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In October 2001, defendant and JC got into a fight over a woman, as a result of which defendant’s suffered an injury on his face (a cut from the left ear to his chin). Defendant was treated at ABC Hospital for his wound, which was stitched and bandaged. That incident provided the impetus for a subsequent shooting incident that led to the death of X. The primary issue on appeal from defendant’s conviction for that homicide is his injury claim that certain information provided by a ABC Hospital administrator as to the treatment of a person for a facial wound was obtained in violation of the statutory physician-patient privilege, as it relates to defendant. As a result, he argues, the information obtained from the violation and its fruits-his arrest and identification from a photo array and in a lineup-implicated a constitutionally protected right and must be suppressed.

The suppression hearing adduced the following evidence. Assigned to the shooting death of 16-year-old X, which had occurred at Eastburn Avenue and the service road of the Cross-Bronx Expressway on the morning of October 17, 2001, Detective E learned from the victim’s aunt that the word on the street was that the killing was in revenge for a slashing of a male black at a certain Club several days earlier. JC, the slasher, told Detective E that he had heard that the shooters were some black guys from around 168th Street and College Avenue. Detective E also interviewed C, who related that at about one o’clock on the morning of the shooting, he had heard gunshots and saw a “male black” with a gun pursue a “young Spanish boy” down Weeks Avenue toward the Cross-Bronx Expressway.

On October 18, Detective E went to ABC Hospital and asked an administrator, Ms. BB, “if there were any male blacks that were treated on October 13 for any kind of slash wound to the face” or “if anyone came in for a slashing to the face on that date, October 13th.” Ms. BB gave Detective E an admission slip with defendant’s name and address, xxx Barnes Avenue, and told him that defendant had received stitches on the left side of his face. That same day Detective E showed C a computer-generated black and white photo array containing a “couple of years old” photograph of defendant. C recognized two people in the array, one of whom was defendant, but he “wasn’t too sure” of his identification and “didn’t want to say yes or no” because it was nighttime and the light in the police car was “pretty bad.” C asked to see a more recent photograph or a live person under better lighting conditions.

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II. INABILITY TO PERFORM DAILY ACTIVITIES FOR 90 DAYS

At plaintiff’s deposition, when asked what plaintiff, who had been retired since 2004, could not do following the collision, she first listed climbing steps. After the Transit Authority defendants’ attorney questioned further whether she could climb steps before the collision, and plaintiff answered that she had encountered no difficulty, she listed dancing and lifting. After providing examples of household objects she lifted before but could not lift after the collision, the attorney pursued more questions regarding her climbing, dancing, and injury to her leg, hip, and shoulder.

The inquiry never returned to activities during the 180 days after the collision. Plaintiff never was asked whether or when she ever resumed the previous activities she listed, what other activities she could not do, or how long she was confined to her bed or home after the collision. She did offer, however, that her routine was altered to the extent of attending physical therapy three days per week for over three months immediately following the collision.

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Plaintiff sues to recover for personal injury she sustained July 15, 2005, in a car accident between a motor vehicle owned and operated by defendant M and a bus owned by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority and operated by defendant J, in which plaintiff was a passenger. Defendant M moves, and the Transit Authority defendants cross-move, for summary judgment dismissing the complaint and cross-claims against these defendants, on the ground that plaintiff has not sustained a “serious injury” entitling her to recover for non-economic loss.

For the reasons explained below, the court grants defendants’ motion and cross-motion insofar as they are based on the absence of a serious injury in the categories of a significant limitation or a permanent consequential limitation of functioning. The court denies defendants’ motion and cross-motion as to the category of an impairment that prevented daily activities for 90 of the 180 days after the collision.

I. SIGNIFICANT OR PERMANENT CONSEQUENTIAL LIMITATION

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With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

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Within its answer FVA interposes a counterclaim. FVA, in its counterclaim, alleges that in April 2002, GROWERS filed a complaint against plaintiff for reimbursement of unauthorized adjustments. On February 6, 2002, the USDA issued a decision in GROWERS’s favor. Plaintiff filed an appeal in the SDNY. Subsequently, plaintiff and GROWERS reached a settlement and GROWERS withdrew its complaint. Plaintiff commenced the instant action against FVA despite knowledge that FVA was not a party to the actions between GROWERS and plaintiff, despite knowing that it had no viable cause of action and despite knowledge that the Court of Appeals, Second Circuit issued a decision affirming the USDA’s decision in favor of a seller in a case involving identical facts. Plaintiff, knowing that the allegations against FVA were false, willfully and maliciously prayed upon FVA for the sole purpose of extorting and defrauding FVA. FVA seeks punitive damages in the amount of $500,000 and seeks to recover legal fees incurred in connection with the instant action.

Discussion

FVA’s motion seeking summary judgment over plaintiff in the instant injury action is hereby granted. Preliminarily, the Court notes that a review of the pleadings in the instant action evinces that plaintiff have failed to state a cause of action for malicious prosecution, abuse of process, and fraud. Similarly, FVA has also failed to state the very same causes of action in its counterclaim. One need only look at the elements of the aforementioned causes of action, which have been adequately detailed above, and it becomes abundantly clear that the allegations within the pleadings fail to assert the same. Hence, were it not for legal obstacles precluding the same, the plaintiff’s complaint and FVA’s counterclaim would fail pursuant to CPLR §3211(a)(7), inasmuch as they fail to state a cause of action.

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Defendant FRUIT AND VEGETABLE ASSOCIATION (FVA) moves seeking an Order granting it summary judgment over plaintiff in the instant action. FVA avers that summary judgment is warranted for a host of different reasons. With regard to plaintiff’s cause of action for malicious prosecution, FVA avers, inter alia, it had probable cause to initiate the prior proceeding upon which the instant action is premised. With regard to plaintiff’s cause of action for abuse of process, FVA avers, inter alia, that it had no intent to harm plaintiff when it initiated the instant action. With regard to plaintiff’s cause of action for fraud, FVA avers that it did not misrepresent any facts to the plaintiff with an intent to deceive. FVA also seeks summary judgment on its counterclaim against plaintiff for malicious prosecution. FVA avers that summary judgment on its counterclaim is warranted insofar as plaintiff commenced the instant action absent probable cause. For the reasons that follow hereinafter, FVA’s motion is hereby granted in part.

The instant action is for alleged personal injury premised upon malicious prosecution, abuse of process and fraud. The complaint alleges that plaintiff is a buyer, in the business of buying tomatoes from various farmers and shippers which it then sells to consumers and purchasers. Defendant TOMATO GROWERS (GROWERS) is a tomato shipper.

The United States Department of Agriculture (USDA) is mandated by statute to provide produce inspections to both shippers and wholesalers. Said inspections are designed to ensure that the produce meets defined standards. In 1997-1999 plaintiff through a broker contracted to purchase various shipments of tomatoes from GROWERS. When certain shipments were received by the plaintiff they were not of the quality contracted. As a result, GROWERS, knowing that the tomatoes were not of the quality contracted, granted plaintiff a price reduction. In 1999, the United States Government (Government), conducted an investigation called “Operation Forbidden Fruit” (OFF) wherein it undertook to investigate USDA inspectors and shippers at the Hunts Point Market (Market), located in Bronx County, New York. Nine USDA inspectors were indicted for accepting bribes from the buyers and several of the buyer’s employees were indicted for bribing USDA inspectors. One of the employees indicted was S an employee with the injury plaintiff. Eight USDA inspectors pled guilty to the charges and a ninth ultimately pled guilty as well, but not before cooperating with the Government and its investigation.

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The cases to which defendant cites do not warrant a different result (cf. Diamond v Diamond Diamonte, 57 AD3d 826, 869 NYS2d 609 [2d Dept 2007] [plaintiff failed to appear ready to proceed for two successive court dates during the trial-in-chief, when she was scheduled to undergo cross examination; on the second occasion, which was marked “final” by the court, she was outside of the courthouse in her car and refused to enter the building. Although the court directed her husband, the plaintiff , to bring her into the courtroom, and afforded them adequate time to appear in the courtroom, both of the plaintiff’s then failed to appear before the Supreme Court ready to proceed, which conduct evidenced an intent to abandon the action]; Fuchs v Midali America Corp., 260 AD2d 318, 689 NYS2d 80 [1st Dept 1999] [defendants failed to show a reasonable excuse for their failure to appear on two scheduled trial dates; they failed to explain why some indication of their scheduling needs could not have been conveyed to the court]; Teachers Insurance v Code Beta Group, Inc., 204 AD2d 193, 612 NYS2d 124 [1st Dept 1994] [where defendants’ attorney was aware of complications from eye surgery more than a month before trial was set to begin on February 24, 1992, but failed to arrange for substitute counsel as the court had directed two months before, attorney’s failure to seek substitution of other injury counsel was not excusable given these circumstances]).

Here, Mr. D communicated to the Court, with consent from the defendant on both scheduled dates, that he was actually engaged in two other cases. The XX matter in Part 52 was adjourned less than two weeks prior to March 4th for a traverse hearing. And, defendant’s claim, without documentary support, that the records he reviewed failed to show that Mr. D was actually engaged, fail to overcome the submissions by plaintiff indicating that Mr. D was scheduled to appear in ABC Realty in New York County, and XX in Bronx County on the dates this matter was scheduled for jury selection. Further, the instant matter was scheduled for jury selection; a jury trial had not yet been commenced.

Based on the foregoing, it is hereby ORDERED that the motion by plaintiff for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar is granted, and this matter is restored to the active calendar; and it is further ORDERED that the parties shall appear in Part 40 for trial on July 13, 2009, no further adjournments.

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Opposition

Defendant argues that plaintiff has failed to establish a reasonable excuse for the default. Although Mr. D submitted an Affirmation of Engagement noting that he was on trial starting March 4, 2008 on ABC Realty, Mr. D’s office was advised that Supreme Court takes precedence over any Housing Court matters and was granted an adjournment until the following day in order to be present in Court and/or have a personal injury attorney duly licensed in New York to appear on his behalf.

On the following day, instead of sending an attorney admitted to practice in New York, Mr. D again sent his paralegal and an attorney admitted in Florida. Also, although the second Affirmation of Engagement advises that Mr. D was engaged in a Housing Court action in Bronx County, entitled XX Realty v Hanagan, defendant’s counsel personally reviewed the records of the Bronx County Civil Court and found no Index Number and/or case matching the case of XX Realty v H. Furthermore, a review of the records of the New York County Civil Court revealed that there were no records and/or Index Number matching a case entitled WWW v Z referenced in the plaintiff’s counsel’s motion at paragraph 6 wherein he indicates that he was engaged in a Housing Court trial on that matter.

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In this trip and fall personal injury action, plaintiff moves for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar.

Factual Background

Plaintiff claims that on August 28, 2003, he tripped and fell on an defective protruding lip found on the door saddle while entering the premises located at xxx West 59th Street (the “premises”) owned by defendant.

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XYZ previously moved to dismiss the verified complaint against it, together with any cross-claims; or to treat the motion as one for summary judgment and declare that XYZ has no obligation to defend or indemnify Rx or CCI and no obligation to reimburse AAA in connection with the underlying lawsuit or third party personal injury actions.

Under Insurance Law, an insurer wishing to disclaim liability or deny coverage for death or bodily injury must “give written notice as soon as reasonably possible of such disclaimer or denial of coverage.” A failure to give such prompt notice precludes an effective disclaimer or denial. Timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage. Further, an insurer’s explanation is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of the delay.

The Court finds that XYZ’s disclaimer under Insurance Law §3420(d(2) was timely, as the basis for denying personal injury coverage was not readily apparent. The documentation attached to Rx’s Tender Letter did not provide sufficient facts to enable XYZ to disclaim coverage on the grounds of the Employee Exclusion or the Contractual Liability Exclusion provisions of the policy.

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