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Section 205 (a) provides that: “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new injury action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

As has been recognized, “The restorative provisions of CPLR 205 (a) reflect the idea that a diligent litigant who commenced a timely action but who failed on some generally technical ground, deserves an adjudication on the merits”. A reading of section 205 (a) makes plain that there are six requirements that must be satisfied by a plaintiff seeking resort to its restorative effects (collectively hereinafter the section 205 [a] elements). These are: (1) that the prior action was timely commenced; (2) that the prior action was terminated other than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action or a final judgment upon the merits; (3) that a new action was commenced within six months from the termination of the prior action; (4) that the new action and the prior action are based upon the same transaction or occurrence or series of transactions or occurrences; (5) that the new action would have been timely commenced at the time of commencement of the prior action; and (6) that service upon the defendant in the new action is effected within six months from the termination of the prior personal injury action.

In this case, the parties are in full agreement as to only two of those requirements, i.e., that the federal action and this action are based upon the same factual allegations and legal claims and that this new action was commenced within six months from the termination of the prior action. Thus, the court must analyze the facts involved at bar to determine whether plaintiffs have satisfied the other four elements of the section 205 (a) showing. As will be apparent, that analysis leads along separate paths for the non-answering and the answering federal defendants, albeit to a significant extent, it leads to the same terminus.

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A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof.

Labor Law §200 reads: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner’s land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. However, where the defect or dangerous condition arises from a sub contractor’s methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law §200, even if the same had notice of the sub-contractor’s defective methods or the dangerous condition alleged. Stated differently, with respect to the sub-contractor’s improper methods or the use of defective materials, liability is only established when the owner has maintained the ability to control the work giving rise to the personal injury or has actually exercised supervision or control of the same.

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The action commenced was filed by plaintiff against defendant. That action was consolidated with the actions against the remaining defendants. The complaints assert causes of action for common law negligence and violation of Labor Law §§200, 240, 241(6) and the Industrial Code of the State of New York 12 NYCRR §23-1.7(b)(1) et seq. This action arises out of an incident wherein the plaintiff sustained injuries while working on a construction worksite and was caused to fall as a result of an open, loose and/or unsecure manhole cover and for which injuries the plaintiff seeks monetary damages.

A New York Personal Injury Lawyer said that the plaintiff testified to the effect that he began employment as a laborer with his employer and was working for them on the date of the accident. As a laborer, he was involved in demolition, removing debris and throwing it into a dumpster. He was working at apartments inside a building with four other workers gutting bathrooms and kitchens, and taking out walls by removing sheet rock. The debris was taken to dumpsters outside the building. Two dumpsters being used by his employer were placed by the curb on the north side of the street and a third dumpster was placed on the south side of the road across from the building he was working on. His supervisor told him to tell the sheet rock guys to back up the truck parked on the north side so he could move the empty dumpster from the front of the sheetrock truck over to the full dumpster so it would be closer to where he was working. Plaintiff then walked down the sidewalk in front of the building, used the port-a-potty across the street from his building, remained on the south side of the street, and spoke to the shop Stewart. He then walked at an angle between the two sheetrock trucks, crossed in front of the one sheetrock truck and walked up onto the grassy area and asked the sheetrock driver to move his truck. He was about fifteen feet from the manhole cover, but did not observe it at that point or at any time up to the occurrence of the accident. He walked backwards away from the truck as the truck was backing up, directing the truck driver so the truck would not hit the low-hanging wires. He then stepped on the manhole cover with his right foot. The manhole cover, which was on top of the manhole, opened up by turning up on its edge, and his both his legs fell into the manhole. Hence, an action was filed in court.

A New York Injury Lawyer said that the defendant/third-party plaintiff impleaded plaintiff’s employer on the date of the accident, by commencing a third-party action for common law indemnification, contractual indemnification, breach of agreement, and judgment over against the third-party defendant. In cross-motion, the defendants seek an order pursuant to 22 NYCRR §202.21(e)vacating the Note of Issue and Certificate of Readiness.

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That leaves the ninth and final category with which to sustain her claim for serious injury: 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 their usual and customary daily activities for not less than 90 days during the 180 days immediately following occurrence of the injury or impairment. In order to prosecute a claim for serious injury pursuant to this category under Insurance Law § 5102(d), Plaintiff is required to show something more than slight curtailment of the material acts which constitute their usual and customary daily activities, and must support that claim with medical proof attributing such impairment to a medically determined injury.

Plaintiff must demonstrate that the motor vehicle accident prevented her from performing a substantial part of her usual and customary daily routine for 90 out of the 180 days immediately following the accident. Furthermore, in order to sustain a claim for serious injury, Plaintiff is required to establish “competent proof connecting the condition to the accident”

As pointed out by counsel for defendants, Plaintiff presented for an independent orthopedic medical examination, she reported to said doctor that she did not seek emergency room treatment following the accident and that she was unemployed at the time of said accident. The examining physician concluded: the diagnosis was consistent with resolved cervical and lumbar sprain; not physical therapy or orthopedic treatment was reasonable, related or necessary; there is no objective evidence to indicate the need for diagnostic testing, household help, durable medical equipment, surgery or special transportation; she possesses no orthopedic disability and is capable of gainful employment.

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In this personal injury action, plaintiffs claimed to recover monetary damages for personal injury allegedly sustained by him as the result of a motor vehicle accident that occurred in County of Suffolk, State of New York. A New York injury Attorney said that defendants filed several motions: the first one was filed regarding precluding Plaintiff from offering testimony at trial of this action, and dismissing Plaintiff’s Complaint in its entirety on the grounds that he has not complied with the Order of the Court, or otherwise. Second, is a motion regarding Summary Judgment against the plaintiff.

The Court ruled that in order for the Court to grant such relief, it must clearly appear that there are no material issues of fact. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.

Once a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact is shown, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action.

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As previously stated, ever where there is ample proof of a plaintiff’s 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 Court finds that neither plaintiff nor the examining physician adequately explained the cessation of her treatment. Additionally, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary.

Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.

Finally, plaintiff’s deposition testimony does not establish that she was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff attended school in a full time capacity shortly after the accident. Based on the above, the Court finds that plaintiff has failed to establish by competent medical proof that she sustained a “permanent consequential limitation of use of a body organ or member,” a “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.”

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The issue to be resolved in this case is whether summary judgment of the case is proper.

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.

After applying the law to the facts in this case, the Court finds that defendant met her burden to demonstrate an issue of fact which precludes summary judgment. As previously stated, in rendering a decision on a summary judgment motion, the Court is not to resolve issues of fact nor determine matters of credibility. The Court finds that the facts and circumstances surrounding the accident do indeed involve determining the credibility of the parties involved in said accident. The Court holds that the parties’ conflicting versions of the car accident,

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Plaintiff submitted no admissible proof of objective findings contemporaneous with the accident that would indicate causality between the injury allegedly sustained in the accident and the accident itself. The causal connection must ordinarily be established by competent medical proof.

Additionally, plaintiff has failed to rebut evidence of a preexisting degenerative condition. Although defendants’ independent experts conclude in their affirmed reports that plaintiff’s MRI films showed evidence of degenerative changes, and chronic degenerative spinal disease which is a pre-existing condition, plaintiff failed to attach evidence from any experts indicating their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injuries. Hence, plaintiff failed to rebut defendants’ claim sufficiently to raise a triable issue of fact.

Moreover, there is an unexplained gap in treatment or cessation of treatment. Specifically, the record is devoid of any competent evidence from any health care professional of plaintiff’s treatment, need for treatment, or if and why plaintiff’s treatment ceased. Courts have held that a gap in treatment goes to the weight of the evidence, not its admissibility. Here, however, there is not just a gap in treatment, but, apparently, a total lack of competent proof of any treatment whatsoever by a health care professional which is related to any condition allegedly caused by this accident. Plaintiff has inexplicably provided no competent supporting documentation of medical treatment. Plaintiff has failed to submit an affirmation which provides any information concerning the nature of the plaintiff’s medical treatment or any explanation for the several year gap between plaintiff’s medical treatment which appears to have ceased in 2003 and the date of the opposition papers to the instant motion in 2007. Plaintiff proffered no excuse for her failure to submit sworn medical records and doctor’s reports in admissible form concerning her treatment.

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The affirmed report of defendants’ independent examining neurologist, indicated that an examination conducted on April 7, 2006 revealed that there is no permanency from a neurological perspective. He opined that there is no objective evidence of any neurological disability or abnormality.

The affirmed report of defendants’ independent examining psychiatrist, showed that an examination conducted on June 26, 2006 revealed that plaintiff’s concentration, computational ability, memory, attention, judgment, and insight were all good. He opined that there is no disability or permanency and that plaintiff is capable of performing her usual daily activities without restrictions.

The affirmed report of defendants’ independent evaluating radiologists showed that an MRI of the left shoulder taken on November 21, 2002 revealed an impression of “Mild degenerative changes about the acromioclavicular joint resulting in mild impingement; otherwise unremarkable study. There are no findings to suggest trauma or sequel. An MRI of the cervical spine taken on December 12, 2002 revealed an impression of degenerated, bulging L5-S1 disc in association with productive bony changes. The doctors state that the findings are consistent with chronic degenerative spinal disease which is a pre-existing condition.

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In this action, plaintiff seeks to recover damages from defendants for personal injury arising from a “slip-and-fall” type accident, occurring on October 26, 2002. Plaintiff alleges that she was a passenger on a bus, and that as she was attempting to exit the bus, she was caused to fall due to an unsafe, wet, and slippery condition that existed upon the floor of the bus.

Defendants’ motion for summary judgment on the basis of liability was denied as defendants have failed to show that there is no substantial issue of fact in this case and therefore nothing to try. The trial court opined that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue.

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. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury.” When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury.

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