Gill v Doe

2024 NY Slip Op 32474(U)

July 22, 2024

Supreme Court, New York County

Docket Number: Index No. 162363/2019

Judge: James G. Clynes

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.
NYSCEF DOC. NO. 35 

INDEX NO. 162363/2019 

RECEIVED NYSCEF: 07/22/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON . .JAMES G. CLYNES PART 22M 

Justice 

------------------------. --------------------------------------------------------X 

GURMEET S. GILL 

Plaintiff, 

- V -

JOHN DOE, GEORGIOS VOUNISEAS 

Defendant. 

-------------------------------------. --------------. ----------. ---. -------------X 

INDEX NO. I 62363/2019 

MOTlON DATE 08/17/2023 

MOTION SEQ. NO. ___ 00_1 __ _ 

DECISION+ ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 00 I) 17, 18, l 9, 20, 21, 22, 23, 24, 

25,26,27,28,29,30,31.32,33, 34 

were read on this motion to/for JUDGMENT - SUMMARY 

Upon the foregoing documents and following oral argument, it is ordered that the motion 

by Defendant George Vouniseas for summary judgment and dismissal of Plaintiffs Complaint on 

the grounds that Plaintiff has failed to meet the serious injury threshold as defined under Insurance 

Law 5102 ( d) and therefore has no cause of action under Insurance Law 5 I 04 (a) is decided as 

follows: 

Upon the foregoing documents, it is ordered that Defendant's motion for summary 

judgement on the issue of whether Plaintiff has satisfied the serious injury threshold within the 

meaning of Insurance Law 5104 and 5012 ( d) is denied for the reasons that follow. 

Plaintiff seeks to recover for injuries allegedly sustained as a result of a motor vehicle 

accident on October 23, 2018, between a vehicle owned by "John Doe" and operated by Georgios 

Vouniseas and a vehicle operated by Plaintiff Gurmeet Gill. In the Bill of Particulars, Plaintiff 

claims injuries to the cervical spine and lumbar spine. 

The proponent of a summary judgment motion must make a prima facie showing of 

entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material 

issues of fact from the case" ( Wine grad v New York University Medical Center, 64 NY2d 851, 853 

[ l 985]). In order to satisfy their burden under Insurance Law 5102 ( d), plaintiffs must meet the 

H,2363/2019 Gll.L, Gl"R:HEET S. vs. DOE, JOHN 

.\lotion \o. 001 

1 of 4 

Page I of 4 

[* 1]
NYSCEF DOC. NO. 35 

INDEX NO. 162363/2019 

RECEIVED NYSCEF: 07/22/2024 

"serious injury" threshold (Toure v Avis Rent a Car Systems Inc, 98 NY2d 345, 352 [2002] where 

the court found that in order to establish a prima facie case that a plaintiff in a negligence action 

arising from a motor vehicle accident did sustain a serious injury. plaintiff must establish the 

existence of either a "permanent consequential limitation of use of a body organ or member [ or a] 

significant limitation of use of a body function or system"). Under the no-fault Jaw, a plaintiff can 

maintain an action for non-economic loss, including pain and suffering, arising from a motor 

vehicle accident only if the accident caused a serious injury (Licari v Elliott, 57 NY2d 230 [1982]). 

The burden rests upon the movant to establish that the plaintiff has not sustained a serious 

injury (Lmve v Bennelt, 122 AD2d 728 [1st Dept 1986]). When the movant has made such a 

showing, the burden shifts to the plaintiff to produce prima facie evidence to support the claim of 

serious injury (see Licari, supra, and Lopez v Senatore, 65 NY2d I 017 [1985]). In instances where 

a defendant asserts that the evidence reveals a preexisting injury or a degenerative condition, the 

plaintiff must present evidence to the contrary (Brewster v FTM Servo, Corp., 44 AD3d 351 [1st 

Dept 2007]). 

When a claim is raised under the permanent loss or limitation of use of a body organ or 

member. significant limitation of use of a body function or system, or the 90/180 category, it can 

be substantiated by a medical expert assigning a numeric percentage of the loss of range of motion 

showing the extent or degree of the plaintiffs physical limitation. An expert may also offer a 

qualitative assessment. upon an objective basis. of a plaintiffs condition compared to the normal 

function, purpose and use of the affected body organ, member, function or system (Toure at 352; 

Lopez, 65 NY2d 1017; Ramos v Dekhtyar, 301 AD2d 428 [1st Dept 2003]). The expert must 

indicate what objective medical tests s/he performed to measure the range of motion restrictions 

(Lloyd v Green, 45 AD3d 373 [1st Dept 2007]). 

Here, Defendant submits, an independent orthopedic examination by Dr. Rubinshteyn, who 

measured Plaintiffs range of motion with a goniometer. The range of motion and tenderness were 

not objective findings. The report found decreased range of motion in the cervical spine and states 

the injuries are ··casually related to the accident'' on October 23, 2018. 

162363/2019 GILL, GrRMEET S. vs. DOE, JOH'1 

Motion l\o. 001 

2 of 4 

Page 2 of 4 

[* 2]
NYSCEF DOC. NO. 35 

INDEX NO. 162363/2019 

RECEIVED NYSCEF: 07/22/2024 

Defendant also submitted an orthopedic report by Dr. Howard A. Kiernan. The values 

taken were ··compared to the normal active range of motion values according to the publication, 

"Guidelines to the Evaluation of Permanent Impairment," 5th edition published by the American 

Medical Association." The report found a decreased range of motion in the left shoulder, which is 

attributed to Plaintiffs subjective complaints. Finally, Defendant submits an MRI of the 

lumbosacral spine and cervical spine. In the lumbosacral spine, herniations were found, while in 

the cervical spine, disc bulges and evidence of degeneration was present. 

In Toure v Avis Rent a Car Sys., the Court of Appeals held that "an expert's designation of 

a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of 

serious injury" (Toure v Avis Rent a Car Sys., 98 NY2d 345. 350 [2002 J). Here, Dr. Rubinshteyn 

and Dr. Kiernan report limitations in Plaintiffs range of motion. most notably, a 30-degree range 

of motion decrease in the flexion and abduction of his left shoulder and a 20-degree limitation of 

the external rotation of his left shoulder. These restrictions satisfy the standard enunciated by the 

Court of Appeals in Toure. Although Dr. Kiernan notes that there are the subjective limitations of 

motion in Plaintiff's left shoulder which are not supported by objective findings and diagnoses 

Plaintiff with cervical and lumbar spine sprains/strains, he reports that the diagnosis is causally 

related to the subject accident. As the medical report submitted by Defendant indicated that 

Plaintiff has a limited range of motion of the left shoulder, as well as the suggested causation by 

the subject accident, the reports are insufficient to eliminate all triable issues of fact (Lewis v 

Revello, 1 72 AD3d 505 [1st Dept 2019] [ defendant failed to meet his prima facie burden of 

showing that the Plaintiff did not sustain a serious injury, in part, due to defendant's examining 

orthopedist finding a significant 30-degree limitation in the range of motion of the plaintiff's 

cervical spine]; Santos v NY City Tr. Auth., 99 AD3d 550 [1st Dept 2012] [defendant failed to meet 

his prima facie burden of showing that the plaintiff did not sustain a serious injury: medical report 

of the defendant's examining orthopedist noted findings of significant range of motion limitations]. 

Therefore, Defendant has failed to make a prima facie showing that Plaintiff does not have a 

serious physical injury as defined in Insurance Law 5102 ( d). The motion is denied. Accordingly, 

it is 

162363/2019 GILL, Gl 'R:\IEET S. vs. DOE, JOHN 

Motion 1\o. 001 

3 of 4 

Page 3 of 4 

[* 3]
NYSCEF DOC. NO. 35 

INDEX NO. 162363/2019 

RECEIVED NYSCEF: 07/22/2024 

ORDERED that the motion by Defendant George Vouniseas for summary judgment and 

dismissal of Plaintiffs Complaint on the grounds that Plaintiff has failed to meet the serious injury 

threshold as defined under Insurance Law 5 I 02 ( d) and therefore has no cause of action under 

Insurance Law 5104 (a) is DENIED; and it is further 

ORDERED that any requested relief not specifically addressed herein has nonetheless 

been considered; and it is further 

ORDERED that within 30 days after entry, Plaintiff shall serve a copy of this Decision 

and Order upon Defendants with Notice of Entry. 

This constitutes the Decision and Order of the Court. 

7/22/2024 

DATE 

CHECK ONE: 

APPLJ('A TIO,._, 

CHECK IF APl'ROPRIATt:: ~ CASE DISPOSED 

GRANTED 0 DE'.'ilED 

SETTLE ORDER 

INCLUDES TRANSl'F,R/REASSIGN 

162363/2019 GILL, GliH.MEET S. vs. DOE, .IOHN 

'.\lotion ~o. 001 

4 of 4 

JAMES G. CLYNES,J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

Sl'BMITORDER 

FIDUCIARY APPOl:'ITMENT 

□ OTHER 

□ REFERENCE 

Page4of4 

[* 4]