New York Supreme Court, Queens CountyMar 5, 2019
7155/2016 (N.Y. Sup. Ct. 2019)
7155/20162019 N.Y. Slip Op. 50263



Daniel Hamadi, Plaintiff, v. Yvonne Milord, etc., Defendants.

Salvatore J. Modica, J.

Motion 1-11 Opposition 12-18 Reply 19-20 SALVATORE J. MODICA, J.:

The defendant, Yvonne Milford, alleging that the plaintiff, Daniel Hamadi did not sustain a serious injury within the meaning of Insurance Law § 5102, moves for an order granting her summary judgment pursuant to CPLR 3212. The motion is denied.

In this case, the note of issue was filed with the Clerk of the Court on July 3, 2018. Thus, the defendant had 120 days from the filing of the note of issue in which to make a motion for summary judgment. Here, the motion was filed 132 days later on November 9, 2018. The motion is untimely within the meaning of CPLR 3212(a). See Brill v City of New York, 2 NY3d 648 (2004); see also Group IX, Inc. v. Next Printing & Design Inc., 77 AD3d 530 (1st Dept. 2010)(The five-day extension contained in CPLR 2103(b)(2) does not extend the 120-day time limit of CPLR 3212(a), which is measured from the date that the note of issue is filed, not from the date of service.).

To the extent that good cause exists to extend the 120 day limit of CPLR 3212(a) and consider the motion on the merits, the Court finds that the motion should, nevertheless, be denied.

Based on the medical documentation presented by the defendant, which, in essence, reveals that the plaintiff's pain and decreased range of motion are not supported by any objective findings, the Court finds that she has established, prima facie, her entitlement to judgment as a matter of law. Accordingly, the burden shifts to the plaintiff to produce evidence, in admissible form, demonstrating that material issues of fact exist warranting a trial. See Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 (2000); see also Alvarez v Prospect Hosp., 68 NY2d 320, 326-327 (1986); Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985).

The Court finds that the medical evidence presented by the plaintiff raises a triable issue of fact that he sustained a serious injury within the meaning of Insurance Law § 5102 and that his injuries, which include a herniated disc to his lumbar spine, with impingement to the L5 nerve root, and some loss of range of motion, were causally related to the subject vehicular accident of November 16, 2015. See Perl v Meher, 18 NY3d 208 (2011); see also Pommells v Perez, 4 NY3d 566, 574 (2005).Specifically, in this case, the opinions of the plaintiff's experts are based on competent, objective medical evidence of the plaintiff's condition and treatment and are, therefore, neither speculative nor conclusory.

In sum, under Perl, the Court finds that the plaintiff raised a triable issue of fact that he sustained a serious injury to the lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102, as a result of the December 30, 2015 motor vehicle accident. See Perl v. Meher, supra; see also Thomas v Pascal, 156 AD3d 741 (2nd Dept. 2017); Yuen v Arka Memory Cab Corp., 80 AD3d 481 (1st Dept. 2011).

Accordingly, for the reasons stated in this opinion, the defendant's motion for summary judgment is denied.

The parties shall appear at the Trial Scheduling Part, at the courthouse located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, on April 15, 2019, at 9:30 A.M., for trial.

The foregoing constitutes the decision, order, and opinion of the Court. Dated:Jamaica, New York March 5, 2019 Honorable Salvatore J. Modica J.S.C.