Motion-Secondary: State Farm Mutual Automobile Insurance Company, State Farm Fire And Casualty Company v. Perloff Physical Therapy, P.C.

On June 04, 2020 a Motion-Secondary was filed involving a dispute between State Farm Fire And Casualty Company, State Farm Mutual Automobile Insurance Company, and Perloff Physical Therapy, P.C., for Other Matters - Contract - Other in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 07/25/2022 04:37 PM INDEX NO. 509187/2020
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/25/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
______________________________________________________Ç

TAREEK J. FORDE,

Plaintiff,
AFFIRMATION IN

OPPOSITION
-against-

Index No.: 509187/20

Return Date: 08/11/22
MOHAMMED R. AMIN and SAJJAD HOSSAIN,

Defendants.

_______________________________________________Ç

Karine Bogoraz, an attorney duly admitted to practice law before the Courts of the

State of New York hereby affirms the following under penalty of perjury:

1. I am associated with BOGORAZ LAW GROUP, P.C., the attorneys for the

plaintiff, TAREEK J. FORDE, and as such I am fully familiar with all of the facts and

circumstances herein based on the file maintained by my office.

defendants'
2. This affirmation is submitted in Opposition to motion for an

order pursuant to CPLR 3212 seeking dismissal of plaintiff's case for failure to sustain a

injury"
"serious as defined by the New York State Insurance Law.

3. The above noted defendant seeks summary judgment and alleges that the

injuries"
plaintiff has not suffered "serious as required by Insurance Law§5102 and §5104.

4. It ishereby respectfully requested, that defendants have failed to meet their

defendants'
burden, and as will be shown below, motion should be denied.

5. This affirmation is submitted together with Dr. Affirmation of Dr. Leon

Reyfman, annexed hereto as Exhibit"A", Certified/affirmed rehabilitation and medical

records: Initial Examination Report, dated May 18, 2017, Re-evaluation reports, dated June

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22, 2017, July 21, 2017, August 8, 2017 and September 21, 2017, annexed hereto as Exhibit

"B", Neurological Consultation Report, dated July 25, 2017 prepared by Dr. Omar Ahmed,

annexed hereto as Exhibit "C", Range of Motion Exams, dated June 16, 2017 and 25,
July

2017 performed by Dr. Omar Ahmed, annexed hereto as Exhibit "D", Physical Capacity

Evaluations, dated July 15, 2017 and September 9, 2017, annexed hereto as Exhibit "E",

Outcome Assessment Report, dated September 21, 2017, annexed hereto as Exhibit "F",

Acupuncture Initial Evaluation Report, dated May 12, 2017; Acupuncture Re-Evaluation

Report, dated September 19, 2017 and Acupuncture Progress Notes, dated May 12, 2017

through November 15,2017, annexed hereto as Exhibit "G", Physical Therapy Progress

Notes, dated May 18, 2017 through November 15, 2017 and Treatment Attendance Record,

dated May 18, 2017 through November 15, 2017, annexed hereto as Exhibit "H", Disability

Letter which was filled out and signed by Dr. Omar Ahmed, covering the period from May

18, 2017 to August 21, 2017, annexed hereto as Exhibit "I",MRI reports of lumbar and

cervical spines, which were performed by Dr. William A. Weiner, together with the

radiologist's affirmation, annexed hereto as Exhibit "J",Affidavit of Plaintiff, annexed

hereto as Exhibit "K", in Opposition to defendants motion seeking dismissal of plaintiffs

injury"
case for failure to sustain a "serious as defined by the New York State Insurance

Law.

FACTS

6. This action arises from a motor vehicle accident that occurred on 6,
May

2017. At the time of the accident plaintiff was a bicyclist, when he was struck by a motor

vehicle. The impact was heavy. As a result of that impact he fell to the ground and injured

his back and neck. Plaintiff was taken via ambulance to the Kings County Hospital

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Emergenc y Department where he was evaluated and treated for his injuries. See Plaintiffs

Affidavit, Exhibit "K"and Plaintiffs EBT testimony, pages 27, 38-41 and 50-52, Annexed to

Defendants'
the Motion as Exhibit "E".

7. On May 12, 2017, plaintiff began his medical rehabilitation treatment under

supervision of Dr. Omar Ahmed. During the initial examinations plaintiff complained of

having persistent pain and stiffness to his neck and back as well as headaches and

dizziness. His pain was exacerbated by prolonged sitting, standing, bending down at the

waist, turning his head, lifting heavy objects, doing household chores and exercising.

See the Initial Examination Report, Exhibit "B", Neurological Report, Exhibit "C", and

Plaintiffs Affidavit, Exhibit "K".

8. In 2001, Mr. Forde was involved in a prior motor vehicle accident. As a

result of that prior accident he sustained injuries to his back and neck. However, his

previous complaints, regarding his back and neck injuries, resolved and were

asymptomatic when the May 6, 2017 motor vehicle accident occurred. Mr. Forde was

not undergoing any medical treatment for his back or neck at the time when the May

6, 2017 auto accident occurred. Affirmation of Dr. Leon Reyfman, Exhibit "A", Initial

Examination Report, Exhibit "B", Neurological Report, Exhibit "C", Plaintiffs Affidavit,

Exhibit "K"and Plaintiffs EBT testimony, page 72, Exhibit "F".

9. Dr. Reyfman stated the following regarding the lumbar and cervical spines

sustained by plaintiff in connection with the May 6, 2017 accident, "Based on my

examination of the patient's lumbar and cervical spines, as well as the results of the

MRI exams, the patient was diagnosed in addition to his originally diagnosed

injuries with activation/aggravation of pre-existing asymptomatic condition of the

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lumbar and cervical spines that created susceptibility to injury and/or made his

injuries more serious than they otherwise would have been. Accordingly, I now state

the following as my diagnosis of injuries caused by the May 6, 2017 auto accident:

Activation/aggravation of pre-existing asymptomatic lumbar and cervical spines

condition that created susceptibility to injury and/or made his lumbar and cervical

been."
spines injuries more serious than they otherwise would have See Affirmation

of Dr. Leon Reyfman, Exhibit "A".

10. During his rehabilitation treatment under supervision of Dr. Ahmed, Mr.

Forde received multiple physical therapy and acupuncture treatments on a three-to-four

times per week basis. See Affirmation of Dr. Leon Reyfman, Exhibit "A", Neurological

Consultation Report, dated July 25, 2017 prepared by Dr. Omar Ahmed, annexed hereto as

Exhibit "C", Range of Motion Exams, dated June 16, 2017 and July 25, 2017 performed by

Dr. Omar Ahmed, annexed hereto as Exhibit "D", Physical Capacity Evaluations, dated July

15, 2017 and September 9, 2017, annexed hereto as Exhibit "E", Outcome Assessment

Report, dated September 21, 2017, annexed hereto as Exhibit "F", Acupuncture Initial

Evaluation Report, dated May 12, 2017; Acupuncture Re-Evaluation Report, dated

September 19, 2017 and Acupuncture Progress Notes, dated May 12, 2017 through

November 15,2017, annexed hereto as Exhibit "G", Physical Therapy Progress Notes, dated

May 18, 2017 through November 15, 2017 and Treatment Attendance Record, dated May

18, 2017 through November 15, 2017, annexed hereto as Exhibit "H",

11. The initial computerized objective range of motion testing of the patient's

cervical spine and lumbar spine was performed, on June 16, 2017, which revealed

significant decrease and limitations. See Range of Motion Exams, dated June 16, 2017 and

July 25, 2017 performed by Dr. Omar Ahmed, annexed hereto as Exhibit "D".

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12. On June 16, 2017, the range of motion of the lumbar spine was restricted due

to pain and stiffness. The range of motion of lumbar spine measured by a dual inclinometer

revealed as follows: Flexion was restricted at 20 degrees with pain (normal is 60 degrees)

and Extension was restricted at 9 degrees with pain (normal is 25 degrees). See Exhibit

"D".

13. On June 16, 2017, the range of motion of the cervical spine was restricted

due to pain and stiffness. The range of motion of cervical spine measured by a dual

inclinometer revealed as follows: Flexion was restricted at 44 degrees with pain (normal is

50 degrees) and Extension was restricted at 28 degrees with pain (normal is 60 degrees).

See Exhibit "D".

14. As a result of the subject accident, the plaintiff sustained serious and

permanent injuries as defined in 5102 (d) of the New York State Insurance Law from

which plaintiff has not fully recovered to date.

15. As a result of the accident of the May 6, 2017, the plaintiff sustained the

following injuries:

CERVICAL SPINE

" C7-T1 central disc herniation on the CSF
impressing column;

" Cervicalgia;

" Cephalgia;

" Vertigo;

" Radiculopathy;

" Cervicogenic Headaches.

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LUMBAR SPINE

" L4-L5 central disc herniation on the CSF column and
impressing abutting
the thecal sac;

" L5-S1 central disc herniation on the thecal sac with its
impressing
associated nerve roots;

" Radiculopathy.

20. The plaintiff's injuries are serious and permanent and are causally related to

the accident as established by Dr. Leon Reyfman, M.D., in his accompanying Affirmation. As

defendants'
will be demonstrated below, the moving papers are insufficient to refute these

facts and a triable issue of fact still exists for a jury to decide at the time of trial.

DEFENDANT'S MOTION FOR SUMMARYJUDGMENT
SHOULD BE DENIED IN ITS ENTIRETY BECAUSE
THERE REMAINS TRIABLE ISSUES OF FACT

"threshold"
21. In a motion, the court is called upon to decide two issues: 1)

whether the defendant has presented sufficient proof establishing the lack of a "serious

injury"
thus shifting the burden to plaintiff to prove serious injury and 2) Ifthe burden is

shifted to plaintiff, whether the plaintiff then presents sufficient proof to demonstrate that

an issue of fact exists on serious injury. Gaddy vs. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990

(1992).

22. The initial burden is on the defendant to present evidence in competent form

showing that plaintiff has not set forth a prima facie case of "serious injury". Unless

defendant meets that initial burden, plaintiff need not come forward with proof that he/she

has sustained a "serious injury". See Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d

395 (1st Dept. Akujuo v. USA 641 N.Y.S.2d 894 (2d Dept. 1996).
1992); Truck,

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23. The issue is not whether the plaintiff herein can ultimately establish that he

injury"
sustained a "serious but whether there exists a substantial issue of fact in the case

on such an issue. Winegrad, supra, citing Zuckerman v. City of New York, 49 N.Y.2d 557,

562, 427 N.Y.S.2d 595, 404 N.E.2d 718, Sillman, supra.

24. The general principles which govern the determination of summary

judgment motions require that any contrary assertions themselves constitute an issue of

fact requiring that the relief sought be denied. Summary judgment is a drastic remedy

which should not be granted where there is any doubt as to the existence of a triable issue

of fact, or where the existence of an issue is arguable. Stukas, supra: Leighton v Leighton,

(1st defendants'
46 A.D.3d 264, 847 N.Y.S.2d 64 Dept. 2007). In opposition to motion and

cross-motion for summary judgment, the plaintiff has submitted his Affidavit, as well as the

Affirmation of Dr. Leon Reyfman. This evidence is contradictory to the allegations of the

movant, creating issues of fact for a jury to determine. Sisino v. Island Motocross of

New York, Inc., 41 A.D.3d 462, 841 N.Y.S.2d 308 (2d Dept. 2007). As an issue of fact with

injury"
respect to at least one aspect of the statutory definition of the term "serious has

been raised, it isclear that summary judgment in favor of the movant in this case is

improper. Cesar v. Felix, 181 A.D.2d 852, 581 N.Y.S.2d 411 (2d Dept. 1992).

25. In deciding defendant's motion for summary judgment, the Court must not

only assume that the allegations of the complaint are true and treat all inferences favorable

to the plaintiff, but must further assume that the Affirmations in Opposition to the motion

are true. Abrama v. Richmond County, 125 Misc.2d 530, 470 N.Y.S.2d 624 (1984);

Patrolmen's Benevolent Association of the City of New York v. City of New York, 27 N.Y.2d

410, 31 N.Y.S.2d 477, 267 N.E.2d 259 (1971).

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26. The Court's role herein is not to determine any material factual issue raised

in the summary judgment motion, but rather upon recognition of itsexistence, to deny the

motion. In short, the Court's function on a Summary Judgment motion is "issue finding,

determination."
rather than issue Matter of Halpern. 76 A.D.3d 429, 906 N.Y.S.2d 253, (1st

Dept. Esteve v. 271 A.D.2d 68 N.Y.S.2d 322 (1st Dept. 1947). See also,
2010); Abad, 725,

Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 418, 144

N.E.2d 387 (1957).

27. The initial burden is on the movant to present evidence in competent form

injury."
showing that the plaintiff has not set forth a prima facie case of "serious Unless the

defendants meet that initial burden, the plaintiff need not come forward with proof that

injury."
he/she has sustained a "serious Kasper v. N &.J Taxi, Inc., 60 A.D.3d 910, 876

N.Y.S.2d 120 (2d Dept. 2009).

28. The general principles which govern the determination of summary

judgment motions require that any contrary assertions themselves constitute an issue of

fact requiring that the relief sought be denied. Winegrad v. N.Y.U. Medical Center. 64 N.Y.2d

316, 476 N.E.2d 642 (1985); Robuta Extruders v. Ceppos, 46 N.Y.2d 223, 385 N.E.2d 1068

(1979).

29. It isrespectfully submitted that in the present case, defendant has failed to

meet the initial burden to present evidence in competent form. In the first instance,

defendant's motion should be denied because the defendant has failed to attach sufficient

reports in support of this motion against plaintiff.

30. In the case at bar, Dr. Howard A. Kiernan, the medical expert hired by the

defendants, performed his orthopedic examination of plaintiff on December 30, 2021,

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which was approximately fifty-five months after the subject accident. The report of the

defendants'
based on a physical examination taken forty-
expert, liability approximately

nine months after the expiration of the 180 days statutory period is useless in determining

whether the plaintiff has satisfied the 90/180 category of Insurance Law section 5102 (d).

Dr. Kiernan only addressed plaintiff's condition as of the time of his examination and this is

defendants'
insufficient to sustain the burden of proof to establish prima facie that plaintiff

had not sustained a serious injury within the meaning of the 90/180 category. See

Defendants'
Exhibit"D".

31. In Webb v. lohnson. 786 N.Y.S.2d 22 (2004) the Appellate Court reversed the

lower Court's granting of summary judgment where the examination was held two (2)

years after the accident. In so doing, the Court in Webb held that "the report cannot be

considered as probative on the issue of whether plaintiff suffered a medically determined

injury that prevented plaintiff from performing substantially all of the material acts which

constituted his usual and customary daily activities for the period of not less than 90 days

during the 180 days period immediately following the accident because the examination

was conducted two years after the accident".

32. Likewise, the Second Department in Connors v. Center City, Inc., 291 A.D.2d

738 N.Y.S.2d 219 (2nd Dep't upheld the denial of judgment on the
476, 2002), summary

issue of threshold where the defense examination did not take place until 18 months post-

accident. The Court held that the defendant "Submitted the affirmed medical evaluations of

his physicians, which were based on examinations performed more than 1 1/2 years after

the accident. However, this proof was insufficient to establish that the injured plaintiff did

not sustain a medically determined injury or impairment of a non-permanent nature which

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prevented her from performing substantially all of the material acts which constituted her

usual and customary daily activities for a period of not less than 90 days during the 180

days period immediately following the accident". The Court further opined that itwas not

sufficient to merely prove, over two (2) years after the accident, that the plaintiff had a

normal medical examination.

33. Dr. William A. Weiner, the plaintiffs radiologist, reviewed the MRI films

of the plaintiffs lumbar and cervical spines and found injuries, with no mention of

degenerative changes. MRI reports of lumbar and cervical spines, which were performed

by Dr. William A. Weiner, together with the radiologist's affirmation, annexed hereto as

Exhibit "J".

34. Dr. Leon Reyfman has documented plaintiffs injuries. In Cummings v. liayan

42 A.D.3d 839 N.Y.S.2d 663 (4th Dep't the Court found that the threshold is
S.4, 920, 2007)

satisfied by evidence that plaintiffs physicians placed restrictions on his or her activities. A

question of fact regarding this particular prong of the No-Fault law has been raised and

defendants'
should lead the court to reject motion to dismiss plaintiffs claim.

defendants'
35. Ifthe defendants meet their initial burden, then to defeat motion,

plaintiff needs merely to show that there is a genuine issue of material fact regarding

injury"
whether he has suffered a "serious as a result of the accident. Plaintiff need not

prove that he has suffered a "serious injury". See CPLR §3212(b). Again, as discussed

above, in the present case, it issubmitted that defendants have failed to meet their burden.

In any event, based upon Dr. Reyfman's affirmation, plaintiffs affidavit and the medical

records together with allthe exhibits attached hereto, itis clear that plaintiff has indeed

sustained a serious injury and that said injury is causally related to the accident at issue.

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AGGRAVATION OF AN ASYMPTOMATIC PRE-EXISTING CONDITION

INJURY"
CONSTITUTES A "SERIOUS UNDER THE INSURANCE LAW.

36. In 2001, Mr. Forde was involved in a prior motor vehicle accident. As a