The opinion
Moynihan v Srivastava
2024 NY Slip Op 31146(U)
April 5, 2024
Supreme Court, New York County
Docket Number: Index No. 160842/2019
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.
INDEX NO. 160842/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JAMES G. CLYNES PART 22M
Justice
-- --- ------- -------- --·-•••• ·---------------------------------- ----------·-· ·----X INDEX NO. 160842/2019
LYDIA MOYNIHAN,
MOTION DATE NIA, NIA
Plaintiff,
MOTION SEQ. NO. 002 003
- V -
ABHISHEK SRIVASTAVA, JOHN DOE DECISION + ORDER ON
MOTION
Defendant.
--·------------------------------------------ ------------------- ------------- ----X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34,
35,36, 52,53,54,55,56,57,58,62,64,66,67,68,69, 70, 71, 72
were read on this motion to/for JUDGMENT- SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 37, 3 8, 39, 40, 41, 42, 43, 44,
45,46,47,50,51,60,61, 63,65
were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, the motion by Defendant ABHISHEK SRIVASTAVA for
summary judgment on the grounds that Plaintiffs claimed injuries do not satisfy the serious injury
threshold under Insurance Law 5102 (d) (Motion Sequence 2) and Plaintiff's motion for partial
summary judgment on the issue of liability and striking the affirmative defense of comparative
negligence (Motion Sequence 3) are decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of an August 19, 2018
accident between Plaintiff pedestrian and Defendant's vehicle. Plaintiffs Bill of Particulars
alleges injuries to soft tissue damages of bilateral posterolateral disc ostrophyte complex at C3-
C4, right neural foraminal stenosis, right posterolateral disc osteophyte at C4-C5, superficial lateral
ankle and hindfoot swelling, thoracic levocurvature, straightened cervical lordosis, disc space
narrowing at C4-5, concussion, post-concussion syndrome, cognitive deficits, dizziness,
photosensitivity, fatigue, memory deficits, headaches, hypersomnia, sprain/strain to the lumbar
spine, cervical spine, bilateral knees, right ankle and right elbow.
160842/2019 \IOY:\IHA:',;, LYDIA \'S. SRl\'ASTA VA, ,\BHISHEK Page I of -t
Mution 'io. 002 003
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INDEX NO. 160842/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/05/2024
I. SERIOUS INJURY
The burden rests upon the movant to establish that the plaintiff has not sustained a serious
injury (Love v. Bennetr, 122 AD2d 728[J51 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 Lopez v. Senatore, 65 NY2d 1017[1985]).
In support of his motion, Defendant relies on the affirmed independent examination reports
of Dr. Richard D. Semble, a board-certified orthopedic surgeon, and Dr. Mark J. Decker, a board-
certified radiologist.
Defendant relies on Dr. Decker's review of the Magnetic Resonance Image (MRI)
examination which was performed on November 25, 2020. Dr. Decker noted diffuse loss of disc
signal, C2-C3 through C5-C6 with broad bulge and luschka hypertrophy at C4-C5. He noted that
these are longstanding and there was no traumatic injury casually related to the August 19, 2018
accident.
Defendant also relies on Dr. Semble's report dated January 4, 2022 after an orthopedic
medical evaluation. Dr. Semble measured Plaintiffs range of motion using a hand-held
goniometer. The cervical spine, thoracic spine and lumbar spine all had no muscle spasm and
normal range of motion. He performed Jackson's, Scapular Winging, Fabere, Ely's, Kemp's, and
Lasegue's sign tests which were all negative. He performed the Tinel's, and Apley's tests on the
right elbow and they were negative with normal range of motion. He also performed Lachman's,
Patella tracking. stable-Yams, McMurray on the right and left knee which were all negative. The
range of motion was normal. He also found that the cervical spine sprain, thoracic spine sprain,
lumbar spine sprain/strain, right elbow sprain/strain, bilateral knee sprain/strain and right ankle
foot sprain/strain were all resolved. He found no evidence of orthopedic disability, permanency
or residuals and also opined that the Plaintiff could perform her activities of daily living as she
was prior to the accident and was capable of working without restrictions.
However, Defendant has nonetheless failed to meet his prima facie burden of showing that
Plaintiff did not sustain a serious injury within the meaning oflnsurance Law 5102 (d) as a result
of the accident (Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]). Defendant fails to submit
competent medical evidence establishing, prima facie, that Plaintiff did not sustain a serious brain
160842/2019 I\IOYNlllA:--1, LYl)IA vs. SIUVASTAVA, ABHISHEK Page 2 of 4
Motio11 No. 002 003
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/05/2024
mJury as the Defendant's medical experts failed to address this alleged injury (Shumway v
Bungeroth, 58 AD3d 431 [1st Dept 2009]; Hughes v Cai, 31 AD3d 3 85 [2d Dept 2006] [where the
defendants failed to address the plaintiffs allegations that her decedent suffered traumatic brain
injury, they failed to meet their initial prima facie burden]). Defendant's motion papers fail to
adequately address Plaintiff's claim, clearly set forth in the Bill of Particulars, that she sustained a
traumatic brain injury as a result of the accident.
Even if Defendant made a prima facie showing, a triable issue of fact was raised by
Plaintiff's evidence, including Dr. Fallahpour's affirmation relating Plaintiff's injuries to the
subject accident.
II. SUMMARY JUDGMENT ON LIABIUTY
In support of Plaintiffs motion for partial summary judgment on the issue of liability,
Plaintiff relies primarily on her examination before trial testimony. Plaintiff testified that she
was crossing 57 th Street from north to south on the west side of the intersection with 3rd Avenue
in the crosswalk with a walk sign in her favor, she was near the middle of the street when she
saw the vehicle about 10 seconds prior to the accident, to her left on 3rd Avenue turning onto
57 th Street, stopped, the next time she saw the vehicle was about one second before the
accident, when the grille portion of the vehicle struck Plaintiff in the front.
In opposition, Defendant contends that there is an issue of fact as to whether Plaintiff
exercised due care for her own safety by failing to keep Defendant's vehicle within her
observation prior to the accident and failing to take any evasive actions. However, Defendant
submits only an attorney affirmation. Pursuant to a Court Order dated September 22, 2022,
Defendant is ·"precluded from testifying at trial and from submitting their ovm affidavit in
motion practice." New York courts have consistently held an attorney's affirmation to be
inadequate to oppose a summary judgment motion (.r;ee GTF Marketing Inc. v Colonial
Aluminum Sales, Inc., 66 NY2d 965. 968 [1985]). Without more, such as an affidavit or
testimony from a person with first-hand knowledge, Defendant's opposition fails to raise an
issue of fact sufficient to preclude a determination of summary judgment on the issue of
liability in favor of Plaintiff and against Defendant.
160842/2019 ,1OY'-IHA:\, LYDIA \'S. SRl\'ASTA \'A. ARIIISIIEK Page 3 of 4
,101ion :\o. 002 003
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INDEX NO. 160842/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/05/2024
Accordingly, it is
ORDERED that the motion by Defendant ABHISHEK SRIVASTAVA for summary
judgment on the grounds that Plaintiffs alleged injuries fail to satisfy the serious injury threshold
under Insurance Law 5102(d) (Motion Sequence 2) is denied; and it is further
ORDERED that Plaintiff's motion for summary judgment on the issue ofliability (Motion
Sequence 3) is granted; 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 of entry, Plaintiff shall serve a copy of this Decision and
Order upon Defendant with Notice of Entry.
This constitutes the Decision and Order of the Court.
4/5/2024
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRAI\TED □ DENIED GR,\YfED I'-' PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
160842/2019 .\10Y.I\IHAN, L YDlA vs. SRIVASTAVA, ABHISIIEK Page 4 of4
Motion .'\'o. 002 003
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