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FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
______________________________________________________________Ç
MELVIN A. MIZHQUIRI,
Index No.: 528028/2019
Plaintiff,
against-
EMRE YUCEL,
Defendants.
________________________________________________________Ç
PLAINTIFF'S MEMORANDUM OF LAW IN IN OPPOSITION TO DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Of Counsel:
Mark L. Mahan, Esq.
CHERNY & PODOLSKY, PLLC
Attorneys for Plaintiff
Melvin A. Mizquiri
2681 East 14th Street
Brooklyn, New York 11235
(718) 449-5100
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PRELIMINARY STATEMENT
This is a personal injury action stemming from a motor vehicle accident that occurred on
September 29, 2022. As a result of the accident, Plaintiff, Melvin A. Mizhquiri ("Mizhquiri"),
injuries,"
suffered "serious as defined by the New York Insurance Law, to his lumbar and cervical
spine as well as his right shoulder.
Through his attorney's affirmation and annexed medical expert reports, Defendant argues
injury"
that Plaintiff has failed to meet the "serious requirement set forth by New York Insurance
Law section 5102(d). Defendant fails to meet his burden because (i) Defendant's experts have
rendered inadmissible net opinions that fail to discuss the import of the objective medical evidence
as well as Plaintiff's complaints; (ii) Defendant's expert, Dr. Passick, fails to render an opinion as to
causation. At best, Defendant has merely presented conclusory expert opinions that conflict with
those of Plaintiff's physicians -- a circumstance that is necessarily the province of a jury.
treating
Aside from Defendant's failure to meet his burden, Plaintiff herein presents clear, convincing
evidence through his testimony, certified and affirmed medical treatment records, and treating
physician's report and affirmation, that he suffered injuries, caused by the subject motor vehicle
accident, that meet the Insurance Law requirement. Specifically, Plaintiff suffered (i) disc
displacement in the cervical and lumbar spine; and (ii) a right shoulder tear and accompanying
pathology, that have and continue to render Plaintiff permanently and significantly limited in the
affected body parts and systems, resulting functional ability, and ability to perform acts of daily
living.
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ARGUMENT
I. LEGAL STANDARD
It is black letter law that when seeking to dismiss a case on summary judgment, the initial
burden is on the defendant(s) to present evidence, in competent form, showing that plaintiff has
no cause of action. See Gouvea v. Lesende, 127 A.D.3d 811 (2d Dep't 2015). Where there are
conflicting medical affidavits submitted on such a motion the court should not resolve those
questions of fact and the motion must be denied. Id.
It is well settled that the proof of a party opposing a motion for summary judgment must
be accepted as true and considered in the light most favorable to that party. See Expo Corp. v.
Hyatt Mgt. Corp., 134 A.D.2d 234, (2d Dep't 1987); Dowsey v. Megerian, 121 A.D.2d 497 (2d
Dep't 1986). Courts do not determine credibility on a motion for summary judgment. See SJ
Caplin Assocs. Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338 (1974). This is a quintessential jury
function that cannot be assumed by the Court.
II. DEFENDANT FAILS TO MEET HIS BURDEN ON THE ISSUE OF WHETHER
PLAINTIFF SUSTAINED A PERMANENT LOSS OF USE OF A BODY ORGAN,
MEMBER, OR SYSTEM, CONSEQUENTIAL LIMITATION OF USE OF A BODY
ORGAN OR MEMBER; OR SIGNIFICANT LIMITATION OF USE OF A BODY
FUNCTION OR SYSTEM.
Defendants'
expert, Jeffrey Passick, performed his defense examination of Plaintiff on
March 29, 2021-more than three (3) and a half years after the subject motor vehicle accident.
Notably, the report contains no opinion as to causation or on the plethora of objective data
contained in the medical treatment records. Despite the long duration between the accident and
the defense exam, Dr. Passick noted that Plaintiff complained of pain to the neck mid back, lower
back, right shoulder, right knee, and right leg with accompanying restrictions in activities of daily
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living. See Def 's Ex. F. However, conspicuously absent from Dr. Passick's report is any
discussion as to how to reconcile these disabilities with his ultimate conclusions. Id. Rather, Dr.
"Discussion"
Passick simply states that he performed an exam and found no deficits. In his section,
conditions."
Dr. Passick states only, "The claimant did not report any pre-existing Id. In his
"Prognosis" "good."
section, Dr. Passick writes one word, Id.
Because Dr. Passick failed to discuss the information provided to him by the Plaintiff, i.e.,
the complaints of pain and difficulty with activities, as well as the legion of objective medical data
contained in the treatment records he claimed to have reviewed, Dr. Passick's opinion is a net
Defendants'
opinion. Thus, it has no probative value and cannot be relied upon to meet burden.
Defendant's expert, Dr. Lerner, reviewed the relevant MRI studies and, not surprisingly,
opined that, although injury was present, it was due to long-term degeneration and was thus chronic
(Plaintiff was in his twenties). See Def. Ex. H. Oddly, when discussing Plaintiff's cervical MRI,
Dr. Lerner presents a discussion of how the pathology observed exists in many asymptomatic
patients. Id. This is odd because Plaintiff is not asymptomatic.
At best, Dr. Lerner's report creates an issue of fact, as it conflicts with those of Plaintiff's
treating physicians; thus, it cannot support the motion at bar. It is well settled that where the record
discloses contradictory evidence and the issue of credibility of witnesses arises, such issue should
be referred to and decided by the jury. See Lopez v. Beltre, 59 A.D.3d 683 (2d Dep't 2009); Lipton
v Wagner, 57 A.D.2d 889 (2d Dep't 1977). Furthermore, it is well settled that a physician's
opinion as to causation, based on the history provided, examinations of plaintiff, review of the
MRI reports, and the absence of any pre-accident history of symptoms in the affected body parts,
is sufficient to raise an issue of fact overcoming a summary judgment motion. See Fraser-Baptiste
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v. New York City Tr. Auth., 81 A.D.3d 878, 879 (2d Dept. 2011); Daniels v. S.R.M Mgt. Corp.,
100 A.D.3d 440, 441 (1st Dep't 2012).
Defendant's expert, Dr. Carciente unsurprisingly concluded that n neurological deficits
existed with Plaintiff. He concluded this based upon his clinical examination. Interestingly, Dr.
Carciente stated that "[t]here was no correlation between the findings noted in the spine MRI
exam."
reports and today's See Def's Ex. G. Here, Dr. Carciente has made Plaintiff's point-the
objective medical diagnostic testing does not correlate with the defense posture. Similarly, Dr.
Carciente was unable to explain away the positive EMG testing. At the end of the day, the Court
is faced with a defense opinion based on a clinical exam versus objective diagnostic testing
accompanied by Plaintiff's complaints. All told, Dr. Carciente has simply provided an
inadmissible net opinion that is not probative to the issue the Court must decide.
IH. DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AS TO THE 90/180
CATEGORY.
In order to establish prima facie entitlement to summary judgment under the 90/180
category, the Defendants must provide evidence with regard to Plaintiff's ability to perform his
normal and customary activities within the 180 days following the accident. See Sayers v. Hot, 23
defendants'
A.D.3d 453 (2d Dep't 2005). It is well settled that the failure of the doctor to give an
opinion regarding absence of injury during the first 180 days subsequent to the accident, results in
failure of the defendants to satisfy their prima facie burden with respect to the 90 out of 180
category. See Pijuan v. Brito, 35 A.D.3d 829 (2d Dep't 2006); Sayers v. Hot, 23 A.D.3d 453 (2d
Dep't 2005).
In the case at bar, the defendants failed to submit any evidence to that effect. It is well
settled that examinations conducted years after the accident are not probative with regard to the
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90/180 category of serious injury and do not entitle a defendant to summary judgment with regard
to the same. See P
Preview
FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ______________________________________________________________Ç MELVIN A. MIZHQUIRI, Index No.: 528028/2019 Plaintiff, against- EMRE YUCEL, Defendants. ________________________________________________________Ç PLAINTIFF'S MEMORANDUM OF LAW IN IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Of Counsel: Mark L. Mahan, Esq. CHERNY & PODOLSKY, PLLC Attorneys for Plaintiff Melvin A. Mizquiri 2681 East 14th Street Brooklyn, New York 11235 (718) 449-5100 1 1 of 13 FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 PRELIMINARY STATEMENT This is a personal injury action stemming from a motor vehicle accident that occurred on September 29, 2022. As a result of the accident, Plaintiff, Melvin A. Mizhquiri ("Mizhquiri"), injuries," suffered "serious as defined by the New York Insurance Law, to his lumbar and cervical spine as well as his right shoulder. Through his attorney's affirmation and annexed medical expert reports, Defendant argues injury" that Plaintiff has failed to meet the "serious requirement set forth by New York Insurance Law section 5102(d). Defendant fails to meet his burden because (i) Defendant's experts have rendered inadmissible net opinions that fail to discuss the import of the objective medical evidence as well as Plaintiff's complaints; (ii) Defendant's expert, Dr. Passick, fails to render an opinion as to causation. At best, Defendant has merely presented conclusory expert opinions that conflict with those of Plaintiff's physicians -- a circumstance that is necessarily the province of a jury. treating Aside from Defendant's failure to meet his burden, Plaintiff herein presents clear, convincing evidence through his testimony, certified and affirmed medical treatment records, and treating physician's report and affirmation, that he suffered injuries, caused by the subject motor vehicle accident, that meet the Insurance Law requirement. Specifically, Plaintiff suffered (i) disc displacement in the cervical and lumbar spine; and (ii) a right shoulder tear and accompanying pathology, that have and continue to render Plaintiff permanently and significantly limited in the affected body parts and systems, resulting functional ability, and ability to perform acts of daily living. 2 2 of 13 FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 ARGUMENT I. LEGAL STANDARD It is black letter law that when seeking to dismiss a case on summary judgment, the initial burden is on the defendant(s) to present evidence, in competent form, showing that plaintiff has no cause of action. See Gouvea v. Lesende, 127 A.D.3d 811 (2d Dep't 2015). Where there are conflicting medical affidavits submitted on such a motion the court should not resolve those questions of fact and the motion must be denied. Id. It is well settled that the proof of a party opposing a motion for summary judgment must be accepted as true and considered in the light most favorable to that party. See Expo Corp. v. Hyatt Mgt. Corp., 134 A.D.2d 234, (2d Dep't 1987); Dowsey v. Megerian, 121 A.D.2d 497 (2d Dep't 1986). Courts do not determine credibility on a motion for summary judgment. See SJ Caplin Assocs. Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338 (1974). This is a quintessential jury function that cannot be assumed by the Court. II. DEFENDANT FAILS TO MEET HIS BURDEN ON THE ISSUE OF WHETHER PLAINTIFF SUSTAINED A PERMANENT LOSS OF USE OF A BODY ORGAN, MEMBER, OR SYSTEM, CONSEQUENTIAL LIMITATION OF USE OF A BODY ORGAN OR MEMBER; OR SIGNIFICANT LIMITATION OF USE OF A BODY FUNCTION OR SYSTEM. Defendants' expert, Jeffrey Passick, performed his defense examination of Plaintiff on March 29, 2021-more than three (3) and a half years after the subject motor vehicle accident. Notably, the report contains no opinion as to causation or on the plethora of objective data contained in the medical treatment records. Despite the long duration between the accident and the defense exam, Dr. Passick noted that Plaintiff complained of pain to the neck mid back, lower back, right shoulder, right knee, and right leg with accompanying restrictions in activities of daily 3 3 of 13 FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 living. See Def 's Ex. F. However, conspicuously absent from Dr. Passick's report is any discussion as to how to reconcile these disabilities with his ultimate conclusions. Id. Rather, Dr. "Discussion" Passick simply states that he performed an exam and found no deficits. In his section, conditions." Dr. Passick states only, "The claimant did not report any pre-existing Id. In his "Prognosis" "good." section, Dr. Passick writes one word, Id. Because Dr. Passick failed to discuss the information provided to him by the Plaintiff, i.e., the complaints of pain and difficulty with activities, as well as the legion of objective medical data contained in the treatment records he claimed to have reviewed, Dr. Passick's opinion is a net Defendants' opinion. Thus, it has no probative value and cannot be relied upon to meet burden. Defendant's expert, Dr. Lerner, reviewed the relevant MRI studies and, not surprisingly, opined that, although injury was present, it was due to long-term degeneration and was thus chronic (Plaintiff was in his twenties). See Def. Ex. H. Oddly, when discussing Plaintiff's cervical MRI, Dr. Lerner presents a discussion of how the pathology observed exists in many asymptomatic patients. Id. This is odd because Plaintiff is not asymptomatic. At best, Dr. Lerner's report creates an issue of fact, as it conflicts with those of Plaintiff's treating physicians; thus, it cannot support the motion at bar. It is well settled that where the record discloses contradictory evidence and the issue of credibility of witnesses arises, such issue should be referred to and decided by the jury. See Lopez v. Beltre, 59 A.D.3d 683 (2d Dep't 2009); Lipton v Wagner, 57 A.D.2d 889 (2d Dep't 1977). Furthermore, it is well settled that a physician's opinion as to causation, based on the history provided, examinations of plaintiff, review of the MRI reports, and the absence of any pre-accident history of symptoms in the affected body parts, is sufficient to raise an issue of fact overcoming a summary judgment motion. See Fraser-Baptiste 4 of 13 FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 v. New York City Tr. Auth., 81 A.D.3d 878, 879 (2d Dept. 2011); Daniels v. S.R.M Mgt. Corp., 100 A.D.3d 440, 441 (1st Dep't 2012). Defendant's expert, Dr. Carciente unsurprisingly concluded that n neurological deficits existed with Plaintiff. He concluded this based upon his clinical examination. Interestingly, Dr. Carciente stated that "[t]here was no correlation between the findings noted in the spine MRI exam." reports and today's See Def's Ex. G. Here, Dr. Carciente has made Plaintiff's point-the objective medical diagnostic testing does not correlate with the defense posture. Similarly, Dr. Carciente was unable to explain away the positive EMG testing. At the end of the day, the Court is faced with a defense opinion based on a clinical exam versus objective diagnostic testing accompanied by Plaintiff's complaints. All told, Dr. Carciente has simply provided an inadmissible net opinion that is not probative to the issue the Court must decide. IH. DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AS TO THE 90/180 CATEGORY. In order to establish prima facie entitlement to summary judgment under the 90/180 category, the Defendants must provide evidence with regard to Plaintiff's ability to perform his normal and customary activities within the 180 days following the accident. See Sayers v. Hot, 23 defendants' A.D.3d 453 (2d Dep't 2005). It is well settled that the failure of the doctor to give an opinion regarding absence of injury during the first 180 days subsequent to the accident, results in failure of the defendants to satisfy their prima facie burden with respect to the 90 out of 180 category. See Pijuan v. Brito, 35 A.D.3d 829 (2d Dep't 2006); Sayers v. Hot, 23 A.D.3d 453 (2d Dep't 2005). In the case at bar, the defendants failed to submit any evidence to that effect. It is well settled that examinations conducted years after the accident are not probative with regard to the 5 5 of 13 FILED: KINGS COUNTY CLERK 06/01/2022 05:47 PM INDEX NO. 528028/2019 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 06/01/2022 90/180 category of serious injury and do not entitle a defendant to summary judgment with regard to the same. See P