Papers considered in the review of this Motion:Notice of Motion and Affidavits Annexed: 1Order to Show Cause and Affidavits Annexed:Answering Affidavits: 2Replying Affidavits: 3Exhibits:Other:DECISION/ORDER In this action for personal injuries, Plaintiff Keisha Ballard (hereinafter, the “Plaintiff”) alleges that the Defendant was negligent in the operation of a vehicle on October 23, 2010 causing an automobile accident at the intersection of Cruger Avenue and Allerton Avenue in the Bronx. Plaintiff alleges that Defendant’s negligence proximately caused the Plaintiff serious injury or economic loss as required by §5104 of the Insurance Law. Defendant now moves for an order granting it summary judgment and dismissing Plaintiff’s complaint pursuant to CPLR §3212 on grounds that Plaintiff did not sustain a serious injury as defined by Insurance Law §5102(d) (the “Motion”). The Motion’s initial return date was February 13, 2019. On that date, Plaintiff requested time to put in opposition, which was granted. Plaintiff had until March 29, 2019 to serve and file its opposition. Defendant then had until April 12, 2019 to serve and file its reply with oral arguments to be heard on April 16, 2019. On April 16, 2019, the Plaintiff’s opportunity to serve and file its opposition was further adjourned to May 13, 2019 based on the Plaintiff’s health. On May 13, 2019, Plaintiff asked for an additional adjournment to file opposition, which was objected to by the Defendant. The Court granted Plaintiff a brief adjournment with Plaintiff’s opposition to be filed and served by May 15, 2019. The Court set the date by which Defendant had to serve and file its reply as May 17, 2019. The Court stated that the matter would be taken on submission with no further oral argument allowed at the close of business on Friday, May 17, 2019. Plaintiff submitted its opposition to the Court by USPS Priority Express Mail sent on May 16, 2019 and received by the Court on May 17, 2019. The Defendant’s reply was received by the Court on May 20, 2019.The Motion argues that Plaintiff’s bill of particulars, deposition testimony, and the radiology independent medical examination report from Dr. Heyligers prove that the Plaintiff’s injuries do not satisfy Insurance Law §5104 as such serious injury is defined by Insurance Law §5102(d). Insurance Law §5104(a) limits the number of personal injury law suits brought as a result of motor vehicle accidents. Licari v. Elliott, 57 NY 2d 230, 236 (1982). Because any injury not falling within the statute’s definition of “serious injury” is minor, it should not be accorded a trial by jury, and, therefore, “[i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute.” Id. at 237.In support of the Motion, Defendant includes three (3) affirmations from Dr. Heyligers, all dated January 4, 2018. The first is a summary of his findings after his review of the MRI of the Plaintiff’s cervical spine on December 22, 2010 (the “Cervical Report”). The Cervical Report acknowledges disc herniations at C3-4, C4-5 and disc bulges at C5-6 and C6-7. However, the Cervical Report attributes the injuries to degenerative disease. The Cervical Report does not contain a determination on any of the criteria contained in Insurance Law §5102(d). The second submission from Dr. Heyligers summarizes his findings after his review of the MRI of the Plaintiff’s left knee on December 29, 2010 (the “Knee Report”). The Knee report acknowledges joint effusion, a tear in the meniscus and localized swelling, among other things. The Knee Report attributes these injuries to degenerative disease. The Knee Report does not contain any determination or analysis of the injury’s conformance with the definition of serious injury under Insurance Law §5102(d). The third submission from Dr. Heyligers summarizes his findings after his review of the MRI of the lumbar spine on January 25, 2011 (the “Lumbar Report”). The Lumbar Report identifies bulges to the disc at L5-S1. The Lumbar Report states that there is a loss of T2 signal and attributes this to degenerative disc disease. The Lumbar Report does not contain a clear statement regarding the injury’s conformance with the serious injury criteria under Insurance Law §5102(d). However, there is a statement that disc bulges are often “incidental findings in the asymptomatic patient population.”In further support of the Motion, Defendant submitted the Plaintiff’s deposition testimony. Plaintiff testified that immediately following the accident in question she was not examined by an EMT or taken to the hospital by ambulance. She further testified that she did not go to a hospital following the accident, but she did go to a doctor’s office some days after the accident. She testified that she received acupuncture, physical therapy, MRIs, and pain management assistance on a continual basis after her first doctor’s visit until 2012, when the facility she was using closed. She testified that she received physical therapy once a month. She testified that she was forced to use a cane to go out and that she rarely went out anymore because of the difficulty and need for assistance. She testified that she also needs assistance with cleaning, cooking, and dressing after the accident. She stated that she cannot stand for long periods of time and that her quality of life has decreased. However, she did testify that she had a gym membership and attended when she could. The deposition transcript does not address what type of activity she engaged in at the gym. Plaintiff’s opposition does not contain any affidavits either from a medical professional or the Plaintiff to refute.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 Hospital, 68 NY 2d 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 material facts. Giuffrida v. Citibank Corp., 100 NY 2d 72 (2003). The failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law. Liberty Taxi Mgt., Inc. v. Gincherman, 32 A.D. 3d 276 (1st Dep’t 2006).As stated above, the Motion argues that the Plaintiff’s injury does not fall within the definition of serious injury within the Insurance Law. Licari v. Elliott, 57 NY 2d 230, 236 (1982). The Court is now required to decide the threshold question of whether the Plaintiff has established a prima facie case that she sustained a serious injury within the meaning of the statute. Id. If, as a matter of law, the Plaintiff suffered no serious injury within the Insurance Law then Plaintiff has no claim to assert and there is nothing for a jury to decide. Id.The Motion fails to demonstrate that as a matter of law the Plaintiff suffered no serious injury. The reliance on the Lumbar Report, Cervical Report, and Knee Report is misplaced as all three acknowledge injuries and only directly refute causation, which is not a ground argued in the Motion. The question of whether there is a serious injury and what caused it are not the same. Further, the Motion and the Reply focus on a prior injury sustained by the Plaintiff and attribute her continuous treatment to that injury rather than any injury allegedly arising from the accident that is the subject of this case. This argument similarly conflates causation and serious injury.The Motion also relies on the Plaintiff’s deposition testimony as evidence of the lack of a serious injury. However, the deposition testimony includes Plaintiff’s continual allegations that her neck, back and knee injuries have resulted in her no longer being able to walk without the assistance of a cane and no longer being able to cook, clean, go out, or dress herself. In addition, the Plaintiff’s deposition testimony alleges continual treatment since the accident in question. The Motion points to Plaintiff’s testimony regarding the gym and failure to hire assistance are not sufficient to eliminate a serious injury determination by a jury as a matter of law. Many plaintiffs do not have sufficient monies to pay for home health care aides and physical therapy often requires at home exercises as well that may be performed at a gym as well as any other location. The Cervical Report, Lumbar Report, and Knee Report do not address whether the injuries identified in each would or would not require the use of a cane, prohibit the Plaintiff’s ability to cook, clean, go out, or dress herself. As a result, Defendant has failed to establish its prima facie entitlement to summary judgment.This constitutes the decision and order of the Court.Dated: June 20, 2019
