FRANCELINE AMENGUAL v. YOEL REINOSO-BAUTISTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3813-04T53813-04T5

FRANCELINE AMENGUAL,

Plaintiff-Appellant,

v.

YOEL REINOSO-BAUTISTA,

Defendant-Respondent.

__________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Skillman and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-828-03.

John C. Sinuk, attorney for appellant.

Law Offices of Sherman & Viscomi, attorneys for respondent (Frank A. Viscomi, on the brief).

PER CURIAM

Plaintiff appeals from a November 9, 2004 order that denied her motion for reconsideration of a September 3, 2004 order that granted defendant's motion for summary judgment and dismissed plaintiff's complaint on the ground that she failed to satisfy the verbal threshold set forth in N.J.S.A. 39:6A-8(a). Plaintiff presents the following arguments:

I. PLAINTIFF PRESENTED CREDIBLE, OBJECTIVE MEDICAL EVIDENCE OF PERMANENT INJURY ENUMERATED IN N.J.S.A. 39:6A-8(a) AND THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT.

II. THE TRIAL JUDGE ERRED IN ENTERING SUMMARY JUDGMENT IN ABSENCE OF ORAL ARGUMENT IN VIOLATION OF R. 1:6-2.

III. TRIAL JUDGE ERRED IN NECESSITATING THE FILING OF A MOTION FOR RECONSIDERATION AND HOLDING PLAINTIFF TO A HIGHER BURDEN TO PREVENT DISMISSAL OF CASE IN CHIEF.

IV. TRIAL JUDGE ERRED IN NOT ACKNOWLEDGING PLAINTIFF'S MOTION TO EXTEND DISCOVERY BASED UPON THE FACT THAT PLAINTIFF WAS STILL TREATING AND THERE WERE NO PREVIOUS ADJOURNMENTS OR DISCOVERY EXTENSIONS SOUGHT BY PLAINTIFF.

V. TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF FAILED TO INTRODUCE SUFFICIENT EVIDENCE DEMONSTRATING THAT THE ACCIDENT HAS HAD A SERIOUS IMPACT ON HER LIFE.

VI. THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE CLEARLY MATERIAL ISSUES OF FACT.

We conclude, substantially for the reasons set forth in Judge Ashrafi's September 3, 2004 statement of reasons and November 9, 2004 oral opinion, that plaintiff failed to present the credible, objective medical evidence of a permanent injury required to satisfy the verbal threshold. The only objective medical evidence of an injury presented by plaintiff were observations of muscular spasm by Dr. Dindinger on May 7, 2002, and an MRI performed on June 15, 2002, which showed "[s]traightening of the normal cervical curve consistent with muscular spasm." This MRI, which was performed only six weeks after the May 3, 2002 automobile accident that is the subject of plaintiff's claim, did not provide objective medical evidence of a permanent injury. The arguments presented under Points II, III and IV of plaintiff's brief are without merit, R. 2:11-3(e)(1)(E), and the arguments presented under Point VI of plaintiff's brief are simply a rehash of the arguments presented under Point I.

 
Affirmed.

(continued)

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A-3813-04T5

December 13, 2005