Guinn v. Pure Green Carpet Inc

Guinn v Pure Green Carpet Inc 2024 NY Slip Op 34244(U) November 26, 2024 Supreme Court, Kings County Docket Number: Index No. 518894/2022 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY·•,-------------------------------- -----------,-.-, CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 ••...

(I NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024

At At an IASlAS Part Part 83 of the Supreme of the Supreme Court Court of of the State State of New York of New York held held in and and for the the County County of of Kings Kings at 360 360 Adams Adams ~et, St~et, Broo~w Broo~w York, York, on the ~ on the ~ day of of V'W V'-t).} ,2024. ,2024. PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.CJ.S.C... SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF KINGS KINGS ---------------------- ---------------------------------------------------X -------------------------------------------------------------------------)( Index Index No.: No.: 518894/2022 518894/2022 DIJON DUON GUINN, GUINN,

Plaintiff, Plaintiff, -against- -against- DECISION DECISION AND AND ORDER ORDER

PURE PURE GREEN GREEN CARPET CARPET INCINC and and JOHN JOHN DOE, DOE, a fictitious fictitious (Mot. (Mot. Seq. No. No.²)2) name name as true true name name is unknown unknown to the plaintiff plaintiff at this this time, time,

Defendants. Defendants. ---------------------- ---------------------------------------------------X -------------------------------------------------------------------------)( The following following e-filed e-filed papers papers read read herein: herein: NYSCEF NYSCEF Doc Doc Nos. Nos.

Notice of Notice of Motion/Affirmatio Motion/Affirmation n in Support/ExhibitsSupport/Exhibits................ ................ 32 - 35 32- Affirmation Affirmation in Opposition/Affid avit/Exhibits...... ................ Opposition/Affidavit/Exhibits...................... 36 - 44 36-44 Reply Rep 1y Affirmation..... Affirmati on. . . .. . ......................... . . . . . .. . .. .. .. . .. . .. ........................ .. . .. .. . .. . .. .. .. . .. . ....... 45

Upon Upon the foregoing foregoing papers, papers, Defendants Defendants Pure Pure Green Green Carpet Carpet Inc. ("Pure ("Pure Green") Green") and Gregory Gregory Lewis Lewis ("Lewis") ("Lewis") (collectively, (collectively, "Defendants") move for an order, "Defendants") move order, pursuant pursuant to CPLR CPLR 3212, 3212, granting granting them them summary judgment on the basis summary judgment basis that that Plaintiff Plaintiff Dijon Dijon Green Green ("Plaintiff') ("Plaintiff') did not not sustain sustain a "serious "serious injury" under Insurance injury" under Insurance Law§ Law ~ 5102 (d) (Mot. (Mot. Seq. No.2). No. 2). Plaintiff opposes the Plaintiff opposes motion. motion. This This action action arises arises out out of of a motor motor vehicle vehicle accident accident that that occurred occurred on September September 21, 2021. 2021. According According to her her complaint, complaint, Plaintiff Plaintiff was was the driver driver of of a vehicle vehicle that that was was allegedly allegedly struck struck by a vehicle vehicle operated operated by "John "John Doe" Doe" and owned owned by Pure Pure Green. Green. In Defendants' Defendants' answer, answer, they they acknowledge acknowledge that that Gregory Gregory Lewis Lewis is "John "John Doe." Doe." As a result result of of the the accident, accident, Plaintiff Plaintiff seeks seeks to recover recover damages damages for her her personal personal injuries. injuries. Specifically, Specifically, Plaintiff Plaintiff alleges alleges in her her Bill Bill of of Particulars Particulars that she sustained sustained injuries injuries to her her lumbar lumbar spine spine and cervical cervical spine, spine, requiring requiring medical medical procedures. procedures. Plaintiff Plaintiff seeks seeks to recover recover for serious serious injuries injuries as defined defined by Insurance Insurance Law Law §~ 5102 5102 ((d) resulting in d) resulting (i) a permanent permanent loss loss of of use; use; (ii) a permanent permanent consequential consequential limitation limitation of of use; use; (iii) (iii) significant significant limitation limitation of of use; and and (iv) the the inability inability to perform perform substantially substantially all of of the material material acts acts which which

FILED: KINGS COUNTY CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024

FILED: KINGS COUNTY CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024

FILED: KINGS COUNTY CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024

FILED: KINGS COUNTY CLERK 11/29/2024 11:02 AM INDEX NO. 518894/2022 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/29/2024

Footnotes

[1] of 5 [* 1] constitute constitute usual usual and and customary customary daily activities for not daily activities than 90 days less than not less the 180 days during the days during immediately immediately following following the accident. Plaintiff the accident. further avers Plaintiff further was confined that she was avers that bed or her bed confined to her approximately 10 days home for approximately home following her days following cervical spine her cervical surgery. spine surgery. In support of their support of motion, Defendants their motion, of their report of Defendants rely on the report expert Dr. Dana medical expert their medical Dana Manner, an orthopedic Mannor, surgeon. Dr. Mannor orthopedic surgeon. performed an independent Mannor performed independent medical examination of medical examination of Plaintiff on December Plaintiff measuring Plaintiffs 2023, measuring December 7, 2023, ranges of Plaintiffs ranges motion using of motion hand-held using a hand-held goniometer goniometer and comparing comparing them them to the AMA guidelines. the AMA found that Mannor found guidelines. Dr. Mannor exhibited Plaintiff exhibited that Plaintiff range of full range motion and of motion that Plaintiff concluded that and concluded injuries had Plaintiffss injuries resolved. Dr. Mannor had resolved. opined further opined Manner further that there is no orthopedic that there Defendants also disability. Defendants orthopedic disability. on Plaintiffs rely on also rely testimony. At deposition testimony. Plaintiffs deposition Plaintiff testified, deposition, Plaintiff her deposition, testified, inter that she (a) received inter alia, that received physical therapy for six months, physical therapy months, (b) last received worked as a COVID 2022, (c) worked injection in 2022, received an injection COVID tester the time tester at the of the accident time of accident December 2021, until December not work and (d) did not 2021, and December 2021 and between December work between and July because she 2022 because July 2022 "needed a break." "needed break." In addition, addition, Defendants assert that Defendants assert gap in treatment, there is a gap that there such gap is a and such treatment, and of treatment cessation of cessation dismissal. warranting dismissal. treatment warranting In opposition opposition to the motion, Plaintiff the motion, that she went argues that Plaintiff argues the hospital went to the on the hospital on of the date of the date continued to receive accident and continued accident treatment for approximately receive treatment seven or eight approximately seven months until her eight months Plaintiff further benefits ran out. Plaintiff benefits that she has not argues that further argues since the accident worked since not worked applied for accident and applied unemployment benefits. received unemployment and received Plaintiff refers benefits. Plaintiff reports, Dr. Herschel MRI reports, refers to MRI Kotke's Herschel Kotke's operative operative records, Deonarine Rampershad's and Dr. Deonarine records, and report and narrative report Rampershad's narrative and treatment records. treatment records. Plaintiff Plaintiff contends contends that that Dr. Rampershad's Rampershad's physical October 5, 2021, examinations on October physical examinations December 2, 2021, December 2021, 2021, February 8,2022, February 8, 2022, and and March 2022 revealed March 15, 2022 limited ranges revealed limited of motion. ranges of respect to With respect motion. With limitations, Plaintiff her limitations, Plaintiff points wherein she testified deposition wherein points to her deposition that she had difficulty testified that difficulty standing for long standing long periods and engaging periods and with children. play with physical play engaging in physical children. Plaintiff submits an Plaintiff also submits affidavit which she states affidavit in which that during states that after the accident, months after during the six months accident, her limitations physical limitations her physical were more severe were more severe than the time than at the deposition. She states of the deposition. time of that she was states that could do unable to, or could was unable only only with with great great difficulty, difficulty, performing performing household tasks, lift household tasks, carry, walk lift and carry, distances, stand long distances, walk long stand for long long periods, periods, or care care for herself and her herself and daughter. her daughter. their reply, In their Defendants ask this Court reply, Defendants consider the MRI Court to not consider reports, Dr. Kotke's MRI reports, Kotke's records, and the hospital records, records, since hospital records, they are not affirmed since they thus, inadmissible. affirmed and are thus, inadmissible. Defendants also ask Defendants ask this Court not this Court Plaintiffs affidavit consider Plaintiffs not to consider since it is self-serving, affidavit since post- self-serving, post- deposition and deposition and contradicts prior deposition her prior contradicts her deposition testimony. With respect testimony. With Rampershad's respect to Dr. Rampershad's 2

[2] of 5 [* 2] records, Defendants records, Defendants note note that that the doctor doctor did not not identify identify the method of obtaining method of obtaining the the measurement measurement of of Plaintiffs Plaintiff s range range of of motion motion or identify identify the authoritative authoritative guidelines guidelines for the standard standard of of normal normal ranges. Accordingly, ranges. Accordingly, Defendants Defendants argue that Dr. Rampershad's argue that Rampershad's measurements lack objectivity measurements lack objectivity and are wholly wholly speculative. speculative. In addition, addition, Dr. Ramper~had's Rampershad's narrative narrative report report failed failed to include include any any recent recent findings findings of of any significant significant limitation limitation or restriction. restriction. Thus, Thus, Defendants claim that Defendants claim that Plaintiff Plaintiff has failed failed to rebut Defendants' prima rebut Defendants' prima facie facie showing showing of of no serious serious injury. injury. Moreover, Moreover, Defendants Defendants contend contend that that they established established entitlement entitlement to dismissal dismissal of of the 90/180 90/180 claim claim through through Plaintiff Plaintiffss deposition deposition testimony testimony and and Plaintiff's Plaintiff s failure failure to demonstrate demonstrate that that they they were were under under doctor's doctor's restrictions restrictions during during that time that time period. period. Whether a claimed Whether claimed injury falls within injury falls within the statutory statutory definition definition of of "serious "serious injury" injury" is a question question of law for the Court of law Court (Licari Elliot, 57 NY2d (Licari v Elliot, NY2d 230 [1982]). [1982]). The The movant movant bears bears the initial initial burden of burden of establishing, the submission establishing, by the submission of of evidentiary evidentiary proof admissible form, proof in admissible form, a prima prima facie that a party case that party has not not suffered suffered a serious injury proximately serious injury proximately resulting from the subject resulting from subject motor motor vehicle accident vehicle accident (Toure (Toure v Car Car Sys., Inc., 98 NY2d NY2d 345 [2002]; [2002]; Gaddy Gaddy v Eyler, Eyler, 79 NY2d NY2d 955 [1992]). The failure [1992]). The make such failure to make such a showing requires denial showing requires of the motion, denial of motion, regardless of the regardless of sufficiency sufficiency of of the the opposing papers (Winegradv opposing papers New York (Winegradv New York Univ. Med Ctr., 64 NY2d Med Ctr., [2016]). NY2d 851 [2016]). However, where However, where the movant movant has made made a showing that a party showing that party has has not suffered a serious not suffered serious injury injury as a matter matter of of law, law, the burden burden shifts shifts to the opposing opposing party party to submit submit evidence evidence in admissible admissible form sufficient create a material sufficient to create material issue issue of of fact warranting warranting a trial (Franchini v Palmieri, trial (Franchini Palmieri, 1 NY3d NY3d 536 [2003]; Grasso Angerami, 79 NY2d Grasso v Angerami, [1991]). NY2d 813 [1991]). "A defendant who "A defendant who submits admissible proof submits admissible proof that that the the plaintiff plaintiff has a full range range of of motion, motion, and that that she or he suffers from no disabilities suffers from disabilities causally causally related related to the motor motor vehicle accident, has vehicle accident, established a prima established prima facie facie case case that that the the plaintiff plaintiff did did not not sustain sustain a serious serious injury injury within within the meaning meaning of of Insurance Insurance Law S 5102 ((d)" Law § d)" (Kearse (Kearse v NY NY City Tr. Auth., City Tr. Auth., 16 AD3d AD3d 45, 49-50 49-50 [2d Dept 2005]). Dept 2005]). According to Dr. Mannor, According Mannor, Plaintiff Plaintiffss physical physical examination examination revealed revealed full range range of of motion motion and that that all injuries injuries had been resolved. had been resolved. Dr. Mannor Mannor concluded concluded that that there was no evidence there was evidence of of an orthopedic orthopedic disability. Thus, disability. Thus, the the Court Court finds finds that that through through their their expert expert report, report, Defendants Defendants have have established established a prima facie prima facie case case and the burden burden shifts shifts to Plaintiff Plaintiff to demonstrate demonstrate a triable triable issue issue of of fact. For Plaintiffs For Plaintiffs claim claim to survive, survive, she must must proffer sufficient evidence proffer sufficient evidence to raise raise a triable triable issue issue of of fact. This This evidence must be "objective evidence must medical proof "objective medical of a serious proof of serious injury injury causally causally related related to the accident" (Pomme/ls accident" Perez, 4 NY3d (Pommells v Perez, NY3d 566, 574 [2005]). [2005]). In considering considering Plaintiffs Plaintiffs opposition, opposition, it 3

[3] of 5 [* 3] is necessary necessary to first determine determine the admissibility admissibility of her medical of her medical evidence. evidence. Here, Here, Defendants Defendants did not submit Plaintiff's medical submit Plaintiffs medical records with their records with their motion; motion; however, however, their their expert expert Dr. Mannor's Mannor's report report lists numerous numerous records reviewed, including records reviewed, including the records records Defendants Defendants deem deem inadmissible. While inadmissible. While unaffirmed or uncertified unaffirmed records alone uncertified records alone would would ordinarily ordinarily be inadmissible, inadmissible, the Second Second Department Department has determined determined that that "even "even a reference reference to the unsworn unsworn or unaffirmed unaffirmed reports reports in the moving moving papers papers is sufficient sufficient to permit permit the plaintiff plaintiff to rely upon upon and submit submit these these reports reports in opposition opposition to the motion" (Kearse, motion" AD3d at 47, n 1; Irizarry (Kearse, 16 AD3d Irizarry v Lindor, Lindor, 110 AD3d AD3d 846, 847 [2d Dept Dept 2013] [unsworn [unsworn reports reviewed by defendant' reports reviewed defendant' expert expert are admissible]). admissible]). Accordingly, the Court Accordingly, the Court finds the medical medical evidence proffered by Plaintiff evidence proffered Plaintiff is admissible. admissible. Nonetheless, Plaintiff's Nonetheless, medical evidence Plaintiffs medical evidence ((or or lack lack thereof) thereof) is insufficient insufficient to raise raise a triable triable issue of issue of fact. First, First, Plaintiff failed to submit Plaintiff failed submit any recent recent examination her treating examination from her treating doctor. doctor. Dr. Rampershad's narrative Rampershad's narrative report report contains contains no reference reference to, or results from, a recent results from, recent examination. examination. The lack of of a recent recent examination examination of of Plaintiff Plaintiff is fatal to any claim claim of permanency (Sharma of permanency (Sharma v Diaz, Diaz, 48 AD3d 442, 443 [2d Dept AD3d 2008]). Dept 2008]). Second, neither the narrative Second, neither narrative report report nor nor the physical physical therapy records identified therapy records identified the objective objective tests used used to measure measure Plaintiffs range of Plaintiff s range of motion motion (see Gers beck v Cheema, Gersbeck Cheema, 176 AD3d AD3d 684, 686 [2d Dept Dept 2019] [[where where objective tests are not identified, objective tests identified, conclusion that plaintiff conclusion that plaintiff sustained sustained a range-of- range-of- motion motion limitation result of limitation as a result of accident accident is unsupported]; unsupported]; see also Bayk v Martini, also Bayk Martini, 142 AD3d AD3d 484,

[484] [2d Dept Dept 2016]; Durand v Urick, 131 2016]; Durand AD3d 920, 920 [2d Dept 131 AD3d Dept 2015]). 2015]). Moreover, while the Moreover, while records records may reflect reflect a decreased decreased range range of motion as compared of motion compared to "normal," "normal," Dr. Rampershad Rampershad failed failed to identify identify what what authoritative authoritative guidelines guidelines were were used used to determine what is normal determine what normal (Whitfield Harris, (Whitfield v Harris, 2021 NY Slip Op 31515[U], 31515[U], *8 [Sup Ct, Kings Kings County County 2021] 2021] [failure [failure to identify identify authoritative authoritative guidelines guidelines used used rendered rendered examination examination speculative]; speculative]; Volpini v S S & F Supplies, Supplies, 2021 NY NY Slip Op 31319[U], 31319[U], *7 [Sup Ct, Kings Kings County County 2021]). 2021]). Third, Plaintiffs Third, Plaintiffs lumbar lumbar spine spine MRI reflects disc MRI reflects bulging at L3-L4 disc bulging L3-L4 and and L4-L5; L4-L5; however, however, the "mere "mere existence existence of of a disc bulge or herniation disc bulge herniation is insufficient insufficient to establish establish a serious serious injury injury in the absence absence of of objective objective evidence evidence of of the extent extent of of alleged physical limitations alleged physical limitations resulting resulting from the disc injury injury and its duration" duration" (Kearse, (Kearse, 16 AD3d AD3d at 46). Court will The Court will now now address address the 90/180 90/180 category category of of Plaintiffs Plaintiffs claim. claim. Under Under this this category, category, a "serious "serious injury" injury" is defined defined as a plaintiffs plaintiffs inability inability to "perform[] "perform[] substantially substantially all of of the material material acts which which constitute constitute [his or her] usual usual and customary customary daily daily activities activities for not not less than than ninety ninety days days 4 4 of 5 [* 4] during during the one hundred hundred eighty eighty days days immediately immediately following following the date date of of the [accident]" (Insurance the [accident]" (Insurance Law Law 5102 [d]). Therefore, Therefore, a plaintiff plaintiff'ss current current condition condition has no bearing bearing on whether whether she was was unable unable to carry out her her normal normal and and customary customary activities activities during during the statutory statutory period. Moreover, a plaintiffs period. Moreover, plaintiffs self-serving self-serving statement statement or testimony claiming an inability testimony claiming inability to engage engage in customary customary daily daily activities activities not suffice will not suffice (Ryan (Ryan v Xuda, Xuda, 243 AD2d AD2d 457,457-458 457, 457-458 [2d Dept Dept 1997]). 1997]). Instead, Instead, there there must must be objective objective evidence evidence of ofaa medically medically imposed imposed limitation limitation (id.; Jones, 147 AD3d (id; Jones, AD3d at 1280-1281 1280-1281 [3d Dept Dept 2017]). 2017]). Through Through Plaintiff's deposition testimony Plaintiff s deposition testimony and Bill of Particulars, Bill of Particulars, Defendants have Defendants have established prima facie established prima facie entitlement entitlement to dismissal dismissal of of the 90/180-day 90/180-day claim. claim. It is undisputed undisputed that that Plaintiff Plaintiff was confined confined to her bed or home her bed home for less than than 90 days. 11 In addition, addition, Plaintiff Plaintiff testified testified that that she continued continued to work work after after the accident. her opposition, accident. In her opposition, Plaintiff argues that Plaintiff argues that she has not not worked worked since the accident. accident. This This plainly plainly contradicts contradicts Plaintiff's deposition testimony Plaintiff s deposition testimony in which which she testified testified that she was that was a COVID tester until COVID tester until December December 2021 and at the time time of of her deposition, was her deposition, employed was employed caregiver. 22 Even as a caregiver. if the Even if Court considers the Court Plaintiffss self-serving considers Plaintiff self-serving affidavit, affidavit, in which which she states states her limitations her limitations during requisite time during the requisite time period, period, Plaintiffs Plaintiffs subjective subjective description description of of her injuries are her injuries insufficient insufficient to make make out a 90/180-day claim. Plaintiff 90/180-day claim. Plaintiff has proffered proffered no medical medical evidence evidence indicating indicating that she was that was unable unable to perform perform substantially substantially all of her daily of her daily activities activities for not less than not less of than 90 out of 180 days days following following the accident accident (Muzashvili (Muzashvili v Vicente, Vicente, 16 Misc Misc 3d 1140[A] 1140[ A] [Sup [Sup Ct, Kings Kings County County 2007], affd affd 59 AD3d AD3d 413, 413, [2d Dept Dept 2009]). 2009]). Accordingly, Accordingly, it is hereby hereby ORDERED, that Defendants' ORDERED, that Defendants' motion motion for summary summary judgment (Mot. Seq. No.2), judgment (Mot. No. 2), dismissing dismissing the complaint complaint on the basis on the that Plaintiff basis that Plaintiff has not sustained sustained a "serious "serious injury" injury" is granted. granted. All other other issues not addressed issues not herein are either addressed herein either without without merit merit or moot. moot. This constitutes This constitutes the the decision decision and order of the Court. order of Court. HON. INGRI HaN. OSEPH, J.S.C. Hon. Hon.1I rid Joseph Joseph Supreme Supreme Court Justice Court Justice 1 I Plaintiff testified Plaintiff testified that that she was was confined confined for around around 40 days days (Plaintiff (Plaintifftrtr at 68, lines lines 4-25; 4-25; at 69, 69, lines lines 2-12). 2-12). 2 2 Plaintiff tr at 8, lines Plaintifftr lines 12-18; 12-18; at 9, lines lines 19-21; 19-21; at 10, line line 25; at line line 2-4. 2-4. 5 5of 5 [* 5]