JOHANNA CASTRO v. STAMATIOS SPYROPOULOS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5293-04T55293-04T5

JOHANNA CASTRO,

Plaintiff-Appellant,

v.

STAMATIOS SPYROPOULOS and

GEORGE S. SPYROPOULOS,

Defendants-Respondents,

and

YOLANDA CARDONA,

Defendant.

______________________________

 

Submitted February 7, 2006 - Decided February 22, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex

County, L-4447-03.

Tobias and Kaplan, attorneys for appellant

(Bruce M. Iverson, on the brief).

Chase, Kurshan, Herzfeld and Rubin,

attorneys for respondents (Donald A.

Mahoney, on the brief).

PER CURIAM

This is an appeal by plaintiff, Johanna Castro, from a summary judgment dismissing her complaint for damages resulting from a September 1, 2001, motor vehicle accident. We reverse.

At the time of the accident, plaintiff was subject to the "limitation on lawsuit" threshold contained in N.J.S.A. 39:6A-8a. After an answer had been filed and discovery exchanged, defendants sought summary judgment dismissing the complaint, asserting a failure to cross the threshold. At the time the motion was heard, the motion judge was guided by our opinion in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), holding that the adoption of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, did not affect the so-called subjective prong of the test imposed by Oswin v. Shaw, 129 N.J. 290 (1992).

That prong required a plaintiff, as a condition of recovery in a threshold case, to demonstrate an injury significantly impacting the plaintiff's life. The motion judge, therefore, reviewed the submissions to determine if plaintiff had demonstrated that a reasonable jury could conclude the accident resulted in injuries having a significant impact on her life. He ultimately concluded that "I think there's very, very little, if any, objective evidence of any serious impact or serious injury here." Accordingly, he dismissed the complaint. After that dismissal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). Those cases held that AICRA had removed the Oswin requirement that a plaintiff demonstrate a serious impact to survive a motion for summary judgment. Because the complaint was dismissed for failure of plaintiff to provide proofs that are no longer necessary, the dismissal must be reversed and the matter remanded to the trial court.

Defendants resist this result. They premise their resistance on a recognition that plaintiff seeks to recover by demonstrating a "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement" and that plaintiff must demonstrate that injury by "objective clinical evidence." N.J.S.A. 39:6A-8a. Defendants argue that the judge dismissed the complaint because he found "no genuine issue of material fact on the plaintiff's failure to produce objective credible evidence . . ." of a permanent injury. Although we cannot exclude this possibility, we believe the judge's language indicates that the dismissal resulted from plaintiff's failure to address the now discarded serious impact requirement of Oswin. On remand, however, defendants may choose to seek clarification, by motion for reconsideration, of the judge's basis for the dismissal. Finally, defendants argue that, despite DiProspero and Serrano, a plaintiff claiming a permanent injury must also demonstrate that the injury is serious. That argument is no longer viable. Juarez v.

J. A. Salerno & Sons, Inc., 185 N.J. 332 (2005).

 
Reversed and remanded.

(continued)

(continued)

4

A-5293-04T5

February 22, 2006