### 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. I62363/2019 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, l9, 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 summaryjudgment and dismissal ofPlaintiffs Complaint on the grounds that Plaintiffhas failed to meet the serious injury threshold as defined under Insurance Law 5102 (d) and therefore has no cause of action under Insurance Law 5I04 (a) is decided as follows: Upon the foregoing documents, it is ordered that Defendant's motion for summary judgement on the issue of whether Plaintiffhas satisfied the serious injury threshold within the meaning ofInsurance 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 tojudgment as a matter oflaw, tendering sufficient evidence to eliminate any material issues offact from the case" (Winegradv New York University Medical Center, 64 NY2d 851, 853 [l985]). 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

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### [* 1]NYSCEF DOC. NO. 35 INDEX NO. 162363/2019 RECEIVED NYSCEF: 07/22/2024

"serious injury" threshold (Toure vAvis 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 ofeither a "permanent consequential limitation ofuse ofa body organ or member [ or a] significant limitation ofuse ofa body function or system"). Under the no-fault Jaw, a plaintiffcan maintain an action for non-economic loss, including pain and suffering, arising from a motor vehicle accident only ifthe accident caused a serious injury (Licari vElliott, 57 NY2d 230 [1982]). The burden rests upon the movant to establish that the plaintiffhas 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 plaintiffto produce prima facie evidence to support the claim of serious injury (see Licari, supra, and Lopezv Senatore, 65 NY2d I017 [1985]). In instances where
a defendant asserts that the evidence reveals a preexisting injury or a degenerative condition, the plaintiffmust present evidence to the contrary (Brewster v 

### FTMServo, Corp., 44 AD3d 351 [1st Dept 2007]). When a claim is raised under the permanent loss or limitation ofuse of a body organ or member. significant limitation ofuse ofa body function or system, or the 90/180 category, it can be substantiated by a medical expert assigning a numeric percentage ofthe loss ofrange ofmotion showing the extent or degree of the plaintiffs physical limitation. An expert may also offer a qualitative assessment. upon an objective basis. ofa plaintiffs condition compared to the normal function, purpose and use ofthe 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 independentorthopedic examination by Dr. Rubinshteyn, who measured Plaintiffs range ofmotion with a goniometer. The range ofmotion and tenderness were not objective findings. The report found decreased range ofmotion in the cervical spine and states the injuries are ··casually related to the accident'' on October 23, 2018.

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### [* 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 ofmotion values according to the publication, "Guidelines to the Evaluation ofPermanent Impairment," 5th edition published by the American Medical Association." The report found a decreased range ofmotion 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 ofdegeneration was present. In Toure vAvis Rent a Car Sys., the Court ofAppeals held that "an expert's designation of
a numeric percentage ofa plaintiffs loss ofrange ofmotion can be used to substantiate a claim of serious injury" (Toure v Avis Rent a Car 

### Sys., 98 NY2d 345. 350 [2002J). Here, 

### Dr. Rubinshteyn and Dr. Kiernan report limitations in Plaintiffs range ofmotion. most notably, a 30-degree range ofmotion decrease in the flexion and abduction ofhis left shoulder and a 20-degree limitation of the external rotation ofhis left shoulder. These restrictions satisfy the standard enunciated by the Court ofAppeals 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 Plaintiffhas a limited range ofmotion ofthe 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, 172 AD3d 505 [1st Dept 2019] [ defendant failed to meet his prima facie burden of showing that the Plaintiffdid 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 NYCity Tr. Auth., 99AD3d 550 [1st Dept 2012] [defendant failed to meet his prima facie burden ofshowing that the plaintiffdid not sustain a serious injury: medical report ofthe defendant's examining orthopedist noted findings ofsignificant range ofmotion 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

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ORDERED 

### that the motion by Defendant George Vouniseas for summaryjudgment and dismissal ofPlaintiffs Complaint on the grounds that Plaintiffhas failed to meet the serious injury threshold as defined under Insurance Law 5I02 (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 ofEntry. This constitutes the Decision and Order ofthe Court.

7/22/2024

DATE CHECK ONE:
APPLJ('ATIO,._, CHECK IFAPl'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

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