The opinion
Huger v Perrotta
2025 NY Slip Op 30790(U)
March 11, 2025
Supreme Court, New York County
Docket Number: Index No. 150675/2020
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.
INDEX NO. 150675/2020
NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 03/11/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JAMES G. CL YNES PART 22
Justice
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INDEX NO. 150675/2020
ANTHONY JEROME HUGER,
05/23/2024,
Plaintiff, 05/24/2024,
MOTION DATE 05/24/2024
- V -
MOTION SEQ. NO. 001 002 003
JOSEPH PERROTTA, ARI FLEET LT., AERIE
PHARMACEUTICALS, INC., MAURICIO ARANGUREN,
JOSE CABRERA, REYNALDO BENAVIDES, RH, FGO
DELIVERS LLC, FGO LOGISTICS LLC, REVA TRUCKING DECISION + ORDER ON
LLC MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 72, 73, 74, 75, 76,
77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 131, 132, 133, 134, 135, 136, 137, 138,
139,140,141, 142, 143, 144,147,151,154,157,169,170,171,172,173,175, 180
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 002) 108, 109, 110, 111,
112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,127,128,129,130,148,152,
155, 158, 176, 179
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96, 97, 98,
99,100,101,102, 103,104,105,106,107,145,146, 149,153,156,159, 160,161,162, 163, 164, 165,
166, 177, 178, 181
were read on this motion to/for JUDGMENT-SUMMARY
Motion sequence numbers 001, 002, and 003 are consolidated for disposition.
Plaintiff Anthony Jerome Huger (plaintiff) seeks recovery for personal injuries sustained
as a result of a September 4, 2019 motor vehicle accident involving multiple vehicles which took
place on the upper level of the George Washington Bridge. Plaintiff is claiming injuries to multiple
parts of his body, including his cervical spine, thoracic spine, lumbar spine, and right knee.
In motion sequence 001, defendant Mauricio Aranguren (Aranguren) moves, pursuant to
CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiff and an
order granting conditional summary judgment as to common law indemnification and contribution.
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In motion sequence 002, defendant Restoration Hardware, Inc. i/s/h/a RH (Restoration
Hardware), moves, pursuant to CPLR 3212, for an order granting summary judgment and
dismissing any cross claims.
In motion sequence 003, defendants Jose Cabrera (Cabrera), Reynaldo Benavides
(Benavides), FGO Delievers LLC d/b/a FGO Logistics LLC, s/h/a FGO Delivers LLC and FGO
Logistics LLC (FGO), and Reva Trucking, LLC (Reva), move, pursuant to CPLR 3212, for an
order granting summary judgment and dismissing the complaint on the grounds that plaintiff fails
to meet the "serious injury" threshold requirement mandated by New York State Insurance Law
§§ 5102 (d) and 5104 (a).
Plaintiff's EBT
Plaintiff testified that on September 4, 2019, between 8:30 a.m. and 9:30 a.m., he was
driving his motor vehicle, a BMW, from his home in New Jersey across the upper level of the
George Washington Bridge towards New York City. He was in the right lane and almost across
the bridge when he was involved in an accident. He maintains that the accident occurred when the
traffic was moving slow. He testified that "traffic was moving a little bit faster and it got slow
again, came to like a little stop, three or four seconds passed and that's when the accident
happened" (NYSCEF DOC. NO. 122, at 31).
Plaintiff recalls looking at the vehicle in front of him, when he felt two to three impacts
The first impact was hard, while the second and third impacts were of medium strength. Plaintiff
was wearing a seatbelt and the airbags were not deployed. He became aware that there was more
than one car involved in this accident due to the impacts and observing a line of cars which
collided.
When the police arrived at the scene, plaintiff informed the officer that his vehicle was
stopped in traffic when he was struck by another vehicle, that he was in pain, and that he needed
to go to the hospital.
Joseph Perrotta's EBT
On the date of plaintiff's accident, Perrotta was driving a vehicle owned by Aeerie
Pharmaceuticals traveling across the George Washington bridge in the right lane. He was at a stop
and was located behind a black BMW and believes that he was four or five feet behind the vehicle.
A BMW SUV was located behind him, and a box truck was behind that vehicle. Perrotta recalls
being stopped for about ten seconds when he heard a collision of cars behind him. He then felt
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one impact from the center rear of his vehicle. Perrotta' s vehicle was struck in the rear. His vehicle
proceeded to be pushed into the vehicle in front of him.
Aranguren's EBT
Aranguren testified that he was involved in an accident on September 4, 2019, on the
George Washington Bridge when he was rear ended by a truck. He testified that the front bumper
of the truck came in contact with the rear bumper of his vehicle. At the time of his accident,
Aranguren's vehicle was completely stopped when he saw a truck coming toward his vehicle in
the rear-view mirror. He recalls seeing three people in the truck. One passenger appeared to brace
for an impact, another passenger recognized that there was going to be an accident and waved his
hands to advise the driver, and the driver proceeded to turn to the left to avoid the accident. He
believes that the truck was traveling between 10 to 20 miles per hour, before hitting his vehicle
with a hard impact.
Aranguren recalls hitting the vehicle in front of him with a heavy impact, and that vehicle
proceeded to strike the car in front of it. He does not believe that the car in front of that car was
involved in a prior accident. The truck came in to contact with his vehicle one time. He maintains
that he did not stop suddenly.
Cabrera's EBT
Cabrera testified that he was driving a truck to Manhattan on the George Washington
Bridge on the date of the accident. His truck was owned by his brother, Reynaldo Benavides, who
owns a furniture delivery service called "Reva". He was making a delivery for Restoration
Hardware and had arrived in the morning at the company warehouse. There were nine or ten
deliveries in the truck and Restoration Hardware provided a tablet with all of the information.
Cabrera was wearing a gray shirt that had a logo for Restoration Hardware. Cabrera did not know
if the dispatcher worked for Restoration Hardware. He maintains that he did not work for
Restoration Hardware, but that he made deliveries for the company.
Cabrera picked up the truck from Secaucus. He believes that he was covering for an absent
person on that day and was driving behind someone on the George Washington Bridge when he
struck the vehicle in front of him. He did not know if it was stopped when his truck made contact.
He recalls that the traffic stopped all of a sudden and that he applied his brakes. He was traveling
at 35 miles per hour. He testified that maybe the vehicle in front of him hit the vehicle in front of
it. He believes the impact was very light.
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Cabrera testified that he told the police:
"I told them that the car I had in front of me, the van stopped out of the blue, that I tried
to apply the brakes and I didn't have the time. I also considered going all the way to the
left and I didn't want to because I didn't want to cause a double accident since there was
another car on the left lane. And I didn't want to push that car out of the lane."
(NYSCEF DOC. NO. 86, at 34).
Cabrera reviewed a picture of the accident scene and saw the black car which he hit
touching the car in front of it. He did not see the car in that position prior to the accident. He
believes that there was one impact.
Benavides' EBT
Benavides testified that he owned Reva and the box truck which Cabrera was operating.
Cabrera was his brother who was performing a favor by making the deliveries. Cabrera was
delivering furniture with two other workers on behalf of Restoration Hardware and was wearing a
Restoration Hardware uniform. Benavides testified that the truck went to a warehouse in New
Jersey, was loaded up with Restoration Hardware furniture, and then was heading towards New
York City across the George Washington Bridge when the accident occurred. He did not have a
written contract with Restoration Hardware.
In September of 2019, FGO would tell Benavides what customers they were to deliver to
and the time frame. FGO would answer to Restoration Hardware and would pay Benavides. He
recalls that his brother told him that regarding the accident "[t]hat supposedly it was two or three
cars, and that one hit the other. And that he wasn't sure how, but he went and he hit the one from
behind" (NYSCEF DOC. NO. 88, at 38). The truck Cabrera was driving states on it "Reva
Trucking, DOT, the NC" and does not include Restoration Hardware.
Joe Hansen's EBT
Joe Hansen (Hansen) testified that he is employed by FGO and works as the Vice-President
for Risk Management. FGO brokers delivery deals between clients and independent contractors.
Restoration Hardware was a client in 2019. Hansen recalls hearing about plaintiff's accident when
the lawsuit was filed and learning that there were multiple vehicles involved in an accident which
involved Reva, an independent contractor. FGO would broker the deal between Restoration
Hardware and independent contractors. Restoration Hardware would sell their products and
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schedule the deliveries which was handed over to FGO who would then distribute the delivery to
independent contractors.
Restoration Hardware and the customer would determine the delivery date. The product
would be picked up at a Restoration Hardware warehouse which would determine what product
goes on the truck. The contractor would determine the route for the delivery, while Restoration
Hardware would provide the time frame. The delivery agent had to be an authorized courier, wear
Restoration Hardware uniforms, and sometimes hats, as well as booties. FGO did not provide
training or instruction about assembly of the products from Restoration Hardware. Hansen did not
know of any training which Restoration Hardware provided to independent contractors.
Summary Judgment standard
"The proponent of a motion for summary judgment must demonstrate that there are no
material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Dallas-
Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]). "Once the prima facie showing has
been made, the party opposing a motion for summary judgment bears the burden of produc[ing]
evidentiary proof in admissible form sufficient to require a trial of material questions of fact"
(People v Grasso, 50 AD3d 535, 545 [1st Dept 2008] [internal quotation marks and citation
omitted]). If there is any doubt as to the existence of a triable fact, the motion for summary
judgment must be denied (Grossman v Amalgamated Haus. Corp., 298 AD2d 224,226 [1st Dept
2002]).
Motion sequence 001
Aranguren contends that summary judgment must be granted in his favor dismissing the
complaint of plaintiff. He argues that based upon the evidence, his vehicle was struck in the rear
by a box truck owned by Benavides and driven by Cabrera. He maintains that there is no evidence
to indicate that he bears any liability for the occurrence of plaintiffs accident. Aranguren
specifically contends that after the box truck rear-ended his vehicle, his vehicle moved forward
and hit the vehicle in front, and that after he struck that vehicle, it proceeded to move forward and
hit another vehicle. He maintains that as stated in the police report, plaintiffs vehicle (vehicle 1)
was struck from behind by Perrotta's vehicle (vehicle 2). Perrotta's vehicle (vehicle 2) was struck
from behind by Aranguren's vehicle (vehicle 3). Aranguren's vehicle (vehicle 3) was struck from
behind by the box truck (vehicle 4).
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Aranguren argues that he saw the large white box truck which rear ended him only seconds
before the impact. He maintains that his vehicle was in a full stop when it was rear-ended, and
just prior to impact, he saw the truck coming at a fast speed, saw three people sitting in the front
seat of the truck, and then saw the individual sitting in the middle of the three in the truck try to
get the driver's attention. He maintains that because Aranguren's vehicle was a stopped vehicle
that was rear-ended, a prima facie case of negligence was created with respect to the box truck.
Plaintiff does not oppose Aranguren's motion for summary judgment. Furthermore, there is no
evidence presented that Aranguren was negligent. The testimony supports that the impact was
started by the box truck which then caused a chain reaction. Even if Aranguren stopped short, the
driver of the box truck, which started the chain of impacts, provided no explanation as to why he
failed to maintain a safe distance between his vehicle and Aranguren's vehicle (see Chame v
Kronen, 150 AD3d 622, 622 [1st Dept 2017] [even if the vehicle in front did stop short, defendant
failed to provide evidence that he maintained a safe distance between his vehicle and plaintiffs
vehicle]; Tejeda v Aifa, 134 AD3d 549, 550 [1st Dept 2015] [holding testimony that a vehicle
"stopped short is insufficient by itself to raise an issue of fact as to ... negligence; he provided
no explanation as to why he did not maintain a safe distance between his vehicle and (the) ...
vehicle in front of him"]; Dattilo v Best Transp. Inc., 79 AD3d 432, 433 [1st Dept 2010] [holding
"A rear-end collision with a vehicle that is slowing down establishes a prima facie case of
negligence on the part of the driver of the rear vehicle, and imposes a duty on him to come forward
with an adequate nonnegligent explanation for the accident"]). Therefore, based upon a review of
the record, any allegation that Aranguren was negligent must be dismissed.
Furthermore, any cross-claims asserted by the codefendants as against Aranguren should
be dismissed. Neither plaintiff nor co-defendants establish that common law indemnification,
contractual indemnification, or contribution would be applicable as to Aranguren. Finally, the
court notes that Aranguren and Restoration Hardware entered into a stipulation dated August 28,
2024, which states that Aranguren withdraws the portion of his motion for summary judgment
which seeks conditional summary judgment for common law indemnification.
Therefore, as Aranguren meets his burden and demonstrates that no genuine issue of fact exists as
to his alleged negligence and that he did not cause the chain reaction which impacted plaintiffs
vehicle, and as plaintiff fails to meet his burden to demonstrate otherwise, Aranguren' s motion for
summary judgement must be granted.
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Cross motion
Perrotta, Ari Fleet LT, and Aerie Pharmaceuticals, Inc. (the Perrotta defendants), cross-
move, permitting the late filing of a summary judgment motion and dismissing plaintiffs
complaint, and/or claims of common law indemnification as against the co-defendants. The
Perrotta defendants argue that the court should allow the late filing of this summary judgment
motion as it is based on one of the same grounds as the motion of the co-defendants. They argue
that the cause of the accident was Cabrera's truck, that there is no prejudice to plaintiff or any of
the defendants, and that if summary judgment is granted to Aranguren, then their application for
such relief should be granted as well.
Defendants Cabrera, Benavides, FGO and Reva (collectively "the Cabrera defendants")
oppose this motion and contend that the Perrotta defendants' motion is mislabeled as a cross-
motion because it seeks affirmative relief against non-movants, including plaintiff, and is therefore
improper and in violation of CPLR § 2215. They argue that the Case Scheduling Order in this
action requires that dispositive motions be filed within 60 days of the filing of the Note of Issue.
They maintain that plaintiff filed the Note of Issue on March 25, 2024, and therefore, all motions
for summary judgment in this action were to be filed on or before May 24, 2024. The Cabrera
defendants contend that because the Perrotta defendants did not file their cross-motion until June
18, 2024, and they are not seeking the same relief as Aranguren, specifically summary judgment
on liability in favor of Aranguren, the cross-motion should be denied as untimely. They further
argue that because plaintiff testified that there were three or four impacts, issues of fact exist
regarding whether any of the vehicles that were in front of Cabrera, namely the Aranguren vehicle
or the Perrotta vehicle, had any impacts before the Cabrera truck impacted the rear of the
Aranguren vehicle.
It is undisputed that the Perrotta defendants did not file the motion for summary judgment
within the required 60 days from the filing of the Note of Issue as stated in the Case Scheduling
Order. Furthermore, the cross-moving papers include no excuse other than law office failure for
missing the deadline to timely file their motion. Accordingly, the Perrotta defendants' cross
motion for summary judgment must be denied (See Cullity v Posner, 143 AD3d 513,514 [1st Dept
2016] (holding "[t]he motion should have been denied as untimely. The motion court's rules
required dispositive motions to be filed within 60 days of the filing of a note of issue. Defendant
filed the motion papers nine days after the time to do so had expired, rendering the motion untimely
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.... [d]efendants' failure to address the missed filing deadline or offer, let alone show, good cause
for the delay in filing, is fatal to their motion"]).
Motion sequence 002
Restoration Hardware moves, pursuant to CPLR 3212, for an order granting summary
judgment and to dismiss any cross claims. Restoration Hardware contends that there is no
negligence on its part as it did not own any vehicles involved in the subject accident. It maintains
that it did not employ any drivers that were involved in this accident, did not have control over the
truck or the driver who was performing Restoration Hardware furniture delivery at the time of the
subject accident, and had no relationship with either Reva, the entity that owned the truck involved
in this accident, or Cabrera, the driver of the truck.
Restoration Hardware contends that plaintiff cannot point to any evidence that would give
rise to a material issue of fact, which would require a trial, and that there exists no factual basis for
holding it liable. Restoration Hardware maintains that the testimony establishes that Cabrera, with
whom it has no contractual relationship, was engaged by Reva, and received instructions only from
that company. It argues that therefore, there is no relationship, contractual or otherwise, upon
which a finding of vicarious liability against Restoration Hardware for the conduct of Cabrera
might be predicated.
Restoration Hardware also contends that it did not exercise enough control over FGO or
Reva to raise a triable issue of fact as to whether they should be accountable for Reva's employee.
Restoration Hardware argues it was not involved in the hiring of Reva, nor had any control over
Reva or its employees. Pursuant to the agreement between FGO and Restoration Hardware, FGO
was responsible for the hiring, recordkeeping, performing background checks, selecting the proper
personnel to perform the services, paying wages, complying with employment laws, maintaining
policies, providing training, maintaining workers' compensation insurance, supervising, and
providing performance management duties.
In opposition, plaintiff contends that Restoration Hardware's control over the means used
to achieve the delivery of its goods to customers was more than incidental and significant. Plaintiff
contends that according to Hansen, the FGO representative, Restoration Hardware dictated the
manner in which the deliveries were made, determined what products go on what routes, generated
the manifests and determined the timing of the delivery.
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Plaintiff argues that Restoration Hardware also demanded, pursuant to its Standard
Operating Procedures, that shippers follow its rules when making deliveries, specifically that they
needed to wear white gloves, booties and a Restoration Hardware monogramed uniform; they must
call within 30 minutes of a delivery; they cannot offer the customer any other services, nor were
they permitted to assist in moving non-Restoration Hardware furniture. He also contends that
Restoration Hardware provided the shippers with tablets, access to its internal order management
software, and required the shippers to access the software program and "close out" the delivery,
thereby informing Restoration Hardware that the delivery was made.
The doctrine of respondent superior renders an employer vicariously liable for the
negligence of its employee acting within the scope of the employment. (See Judith M v Sisters of
Charity Hosp., 93 NY2d 932, 933 [1999]). However, "an employer who hires an independent
contractor is not liable for the independent contractor's negligent acts" (Rosenberg v
Equitable Life Assur. Socy. of US, 79 NY2d 663,668 [1992]). "The determination of whether an
employer-employee relationship exists turns on whether the alleged employer exercises control
over the results produced, or the means used to achieve the results. Control over the means is the
more important consideration" (Raja v Big Geyser, Inc., 144 AD3d 1123, 1124 [2d Dept 2016]).
The "determination of whether someone is an independent contractor is a fact-specific question"
(Carlson v American Intl. Group, Inc., 30 NY3d 288, 301 [2017]). "Whether an actor is an
independent contractor or an employee for purposes of tort liability is usually a factual issue for
the jury" (Fiscina v Boro Rug & Carpet Warehouse Corp., 195 AD3d 998, 999 [2d Dept 2021]
[internal quotation marks and citation omitted]; see also Cross v Supersonic Motor Messenger
Courier, Inc., 140 AD3d 503, 504 [1st Dept 2016] (a factual issue was raised where, although a
delivery driver signed an independent contractor contract, he was required to maintain insurance,
a company dispatcher controlled the delivery process, the driver used company forms, wore a
company shirt and the truck included a company logo]).
Here, a question of fact exists as to whether the control over the shipping by Restoration
Hardware was incidental or significant. As plaintiff discussed, Restoration Hardware required that
shippers follow specific procedures and rules when making deliveries, wear uniforms with their
logo, utilize specific technology including a provided computer tablet, access its internal order
management software, and required shippers to "close out" the delivery process utilizing this
system informing Restoration Hardware when the delivery was completed.
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Therefore, because the record presents a question of fact regarding the nature of the
relationship between the Restoration Hardware and the individual drivers and its level of control
and oversight over the driver, summary judgment dismissing the complaint against the company
must be denied (See Edwards v Rosario, 166 AD3d 453,454 [1st Dept 2018] [a factual issue raised
was where delivery driver maintained insurance dictated by company, utilized company forms and
wore company uniform with logo]; Devlin v City of New York, 254 AD2d 16, 17 [1st Dept 2011]
[holding a factor to be considered as to whether vicarious liability is appropriate is whether
defendant held itself out to the public as being the employer of its drivers]).
Motion sequence 003
Defendants Cabrera, Benavides, FGO, and Reva, move, pursuant to CPLR 3212, for an
order granting summary judgment dismissing the complaint on the grounds that plaintiff fails to
meet the serious injury threshold requirement mandated by New York State Insurance Law §§
5102 (d) and 5104 (a). Defendants argue that plaintiff suffered, at most, minor "soft tissue" injuries
as a result of his accident. They argue that these injuries do not qualify as a "serious injury" under
any of the categories of the "no-fault" upon which plaintiff relies.
A party seeking damages for pain and suffering arising out of a motor vehicle accident
must establish that he or she has sustained at least one of the categories of "serious injury" as set
forth in Insurance Law § 5102 (d). According to Insurance Law § 5102 (d), a serious injury:
"means a personal injury which results in death; dismemberment; significant
disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member,
function or system; permanent consequential limitation of use of a body organ or member;
significant limitation of use of a body function or system; or a medically determined injury
or impairment of a non-permanent nature which prevents the injured person from
performing substantially all of the material acts which constitute such person's usual and
customary daily activities for not less than ninety days during the one hundred eighty days
immediately following the occurrence of the injury or impairment."
It is indisputable that four of the nine categories of serious physical injuries discussed by
Insurance Law § 5102 (d) are not applicable herein as there is no allegation of death,
dismemberment, fracture or a loss of a fetus. Therefore, the court must determine if the plaintiffs
injuries constitute either: (1) permanent loss of use of a body organ, member, function or system;
(2) a permanent consequential limitation of use of a body function or system; (3) a significant
limitation of use of a body function or system; (4) a medically determined injury or impairment of
a nonpermanent nature which prevents the injured person from performing substantially all of the
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material acts which constitute such person's usual and customary daily activities for not less than
90 days during the 180 days immediately following the occurrence of the injury or impairment; or
5) a significant disfigurement.
With regards to plaintiffs allegation of a significant disfigurement due to the scar on his
back from lumbar surgery, defendants demonstrate that plaintiff has failed to allege this ground in
his bill of particulars (See Noor v Fera, 200 AD3d 1366, 1369 [3d Dept 2021] [holding plaintiff
"did not allege a serious injury under the significant disfigurement category. Nor did plaintiff move
to amend her bill of particulars to include such allegation. Absent an amendment to the bill of
particulars, the fact that defendants - briefly and in an abundance of caution - raised the issue
of significant disfigurement in their motion for summary judgment does not inject the issue into
the case. Accordingly, Supreme Court properly declined to address plaintiffs alleged claim of
serious injury under the significant disfigurement category"]). Therefore, the court declines to
address plaintiff's alleged claim under the significant disfigurement category.
Furthermore, plaintiff provides unauthenticated photographs of the alleged disfigurement in his
opposition (See Rivera v GT Acquisition I Corp., 72 AD3d 525,526 [1st Dept 2010] [holding that
the "court properly disregarded the uncertified police report and unauthenticated photographs as
they constituted inadmissible hearsay"]).
Defendants argue that plaintiff's claims of serious injury fail because he sustained no
causally-related, objective injury as required by the Insurance Law and that an injury must be
objectively verified by medical evidence in either qualitative or quantitative terms to satisfy the
serious injury threshold. Defendants argue that nowhere in plaintiff's medical records or
deposition is it alleged that they have lost the total use of any part of her body.
"In determining a motion for summary judgment where the issue is whether plaintiff has
sustained a serious injury defined by Insurance Law § 5102 (d), the defendant bears the initial
burden to present competent evidence that the plaintiff has no cause of action" (Brown v Achy, 9
AD3d 30, 31 [1st Dept 2004]). Here, defendants have met their prima facie by presenting the
reports of two physicians, Dr. Arnold T. Berman and Dr. Nicholas H. Post, who conducted
independent medical examinations. In a report dated June 21, 2022, following an independent
orthopedic evaluation, Dr. Berman concluded and affirmed that regarding the plaintiff's right knee
that the MRI report indicated a preexisting intrasubstance tear of lateral meniscus and arthroscopic
surgery operative showing preexisting loose bodies indicating degenerative joint disease and that
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with regard to plaintiffs cervical, thoracic and lumbar spine, the MRI findings could not be caused
by the subject accident. He further states that "Mr. Huger can participate in all activities of daily
living. He may continue to work full time without restrictions. Mr. Huger did not sustain any
permanent injury and has no disability" (NYSCEF DOC. NO. 106).
In a report dated May 3, 2022 following an independent neurological examination, Dr. Post
concluded and affirmed that plaintiffs "ongoing subjective pain complaints do not constitute
evidence of residual neurological injury or permanent neurological impairment. Based upon
available information, he remains capable of working and performing his activities of daily living
in an unrestricted capacity" (NYSCEF DOC. NO. 107).
In opposition, plaintiff argues that sufficient proof exists to demonstrate that plaintiff
sustained a "significant" or "permanent consequential" "serious injury."
Plaintiff argues that regarding his knee, an affirmed report from Dr. Christine Corradino dated
January 21, 2020 states that he suffered a "meniscus tear" because of the subject accident, and
notes that following the accident he claimed knee pain, immediately sought treatment, and
followed up with Dr. Richard Seldes, an orthopedist, who recommended physical therapy.
Plaintiff maintains that Dr. Corradino noted that, after failure of conservative care and an MRI
which highlighted a meniscus tear, and attempted injections which did not help, plaintiff
underwent an arthroscopy on December 30, 2019.
Plaintiff contends that Dr. Corradino noted diminished range of motion of his knee for
flexion at 85 degrees, concluding that normal would have been 130, noted patella grind, and opined
that the right knee was "resolving." Plaintiff maintains that Dr. Corradino reviewed the MRI, and
confirmed a meniscus tear and noted that in her opinion, the intrasubstance tear of the body of the
meniscus, which resulted in surgical treatment, was due to the subject accident.
Plaintiff discusses a "peer review" dated February 4, 2020, of Dr. Robert Christafaro, an
orthopedist, which states that the physical examination of plaintiffs right knee revealed decreased
range of motion, swelling, tenderness upon palpitation over the medial and lateral joint line, and
positive McMurray sign. Dr. Christafaro further states that plaintiff was diagnosed with right knee
lateral meniscus tear with continued pain and inflammation, that the MRI of the right knee revealed
an intra substance tear of the body of the lateral meniscus with small knee joint effusion, that the
MRI was evident of tear of the body of the lateral meniscus, and that he received cortisone injection
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to the right knee which did not provide sufficient relief to the claimant, concluding that the right
knee arthroscopy was medically necessary.
Plaintiff also references an expert opinion of Dr. Gabriel Dassa, an orthopedist. Plaintiff
notes that at an examination on June 12, 2024, Dr. Dassa noted swelling of his right knee with an
antalgic gate, a circumference measurement 2 1/2 inches greater on the right than the left side, and
limited range of motion on flexion (120/140). He observed tenderness on the right knee's
patellofemoral joint with crepitus and a positive patellofemoral compression for the right knee.
Dr. Dassa noted that the exam revealed restricted range of motion to the right knee and that the
findings were consistent with persistent dysfunction to the right knee with traumatic arthritis. Dr.
Dassa concluded that within a reasonable degree of medical certainty that the findings represent
objective evidence of persistent orthopedic impairment to the right knee and it was caused by the
subject accident. Dr. Dassa maintains that the injury was significant and permanent and that
plaintiff has a high probability of needing right knee replacement surgery.
Plaintiff contends that a triable issue of fact also exists regarding the seriousness of his
neck injury. He cites to a report dated February 13, 2020 by Dr. Isaiah Florence, a pain
management specialist, which noted significant disability in the cervical spine. Range of motion
tests noted that plaintiffs lateral bending left was 20 (normal range 45), lateral bending right was
20 (normal range 45) rotation left was 20 (normal range 80), and rotation right was 20 (normal
range 80). Plaintiff notes that Dr. Florence considered plaintiff mildly disabled, and notes that he
could work but was not allowed to perform activities that require strenuous physical labor. She
recommended plaintiff undergo a cervical nerve block regimen.
Plaintiff maintains that on July 6, 2020, he sought treatment from Dr. Andrew Merola,
complaining of significant cervical pain due to the subject accident. Dr. Merola measured
significant loss of range of motion in the cervical spine as well as observed spasm and tenderness,
and reviewed the cervical MRI which he concluded demonstrated a C5-C6 herniation. He
maintains that a July 8, 2024 examination confirmed a significant neck injury, noting that the
subject accident is the cause of permanent injuries sustained to plaintiffs neck.
Plaintiff contends that with regards to his lumbar injury, Dr. Corradino, in a report dated January
21, 2020, concluded that plaintiff has clinical findings of radiculopathy with weakened EHL and
decreased sensation, which goes along with his MRI findings of a herniated disk at L4-5. Dr.
Corradino recommended that because the physical therapy and injections were not helpful,
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plaintiff should follow-up to discuss alternative treatment options of the lumbar spine. Plaintiff
states that Dr. Corradino recommended he consider spinal surgery. She opined that the injury to
plaintiff's lumbar spine was caused by the subject accident.
On July 6, 2020, plaintiff first sought treatment from Dr. Merola for his back pain, which
he complained radiated into his lower extremity. Dr. Merola noted severe antalgic and kyphotic
gait pattern, reversal of lordosis, and that plaintiff needed assistance getting on and off the exam
table. He noted significant loss of range of motion in most lumbar planes.
Here, plaintiffs submissions in response to the respective motions, when viewed in their entirety,
constitute objective evidence sufficient to raise a triable issue of fact as to serious injury which
should be left for the determination of a jury (See Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004];
see also Toure v Avis Rent A Car Sys., 98 NY2d 345,350 [2002]; Cassagnol v Williamsburg Plaza
Taxi, 234 AD2d 208, 209 [1996]).
For example, following his examination of plaintiff, Dr. Merola specifically concludes that
"[w]ithin a reasonable degree of medical certainty, the accident occurring on September 4, 2019
is the competent cause of injuries sustained to Mr. Huger' s neck and low back requiring surgical
intervention to the lumbar spine. Mr. Huger's injuries are permanent in nature" (NYSCEF DOC.
NO. 165). Dr. Merola continues that plaintiff "will require continued orthopedic observational
care and management visits approximately one to two times per year at a cost of $275 per visit for
his neck and back. He will also require surgical intervention in the future in the form of revision
lumbar surgery" (Id.).
Furthermore, Dr. Dassa specifically concluded in a report dated June 12, 2024, that:
"Regarding spinal complaints, I find it remarkable, at least concerning the lumbar
complaints, the defendants' doctors would discuss causality or prognosis without first
reviewing Dr. Merola's operative report, which reviewed, and which showed, among other
things, 'a torn annulus with herniation at L4-L5'. That is a classic trauma induced injury.
The MRI reports, such as the September 11, 2019 report of the lumbar is not indicative of
degenerative changes. The report states the opposite - no stenosis or significant
hypertrophy; And, again, he was working and the motor vehicle accident appears
significant. I believe this motor vehicle accident is the cause of back complaints. Similarly,
the motor vehicle accident appears to have contributed to Mr. Huger's cervical complaints.
He claims he was asymptomatic prior to the motor vehicle accident and the cervical spine
MRI is consistent as there is no indication of degenerative changes. Mr. Huger made spine
complaints right away and was working prior to the motor vehicle accident without
complaints. And all spinal x-rays show no degeneration."
(NYSCEF DOC. NO. 161).
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Dr. Dassa also corelated plaintiffs knee issues to the subject accident. He states that:
"I have read the IME reports from Dr. Berman and Dr. Post and I disagree with essentially
all of their conclusions. First, with almost no explanation, Dr. Berman writes that Mr.
Huger's right knee injury and complaints is pre-existing. Within a reasonable degree of
medical certainty, I disagree . . . I note that a September 26, 2019, note from Vein Pain
and Spine states upon exam that Mr. Huger had right knee pain upon active motion and
was unable to squat or kneel, which would be consistent with motor vehicle accident
casualty and not pre-existing where Mr. Huger says he worked without limitations. I note
that the only degenerative changes of the knee that I saw are based on this accident and
arose out of the last 4 years and now request a total knee replacement."
(Id.).
Dr. Merola and Dr. Dassa' s findings conflict with the finding which the moving defendants utilize
to support their motion. For example, Dr. Berman noted in his affirmation dated June 21, 2022,
that:
"Spinal surgery of the lumbar spine was done in 2020; however no operative report was
submitted for review. All findings on the MRI reports are chronic with no acute injury. The
MRI report findings could not have been caused by this single motor vehicle accident. A
CT scan done on 9/04/19 was done which was negative for fracture. The subjective
complaints were not supported by any objective findings on the physical examination.
There were no objective findings, no reflex changes and no sensory or motor loss, and no
radiculopathy of the cervical and lumbar spine. There is no loss of bodily function."
(NYSCEF DOC. NO. 106).
Furthermore, Dr. Post, a neurologist, conducted an examination of plaintiff on May 3, 2022. Dr.
Post states that:
"In conclusion, Mr. Huger's subjective pain complaints do not correspond the traumatic
injury affecting his spinal column. Subsequent diagnostic imaging reports describe
findings consistent with a degenerative process that is not attributable to the 9/4/2019
accident. The eventual October 2020 lumbar spinal surgery addressed a pre-existing
degenerative condition. Mr. Huger's ongoing subjective pain complaints do not constitute
evidence of residual neurological injury or permanent neurological impairment. Based
upon available information, he remains capable of working and performing his activities
of daily living in an unrestricted capacity."
(NYSCEF DOC. NO. 107).
The reports cited by the moving defendants clearly conflict with the findings referenced by
Dr. Merola and Dr. Dassa regarding the cause, permanency, and severity of the alleged injuries.
Therefore, the conflicting medical reports raise issues of fact which should be left for the
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determination of a jury. "Where conflicting medical evidence is offered on the issue of whether
the plaintiffs injuries are permanent or significant, and varying inferences may be drawn
therefrom, the question is one for the jury" (Noble v Ackerman, 252 AD2d 392, 395 [1st Dept
1998]; Johnson v Garcia, 82 AD3d 561,562 [1st Dept 2011] [holding that the differing opinions
between physicians "as to whether plaintiffs symptoms were proximately caused by the accident
or result from a pre-existing degenerative condition also raises triable issues of fact"]; LaMasa v
Bachman, 56 AD3d 340, 340 [1st Dept 2008] ["the conflicting medical evidence and opinions of
defendant's experts concerning the permanence and significance of plaintiffs injuries simply raised
issues of fact for the jury"]).
Furthermore, "[o]n a motion for summary judgement the court is not to determine
credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact"
(SJ Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 [1974]; see also Cassagnol v
Williamsburg Plaza Taxi, 234 AD2d 209,210 [1st Dept 1996] [holding "the conflicting affidavits
submitted to the motion court presented a factual dispute regarding the extent of plaintiffs injury
and that court properly recognized that it could not resolve this material factual question in the
context of a summary judgment motion"]). Therefore, as such issues of fact exist as to the
conflicting findings in the medical reports, the motion of defendants Cabrera, Benavides, FGO,
and Reva must be denied.
As to plaintiffs 90/180 claim, defendants made a prima facie showing by pointing to
plaintiffs deposition testimony in which he testified that he missed two weeks of work after the
accident and three weeks of work after his surgery in December of 2019 due to his alleged injury
(See Mena v White City Car & Limo Inc., 117 AD3d 441, 441 [1st Dept 2014] ["Defendants met
their burden as to the 90/180-day claim by relying on plaintiffs bill of particulars alleging that he
was confined to bed for about one week, and his testimony that he was home from work for only
five days]"). "[T]he ability to return to work may be said to support a legitimate inference that the
plaintiff must have been able to perform at least most of his usual and customary daily activities"
(Correa v Saifuddin, 95 AD3d 407,409 [1st Dept 2012]).
Finally, although the moving defendants contend in their reply that there was a gap in
plaintiffs treatment, such argument will not be addressed as it was raised for the first time on reply,
and plaintiff has not had the opportunity to respond (See Tadesse v Degnich, 81 AD3d 570, 570
[1st Dept 2011] [holding "When dismissing the complaint as against appellants, the court
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improperly relied on the gap-in-treatment argument, which appellants raised for the first time in
their reply papers"]).
Cross motion
Defendants Ari Fleet LT, Aerie Pharmaceuticals, Inc. and Perrotta, cross-move for
summary judgment. They contend that plaintiff has failed to meet the serious injury threshold
pursuant to section 5102 (d) and that there is no prejudice to plaintiff as an untimely cross motion
may be made where a timely summary judgment motion was made on almost identical grounds.
Here, the cross motion was filed on June 21, 2024, almost 90 days after the Note oflssue was filed
on March 25, 2024, almost 30 days late, and without leave of court. As such, the cross motion
must be denied as untimely (See Salaam v Bowman, 2022 NY Misc LEXIS 5512, *30 Sup Ct, NY
County, Sept 21, 2022, Clynes, J.).
CONCLUSION and ORDER
Accordingly, it is
ORDERED that the motion of defendant Maricio Aranguren (motion sequence 001) for
summary judgment in his favor and dismissal of the complaint against him is granted and the
complaint is dismissed in its entirety as against said defendant, and the Clerk is directed to enter
judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and
it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; and it is further
ORDERED that defendant Restoration Hardware, Inc. i/s/h/a RH's motion for summary
judgment (motion sequence 002) is denied; and it is further
ORDERED that defendants Jose Cabrera, Reynaldo Benavides, FGO Delievers LLC d/b/a
FGO Logistics LLC, s/h/a FGO Delivers LLC and FGO Logistics LLC, and Reva Trucking, LLC's
motion for summary judgment (motion sequence 003) is denied; and it is further
ORDERED that defendants Ari Fleet LT, Aerie Pharmaceuticals, Inc. and Joseph
Perrotta' s cross motions in motion sequence numbers 001 and 003 are denied; and it is further
ORDERED that counsel for movant parties shall serve a copy of this order with notice of
entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to
mark the court's records to reflect the change in the caption herein; and it is further
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ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website).
This constitutes the decision and order of the court.
3/11/2025
DATE MES G. CLYNES, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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