Marta Alvarez, Appellant,v.NYLL Management Ltd., et al., Respondents.BriefN.Y.February 11, 2015rr'o ille jlrgued illy. James M. Sheridan,Jr. Esq. Supreme Court, Bronx County, Index No.: 306222/09 Supreme Court of the State of New York Appellate Division: First Department MARTA ALVAREZ, PCaintiff-jlppefCant, --against -- NYLL MANAGEMENT LTD. and LEONCIO PEGUERO, (j)efencfants-~spondents. BRIEF FOR PLAINTIFF-APPELLANT JAMES M. SHERIDAN, JR., ESQ. 200 Garden City Plaza, Suite 201 Garden City, New York 11530 (516) 739-5547 Of Counsel to: HALLOCK & MALERBA, P.C. jl ttorneys for PCaintiff-jlppefCant 1550 Deer Park Avenue, Suite 3 Deer Park, New York 11729 (631) 482-8888 Reproduced on Recycled Paper T ABLE OF CONTENTS Table of Authorities .................................................................................................... i Question Presented .................................................................................................... v Statement of Facts ..................................................................................................... I Procedural History ................................... ; ................................................................. 3 Argument ................................................................................................................... 4 THE SUPREME COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ....................................................................................... 4 Conclusion .................................... : .......................................................................... 25 Addendum: P · . S 'fi . C 'fi . nntlng peci lcatlon ertl lcatlon ......................................................................... -a- CPLR 5531 Statement ............................................................................................ -b- TABLE OF AUTHORITIES Cases Acevedo v. Pena, 273 AD2d 260 (2nd Dept. 2000) .............................. 21 Akujuo v. USA Truck, 227 A.D.2d 360 (2nd Dept. 1996) ..................... 19 American Home Assurance co. v. Amerford Int. Corp., 200 A.D.2d 472 (1 st Dept. 1994) ................................................... 23 Angeles v. American United Transportation, 110 A.D.3d 639 (lst Dept. 2013) ................................................. .16 Arta1yan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d 546 (1st Dept. 2010) .................................................... 23 Benetatos v. Comerford, 78 A.D.3d 750 (2d Dept. 2010) .................................................... 22 Bonilla v. Petrillo Realty Dev. Corp., 237 A.D.2d 115 (lstDep't. 1997) ................................ ~ .................. 22 Dallas-Stephenson v. Waisman, 39 A.D.3d 303 (1 st Dep't. 2007) .................................................... 22 Chase v. Skoy, 146 A.D.2d 563(2d Dept. 1989) ..................................................... 21 Clementson v. Price, 107 A.D.3d 533 (lst Dept. 2013) ................................................... 16 Corcione v. John Dominic Cusumano, Inc., 84 A.D.3d 1010 (2d Dept. 2011) ................................................... 21 Esteve v. Abad, 271 A.D.2d 725 (l st Dept. 1947) ................................................... 21 Estrella v. Geico Ins. Co., 102 A.D.3d 730 (2d Dept. 2013) .................................................... 15 Gaddy v Eyler, 79 N.Y.2d 955 (1992) ................................................................ 19 Gaspari v. Sadeh, 61 A.D.3d 405 (1 st Dep't. 2009) .................................................... 22 Glick v. Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968) ............................................................... 21 Healea v. Andriani, 158 A.D.2d 587 (2nd Dept. 1990) .................................................. 23 Joseph v. Francois, 103 A.D.3d 781 (2d Dept. 2013) .................................................. 16 Kone v. Rodriguez, 107 A.D.3d 537 (1 st Dept. 2013) ................................................... 14 Krayn v. Torella, 40 A.D.3d 588 (2nd Dept. 2008) ................................................... 19 March v. Wolfson, 186 A.D.2d 115, (2nd Dept. 1992) ................................................. 12 McDowell v. Abreu, 11 AD3d 590 (2nd Dept. 2004) ..................................................... 17 Meyer v. Gallardo, 260 A.D.2d 556 (2nd Dep't. 1999) ................................................. 23 Mickelson v. Babcock, 190A.D.2d 1037 (4th Dept. 1993) ................................................ 21 Patrolmen's Benevolent Association of the City of New York v. City of New York, 27 N.Y.2d 410 (1971) .............................. 20 11 Perl v. Meher, 18 NY.3d 208 (2011) ........................................................... 14, 15 Pietropinto v. Benjamin, 104 A.D.3d 617 (1st Dept. 2013) .................................................. 16 Quinones v. Ksieniewicz, 80 A.D.3d 506 (2011) ................................................................ 18 Ramkumar v. Grand Style Transp. Enterprises, Inc., 2 N.Y.3d 905 (2013) .................................................................. 9 Rickert v. Travelers Ins. Co., 159 A.D.2d 758 (3d Dept. 1990) .................................................. 21 Rodriguez v. Goldstein, 182 A.D.2d 396 (1st Dept. 1992) ................................................ .19 Ruiz v. Griffin, 71 A.D.3d 1112 (2d Dept. 2010) .................................................. 21 Santos v. Perez, 107 A.D.3d 572 (1st Dept. 2013) ................................................ .16 Servones v. Toribio, 20 A.D.3d 330 (1 st Dept. 2005) .................................................... 17 Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395 (1957) ............................................................... 21 Thomas v. NYLL Management LTD., 110 A.D.3d 613 (1st Dept 2013) ................................................. 16 Thorner v. Latture, 11 AD 3d 448 (2nd Dept. 2004) ................................................... 17 Trezza v. MT A, 2014 N.Y. Slip Op. 00065) .......................................................... 9 111 Tsamos v. Diaz, 81 A.D.3d 546 (1st Dept. 2011) ................................................... 17 Weiss v. Garfield, 21 A.D.2d 156 (3fd Dept. 1964) .................................................... 21 Winegrad v. N.Y.D. Medical Center, 64 N.Y.2d 316 (1985) ........................................................... 20, 24 Young Kyu Kim v. Gomez, 105 A.D.3d 415 (1st Dept. 2013) .................................................. 16 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) .............................................................. 20 IV QUESTION PRESENTED Did the Supreme Court err in granting Defendant's motion for summary judgment? Brief Answer: Yes it did. v STATEMENT OF FACTS As and for a brief factual background, this case arose out of injuries that plaintiff, MARTA AL V AREZ, sustained in a motor vehicle accident which occurred on April 4, 2009. The accident occurred when Plaintiffs vehicle was struck in the rear by the vehicle owned and operated by the defendants, NYLL MANAGEMENT LTD. and LEONCIO PEGUERO. The collision occurred on Valentine Avenue at or near its intersection with Webster Avenue, County of Bronx, City and State of New York. As a result of the subject accident, plaintiff sustained serious and permanent injuries as defined in 5102(d) of the New York State Insurance Law from which she has not fully recovered to date. A Verified Bill of Particulars was exchanged, which states that Plaintiff sustained the injuries including those to her cervical spine, right shoulder and right knee, as set forth in detail therein. (R.66) She underwent surgery to both her right shoulder and right knee. (R.72). The plaintiffs injuries are serious and permanent, and are causally related to the accident of April 4, 2009, as established by her orthopedic surgeon. In support of their motion, the defendants submitted the independent medical examination reports of an orthopedic, Edward M. Deeter, M.D. (R.86) and the film review reports of radiologist, Peter A. Ross, M.D. 1 (R.75). Neither defense expert addresses the 901180 category of serious injury. As such, the defendants have failed to meet their burden in this regard. Dr. Decter's conclusions are incomplete based upon his own admissions. He writes that " .. .it would be of the utmost importance to review any intraoperative photographs." (R.96). He acknowledges that his opinions or conclusions are incomplete when he writes, "Based on my review of the MRI studies as noted above, the surgical indication in this case is questionable, and that is why intraoperative photographs are necessary." (R.96). Accordingly, Dr. Decter's opinions are speculative, conclusory and incomplete as he never reviewed the intraoperative photographs he sought. The defendants' moving papers are insufficient to warrant so drastic a remedy as summary dismissal, and, in and of themselves, raise triable issues of fact for a jury to determine at the time of trial. If the Court determines that the defendants met their prima facie burden, which is certainly not conceded, plaintiff submitted sufficient admissible evidence in opposition to raise an issue of fact. The Defendant submitted the contemporaneous range of motion testing results of one of plaintiffs treating physicians, Ketan Vora, M.D., containing deficits of as much as 33% in the cervical spine, ten days after the accident. Plaintiff 2 submitted the recent results (as of the time of the motion) of plaintiff's treating surgeon, Mark S. McMahon, M.D., examination containing deficits of as much 44% in the cervical spine, 37% in the right shoulder and 29% in the right knee, over two years post-accident. Dr. McMahon also reviewed the affirmed MRIs and other medical records and opined that the injuries contained therein as well as the range of motion limitations are permanent, significant and causally related to the subject accident. Therefore, defendant's motion should have been denied. PROCEDURAL HISTORY A Summons and Complaint was filed on July 31, 2009 with the Supreme Court, Bronx County Clerk's office and assigned Index No. 306222/2009 (R.38). Issue was joined by the service of an Answer by the defendants, dated August 20, 2009 (R.44). Plaintiff served a Verified Bill of Particulars in response to Defendants' demand, dated March 22, 2010 (R.64). By Notice of Motion dated July 8,2011, defendants, NYLL MANAGEMENT LTD. and LEONCIO PEGUERO, moved for summary judgment on the ground that plaintiff failed to sustain a serious injury as defined by Insurance Law 51 02( d) (R.21). Plaintiff opposed defendants' 3 motion in an Affinnation in Opposition, dated August 18,2011 (R.21S). Defendants submitted a Reply Affinnation dated August 29,2011 (R. 282). The Honorable Betty Owen Stinson's Order dated December 13, 2012, granted defendants' motion for summary judgment (R.S). Plaintiff now appeals the Order of the Honorable Justice Betty Owen Stinson. ARGUMENT THE SUPREME COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT It is respectfully submitted that the Supreme Court erred in granting the defendants' motion for summary judgment. The defendants failed to set forth a prima facie case that the plaintiff did not sustain a serious injury and that no questions of fact exist. The defendants' motion should have been denied because it was not supported by a sufficient medical report against plaintiff and, even if same were deemed sufficient, plaintiff raised questions of fact which must be decided by a jury. If the defendant meets his initial burden, then to defeat defendants' motion, plaintiff needs merely to show that there is a genuine issue of material fact regarding whether he has suffered a "serious injury" as a result of the accident. Plaintiff need not prove that he has suffered a "serious 4 injury". See CPLR '3212(b). Based upon Dr. McMahon's Affinnation, the affinned MRI reports, the plaintiffs Affidavit, together with all the exhibits, it is clear that plaintiff has indeed sustained serious injuries and that said injuries are causally related to the accident at issue. The Supreme Court's decision is not consistent with current case law. This Court has held that a plaintiffs doctor's opinion that the plaintiffs injuries were causally related to the accident at issue, based on the contemporaneous and recent limitations of motion as well as a review of MRI reports, is sufficient to overcome a defense radiologist's claim of degeneration. As is readily apparent from the plaintiffs submissions, as set forth in detail below, there are significant contemporaneous and recent range of motion deficits, based on objective tests, together with Dr. McMahon's explanation of the causal relationship between the accident and injuries, including two surgeries. Although not necessary, Dr. McMahon affinned that the plaintiffs injuries are not degenerative in origin. His conclusions are based upon his treatment of the plaintiff, including the surgeries he perfonned on her right shoulder and right knee, the affinned MRI reports of plaintiff s radiologist, plaintiffs medical records and his own contemporaneous and recent clinical findings. He causally relates the 5 objectively quantified limited range of motion plaintiff suffered initially and continues to suffer in her neck, right shoulder and right knee, the findings of bulging discs in the cervical spine, a tear in the right shoulder that he visualized during surgery, and chondromalacia of the patella of the right knee, all diagnosed through MRls or visualized, to the motor vehicle accident at issue. THE COURT ERRED IN HOLDING THAT THE PLAINTIFF'S SUBMISSIONS WERE INSUFFICIENT TO RAISE AN ISSUE OF FACT On the day of the accident, April 4, 2009, plaintiff was removed by ambulance and transported to the emergency room at St. Barnabas Hospital. On April 14, 2009, she presented at Alex Veder, M.D.P.C. and was seen by Dr. Vora. She complained of pain in her neck, back, right shoulder and right knee. She was examined by Dr. Vora, M.D. and she began a course of medical treatment at Alex Veder, M.D.,P.C., for a period of approximately nine months. On April 14, 2009 Dr. Vora conducted quantified objective range of motion testing on plaintiff's cervical spine, lumbar spine, right shoulder and right knee as compared to normal, with the use of a goniometer, revealing significant limitations in each. Dr. Vora's examination of the Plaintiffs cervical spine revealed that her flexion was to 40 degrees (normal is 60 6 degrees) - thereby reflecting a 33% loss of use; extension was to 40 degrees (nonnal is 50 degrees) - thereby reflecting a 20% loss of use; left and right rotation was to 60 degrees (nonnal is 80 degrees) - thereby reflecting a 25% loss of use; left and right lateral flexion was to 30 degrees (nonnal is 40 degrees) - thereby reflecting a 25% loss of use, ten days after the accident. Dr. Vora causally relates these limitation to the accident of April 4, 2009. (R.125). On April 20, 2009, orthopedic surgeon, Dr. Mark S. McMahon conducted quantified objective range of motion testing on plaintiffs right shoulder and right knee as compared to nonnal, with the use of a goniometer, revealing significant limitations in each. Specifically, Dr. McMahon's examination of the plaintiff disclosed that insofar as Plaintiffs right shoulder was concerned, abduction was to 105 degrees (nonnal is 180 degrees) - thereby reflecting a 42% loss of use; adduction was to 26 degrees (normal is 40 degrees) - thereby reflecting a 35% loss of use; forward flexion was to 129 degrees (nonnal is 180 degrees) - thereby reflecting a 28% loss of use; extension was to 45 degrees (normal is 60 degrees) - thereby reflecting a 25% loss of use; internal rotation was to 60 degrees (normal is 90 degrees) - thereby reflecting a 33% loss of use; external rotation was to 62 degrees (normal is 90 degrees) - thereby reflecting a 32% 7 loss of use; sixteen days after the accident. On the same day, Dr. McMahon measured the range of motion of plaintiffs right knee and found that her flexion was restricted at 100 degrees (140 is normal), representing a 29% limitation. Dr. McMahon causally relates these limitation to the accident of April 4, 2009. (R.245-253). Pursuant to plaintiff s complaints and these examinations, she was referred for diagnostic tests including MRls of her neck, right knee and right shoulder. As evidenced by the sworn MRl reports of the cervical spine, Dr. Ronald Roskin found that plaintiff sustained posterior bulging discs at C2- C3, C3-C4 and C4-C5 causing impingement of the anterior thecal space at these levels. (R.278). The MRl of the right shoulder contained findings consistent with a Tear of the supraspinatus tendon. (R.276). Due to her continuing pain and failure to respond to conservative treatment, on June 23,2009, Dr. McMahon performed surgery on plaintiffs right shoulder and visualized a partial tear of the supraspinatus tendon. (R.72). On August 6, 2009, Dr. McMahon operated on plaintiffs right knee. (R.74). In his August 4, 2011 Affirmation, Dr. McMahon specifically notes that he reviewed plaintiffs MRls (R.247), causally relates the findings 8 therein to the subject motor vehicle accident and states that the injuries are not degenerative .. (R.249). Pursuant to Plaintiff s affidavit, treatment was discontinued after approximately nine months because she was told that she would have to pay for any further medical treatment out of pocket because her No-Fault benefits were denied and she could not afford to do so. (R.273). Also, she was informed that she had reached maximum medical improvement from conservative treatment and that further conservative treatments would only be palliative in nature. (R.273). These explanations are more than sufficient. (Ramkumar v. Grand Style Transp. Enterprises, Inc., 2 N.Y.3d 905, 998 N.E.2d 801, 976 N.Y.S.2d I (2013), Trezza v. MTA, --- N.Y.S.2d ----, 2014 WL 43511 (N.Y.A.D. 1 Dept.), 2014 N.Y. Slip Op. 00065). Plaintiff was recently examined by her treating orthopedic surgeon Mark S. McMahon, M.D. on July 25,2011 (R.245-253). Pursuant to his Affirmation plaintiff has continued to complain of pain in her neck, back, right knee and right shoulder. In his Affirmation, Dr. McMahon details and describes the serious nature of plaintiffs injuries. Dr. McMahon notes that plaintiffs pain is aggravated with kneeling, lifting, performing household chores, running, sitting and standing for long periods, and an inability to exercise. (R.245-2S3). 9 After reviewing all of his own records, as well as those of the other doctors contained in his chart, and also affirmed, including the MRI reports and films, Dr. McMahon performed a full examination including objective range of motion testing on plaintiff with the use of a goniometer. This examination revealed that there is a significant and permanent partial disability to plaintiff s cervical spine, right knee and right shoulder as a result of this accident (R.245-253). On July 25, 2011 Dr. McMahon conducted quantified objective range of motion testing on plaintiffs cervical spine, right shoulder and right knee as compared to normal, with the use of a goniometer, revealing significant limitations in each. Specifically, Dr. McMahon's examination of the plaintiff disclosed that insofar as Plaintiff s cervical spine was concerned, flexion was to 45 degrees (normal is 80 degrees) - thereby reflecting a 44% loss of use; extension was to 25 degrees (normal is 70 degrees) - thereby reflecting a 64% loss of use; left and right lateral flexion was to 30 degrees (normal is 40 degrees) - thereby reflecting a 25% loss of use, over two years after the accident. Dr. McMahon causally relates these limitation to the accident of April 4, 2009. (R.245-253). 10 On July 25,2011 Dr. McMahon conducted quantified objective range of motion testing on plaintiffs right shoulder and right knee as compared to normal, with the use of a goniometer, revealing significant limitations in each. Specifically, Dr. McMahon's examination of the plaintiff disclosed that insofar as Plaintiff s right shoulder was concerned, abduction was to 135 degrees (normal is 180 degrees) - thereby reflecting a 25% loss of use; adduction was to 25 degrees (normal is 40 degrees) - thereby reflecting a 37% loss of use; forward flexion was to 150 degrees (normal is 180 degrees) - thereby reflecting a 17% loss of use; internal rotation was to 65 degrees (normal is 90 degrees) - thereby reflecting a 28% loss of use; external rotation was to 65 degrees (normal is 90 degrees) - thereby reflecting a 28% loss of use; sixteen days after the accident. On the same day, Dr. McMahon measured the range of motion of plaintiffs right knee and found that his flexion was restricted at 100 degrees (140 is normal), representing a 29% limitation. Also, the strength in plaintiffs quadriceps/hamstrings was restricted at 4+/5 (normal is 5/5), a 20% limitation. Dr. McMahon causally relates these limitation to the accident of April 4, 2009. (R.245-253). Dr. McMahon opines with a reasonable degree of medical certainty that the plaintiff has significant and permanent injuries in the cervical spine, right knee and right shoulder as a result of this accident. Clearly, the medical 11 proof submitted by plaintiff establishes that the plaintiff has sustained serious injuries as defined by Insurance Law 5102. Accordingly, the defendants' motion should have been denied. The medical opinions expressed by Dr. McMahon are not based solely upon subjective complaints, but are premised upon objectively measured and quantified injuries sufficiently serious to meet the threshold required under Insurance Law 5102(d). March v. Wolfson, 186 A.D.2d 115,587 N.Y.S.2d 695 (2nd Dept. 1992).Clearly, the range of motion testing performed on the plaintiff, as described above, provides objective evidence of serious injuries. It is beyond dispute that Dr. McMahon's recent (at the time of the motion), specific percentages ofloss of range of motion based on his own examination and objective testing, has "substantiat[ ed] a claim of serious injury." Moreover, Dr. McMahon has causally related plaintiffs complaints of pain, objective findings, and specifically quantified physical limitations to plaintiff s motor vehicle accident. In addition to the range of motion findings, there are also positive MRI findings and operative observations as discussed above. The range of motion deficits coupled with these findings are clearly enough to defeat defendants' motion. Dr. McMahon's prognosis for plaintiff's full recovery is poor. 12 The plaintiff in the instant case has been treated by several health care providers since the accident occurred, including Dr. McMahon, whose medical reports clearly dispute the findings of defendants' examining physician. Clearly, based upon the facts and the evidence currently before this Court, the defendants' motion to dismiss the complaint must be denied. As is readily apparent from the plaintiff s submissions, as set forth above, there are contemporaneous and recent range of motion deficits, based on objective tests, together with Dr. McMahon's explanation of the causal relationship between the accident and injuries. His conclusions are based upon his review of the affirmed treatment records from his own office, the affirmed MRI reports of plaintiff s radiologist, and his own recent clinical findings on two occasions. He causally relates the objectively quantified limited range of motion plaintiff suffered initially and continues to suffer, the findings of bulging discs in the cervical spine diagnosed through MRls and confirmed clinically, his own visualization and repair of a traumatic tear in the right shoulder, as well as traumatic findings in the right knee which personally tried to repair, all causally related to the accident at issue. The Court of Appeals has held that a plaintiffs doctor's opinion, based on the contemporaneous and recent limitations of motion as well as his review of the MRI reports, that the plaintiffs injuries were causally related 13 to the accident was sufficient to overcome the defense radiologist's now universal claim of degeneration (see Perl v. Meher, 18 NY.3d 208 (2011)). Dr. McMahon has related the plaintiffs injuries and continuing deficits to the accident at issue. In the instant matter, there is nothing to indicate that the injuries were caused by anything other than the subject accident. Further, Dr. McMahon ,affirmatively states that, based on his review of the records, including the affirmed MRIs, the contemporaneous and recent range of motion deficits, that the injuries were caused by the accident and not as a result of degeneration. (R.245-253). Clearly, the medical proof submitted by plaintiff establishes that the plaintiff has sustained serious injuries as defined by Insurance Law §5102. Accordingly, the defendants' motion should have been denied in its entirety. It has been recently held that even without a recent examination a plaintiff can survive a defense motion under the significant limitation category, although perhaps not under the permanent consequential category. The First Department has held that significant decreased range of motion one year and three months after an accident constitutes a significant limitation. In Kone v. Rodriguez, 107 A.D.3d 537, 967 N.Y.S.2d 359 (June 18,2013), the Court held as follows, 14 ... plaintiff raised a triable issue of fact as to "significant limitation of use" of all three parts of the body, as the affirmed report of his orthopedist shows persisting meaningful limitations as of a year and three months after the accident (see Vasquez v Almanzar, _ AD3d _ [1st Dept 2013, Appeal No. 9662] [decided simultaneously herewith]; see also Lopez v Senatore, 65 NY2d 1017 [1985]; Estrella v GEICO Ins. Co., 102 AD3d 730 [2d Dept 2013 D. The orthopedist's opinion that plaintiffs injuries are directly related to the accident, based on his own examination, review of plaintiffs medical records, and plaintiffs reported history of an absence of prior problems in the neck, lower back, or left shoulder, sufficiently raises a triable issue of fact as to causation (see Perl v Meher, 18 NY3d 208, 218-219 [2011]; Bonilla v Abdullah, 90 AD3d 466, 467 [1st Dept 2011], Iv dismissed 19 NY3d 885 [2012]; Yuen v Arka Memory Cab Corp., 80 AD3d 481,482 [1st Dept 2011]). The Second Department has held similarly. (Estrella v. Geico Ins. Co., 102 A.D.3d 730 (2d Dept. 2013)). Dr. McMahon related the injury to the accident based upon his own examinations, review of plaintiffs affirmed medical records, and history. Accordingly, defendant's motion should have been denied in its entirety. The Court of Appeals has made it clear that a treating doctor's causal relation of injuries to an accident is sufficient to overcome the pervasive defense radiologist' opinion that a plaintiff's injuries are degenerative/pre- existing in Perl v. Meher, 18 NY.3d 208 (2011). Unquestionably, findings of range of motion deficits related to the accident continue to suffice to raise an issue of fact necessitating the denial of motions such as that currently at bar. 15 In the instant matter, there is evidence of contemporaneous complaints of pain to the areas of the body alleged to have been injured, contemporaneous range of motion deficits, positive findings on MRI and during surgery, and recent significant range of motion deficits unequivocally causally related to the accident at issue by plaintiffs orthopedic surgeon. (Angeles v. American United Transportation, 110 A.D.3d 639 (lst Dept. 2013), Clementson v. Price, 107 A.D.3d 533, Pietropinto v. Benjamin, 104 A.D.3d 617 (1st Dept. 2013), Young Kyu Kim v. Gomez, 105 A.D.3d 415 (2013), Santos v. Perez, 107 A.D.3d 572 (lst Dept. 2013), Thomas v. NYLL Management LTD., 110 A.DJd 613 (1st Dept 2013), Joseph v. Francois, 103 A.D.3d 781,962 N.Y.S.2d 197 (2d Dept. 2013). Accordingly, the instant motion should have been denied in its entirety. Based on the recent case law of this Department, the Supreme Court's decision should be reversed. DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT SHOULD BE DENIED IN ITS ENTIRETY BECAUSE TRIABLE ISSUES OF FACT EXIST BASED UPON THE CONTRADICTORY EVIDENCE BEFORE THE COURT The fact that the medical evidence before the Court is contradictory necessitates the denial of the instant motion. The defendants have submitted Dr. Desrouleaux's reports which are contradictory to the medical reports submitted by plaintiff, thus raising issues of fact. The defense doctor's 16 reports are contradicted by those of the plaintiff with regard to plaintiffs range of motion. In Tsamos v. Diaz, 81 A.D.3d 546,917 N.Y.S.2d 180 (1st Dept. 2011), the court stated, Plaintiffs physician's affirmation conflicted with defendants' expert's view as to the extent, effects, and causation of plaintiffs injury. Accordingly, summary judgment was properly denied with respect to these categories of alleged injury (see Grill v Keith, 286 AD2d 247 [2001]). The same result must be had in the case at bar where the plaintiffs' recent examinations, conducted by Dr. Bogdan, revealed significant limited ranges of motion in their cervical spines and lumbar spines. Dr. Desrouleaux finds full range of motion in every plane of motion. Clearly, there are contradictions between the plaintiffs doctors and defendants' doctor which necessitate the denial of the instant motion. At the very least, the conclusions of the physicians submitted on this record raise questions of fact and defendants' motion should have been denied. Servones v. Toribio, 2005 NY Slip Op 05984, (l st Dept. 2005), (McDowell v. Abreu, 11 AD3d 590 [2004]; see also Thorner v. Latture, 11 AD 3d 448 [2004]). 17 DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT SHOULD BE DENIED IN ITS ENTIRETY BECAUSE TRIABLE ISSUES OF FACT EXIST UNDER THE 90/180 CATEGORY The defendant's doctors' reports are insufficient in that they do not address the 90/180 category. Neither doctor offers any comment whatsoever regarding plaintiffs condition during the initial six month period after the accident. The plaintiff s Verified Bill of Particulars contains, in paragraphs twenty (R.69), the clear statutory language asserting a 901180 category claim. (The. It is respectfully submitted, that the failure of defendants' examining doctor with regard to the 90/180 category alone warrants the denial of defendants' motion as they have failed to meet their burden. In Quinones v. Ksieniewicz, 80 A.D.3d 506, 915 N.Y.S.2d 70 (2011), this court held, defendants failed to establish prima facie that plaintiff did not sustain a medically determined injury "of a non-permanent nature" that prevented him from performing substantially all of his customary and daily activities for 90 of the 180 days immediately following the accident (see Toussaint v Claudio, 23 AD3d 268 [2005]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). The reports of defendants' medical experts were based on examinations of plaintiff conducted nearly two years after the subject accident, and addressed plaintiffs condition as of the time of the examination, not during the six months immediately after the accident. 18 There is no question that the defendant's examining physician failed to address plaintiffs 901180 claim. Clearly, the instant matter is directly on point with Quinones. Therefore, the defendant has failed to meet his burden and the instant motion should be denied in its entirety. SUMMARY JUDGMENT STANDARDS In a "threshold" motion, the court is called upon to decide two issues: 1) whether the defendant has presented sufficient proof establishing the lack of a "serious injury" thus shifting the burden to plaintiff to prove serious injury, and if the burden is shifted to plaintiff, 2) whether the plaintiff then presents sufficient proof to demonstrate that an issue of fact exists on serious injury. Gaddy v. Eyler, 79 N.Y.2d 955,582 N.Y.S.2d 990 (1992). Here, the burden never shifted to the plaintiff. The initial burden is on the defendant to present evidence in competent form showing that plaintiff has not set forth a prima facie case of "serious injury". Unless defendant meets that initial burden, plaintiff need not come forward with proof that he/she has sustained a "serious injury". See Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d 395 (l st Dept. 1992); Akuiuo v. USA Truck, 227 A.D.2d 360, 641 N.Y.S.2d 894 (2nd Dept. 1996), Krayn v. Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406 (2nd Dept. 2008). 19 The issue is not whether the plaintiff herein can ultimately establish that he sustained a "serious injury" but whether there exists a substantial issue of fact in the case on such an issue. Wine grad, supra, citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562,427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). The general principals which govern the determination of summary judgment motions require that any contrary assertions themselves constitute an issue of fact req\liring that the relief sought be denied. Summary Judgment is a drastic remedy that must be denied unless it is clear that no material and triable issue of fact is present. Winegrad v. N.Y.V. Medical Center, 64 N.Y.2d 316, 476 N.E.2d 642 (1985). In deciding defendants' motions for summary judgment, the Court must not only assume that the allegations of the complaint are true and treat all inferences favorable to the plaintiff, but must further assume that the Affirmations in opposition to the motion are true. Patrolmen's Benevolent Association of the City of New York v. City of New York, 27 N.Y.2d 410, 31 N.Y.S.2d 477,267 N.E.2d 259 (1971). The Court's role herein is not to determine any material factual issue raised in the summary judgment motion, but rather upon recognition of its existence, to deny the motion. In short, the Court's function on a Summary 20 Judgment motion is "issue finding, rather than issue determination." Esteve v. Abad, 271 A.D.2d 725,68 N.Y.S.2d 322 (1 st Dept. 1947). See also, Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 418, 144 N.E.2d 387 (1957). In short, as succinctly stated by the court in Acevedo v. Pena, 273 A.D.2d 260, 710 N.Y.S.2d 900 (2nd Dept. 2000), "where [as here] an expert states his conclusion without any trace of facts or data, his testimony should be given no probative force whatsoever." Id. For the same reason, this Honorable Court should reject the "conclusions" reached by Defendants' physicians and deny defendants' motions. Issues of credibility are generally not proper for summary judgment motions nor should Courts even weigh the credibility of the affiants. See Glick v. Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, 292 N.Y.S.2d 93 (1968); Rickert v. Travelers Ins. Co., 159 A.D.2d 758, 551 N.Y.S.2d 985 (3d Dept. 1990); Chase v. Skoy, 146 A.D.2d 563,536 N.Y.S.2d 512 (2d .. Dept. 1989); Mickelson v. Babcock, 190 A.D.2d 1037, 593 N.Y.S.2d 657 (4th Dept. 1993); see also Robillard, supra (holding that credibility of plaintiff and her experts is "solely for the jury to determine"). In the present case there are numerous issues of credibility which necessitate the denial of defendant's summary judgment motion (Ruiz v. Griffin, 71 A.D. 3d 1112 (2d 21 Dept. 2010), Benetatos v. Comerford, 78 A.D.3d 750 (2d Dept. 2010), Gaspari v. Sadeh, 61 A.D.3d 405,876 N.Y.S.2d 46 (1 st Dep't. 2009); Dallas- Stephenson v. Waisman, 39 A.D. 3d 303, 833 N.Y.S.2d 89 (1 st Dep't. 2007); Bonilla v. Petrillo Realty Dev. Corp., 237 A.D.2d 115 (1 st Dep't. 1997). Therefore, to the extent that plaintiffs doctors and defendants' doctors render different opinions in the present case simply indicate that there are factual and credibility issues that may not be resolved as a matter of law, but determined by the jury. On a motion for summary judgment, the evidence must be interpreted in the light most favorable to the one opposing the motion. Weiss v. Garfield, 21 A.D.2d 156,249 N.Y.S.2d 458 (3 fd Dept. 1964); Siegel, N.Y. Practice, 2d Ed., at 411 (1991 & Supp. 1995). Accordingly, in the present case, plaintiffs must be afforded every favorable inference and interpretation for the purposes of this motion. It has been held that a failure to address impingements referred to in an MRI report reviewed by a defense expert result in his conclusion that the MRI reports were "of no clinical significance" and caused "no neural compromise" being found to be conclusory, speculative and insufficient (Corcione v. John Dominic Cusumano, Inc., 84 A.D.3d 1010 (2d Dept. 2011). Here the defense radiologist reviewed the MRI films and determined 22 that everything depicted therein was degenerative, but failed to address the impingement noted by plaintiffs radiologist. Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact, or where the existence of an issue is arguable. American Home Assurance co. v. Amerford Int. Corp., 200 A.D.2d 472, 606 N.Y.S.2d 229 (1 st Dept. 1994); Elser v. Nassau County, 111 A.D.2d 212,489 N.Y.S.2d 246 (2nd Dept. 1985). It is incumbent upon the defendant moving for summary judgment to demonstrate that the plaintiff did not suffer from any condition defined in the insurance law asa serious injury. Healea v. Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554 (2nd Dept. 1990); Meyer v. Gallardo, 260 A.D.2d 556, 688 N.Y.S.2d 624 (2nd Dep't. 1999). Here, the defendant simply failed to meet their burden and the motion should have been denied. Since the defendants failed to meet their burden, plaintiffs opposition papers need not have been considered. In Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d 546, 912 N.Y.S.2d 400 (2010), the First Department held: 23 Thus, defendants' motion was correctly denied for defendants' failure to make out a prima facie entitlement to summary judgment. The motion court did not need to consider plaintiffs' papers in opposition (Wine grad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The same result should be had in the instant matter where defendant has failed to meet its prima facie burden. For all of the foregoing reasons, and the reasons and facts set forth in the underlying opposition papers, the affidavit of plaintiff, and plaintiffs medical records, it is respectfully submitted that defendants have not met their burden and, at the very minimum, issues of fact are presented which mandate that the defendants' motion for summary judgment should have been denied by the Supreme Court and the Supreme Court's decision should now be reversed by this Honorable Court. 24 CONCLUSION Based on the foregoing, this Honorable Court should reverse the Supreme Court's Order, dated December 13,2012, which granted Defendants' motion. Respectfully submitted, . SHERIDAN, JR., ESQ. Of Counsel HALLOCK & MALERBA, P.C. Attorneys for Plaintiff-Appellant MARTA ALVAREZ 1550 Deer Park Avenue, Suite 3 Deer Park, New York 11729 (631) 482-8888 25 PRINTING SPECIFICATION CERTIFICATION I hereby certify that the word count for all printed text on each page 0 f the body of the brief is 5,716 words, inclusive of footnotes, tables and headings. The brief was prepared on a computer, using Times New Roman, Word Perfect, 14 pt. typeface. -a- CPLR 5531 STATEMENT SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -------------------------------------------------------------)( MARTA ALVAREZ, Plaintiff-Appellant, -against- NYLL MANAGEMENT LTD. and LEONCIO PEGUERO, Defendants-Respondents. -------------------------------------------------------------)( 1. The index number of the case in the court below is 306222/2009. 2. The full names of the original parties are as above. There has been no change of parties. 3. This action was commenced in Supreme Court, Bronx County. 4. The action was commenced by the filing of a summons and complaint on July 31,2009. Defendants-Respondents answered the complaint on August 21, 2009. 5. This is a personal injury action commenced by Plaintiff-Appellant pursuant to Insurance Law § 5104 to recover damages that she sustained as a result of an automobile accident involving Defendants- Respondents. 6. This appeal is from an Order of the Honorable Betty Owen Stinson, entered on December 17, 2012. 7. This appeal is being perfected on a fully reproduced record. -b-