### Toure v Sanogo 2024 NY Slip Op 30116(U) January 10, 2024 Supreme Court, New York County Docket Number: Index No. 157854/2019 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.

### !FILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 PM! NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024 

### SUPREME COURTOF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22M Justice -----------------------------------------------X

DAME TOURE Plaintiff,-vSOUNKALO SANOGO, Defendant. 

### ---------------------------------------------------------------------------------X INDEX NO. MOTION DATE 157854/2019 03/14/2023 MOTION SEQ. NO.
___ 00_2
__ _ DECISION+ORDERON MOTION

The following e-filed documents, listed by NYSCEF documentnumber(Motion 002) 26, 27. 28. 29. 30, 31, 32. 33, 34,35,36,37,38,39,40.41,42,43,44 were read on this motion to/for JUDGMENT- SUMMARY Uponthe foregoing documents, and following oralargument,themotionbydefendant for summaryjudgment and dismissal ofplaintiffs complaint on the grounds that plaintiffs claimed injuries do not satisfy the serious injury threshold under Insurance Law 5102 (d) and 5104 is decided as follows: Plaintiffseeks recovery for injuries allegedly sustained as a result ofan October 4, 2018 accident in which plaintiff, while bicycling at the intersection ofWest 116th Street and Seventh Avenue in Manhattan, was allegedly srtuckby a taxi ownedand operated by defendant Sounkalo Sanogo. Plaintiffs Bill of Particulars alleges cervical sprain/whiplash syndrome; cervical myositis/muscle spasms; possible cervical radiculopathy; thoracic spine sprain/strain; lumbar sprain: lumbar myositis/muscle spasms: possible lumbar radiculopathy: internal derangement of the right hip; internal derangement ofthe right knee; contusion ofthe right thigh and right shin; and post-concussion syndrome. The Bill of Particulars further asserts that cervical spine and lumbar spine electromyography 

### (EMG) and nerve conduction studies perfom1ed on January 

### 14, 2019 revealed, respectively, a right 

### CS cervical radiculitis and a right 

### LS lumbarradiculitis.

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### [FILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 P~ NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024

PlaintiffsBill ofParticulars contends thatthese injuries fall within all ofthe categories set forth under Insurance Law 5102(d): death; dismemberment: significantdisfigurement; a fracture; pemrnnent loss of use of a body organ. member function or system: permanent consequential limitation ofuse ofa body organ or member: significant limitation ofuse ofa body function or system: a medically determined injury or impairment ofa nonpermanent nature which prevents the injured person from performing substantially all ofthe material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence ofthe injury or impairment. Plaintiffwasahigh school student at the time ofthe accident. Whilehe wasalsoemployed
as a deliverer by Uber Eats, his Bill of Particulars docs not allege damages arising from lost employment earnings. The burden rests upon the movant to establish that the plaintiffhas not sustained a serious injury 

### (Perez v Rodriguez, 25 AD3d 506 [1st Dept 2006]; 

### Lowe v Bennett, 122 AD2d 728 [1st Dept 1986], 

### qffd69 NY2d 701 [1986]). When the movant has made such a showing, the burden shifts to the plaintiffto produce prima facie evidence to support the claim ofserious injury 

### (see Lopez v Senatore, 65 NY2d 1017 [1985]; 

### Abale v Wo(f 219 AD3d 1118 [4th Dept 2023]). In support ofhis motion, defendant relies on an affirmed report ofan orthopedic surgeon, Pierce Ferriter, M.D
.. following an examination on October 8, 2021. Dr. Ferriter found that plaintiff had suffered initially from cervical spine sprain/strain; thoracic spine sprain/strain: lumbar spine sprain/strain; right hip/thigh sprain/strain; and right knee/shin sprain/strain/contusion. He concluded that each of these injuries had resolved (see 

### Maenza v Letkajornsook, 172 AD2d 500 [2d Dept 1991] [··allegations ofsprains and contusions
arc insufficientto establishthatthe plaintiffsustaineda 'seriousinjury' as defined inthe statute"]).

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### [FILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 

# PM NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024

Dr. Ferriter measured plaintiffsrange ofmotion using a hand-held goniometer and compared his measurements to normal values according to AMA Guidelines. He reported normal range of motion and negative objective tests as to plaintiffs cervical spine, thoracic spine, lumbar spine, right hip/thigh, and right knee/shin. Dr. Ferriter reported, accordingly, that plaintiffpresented a normal orthopedic examination on all objective testing and is able to perform activities ofdaily Iiving without limitation. With respect to the claim ofdeprivation ofplaintiffs usual activities ofwork and living for 90 of 180 days, defendant, citing Travis v Batchi (18 NY3d 208 [201 I]), urges that the examination and plaintiffs proofs fail to establish that plaintiffwas medically prevented from performing substantially all of his usual and customary activities for the requisite period. Defendant submits plaintiff's deposition testimony, in which plaintiffaverred that he was at no time imm1:diately alterthe accident confined to his bed or to his home and that he wasnot told by
a doctor not to work. Defendant has met his initial burden ofestablishing that plaintiffdid not sustain serious injuries as a result ofthe accident under Insurance Law §5102 (d)(Perez v 

### Rodriguez, 25 AD3d 506). Theburdentherefore shifts to plaintiffto raise anissue offact (see Zuckerman v 

### Cityo,fNew fork. 49 NY2d 557 [1980]). In opposition, plaintiffsubmits his own affidavit as well as opinions and records ofhis examining physician. He contends that he still suffers frequent significant pain in his lower back and right knee, as well as less frequent neck pain. He further asserts that he was a high school
soccerplayerbut is no longer able to play the sport as a result ofhis injuries. llis examining physician was Dr. Joyce Goldenberg, board certified in physical medicine and rehabilitation. She conducted a full medical examination. including tests for range ofmotion

1578541201') TOl'RE, DA:'tlE \'S, SA!\OGO,SOl:l\'KALO \lotion :,,;o. 002

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### [FILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 P~ NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024

limitation. According to her affirmation and her affirmed report, she objectively measured the range ofmotion restrictions in the cervical spine, the lumbar spine, right hip, and the right knee with a goniometer and inclinometer. Dr. Goldenberg determined that range ofmotion limitation in the cervical spine was 55%reductionin lateral flexion right and 60% left, 55-58% reduction in lateral rotation bilaterally and 42% reduction in extension. In the lumbar spine, range ofmotion
was restricted 60% in extension, 39%inflexion, 64% bilaterally in lateral flexion/lateral rotation, and 69% in right rotation and 64% in left. In the right hip, range ofmotion was restricted 42% in flexion, 26% in extension, 48% in adduction, 32% in abduction, 62.5% in internal rotation and 44% in external rotation. In the right knee. range ofmotion was restricted 26%. A subsequent examination shov,cd improvement, but continuing limitations in plaintiff's range ofmotion. Dr. Goldenberg made the following diagnoses: 1. Cervical radiculitis on the right at the level ofC5. 2. Cervical myofascial pain syndrome/muscle spasms. 3. Lumbar radiculitis onthe right at the level ofLS. 4. Lumbar myofascial pain syndrome/muscle spasms. 5. Right hip sprain. 6. Right knee sprain. 7. Post-concussion syndrome/cognitive deficits. She opines to a reasonable degree of medical certainty that the accident was the sole competent producing cause ofplaintiff's injuries and consequent limitations. She concludes that the loss ofmobility is permanent, and that plaintiff will live the rest of his 

### life with pain and reduced range ofmotion. She does not, however, render a specific opinion on the 90/180 days 

### claim.

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### WILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 P~ NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024

The Court's function in adjudicating a motion for summaryjudgment is issue-finding, not issue-determination (see Sillman v Twentieth Century Fox Film Corp., 

### 3 NY2d 395 [1957]). Because the parties' respective experts materially disagree on the range and permanence ofthe alleged injuries, summaryjudgment must be denied on the branches ofplaintiffs claim alleging permanentconsequential limitation ofuse 

### ofa body organormemberand significant limitation of
use 

### ofa body function 

### or system. Plaintiff's submission does not address his claims for death, dismemberment significant disfigurement a fracture, or permanent loss ofuse ofa body organ, member function or system. nor is there any evidence to support those criteria. Partial summary judgment will therefore be granted on those four limited categories. In addition. partial 

### summary judgment is granted on plaintiffs claim ofa nonpermanent injury 

### which prevented him from performing substantially all ofthe material acts constituting his usual and customary daily activities for not less than 90 days during the 

### I80 days immediately following the injury. Plaintifftestified in his depositionthathe was not confined to his bed or his home following the accident and that his doctors did not recommend such a restriction (see Burns
v lvlcCabe, 17 AD3d 1111 [4th Dept 2005] [evidence that plaintiffmissed only a week ofschool
was prima facie proof that his activities \Vere not curtailed to the required duration]: see also Hernandez vRodriguez, 63 AD3d 520, 521 [1st Dept2009]). Also,underInsurance Law 5102(d),
an injury must be "medically determined" to qualify under the 90/180-day category (see Lazu v Harlem Group, 

### 89 AD3d 

### 435, 436 [1st Dept 2011]: Gahdaro 1· Wylie, 

### 78 AD3d 652 [2d Dept 2010]; see also Sanz v AITA-Loni Is. Bus. 46 AD3d 867 [2d Dept 2007]). meaning that the condition must be substantiated by a physician (see Ryan v Xuda, 243 AD2d 457, 457-458 [2d Dept 1997]). No medical support was proffered here. 

### Therefore, defendant's motion for summaryjudgment is granted in part only.

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### &ILED: NEW YORK COUNTY CLERK 01/10/2024 04:51 P~ NYSCEF DOC. NO. 45 INDEX NO. 157854/2019 RECEIVED NYSCEF: 01/10/2024


### Accordingly. it is ORDERED 

### that the motion by defendant for summary judgment and dismissal of plaintiffs complaint is DENIED except as to plaintiffs claim of death, dismemberment, significant disfigurement, a fracture, permanent loss ofuse ofa body organ, member function or systemorfor seriousinjuryunderthe90/180-dayscategory oflnsuranceLaw5102 (d), as to which the motionis GRANTED; and it is further ORDERED 

### that any requested reliefnot specifically addressed herein has nonetheless been considered; and it is further ORDERED 

### that within 30 days after entry, plaintiffshall serve a copy ofthis Decision and Order upon defendant with Notice ofEntry. This constitutes the Decision and Order ofthe Court.

1/10/2024

DATE CHECK ONE:
APPLICATION: CHECK IFAPPROPRIATE:

# ~ CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

157854/2019 TOURE,DAMEvs. SANOGO, SOUNKALO Motion No. 002
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# G_!:l~ -i:!:.:r.s G. CLYNES,J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SL'BMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER

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