In an October 24, 2011 decision by Justice Pines, the court denied the defendant’s motions: 1) pursuant to 22 NYCRR § 202.21, and CPLR 3124 and 3126(2) for an order striking the plaintiff’s note of issue and certificate of readiness; and 2) pursuant to CPLR 3212 for summary judgment dismissing the complaint. This negligence action arose out of a motor vehicle accident wherein the truck operated by Deccico collided with the rear of the vehicle operated by Bertram, which, according to Bertram, caused him to suffer a herniated disc that impinged on a nerve root. In denying Decicco’s motion to vacate the note of issue, the court held that Deccio failed to establish “that a material fact in the certificate of readiness [wa]s incorrect,” and that there was no discovery outstanding, as Deicco claimed, because Bertram had complied with Decicco’s discovery demands. The court then denied Decicco’s motion for summary judgment, which was based on his assertion that Bertram did not sustain a “serious injury” as defined and understood for purposes of Insurance Law §5102(d). The court held that Decicco failed to meet his burden of establishing prima facie that Bertram did not sustain a serious injury, thereby precluding a shifting of the burden to Bertram to raise a triable issue of fact in his opposing papers. The court reasoned that Decicco’s own moving papers raised issues of fact with regard to the nature and extent of Bertram’s injury in that the expert opinions on which the motion relied were incomplete and contradictory, and were not accompanied, as required by CPLR 3212, by copies of the medical records and MRIs on which they were based.
Bertram v DeCicco, Sup Ct Suffolk County, October 24, 2011, Pines, J, Index No. 38897/07