unrelated to the accident and instead related to his weight and stage of growth. Therefore, based upon the submitted evidence -- including Plaintiff CHANTALE's testimony and the affirmation of Dr. Kraushaar -- Defendants CONGREGATION and SCHMELZCER have met their prima facie burden for entitlement of summary judgment regarding the infant Plaintiff J.S.P. as to serious injury.

In opposition, Plaintiff submitted uncertified (and therefore inadmissible) medical records that do not include a recent evaluation of the infant Plaintiff's medical condition. Further, Plaintiff has failed to include any admissible evidence that satisfies the 90/180-day requirement as to the infant Plaintiff. Therefore, Plaintiffs' submission is insufficient to raise a triable issue of fact as to whether the infant plaintiff J.S.P. suffered a serious injury as defined by Insurance Law § 5102(d) and Defendants CONGREGATION's and SCHMELZCER's motion for partial summary judgment as to the infant Plaintiff J.S.P. is granted.

Next, as to Defendants EXUMA and BRUNEL's motion for summary judgment as to serious injury regarding Plaintiffs. In this action the Plaintiffs filed an initial Verified Bill of Particulars on July 6, 2023 alleging Plaintiff CHANTALE sustained the following injuries: (1) right shoulder arthroscopic bursectomy, (2) debridement of bursal side of rotator cuff, (3) debridement of anterior labral, (4) anterior labru[m[ and biceps tendon, (5) extensive debridement, (6) major synovectomy, (7) left shoulder biceps tendinopathy with tenosynovitis, (8) left shoulder interstitial tear of horizontal segment, (9) left shoulder joint effusion, (10) left shoulder rotator cuff tendinopathy, (11) posterocentral disc herniation C3-C4, C4-C5, C5- C6, (12) disc building (sic) C6-C7, (13) muscle spasms, (14) disc bulging contacting thecal sac and S1 nerve Root, L5-S1, (14) left knee hamstring insertional tendinopathy and interstitial tear, (15) left knee joint effusion, (16) inability to engage in employment, and (17) inability/impairment to perform normal activities of daily living. In addition Plaintiff CHANTALE alleges she was totally disabled and home intermittently and was unable to work from April 25, 2022, through July 2, 2022. The Verified Bill of Particulars also alleges the infant Plaintiff J.S.P. sustained the following injuries: (1) contusion to right lower leg, (2) inability and/or impairment to perform normal activities, (3) fearful of being in a car, (4) broken sleep. On June 17, 2024, Plaintiff filed another Verified Bill of Particulars essentially alleging Plaintiff CHANTALE sustained the same injuries as previously alleged. See NYSCEF Doc. No. 92 (Exhibit F to Motion Seq. No. 2). The second Verified Bill of Particulars does not include any alleged injuries sustained by the infant Plaintiff J.S.P.

Plaintiff CHANTALE was examined by Dr. Selznick, an orthopedic surgeon, at the Defendants' request. Dr. Selznick's report states that he conducted a physical examination of Plaintiff CHANTALE and that in addition he reviewed the Amended Verified Bill of [*14]Particulars FN6 only as there were "[n]o legally authenticated medical records . . . available for review." See NYSCEF Doc. No. 95. Dr. Selznick reported in his narrative: (a) that on November 18, 2021 she was a backseat passenger in a vehicle that was involved in an accident; (b) as a result of the accident Plaintiff CHANTALE injured her neck, lower back, both shoulders and both knees; (c) that she had no factures, lacerations or loss of consciousness; (d) that she was treated at Nyack Hospital and was admitted for one day; (e) that she is currently not receiving treatment but underwent right shoulder surgery on April 25, 2022. According to the narrative report, Dr. Selznick conducted the physical examination with the use of a handheld goniometer to measure range of motion testing. Dr. Selznick states that any injury Plaintiff CHANTALE suffered to her cervical and lumbar spine, bilateral shoulders and bilateral knees resolved and the surgery to her right shoulder has healed. Further, Dr. Selznick asserted there was no objective evidence of permanency or disability and Plaintiff CHANTALE has returned to work without limitations.

Dr. Scott A. Springer, a radiologist, reviewed a cervical spine MRI performed on Plaintiff CHANTALE at Medaid Radiology LLC on January 12, 2022. According to Dr. Springer, his impression was that Plaintiff CHANTALE suffered from degenerative disease that was not causally related to the November 18, 2021, accident.

Infant Plaintiff J.S.P. was also examined by Dr. Selznick at Defendants' request. Dr. Selznick's report states that he conducted a physical examination of Plaintiff CHANTALE and that in addition he reviewed the Amended Verified Bill of Particulars FN7 only as there were "[n]o legally authenticated medical records available for review." See NYSCEF Doc. No. 94. Dr. Selznick reported in his narrative report: (a) that on November 18, 2021 the infant Plaintiff was a backseat passenger in a vehicle that was involved in an accident; (b) as a result of the accident the infant Plaintiff J.S.P. injured his right knee; (c) that he had no factures, lacerations or loss of consciousness; (d) that he was treated Nyack Hospital and was discharged the same day; (e) that he is currently not receiving treatment and no surgery resulted from the accident.

According to the narrative report Dr. Selznick conducted the physical examination with the use of a handheld goniometer to measure range of motion testing. Dr. Selznick contends that in his opinion any injury the infant Plaintiff suffered to his lower right leg was resolved. Further, Dr. Selznick asserted there was no objective evidence of permanency or disability and that the infant Plaintiff is able to perform his daily living activities without restrictions stemming from the accident.

Based upon the competent medical evidence submitted by Defendants EXUMA and BRUNEL they established prima facie that both Plaintiffs did not sustain a serious injury under the categories set forth in Insurance Law § 5102(d). See Farris v. Caygan, 2025WL322968, *1 (2d Dept 2025); See also Aziz v. Friendly Transit, Inc., 220 NYS3d 354 (2d Dept 2024). Therefore, the burden shifted to Plaintiffs to demonstrate the existence of a material issue of fact necessitating a trial.

In opposition, Plaintiffs' submission is insufficient and fails to raise triable issues of fact. [*15]Plaintiffs' counsel's affirmation fails to raise any argument in support of his application for denial of Defendants EXUMA's and BRUNEL's motion other than that Plaintiff CHANTALE's arthroscopic surgery to her shoulder demonstrates a serious and permanent injury. Counsel's affirmation is supported by a letter he sent to Defendants counsel indicating that there is "absolutely zero basis" for the instant summary judgment motion.

The purpose of including this letter or its evidentiary value in relation to any triable issue of fact is unclear to this Court. More importantly, Plaintiffs failed to include any medical records as to Plaintiff CHANTALE or affirmations of doctors (any expert or CHANTALE's treating physicians) which provide any argument as to the relation between Plaintiff CHANTALE's alleged injuries and the instant motor vehicle accident. The only medical records annexed to Plaintiffs' opposition to Defendants EXUMA's and BRUNEL's motion for summary judgment are uncertified records regarding the infant Plaintiff J.S.P.'s visits with his pediatrician and his visit to Montefiore Nyack Hospital emergency room on the date of the accident.

Since Plaintiffs have failed to set forth any arguments or evidence regarding each Plaintiff's alleged injuries in admissible form, the Plaintiffs have failed to demonstrate the existence of triable issues of fact that preclude this Court from granting Defendants EXUMA's and BRUNEL's motion for summary judgment. See Francis v. Basic Metal, Inc., 144 AD2d 634 (2d Dept 1981). Further, based upon: (1) the initial Bill of Particulars; (2) Amended Bill of Particulars; and (3) Plaintiff CHANTALE's testimony, the Plaintiffs have failed to demonstrate that either Plaintiff was disabled for the minimum statutory period necessary to support a 90/180 day injury claim. Therefore, Defendants EXUMA's and BRUNEL's motion for summary judgment as to serious injury is granted in its entirety.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Defendants' CONGREGATION's and SCHMELCZER's Motion for Summary Judgment as to liability (Motion Seq. No. 1) is denied consistent with the foregoing; and it is further

ORDERED that Defendants' CONGREGATION and SCHMELZCER's Motion for Partial Summary Judgment as to serious injury regarding Plaintiff J.S.P. (Motion Seq. No. 1) is granted consistent with the foregoing and claims as to the infant Plaintiff are dismissed; and it is further

ORDERED that Defendants' EXUMA and BRUNEL's Motion for Summary Judgment as to serious injury (Motion Seq. No. 2) is granted consistent with the foregoing; and it is further

ORDERED that the parties are directed to appear for an in-person conference on May 4, 2026.

Dated: April 13, 2026

New City, New York

HON. JOHN P. COLLINS, Jr., J.S.C.