Articles Posted in Brooklyn

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This action was commenced to recover for personal injuries allegedly sustained by a man as a result of a motor vehicle accident that occurred on or about October 20, 2004. On that date, the Bronx complainant man was riding his bicycle when a taxi cab owned and operated by the accused allegedly hit the rear tire of the complainant man’s bicycle.

The driver and the Brooklyn taxi company have moved for summary judgment, arguing that the accused man has not met the serious injury threshold as set forth in Insurance Law. In support thereof, the accused driver and taxi company have submitted, among other things, an affirmation of the counsel, the complainant man’s verified bill of particulars, the complainant’s deposition testimony, a report from a radiologist who reviewed an MRI examination of the man, and a report from a neurologist who conducted an independent medical examination of the complainant man.

The complainant man served a verified bill of particulars which alleged that he suffered numerous personal injuries as a result of the. The spine injury claimed by the man was to be of a permanent nature.

The complainant man was physically examined by a neurologist designated by the accused parties. The neurologist found, as indicated in his sworn report of event date, that the woman exhibited no signs of any lateralizing neurological deficits. Further, the neurologist found no neurologic residual or permanency based upon his examination. He concluded that any head trauma and spinal injury had resolved, and that the man was capable of performing normal activities of daily living, including gainful employment activities, without restrictions.

In addition, on or about August 31, 2006, another doctor reviewed the MRI film of the man’s cervical spine performed on December 8, 2004, approximately eight weeks after the accident, and found evidence of spine injury. However, she opined that such degeneration could not have occurred in less than six months time. She also found bulging at the spine, but stated that the bulging was related to loose ligaments and was temporary in origin. Based upon the foregoing findings, as well as the assertion that the complainant man missed only two days of work as a result of the accident, the driver and the taxi company argue that the man has not satisfied the serious injury threshold set forth in Insurance Law. The accused parties contend that the complainant’s alleged soft tissue injuries do not constitute a serious injury.

In opposition to the application, the man has provided recent medical evidence of his limitations. Since the accident, he has been regularly treated by a doctor who performed a complete re-examination of him on August 7, 2007, and that he has also received chiropractic care, physical therapy, and pain management. He submitted an affirmation of a doctor, dated October 9, 2007, wherein he opines that he sustained ruptured disc, and that based upon the examination of August 7, 2007, the complainant man has severely restricted cervical range of motion of a permanent nature. The doctor attributes the foregoing trauma to the injuries that the man suffered in the accident.

In addition, the complainant man has submitted an MRI report of a radiologist dated December 9, 2004, who interpreted a December 8, 2004 MRI of the man’s cervical spine. He found that the complainant man suffered spinal injury with flattening of the left, ventral margin of the cod and left spine. By affirmation dated September 21, 2007, the radiologist indicates that if called as a witness, he would testify in conformance with his report. The complainant man argues that the foregoing submissions establish that he has suffered a serious injury, in that the medical records and reports, which are based upon objective tests and diagnostic studies, show that the man has sustained a significant limitation to his cervical spine as a direct result of the injuries suffered in the subject accident.

New York’s No-Fault Insurance Law precludes recovery for any noneconomic loss, except in the case of serious injury, or for basic economic loss arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries. The Legislature also intended that the issue of whether a complainant sustained a serious injury could be determined by the courts as a matter of law on a motion for summary judgment.

Insurance Law defines serious injury as 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 clays during the one hundred eighty days immediately following the occurrence of the injury or impairment.
To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a complainant must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the complainant’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the complainant man.

An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. Once an accused meets this burden, the complainant must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

The Court finds that the driver and the taxi company’s submission were sufficient to establish that the complainant man did not sustain a serious injury as a result of the accident. The burden, therefore, shifted to the complainant to raise a triable issue of fact. In opposition, the complainant presented competent evidence, including the affirmation of another doctor dated October 9, 2007, substantiating his claim that his injuries caused a significant limitation in the use of his cervical spine. The Court finds that such submission was sufficient to rebut the driver and the taxi company’s legitimate showing of no serious injury. Accordingly, the motion by the accused parties for summary judgment dismissing the man’s complaint on the grounds that as a complainant, he failed to sustain a serious injury as that term is defined by Insurance Law is denied.
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This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a laborer for a Bronx construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.
The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

The Brooklyn man opposes the motion for summary judgment, arguing that the proof submitted by the woman fails to establish legitimately that he did not suffer a significant limitation of use in his lumbar spine as a result of the subject accident. Alternatively, the man asserts that medical evidence presented in opposition raises a triable issue of fact as to whether he sustained injury within the significant limitation of use category of Insurance Law. The Court notes that although the affirmation by the man’s counsel states that a denial of benefits statement from the no-fault carrier, the insurance company was included with the opposition papers, no such statement was annexed thereto. In addition, while an affidavit by the man states that he treated with a doctor until September 2005, the doctor’s affidavit states that the man ceased treatment in July 2005, because of financial constraints.

Insurance Law defines serious injury as 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.
An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. When an accused seeking summary judgment based on the lack of serious injury relies on the findings of the accused party’s own witnesses, those findings must be in admissible form, and not unsworn reports to demonstrate entitlement to judgment as a matter of law. An accused also may establish entitlement to summary judgment using the complainant’s deposition testimony and medical reports and records prepared by the complainant’s own physicians. Once an accused meets the burden, the complainant must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if an accused does not establish a legitimate case that the complainant’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the complainant’s opposition papers.

Contrary to the conclusive assertions by the man’s counsel, the medical evidence presented by woman establishes legitimately that the man did not suffer a serious injury as a result of the accident. The Court notes that an accused who submits admissible proof that a complainant has full range of motion and suffers no disabilities as a result of the subject accident
establishes a legitimate case that the complainant did not sustain a serious injury, despite the existence of an MRI report showing a herniated or bulging disc. The burden, therefore, shifted to the man to raise a triable issue of fact.

A complainant claiming injury within the limitation of use categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitations of movement and their duration. He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission, as well as objective medical findings of limitations that are based on a recent examination of the complainant. In addition, a complainant claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so.

The man’s submissions in opposition are insufficient to raise a triable issue of fact. The affidavit by the man’s doctor improperly relies on unsworn reports of others in concluding that the man suffered significant limitations in spinal function as a result of the accident. Further, the man’s doctor’s affidavit states that on February 22, 2005, the man was sent for spinal rave of motion testing using a dual inclinometer and details the degrees of movement measured at that time. It states that range of motion testing using a dual inclinometer was performed again in March 2005 and provides the measurements taken, yet does not indicate who performed such testing. The doctor’s affidavit, therefore, is without probative value on the question of whether the man suffered a serious injury in the accident.

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.
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When a vehicle has been involved in a traffic accident, it is not uncommon for issues relative to the ownership of the vehicle to play a part in the venue of the hearing. Venue is the location in which the court will conduct any hearings relative to the case at hand. In order for the court to determine an appropriate venue for a case, it generally takes several items into consideration. Most of the time, such as in criminal trials, the venue for the case is the location where the incident occurred. If a robbery happens in Brooklyn, New York, then the Superior Court of Kings County and not the Superior Court of Queens County will hear the case. However, in civil cases and Family Court, the rules about Venue are much more flexible. Rather than being relative to a particular incident location, it is generally based on the county of domicile for one or both of the participants. If the case involves a business, it is much more likely that the case will be tried in the court that is located in the county where the business maintains its main base of operations.

On October 1, 1982, a traffic accident occurred in the Village of Freeport in Nassau County. The passenger in one of the vehicles, filed a personal injury lawsuit. She named the business that the other driver worked for in her lawsuit. The truck that the man was driving was owned by a business that had their primary offices in Kings County. The business had leased the truck from a truck leasing company that operated out of Nassau County. While the case was waiting for trial, the headquarters of the company moved from Kings County to Nassau County.

Originally, the venue for the car accident case was set for Kings County where the business headquarters was located. Following the move of the business from Kings County to Nassau County, the owner filed a motion to change the venue of the case from Kings County to Nassau County. Originally, the court denied the motion. The owner of the business filed an appeal of the decision.

The Supreme Court reviewed the request and determined that the original trial court had been wrong when they denied the request to change the venue of the hearing from Kings County to Nassau County. The reasoning was beyond comprehension for the appeal court. It was only logical that the case should be heard in Nassau County. The business headquarters was located in Nassau County. The accident occurred in Nassau County. The police officers who were on the scene and investigated the circumstances of the accident are Nassau County Police Officers. Even the hospital where the complainant was taken following the accident was located in Nassau County. Therefore, all of the witnesses that would be called to court to testify would be either living or employed in Nassau County. Making them travel to Kings County for the trial of the case would have posed an undue hardship on everyone involved in this case. There were no notes about why the original trial court had refused to transfer the case to Nassau County. However, logic prevailed when the decision was appealed and the case was subsequently transferred to the courts of Nassau County.

Sometimes, courts make mistakes in judgment. Courts are made up of people who are each assigned specialized jobs. They must all communicate clearly and with good communication skills in order for the court to function as it should. When someone makes a mistake, it is important that steps be taken as soon as possible to correct that mistake. That is when the appeals court is brought in to review decisions.
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On March 16, 2003, two cars were involved in a head-on collisionin an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

For their part, the drivers both answered the contention of their respective insurers that the injuries sustained by them were not serious injuries. They both claimed that at the time of the accident, their injuries were “serious” enough to cause them pain and to cause them to refrain from their normal activities. They could not go to work and had to rest in bed. They both claim that is only thanks to rigorous physical therapy. They produced authenticated medical records from the neurologists and radiologists they consulted who all opined that the bulging and swollen discs of their cervical and lumbar spine were all directly caused by the accident.
The insurers filed motions for summary judgment asking that the complaints against them be dropped. They both claim that while both the drivers sustained injuries as a result of the accident, their injuries may not be serious injuries as defined by the Insurance Law such that the insurers cannot be made liable to pay therefor.

The only question before the trial court was whether or not the summary judgment should be granted and the case against them be dismissed. The trial court granted the summary judgment. Both drivers then appealed.

Upon appeal, the only question before the Court is whether or not the order granting the motion for summary judgment was proper.

The Court held that the insurers gave acceptable preliminary proof that the two drivers did not sustain a serious injury as it is defined under the Insurance Law. The drivers have succeeded in proving that they both suffered from bulging or swollen spinal discs. However, swollen spinal discs by themselves cannot be considered as acceptable evidence of a serious injury.
Both the drivers have to submit proof that the swollen spinal discs constitute serious injury that would disable them from doing their usual work and daily activities. The Court held that when they submitted scans and reports of their own physicians, the two drivers have raised a material issue of fact that has to be tried. That is to say, both the drives were able to submit evidence that raised an issue of fact which a jury alone can determine.

Thus, the Court remanded the case for further proceedings to determine the material issue of fact raised by the two drivers.
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On 21 September 2003, a motor vehicle accident occurred at approximately 10:00 p.m. The victim was reportedly hit by a car while in front of 7420 13th Avenue in Brooklyn. According to the police accident report, the accident was witnessed by the husband, both of whom are listed as residing at the same address. The witness told the police officer that the driver of the vehicle and the victim were having a verbal dispute; that when the victim approached the vehicle, the driver sped away, apparently striking the victim, who fell onto the pavement and struck her head. The driver of the vehicle left the scene, but the witness reported the license plate number, V272LZ, to the police officer. The police accident report does not set forth any insurance information for the victim. Thereafter, the license plate was traced to an individual residing in Staten Island and that the vehicle is insured by an insurance company.

Beginning on or about 26 September 2003, the victim underwent medical treatment for her injuries from respondent. Respondent submitted claims to the insurance company which issued a denial on 1 December 2003, based on its investigation that the alleged driver was not involved in the loss. It is unclear whether petitioner was aware of the denial at that time. On 10 December 2003, the victim completed a “Notice of Intention to Make Claim” to the petitioner, in which she avers that her injury is not covered by insurance. She also completed an “Affidavit of No Insurance”, in which she states that she was a passenger in a vehicle insured by an insurance company; the victim swore under penalty of perjury that: on the date of the accident, she maintained no insurance which would provide coverage to her for the accident, and no person residing in her household owned an automobile or maintained such insurance.
Respondent submitted bills to petitioner totaling $4,302.79 for services. Petitioner denied the claim, since the vehicle that was reported was insured.

Meanwhile, the victim commenced a personal injury action for the head injury she suffered against the driver in Supreme Court, Kings County. According to petitioner, after depositions, the driver moved for summary judgment; the Brooklyn victim failed to oppose the motion, so the motion was granted on default. The Lower Arbitrator states that the case was dismissed because the victim failed to provide disclosure.

On 1 June 2007, respondent then filed a claim for arbitration with the American Arbitration Association against both petitioner and the insurance company.

Under the Lower Arbitrator’s decision, it was found that the alleged driver was not the person involved in the accident. Therefore, the claims were dismissed against the insurance company on the ground that the insurance company’s insured was not involved in the accident. The Lower Arbitrator then tamed to whether petitioner was required to provide benefits to the victim. Petitioner requested an adjournment to determine whether or not another insurance policy existed. However, the arbitrator rejected such request on the ground that petitioner failed to exercise due diligence for nearly four years. The arbitrator denied the request for a stay and found petitioner responsible for payment of first party benefits to the victim. The arbitrator found that petitioner failed to issue any denial of the claim within thirty (30) days of receipt of the Notice of Claim, as required or failed to otherwise seek to toll the thirty-day time period by seeking a request for verification. The arbitrator determined that petitioner was precluded from asserting a defense that the treatment was not medically necessary, and found that of the $4,302.79 claimed, respondent was entitled to payment of $2,337.85 for the victim’s treatment, with interest at the rate of 2% per month, together with attorneys’ fees.
Thereafter, the decision was appealed to the Master Arbitrator who affirmed the said decision. The Master Arbitrator found that the award was not irrational, biased, arbitrary, capricious, or incorrect as a matter of law. The Master Arbitrator rejected petitioner’s contention that they were under no obligation to investigate whether another insurer was responsible unless and until it was determined that the insurance company was not responsible; that he found petitioner’s contention that it had no duty to investigate to be inconsistent with the purpose and intent of both Article 51 and Article 52 of the Insurance Law.

Hence, the instant appeal.

The Ruling:
The petitioner was created by the Legislature, pursuant to Article 52 of the Insurance Law, to pay damages for bodily injuries to innocent victims of motor vehicle accidents cause by uninsured motorists. To recover benefits, the injured individual must be eligible. Insurance Law defines a qualified person as a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle.

Here, if in fact the victim had valid insurance coverage at the time of the accident, she is not a qualified person. Until it was clear that the insurance company was not responsible, petitioner had no reason to investigate whether the victim may have given false information on the petitioner’s forms as to whether or not she was insured. The essence of petitioner’s argument is that this is a lack of coverage issue, since the victim would not be covered by petitioner if she has other insurance.

Moreover, the case relied upon by the Master Arbitrator is inapposite. In that case, the issue was whether the injured party’s claim was fully submitted on 23 June 2003, in which case petitioner’s denial, issued on 7 October 2003, would be untimely, or whether the injured party first qualified on 30 of September, in which case a denial issued on 7 of October would be timely. The only issue in that case was the timeliness of the rejection.

However, the issue here is whether there is lack of coverage, and when petitioner was reasonably put on notice that it needed to investigate whether the victim was not insured. Petitioner had no reason to believe that the insurance company was not responsible for payment until the time of the hearing, when the insurance company submitted evidence that the alleged driver was not the actual driver of the vehicle.

As a rule, courts are reluctant to disturb the decisions of arbitrators lest the value of the method of resolving controversies be undermined.

Here, petitioner presented some evidence to the Lower Arbitrator that there was an issue of possible lack of coverage, and requested an adjournment of the November 2007 hearing, after three adjournments had been granted on behalf of the insurance company. While petitioner contends that it was entitled to rely on the police report that showed the other vehicle had coverage and had no duty to act to investigate the accuracy of the victim’s claim of lack of coverage, the herein court does not condone petitioner’s failure to promptly investigate whether or not the victim was otherwise covered by insurance. The primary purpose of petitioner is to promptly pay the claims of those uninsured individuals who have legitimate claims. Therefore, since lack of coverage goes to the heart of whether a claim is legitimate, the issue of lack of coverage may be raised at any time. Under these unique factual circumstances, the arbitrator’s failure to grant petitioner’s request is deemed to constitute an abuse of discretion constituting misconduct within the meaning of the rules, since it resulted in the foreclosure of the presentation of pertinent and material evidence.

Therefore, the Lower Arbitrator’s failure to allow petitioner to fully explore this claim, despite their failure to do so promptly, warrants a remand for a new hearing.

A disclaimer based on lack of coverage is not a denial that must be asserted within the thirty-day period, since the essence of a claim of lack of coverage is that there is no policy in effect. Since petitioner was not afforded an opportunity to fully explore the issue of lack of coverage, the matter must be remanded for a new hearing.

Additionally, petitioner learned that approximately one year before the accident, the victim commenced an uncontested matrimonial action in New York County against defendant, who is listed as her husband on the police accident report. The court records that petitioner obtained from eLaw show that the plaintiff in the matrimonial proceeding is listed under the same name of the herein victim and that she had a policy with another insurance company covering the date of loss. Thus, petitioner is entitled to present this information during the arbitration proceeding.

Undoubtedly, there is sufficient information to remand the matter for a new hearing and petitioner is allowed to present evidence to show that the victim is not entitled to petitioner’s benefits because she is otherwise insured.

Accordingly, the decisions of the Lower Arbitrator and Master Arbitrator are vacated; those portions of the decisions that determined that the insurance company is not responsible shall remain in full force and effect; and the matter is remitted to the arbitrator for further proceedings.
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This case involves a ruling of the Court wherein the motion to suppress the blood test of the defendant on the ground that the court order and supporting affidavit are defective was denied.

A car accident occurred in Bayvile Avenue in the Incorporated Village of Bayville between two vehicles. The responding officer, who arrived at 2:22 A.M., noticed that the defendant was the driver of the overturned car and had some facial lacerations in the vicinity of the forehead and one of his cheeks. The other car was a red car who sustained severe damages in the front and passenger side which led to the wrongful death of one of the passengers. Drivers of both passengers were transported to the community hospital. Police officer arrived at 2:55 A.M. Upon inquiry, defendant said to the Police Officer that he was originally heading westbound on Bayville Avenue.” The Police Officer then asked the defendant, “are you sure you were westbound or eastbound?” and “were you headed toward your parents’ house or away from it?” The defendant “finally said that he was heading towards his parents’ house which was eastbound”.

While talking with the Brooklyn defendant, the Police Officer noticed an odor of alcoholic beverages on defendant’s breath. He described the odor as moderate level which wasn’t overly strong but it was noticeable even the officer was two feet away during the conversation. The Police Officer told the defendant that he is being placed under arrest for suspicion of driving while intoxicated. At 3:50 A.m., the Police Officer asked the defendant to submit himself to a chemical analysis of his breath. The defendant consulted his lawyer and thereafter refused to take the test. Following the refusal, which was about 4:20 A.M., efforts were made to get a court order. At approximately 5:30 A.M., a court order had been obtained and blood was taken from the defendant at 5:50 A.M.

The defendant was charged for Manslaughter in the Second Degree, Vehicular Manslaughter in the Second Degree, (two counts), Assault in the Second Degree, Vehicular Assault in the Second Degree, (two counts), and Operation of a Motor Vehicular While Under the Influence of Alcohol, (two counts). The defendant moved to suppress, (1) certain statements he made which he claimed were involuntary within the meaning of CPL 60.45 and (2) the results of the defendant’s blood test.

The court held that (1) the moderate odor of an alcoholic beverage on the breath of the defendant coupled with (2) a head on two car collision on a two lane roadway divided by a double yellow line, and (3) the defendant’s statements, (a) that he did not notice the other vehicle until it was in his lane and (b) that he was going west when in fact he was going east, sufficiently established a probable cause for the arrest of the defendant.

The Bronx Court further held that following the issuance of the court order, (5:27 A.M.) there was no unreasonable delay in the administering of the test (5:50 A.M.). And the time (2:20 A.M.) from the accident and the test refusal, (4:20 A.M.) to the drawing of the blood, (5:50 A.M.) from the defendant is not so remote as to make as a matter of law the results irrelevant to the central question of the defendant’s blood alcohol count at the time of the accident. Accordingly, the motion to suppress the results of the defendant’s blood test on this ground was denied.

Moreover, the court said that the purpose of the issuance of the said court order is only for the taking of blood from a designated person and there are no other variables or discretionary factors involved. From the Court’s examination of the application and the order, all the requirements of Vehicle and Traffic Law Section 1194-a were met. Accordingly, the motion to suppress the court ordered blood test of the defendant on the grounds that the court order and supporting affidavit are defective was denied.

The Court further noted that the defendant did not dispute that a court order was obtained and that he did not claim that he or anyone else demanded to see it. The Court notes that Section 1194-a of the Vehicle and Traffic Law does not require any showing of such an order to the defendant or the personnel performing the chemical test.

As to the statements made by the defendant at the hospital, the Court held that the defendant was not in custody, that the statements were voluntary, and that the matter clearly was still in the investigative stage. The Court further found that the defendant’s statements were not obtained from him by any threats, force, improper conduct, undue pressure, by means of any promise or in violation of such rights as he derives from the constitutions of this State and the United States. Accordingly, the motion to suppress defendant’s statements was denied.
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This case is about a car accident which occurred in a slippery road due to the presence of snow and ice. Plaintiff wanted to recover damages for injuries allegedly sustained due to the negligence of the defendants when the vehicle of the latter struck her. The County Of Suffolk, Suffolk County Department of Public Works, and the Suffolk County Police Department, were also included as defendants because they failed, inter alia, to keep and maintain Vanderbilt Parkway clear and free of accumulating ice, failed to spread salt, sand or other substances; failed to inspect the roadway where water and ice would remain, and failed to warn of the condition. In addition, plaintiff alleged that defendant County of Suffolk had actual notice of the subject icy, hazardous condition and failed to timely and properly act thus breaching its duty to maintain the roadway in a reasonably safe condition.

The County of Suffolk sought summary judgment dismissing the complaint against it on the basis that the County was afforded no prior written notice of the alleged defective or dangerous roadway so as to comply with the mandates of Suffolk County Charter C8-2A as a condition precedent to this action; and that the Suffolk County Police Department owed no special duty to the plaintiffs.

The evidence indicates that at the time of the car accident there was a slippery, snowy, icy area in the vicinity of Commack Middle School on Vanderbilt Parkway. The Police Officer responding to the scene testified that prior to the accidents on Vanderbilt Parkway he called in by radio to the police department to have the County send out a truck to sand the area where the accident occurred due to the snow and ice on the roadway. A Brooklyn employee of the Suffolk County Department of Public Works Highway Engineering Division testified that she did not receive any calls concerning snow or ice conditions on Vanderbilt Parkway, and yet she said that the County trucks either plowed, sanded or salted the subject roadway on January 27, 2003 without specifying the specific time it was done, the location of the work, or how the County determined that such work was indicated.

Other testimonies from witnesses established that the Suffolk County Police Department 911 operator received a 911 call prior to the accidents complaining about the snow and ice on Vanderbilt Parkway by the Commack Middle School. The responding Police Officer, despite having been notified of this call testified that he did not respond to the location following his notification of that call. Specifically, the County has not established that it did not have notice of the dangerous condition created by the icy, snowy roadway. And once it did have notice of the condition of the roadway, whether it acted in a non-negligent manner to timely address the condition of the roadway.

Jurisprudence would show that there exists a narrow class of cases in which the court has recognized an exception to the general rule that a municipality may not be held liable for injuries resulting from the failure to provide police protection, and have upheld tort claims based upon a “special relationship” between the municipality and the claimant. The court continued that the elements of this “special relationship” are” (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking. The court also stated that the injured party’s reliance is as critical in establishing the existence of “special relationship” as is the municipality’s voluntary affirmative undertaking of a duty to act. That element provides the essential causative link between the “special duty” assumed by the municipality and the alleged injury.

Jurisprudence further dictates that “A municipality is generally immune, however from liability for injuries for failure to provide police protection.”

The court held in this case that the plaintiffs’ proof failed to establish the elements of a “special relationship” between the County and the plaintiff that would bring her situation within the exception to the immunity rule as there has been no direct contact between the plaintiff and the County or its agents and the only duty the County assumed was to provide police patrol for the public in general on the roadway undisputedly owned and maintained by the County. The plaintiffs have not demonstrated that there was a direct contact between her and the County defendants or it agents or voluntary reliance by her. Based upon the foregoing, in the absence of proof a special relationship between the plaintiffs and the County, it is determined that the County is entitled to summary judgment as a matter of law on the issue that no special relationship existed between Plaintiff and the County of Suffolk.

Accordingly, the County’s motion which seeks summary judgment on the issue that there was no “special relationship” between the County and plaintiff is granted as a matter of law.
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The action for damages stems from personal injuries allegedly sustained by the plaintiff as a result of an automobile accidentoccurred at westbound Jericho Turnpike approximately fifty (50) feet east of Wellington Road, in the County of Nassau, Town of North Hempstead, New York. The accident involved two vehicles, a 2004 Honda operated by plaintiff and a 2004 Jeep owned and operated by defendant.

A Lawyer said that, at the time of the accident, plaintiff’s vehicle was traveling westbound on Jericho Turnpike. Defendant’s vehicle was also traveling westbound on Jericho Turnpike. Plaintiff contends that her vehicle was stopped in traffic in the left lane on Jericho Turnpike when the defendant’s vehicle struck her from behind, pushing her car forward approximately one car length. Plaintiff further contends that, as a result of the heavy impact, her body was caused to move forward and backward in her vehicle and said impact caused her neck and back to strike the headrest and seat. As a result of the collision, plaintiff claims that she sustained the following injuries:

Posterior disc bulges at C3-C4, C-4-C-5 and C6-C7 impinging on the anterior aspect of the spinal canal; Small joint effusion of the left knee; Menisci and ligament/ right knee; Posterior disc herniations at the L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally; Decreased range of motion of the cervical and lumbar spine; Decreased range of motion of the left knee; Left knee pain/sprain; Cervicalgia; Lumbar disc herniation at L5-S1; Pain in the limbs; Neuropathy; Cervical sprain and strain; Lumbar sprain and strain; Lumbargo; Weakness in muscles.

Plaintiff commenced the action by service of a Summons and Verified Complaint. Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes the motion.

The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Court in The Bronx in resolving the motion said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.”
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury, stated that a plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor’s observations during the physical examination of the plaintiff Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.

Conversely, even where there is ample proof of a plaintiff’s personal injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

The Brooklyn Plaintiff claims that, as a consequence of the above described automobile accident with defendants he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

1) permanent loss of a body organ, member, function or system; (Category 6)
2) a permanent consequential limitation of use of a body organ or member; (Category 7)
3) a significant limitation of use of a body function or system; (Category 8)
4) 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.(Category 9).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation.

Finally, to prevail under the “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” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” (Insurance Law § 5102(d)) “which would have caused the alleged limitations on the plaintiff’s daily activities.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, the Court will now turn to the merits of defendant’s motion. In support of his motion, defendant submits the pleadings, plaintiff’s Verified Bill of Particulars, the transcript of plaintiff’s Examination Before Trial testimony, the affirmed report of Jacquelin Emmanuel, M.D., who performed an independent orthopedic examination of plaintiff and the affirmed reports of A. Robert Tantleff, M.D., who reviewed plaintiff’s lumbar spine MRI and plaintiff’s cervical spine MRI.

Based upon this evidence, the Court finds that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

Dr. Jacquelin Emmanuel, a board certified orthopedist, reviewed plaintiff’s medical records and conducted an examination of plaintiff’s cervical spine, thoracic spine, lumbar spine, left shoulder, right shoulder, left knee and right knee. The results of the tests indicated no deviations from normal. Dr. A. Robert Tantleff, a board certified radiologist, conducted an independent film review of the MRI of plaintiff’s lumbar spine MRI and cervical spine MRI. With respect to his review of the lumbar spine MRI, Dr. Tantleff’s findings were, amongst other things, “MRI examination of the Lumbar Spine reveals longstanding chronic degenerative discogenic disc disease and thoracolumbar spondylosis as described with advanced discogenic changes as detailed at L5-S1, there is a focal central degenerative disc protrusion of no definable clinical significance. The findings are consistent with the individual’s age and not causally related to the date of the subject incident, approximately one month prior to the performance of the MRI examination as the findings are chronic longstanding processes requiring years to develop as presented and are consistent with wear-and-tear of the normal aging process.”

With respect to plaintiff’s 90/180 claim, defendant relies on the EBT testimony of plaintiff which indicates that she did not lose any time from work as a result of the accident. Plaintiff testified that she was not confined to bed, nor confined to home, for any length of time and that, since the accident.

The burden now shifts to plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.

To support her burden, plaintiff submitted the affidavit of Richard Grosso, D.C. who examined plaintiff and continued to see her for chiropractic treatment. Dr. Grosso examined plaintiff and performed quantified and comparative range of motion tests on her cervical spine and lumbar spine. The results of the tests indicated deviations from normal. Dr, Grosso states that it was his expert chiropractic opinion that the spinal injuries sustained by the patient were causally related to the motor vehicle accident. It was further his expert chiropractic opinion that the limitation of motion of the cervical and lumbar spine was significant and permanent in nature. It was further his expert chiropractic opinion that the spinal injuries as diagnosed would inhibit the patient’s ability to carry out normal activities of daily living such as sitting, standing, bending lifting and other strenuous activities. It is his expert chiropractic opinion that the disc pathology diagnosed via MRI are causally related to the subject motor vehicle accident as the findings are consistent with the clinical presentation in my office and further said spinal injuries are of a permanent nature and not subject to resolution without surgery. It is further his expert chiropractic opinion that surgery cannot be ruled out in the future with regard to her cervical spine and lumbar spine injury.

In view of the foregoing, the Court held that, even though some of the evidence presented by plaintiff did not constitute competent admissible evidence in opposition to defendant’s motion for summary judgment, the Court concludes that the affidavits of plaintiff, herself, and Dr. Grosso raise genuine issues of fact as to the spine injuries causally related to the subject accident. Consequently, defendant’s motion for summary judgment is denied.
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On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th Street and 7th Avenue in Brooklyn. The car had stopped for around ten seconds when it was hit from the rear end by a van owned by a private company and driven by one of its employees. As a result of the rear-end collision, the driver of the car sustained a shoulder injury which had to be surgically repaired twice.

The defendant in his deposition claimed that it was raining on that day and hour when the car accident occurred. He also claims that the car accident was not really a rear-end collision but that the van tried to swerve to avoid hitting the car in front of him. He claims to have succeeded in that only the end of the van’s bumper hit the end of the car’s bumper. The defendant also claims that the car stopped abruptly in front of him which made it impossible for him to stop in time and avoid hitting the car in front of him.

These allegations of the defendant in his examination before trial were never made part of the police report accomplished by the police officers who responded at the car accident scene. These allegations were also never contained in the report filed by the employee when he explained the accident to his employer. The car owner points out that the police report clearly showed that the van hit the car squarely in the rear.

For these reasons, the car owner filed a motion for summary judgment. He asserts that there are no material issues of fact that still need to be tried before a jury. He also asserts that his claims for damages arising from the injury sustained in the car accident be granted.

The defendant van owner opposed the summary judgment prayed for by the car owner. He claims that the van stopped behind the car when the light turned red. But then when the light turned green the car started to move but abruptly stopped. This was when the collision took place.

The only question before the Court in Queens is whether or not the car owner’s motion for summary judgment should be granted.

The Court held that there are no issues of material fact that must still be tried before a jury. The Court pointed out that a vehicle in the rear is duty bound to keep a safe distance from the car in front of it. The car in the rear must maintain a rate of speed and control over his vehicle so as not to hit the vehicle in front.

The Court appreciated the fact that the car was already stopped at the red light when the van hit it from behind. When a car accident involves a vehicle hitting a parked or stopped vehicle from behind, an inference arises that the vehicle in the rear which bumped the stopped car is the vehicle at fault.

The law presumes that the bumping vehicle was negligent. A mere allegation that the parked car “suddenly” or “abruptly” stopped cannot defeat the presumption of negligence. This is because the law impose a duty on every car and car driver to maintain sufficient distance between his car and the car in front of him to give allowances for such sudden stops.

For the failure of the van owner to prove that there are still issues of material fact that need to be tried before a jury, the Court granted the motion for summary judgment filed by the car owner.
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The cause of action is for personal injuries sustained by the plaintiff in a motor vehicle accident that occurred in front of 980 Madison Avenue in New York County when the taxi in which she was a passenger struck another vehicle. Plaintiff’s face came into contact with the divider between the rear seat and front seat inside the vehicle.

Defendants move for the dismissal of plaintiff’s compliant on the ground that she has not sustained a serious injury as defined under Insurance Law.

A Lawyer said, that the injuries alleged to have been sustained by the plaintiff as listed in her bill of particulars, include, a two centimeter laceration below her nose which has left a permanent scar, cervical strain, upper thoracic strain, headaches, “ADHD-like symptoms; generalized anxiety disorder; depression.” In support of their motion, defendants annex a copy of plaintiff’s deposition testimony. In addition, defendants submit the affirmed report of Robert D. Goldstein, M.D., a plastic and reconstructive surgeon who examined the plaintiff Dr. Goldstein reports shows that there is a 1.5 cm transversely oriented scar in the upper lip. This scar is of good cosmetic quality and does not show any evidence of hypertrophy or keloid formation.

In addition, defendants submit the affirmed report of Solomon Miskin, M.D., a neurologist and psychiatrist who examined the plaintiff. Dr. Miskin reports that plaintiff’s complaints at the time of the examination had to do with her attention, focus and concentration. Dr. Miskin conducted a mental status examination of the plaintiff and his diagnosis was: “No psychiatric diagnosis, Status post postpartum depression predating the incident resolved.”

Plaintiff submits a cross-motion wherein she moves for partial summary judgment on the issue of liability and opposes defendants’ motion for summary judgment. In support of her assertion that she sustained a serious injury, plaintiff refers to her deposition testimony wherein she stated that since the accident her executive functions, sort of calendar planning, sequential planning, desk work that I do at home, decisions, focus is hard. I am not focused. It is hard for me to use those executive functions. Plaintiff further argues that she suffered a mild traumatic brain injury enough to cause permanent cognitive problems. With respect to the scar, plaintiff testified that she consulted a plastic surgeon in Washington who advised her to let more time pass before considering surgery.

The issue in this case is whether the Bronx plaintiff suffered serious injury due to the accident, warranting the liability of the defendants.

The Court finds that the evidence submitted by the defendants satisfied their initial burden of demonstrating that plaintiff did not sustain a serious injury.

Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. New York Insurance Law defines serious injury as, a personal injury which results in 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 party 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.
On a motion for summary judgment, a defendant has the burden of proving that the plaintiff’s injuries were not serious. In order for a defendant to establish that the plaintiff failed to sustain a serious injury within the meaning of the statute, the defendant must submit affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim. Once the defendant has sufficiently raised the issue of whether a serious injury has been sustained, the burden shifts to the plaintiff to, come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law. Once the burden shifts, it is incumbent upon plaintiff to produce prima facie evidence in “admissible form” to support the claim of serious injury. Unsworn reports of plaintiff’s examining doctor will not be sufficient to defeat a motion for summary judgment.
The Court finds that plaintiff has failed to raise an issue of fact as to whether or not she sustained a serious injury pursuant to Insurance Law.

First, the numerous unsworn reports of doctors that plaintiff saw when she returned to Washington and the medical records from Lenox Hill Hospital are not in admissible form and cannot be used to defeat a motion for summary judgment.

The sworn medical report and affirmation of Brooklyn’s Dr. Finkel is insufficient to defeat the motion for summary judgment. Dr. Finkel makes conclusions about plaintiff having permanent damage to parts of her brain as a result of the subject motor vehicle accident and about her having difficulty with words, language and organizational skills. In his report, Dr. Finkel refers to an examination he conducted to reach his conclusion. However, he does not indicate what abnormal findings he made in his examination, only one of which involved her memory and the result of which was completely normal. Moreover, he does not state what objective tests he used to determine that plaintiff was having difficulty with words, language and organizational skills. Therefore, his findings are conclusory and based on plaintiff’s subjective complaints which are insufficient to establish a prima facie case of serious injury.

The sworn report of Dr. Amen is also insufficient for plaintiff to defeat the motion for summary judgment. Dr. Amen reports the results of plaintiff’s brain scan and though he concluded that there was “clearly past brain trauma,” he did not attribute this brain trauma to the subject motor vehicle accident. This is particularly significant because Dr. Finkel, in his report, states that he was informed by the plaintiff that when she was in high school, she struck her head and was briefly rendered unconscious.

In short, Dr. Amen’s failure to causally link his findings in the brain scan of the plaintiff to the subject motor vehicle accident and not to some other occurrence in plaintiff’s past such as the head injury she suffered in high school renders his report insufficient to defeat defendants’ motion for summary judgment.

With respect to the scar on plaintiff’s face, the Court said that it is well established that the question to be asked in determining whether a scar constitutes significant disfigurement is whether a reasonable person viewing the injury would regard the condition as unattractive, objectionable or as the subject of pity or scorn. Plaintiff does not indicate when the color photographs annexed to her affidavit which show the scar above her lip, were taken. Plaintiff’s physician, Dr. Finkel, described the scar as being 2 cm in length whereas the independent physician retained by defendants, Dr. Goldstein, described the scar as being 1.5 cm in length and of good cosmetic quality.

In view of the foregoing, the Court finds that a view of the photographs submitted by the plaintiff do not depict a scar that would constitute a significant disfigurement and thus, a serious injury. Accordingly, defendants’ motion for summary judgment dismissing plaintiff’s complaint is granted. Plaintiff’s cross-motion for summary judgment on the issue of liability is hereby deemed moot as plaintiff’s complaint is dismissed.
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