Recitation as per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: NYSCEF Doc #s 34-99, 122-123, 140-142 by D NYSCEF Doc #s 107-121, 124-139 by P DECISION/ORDER Upon the foregoing cited papers and after oral argument on May 8, 2024, the Decision and Order of the Court is as follows. Pursuant to §130-1.1(c)(3) of the Rules of the Chief Administrative Judge, Defendants New York City Transit Authority (“Transit”), Metropolitan Transportation Authority (“MTA”) and Anthony Figaro’s (“Figaro”) (collectively “Defendants”) motion seeking costs and sanctions for frivolous conduct (motion sequence # 3) is GRANTED to the extent that Plaintiff shall pay a $95.00 deposition “bust fee” to Defendants; the remaining branches of said motion is DENIED. Defendants’ motions for summary judgment based on a defective notice of claim and on the issue of liability (motion sequence #s 4 and 6) are DENIED. Pursuant to CPLR §3212 and Insurance Law §5102, Defendants’ motion for summary judgment based on Plaintiff’s failure to meet the serious injury threshold (motion sequence # 5) is GRANTED and all claims against Defendants are hereby dismissed. Background On September 16, 2018, a bus operated by Defendant Figaro and owned by the Transit Defendant struck Plaintiff while he was a pedestrian near the intersection of Fulton and Warwick Streets in Brooklyn.1 Plaintiff subsequently commenced this action to recover damages for personal injuries as a result of said accident.2 Defendants’ Summary Judgment Motions A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues.3 Failure to make this prima facie showing requires denial of the motion.4 Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish an issue of material fact requiring a trial.5 “[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment.”6 The Court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference.7 (A) Defendants’ Motion to Dismiss for Defective Notice of Claim As an initial matter, Defendants seek to dismiss Plaintiff’s action on the ground that the notice of claim was defective.8 More specifically, Defendants contend that Plaintiff signed a piece of paper on September 17, 2018 that only contained a signature line, and that Plaintiff’s counsel did not actually draft the notice of claim until a later date, at which time he then retroactively appended the signature line to the notice of claim.9 Defendants maintain that the Plaintiff could not have reviewed the notice of claim because it did not exist until after Plaintiff executed the signature page.10 In support, Defendants point out that the signature page was on a separate piece of paper from the substance of the notice of claim.11 Defendants contend that if the notice of claim is accurate, it would have been drafted, reviewed and executed all within 24 hours of Plaintiff’s incident, which they maintain is unlikely. Further, Defendants’ counsel notes that the Plaintiff testified during his deposition that he did not meet with or retain counsel within the 24 hours immediately following the incident.12 In opposition, Plaintiff’s counsel argues that the notice of claim is not defective. In this regard, Plaintiff submits that his signature on the notice of claim is properly notarized.13 He notes that Defendants waited six years (from 2018, when the notice of claim was filed) to challenge the notice of claim and never raised any issue regarding defects at any time prior.14 Plaintiff also notes that the notice of claim was properly served, and Defendants do not challenge service.15 Further, Plaintiff argues that Defendants lack standing to move on this ground as they did not interpose any affirmative defenses as to the notice of claim or conditions precedent to suit. In addition, Plaintiff’s counsel notes that Plaintiff did appear at his General Municipal Law §50-h hearing in 2019 and testified at length about the incident.16 “General Municipal Law §50-e requires that a notice of claim “sworn to by or on behalf of the claimant” be served within 90 days after a tort claim arises against a municipality.”17 However, “a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.”18 “[I]n determining compliance with the requirements of General Municipal Law §50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident.”19 “In passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself.”20 “In making this determination of prejudice, the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court.”21 Therefore, a Court has discretion to permit a notice of claim to be amended, including correction of an improperly executed verification.22 Here, Defendants do not challenge the timeliness of the notice of claim or its substance. The notice of claim gave Defendants notice of the time, location and nature of the incident23 and it was notarized by Plaintiff. Moreover, a section 50-h hearing was held at which the Transit Defendants had the opportunity to question Plaintiff about the incident. While Defendants raise questions about whether the notice of claim could have been prepared by counsel and notarized a mere 24 hours after the incident, given that Transit clearly received notice of the claim sufficient to hold a hearing about it and further question Plaintiff, Defendants were not prejudiced by any defect in the notice of claim’s verification.24 Accordingly, under these particular circumstances, a traverse hearing is not warranted, and Defendants’ motion to dismiss based on any purported defect in the verification of the notice of claim is denied. (B) Defendants’ Summary Judgment Motion As To Liability Pretrial Testimony Plaintiff testified that just prior to the accident, he was crossing the street to dispose of garbage in a trash can.25 As he was returning across the street and in the crosswalk, Plaintiff was struck by a bus travelling at a high rate of speed.26 Plaintiff testified that he looked both ways prior to crossing the street and did not see any vehicles or the bus. He claimed that he was struck in the middle of the crosswalk.27 According to Plaintiff, there were no stop signs or traffic signals in the direction that the bus was traveling.28 Plaintiff further testified that the bus had the right-of-way.29 While Plaintiff denied consuming any alcohol 48 hours prior to the accident, his medical records from Interfaith Medical Center note that his Ethyl Alcohol Level was 266 mg/dl.30 Defendant Figaro, the bus operator, testified that Plaintiff emerged between two parked cars about two car lengths away from the crosswalk, further up Fulton Street and into the path of the bus.31 Figaro further testified that the speed limit was 25 miles per hour and that given the traffic conditions, he was operating the bus at no more than 15 miles per hour prior to the accident.32 Figaro claimed that just before the accident occurred, he noticed Plaintiff and honked the bus horn multiple times prior to the accident, and the bus driver then stopped at the scene as soon as he safely could do so.33 Parties’ Contentions Defendants contend that Plaintiff was the proximate cause of his accident because he walked into the middle of the street between two parked vehicles onto Fulton Street and into the side of an oncoming bus, which created an emergency where Defendant Figaro only had a moment to perceive Plaintiff and to stop the bus.34 Defendants note that Plaintiff himself conceded that the bus operator had the right-of-way.35 Defendants submit bus driver Figaro’s affidavit with attached video footage of the accident, which they contend demonstrates the bus was traveling at approximately 10 miles per hour just prior to the accident.36 Defendants argue the video confirmed that Plaintiff suddenly emerged between two parked cars into the path of the bus and that Figaro quickly brought the bus to a stop.37 Defendants also submit an affidavit from Anthony D. Cornetto III (“Cornetto”), a professional engineer and accident reconstruction expert.38 Cornetto opines that Plaintiff walked between two parked cars (not at the crosswalk) into the street about one second before contact and the bus was less than 15 feet from him and would have been clearly visible to Plaintiff had he looked to his left.39 Cornetto further asserts that the bus was traveling around 10 miles per hour at the time of contact and stopped around two seconds after contact.40 According to Cornetto, the bus driver’s view of Plaintiff would have been obscured by the two parked cars from which Plaintiff emerged: a white SUV parked behind a van from which Plaintiff came.41 He further contends that Defendant Figaro’s view of Plaintiff was obscured until less than three seconds before contact, and that an average, alert and attentive driver would not have been able to notice Plaintiff in sufficient time to perceive, react and avoid contact.42 In opposition, Plaintiff contends that questions of fact preclude summary judgment in favor of Defendants.43 In this regard, Plaintiff argues that the video of the incident is too grainy and blurry and thus cannot establish Defendants’ entitlement to summary judgment as a matter of law.44 Plaintiff contends that Defendants failed to establish that Plaintiff’s alleged blood alcohol level was a substantial factor in causing the incident, and that there can be more than one proximate cause of an accident.45 In addition, Plaintiff notes that the hospital records attached to the “liability” motion are not certified and therefore are inadmissible.46 Plaintiff also argues that Cornetto’s report is speculative and conclusory.47 In addition, Plaintiff notes that at his deposition, bus driver Figaro was confused as to the actual street on which the accident occurred and as to the direction in which he was traveling, which raises questions about his credibility.48 Plaintiff further contends that the emergency doctrine does not apply where, as here, there are issues of fact regarding how the accident occurred.49 In reply, Defendants contend that video footage of the incident resolves the only relevant, disputed fact.50 Defendants dispute that Figaro admitted that Plaintiff was in the crosswalk when the incident happened and that a complete reading of the deposition transcript shows that Figaro testified that Plaintiff emerged between two parked cars which were parked after the crosswalk.51 Discussion “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 accident.”52 “Under the emergency doctrine, ‘when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.’”53 Here, Defendants demonstrated their entitlement to summary judgment as a matter of law by presenting evidence that Figaro was faced with an emergency not of his own making when Plaintiff emerged between two parked cars, away from the crosswalk, into the street, where the bus was travelling with the right-of-way, below the speed limit, and bus driver Figaro acted reasonably under the circumstances by bringing the bus to a stop.54 While the video of the accident is grainy, it clearly depicts Plaintiff walking into the street from between two parked cars, not in the crosswalk.55 However, in opposition, Plaintiff raised a triable issue of fact regarding whether an emergency existed at the time of the accident. Figaro’s testimony that he observed Plaintiff prior to impact and honked the bus horn multiple times prior to the accident raises questions regarding whether Figaro could have stopped the bus earlier so as to avoid the accident.56 Since the video of the accident, Defendants’ expert affiant, or the deposition testimony resolves this issue, it must be left to the trier of fact. Accordingly, Defendants’ summary judgment motion as to liability is denied. (C) Defendants’ Serious Injury Threshold Motion Plaintiff’s Pretrial Testimony During his deposition, Plaintiff testified that he felt the bus strike him in his left rib and left hand.57 After the accident, he sustained a bruise and a cut on his hand which healed, and that no marks remained on his body following the accident.58 Plaintiff testified that he last attended physical therapy some time in 2020.59 When asked why he stopped treatment, Plaintiff testified that he did not like needles.60 Plaintiff further testified that he decided to stop working, but that no doctor ever advised him to do so.61 Plaintiff also testified that there was nothing that he was unable to do a few months after his accident that he could do prior to it.62 Parties’ Contentions Defendants contend that the injuries alleged in Plaintiff’s Verified Bill of Particulars are not supported by the medical evidence, are not permanent and have completely resolved, are mild, chronic and/or degenerative, and did not result in any causally related residual disability.63 In support, Defendants submit reports from two medical experts,64 Plaintiff’s hospital records,65 and points to Plaintiff’s own testimony that there is nothing that he can no longer do that he was able to do prior to his accident.66 Defendants also argue that Plaintiff’s cessation of treatment establishes entitlement to summary judgment.67 In opposition, Plaintiff submits a narrative from his expert, who concludes that Plaintiff currently suffers from a permanent partial disability to his neck and back as a result of the accident with resulting significant losses of range of motion.68 Plaintiff’s expert further opines that Plaintiff will require further medication and medical intervention in the future.69 Plaintiff alleges that he suffered quantified limitations of ranges of motion based on objective testing, and that this is sufficient to raise an issue of material fact to defeat the motion.70 Plaintiff further contends that Defendants’ independent medical exam (“IME”) of Plaintiff, held years after the accident, is insufficient to meet their burden of prima facie entitlement to summary judgment under Insurance Law §5102 (d)’s “90/180″ category.71 In reply, Defendants argue that: (1) Plaintiff failed to adequately explain his complete cessation of treatment; (2) Plaintiff’s expert failed to address Defendants’ findings that Plaintiff’s conditions are degenerative and pre-existing; and (3) Plaintiff’s expert failed to address and reconcile evidence in Plaintiff’s own medical records of normal findings and that Plaintiff’s conditions are degenerative and not causally related.72 Discussion In order to recover for personal injuries arising out of negligence in the use or operation of a motor vehicle, a plaintiff must have suffered a “serious injury.”73 Relevant here, Insurance Law §5102 (d) defines “serious injury” as: “…a personal injury which results in…permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” It is clear that objective proof is required to satisfy the statutory standard and subject complaints alone are insufficient.74 On a threshold motion, a defendant must submit evidence demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the accident.75 Such evidence may be in the form of affidavits or affirmations from medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claims.76 The burden then shifts to the plaintiff to come forward with sufficient evidence demonstrating that she sustained a serious injury.77 Subjective claims of limitation must be supported by objective medical findings based on a recent examination of the plaintiff, and any lapse of time between cessation of the plaintiff’s treatment after the accident and the physical examination conducted by plaintiff’s expert must be adequately explained.78 In support of their motion, Defendants submit two expert reports previously provided to Plaintiff in discovery: an October 28, 2021 report79 from board-certified orthopedist Dr. Andrew N. Bazos, M.D. and a December 27, 2023 report80 from radiologist Dr. Roger E. Mosesson, M.D. Dr. Bazos reviewed Plaintiff’s medical records and examined Plaintiff on October 21, 2021, opined that Plaintiff sustained “nothing more than minor rib contusion” from the accident, that while Plaintiff had “subjective complaints,” they were not based on objective findings, and that Plaintiff’s injuries “resolved fully within just a few weeks with conservative management” which returned him to his pre-accident physical status and were not permanent.81 Dr. Bazos noted that Plaintiff sought emergency room care on the day after his accident, September 17, 2018, complaining of left-side rib pain, but that x-rays did not reveal any fracture or evidence of trauma.82 Plaintiff was discharged on the same day. Plaintiff returned to the emergency room four days later on September 21, 2018 complaining pain, but there was no sign of bruising and swelling, and range of motion was normal.83 Plaintiff medical records made no mention of neck, lower back, midback, left knee, left shoulder or left elbow complaints, but that these complaints surfaced later.84 It was not until October 24, 2018 that Plaintiff came under the care of a spine specialist for neck and lower back pain, which Plaintiff claims resulted from the accident.85 It was not until June 6, 2019 that Plaintiff complained to a doctor about additional left shoulder, left elbow, and left knee complaints.86 Dr. Bazos opined that there is no plausible explanation for a delay in the onset of these subjective complaints.87 Had Plaintiff sustained acute traumatic injuries to the neck, back, shoulder, knee and elbow, the pain would have been severe and required emergent medical attention to the specific region with obvious orthopedic findings, which was simply not the case here.88 In fact, Dr. Bazos pointed to the results from Plaintiff’s MRIs of the cervical and lumber spine that only revealed degenerative disc disease that predated the accident by many years.89 Dr. Bazos examined Plaintiff’s range of motion using a goniometer which showed normal range of motion in the cervical, thoracolumar spine, shoulders, elbows, wrists, hands, hips, knees and ankles. He opined that Plaintiff made a complete recovery from the accident and was able to perform all of his pre-accident activities within six months of the accident.90 There were no injuries to the cervical spine, lumbar spine, thoracic spine, left knee, left shoulder or left elbow, and at most, Plaintiff sustained self-limited soft tissue contusion injury to the left rib which completely resolved without further need for medical treatment.91 Dr. Bazos concluded that Plaintiff has no disability or limitation in performing his normal daily activities.92 Dr. Mosesson reviewed Plaintiff’s January 17, 2019 MRIs of the cervical and lumbar spines.93 With respect to the cervical spine, he found that Plaintiff has minimal bulging, which is a common, non-traumatic degenerative finding, as well as some herniation, which is associated with chronic bone changes that pre-date Plaintiff’s accident.94 With respect to the lumbosacral spine, Dr. Mosesson opined that there are chronic degenerative changes not referable to trauma, some annular tearing that pre-date the accident, and no herniation.95 He further found that neither scan demonstrated any fracture and thus concluded that both scans demonstrate degenerative changes unrelated to the accident.96 In opposition, Plaintiff submitted a narrative97 from board-certified physiatrist Dr. Daniel Giangrasso who examined Plaintiff on January 23, 2024 and March 5, 2024 using a goniometer and found restricted ranges of motion in Plaintiff’s cervical and lumbar spines.98 He opined that the qualitative nature of Plaintiff’s limitations based on normal function, purpose and use of his neck and back such as Plaintiff’s complaints of pain, difficulty, lifting, carrying, bending, twisting and going up and down stairs are the natural and expected medical consequences of his injuries.99 Plaintiff’s injuries are supported by objective medical testing, including MRIs and observations during physical examinations and Dr. Giangrasso further opined that Plaintiff has experienced these symptoms for over five years, his condition is permanent, and will require future medication and medical intervention.100 Dr. Giangrasso further asserts that Plaintiff’s condition constitutes a consequential limitation on use of body organ or member, and a significant limitation of use of a body function to causation caused by the this accident resulting in Plaintiff’s permanent disability, including his C5-7 disc herniation and the L4/S1 herniation and the annular tears, necessitating the recommendation for surgery.101 Plaintiff’s expert report, failed to raise a triable issue of fact. Dr. Giangrasso has not addressed the findings made by Dr. Mosesson that Plaintiff’s conditions are degenerative and pre-existing.102 In addition, Plaintiff’s failure to adequately explain his complete cessation of treatment is also fatal to his claim that he suffered a serious injury.103 At his deposition, Plaintiff testified that he last attended physical therapy in 2020, while records demonstrate that his last physical therapy session was in 2021.104 When asked why he stopped therapy, Plaintiff testified that he did not like needles.105 Thus, Plaintiff has not adequately explained why he did not seek further treatment. Further, Plaintiff did not continuously seek treatment from Dr. Giangrasso, seeing him only once in 2021 and then several times again in 2024, over two years later.106 Accordingly, Defendants’ serious injury threshold motion is granted. Defendants met their burden of demonstrating that Plaintiff did not suffer a “serious injury” as a result of the accident. There was no death, dismemberment, fracture, loss of fetus or significant disfigurement here. Defendants’ experts did not find evidence that Plaintiff permanently lost use of a body organ, member, function or system, suffered permanent consequential limitation of use of a body organ or member, or significant limitation of use of a body function or system. Such loss must be permanent and significant, rather than merely minor, mild or slight in nature.107 Defendants’ experts further demonstrated that Plaintiff was not curtailed from performing his usual activities to a great extent (90 out of the first 180 days post-accident) rather than some slight curtailment.108 In addition, Plaintiff testified that no doctor told him that he could not work after the accident and that there was nothing that he could not do after his accident that he did prior.109 Defendants’ Motion for Sanctions Defendants seek $2,458.50 in costs for reimbursement of sums spent on investigation and for the “bust fee” for Plaintiff’s September 13, 2022 deposition when he failed to appear.110 Defendants submitted an invoice for $2,363.00 from their investigator and an invoice for $95.00 for a deposition bust fee from the court reporter.111 In an affidavit sworn to on February 7, 2023, Plaintiff attested that he did not appear for his September 13, 2022 deposition because he was sick.112 Plaintiff’s deposition was subsequently rescheduled and held over two days on August 28, 2023 and September 14, 2023.113 At his deposition, Plaintiff testified that he was diagnosed with Covid and advised by his physician to stay home and not have contact with other persons.114 Plaintiff further testified that he followed that advice and did not leave his home on September 13, 2022.115 Defendants contend that Plaintiff made false, material statements in his affidavit and at his deposition.116 In that regard, the Transit Defendants retained an investigator who followed Plaintiff on September 13, 2022 and conducted video surveillance of Plaintiff’s activities.117 The investigator’s report, which Defendants submit in support of their motion, details that rather than sequestering in his home due to illness, Plaintiff spent about an hour outside of his home, on the street, washing a car, smoking a cigarette, speaking to other people in close proximity, handing a person a card, “fist-bumping” another person, and driving a car.118 The surveillance video made by the investigator and submitted by Defendants in support of their motion, also shows that as Plaintiff was washing his car, a woman tried to hand him a cell phone informing him that his attorney was on the phone and Plaintiff refused to answer the phone.119 Defendants contend that imposing sanctions will send a message to plaintiffs who engage in egregious behavior in “busting” depositions and lying about the reasons for their nonappearance.120 Defendants argue that the Court should not ignore the alleged fabrications in Plaintiff’s affidavit and Plaintiff’s contempt for the oath to tell the truth at his deposition.121 In opposition, Plaintiff’s counsel argues that any statements made by Plaintiff go to his credibility at trial, which is for a jury to determine.122 Plaintiff’s counsel states that on the date of the deposition, he spoke to Ms. Paspattie, who informed him that Plaintiff was unable to attend.123 At a later date, Plaintiff allegedly told his counsel that he was sick, and counsel had no reason to question that assertion. Plaintiff’s counsel further notes that Plaintiff ultimately appeared for a deposition.124 The Rules of the Chief Administrator of the Courts, 22 NYCRR §130-1.1 permits the Court discretion to award costs for actual expenses that were reasonably incurred, as well as reasonable attorney’s fees, for frivolous conduct.125 Under the statute, conduct is frivolous if it is “completely without merit in law,” “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” or “asserts material factual statements that are false.”126 Here, while Plaintiff asserted that he had Covid and could not leave his home for his deposition, Transit’s investigation revealed that Plaintiff apparently did not quarantine and left his home to run errands, which included washing his car and meeting individuals outside.127 Plaintiff does not dispute the Transit investigator’s findings.128 However, on this record alone, the Court cannot determine whether Plaintiff had Covid, or was otherwise sick, and thus unable to attend his deposition. Based on the investigator’s report, Transit retained the investigator to conduct surveillance on Plaintiff for a longer period of time than just the date of the missed deposition and for purposes beyond those of merely determining whether Plaintiff could legitimately appear for his deposition.129 Under these particular facts here, the Court orders that Plaintiff pay the $95.00 deposition “bust fee” to defense counsel, but not the remaining Transit investigator fees. The Court has considered the parties’ remaining contentions and find them to be without merit. Therefore, it is ORDERED that, pursuant to §130-1.1(c)(3) of the Rules of the Chief Administrative Judge, Defendants’ motion for costs and sanctions for frivolous conduct (mot. seq. # 3) is GRANTED only to the extent that Plaintiff shall pay a $95.00 deposition “bust fee” to Defendants, and the balance of said motion is DENIED. It is further ORDERED that Defendants’ motions for summary judgment based on a defective notice of claim and on the issue of liability (mot. seq. #s 4 and 6) are DENIED. It is further ORDERED, ADJUDGED AND DECREED that, pursuant to CPLR §3212 and Insurance Law §5102, Defendants’ motion for summary judgment based on Plaintiff’s failure to meet the serious injury threshold (mot. seq. # 5) is GRANTED and all claims against Defendants are hereby dismissed. This constitutes the Decision and Order of the Court. Dated: August 26, 2024
