Goldberg v Marengo

[*1] Goldberg v Marengo 2006 NY Slip Op 52375(U) [14 Misc 3d 1201(A)] Decided on December 5, 2006 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2006
Supreme Court, Richmond County

Ronnie L. Goldberg, Plaintiff,

against

Albert Marengo, Rodrigo D. Gonzalez, and Deborah A. Roberts, Defendants.



10182/04

Judith N. McMahon, J.

On January 20, 2002, the plaintiff allegedly sustained injuries during a four car collision on the ramp of Exit No.13 of the New Jersey Turnpike. Defendants Albert Marengo, Rodrigo D. Gonzalez and Deborah A. Roberts were the owners and operators of the other automobiles involved in the accident. In January, 2004, the plaintiff commenced this action and issue was joined by service of answers by all defendants. Defendant Roberts now moves for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants Marengo and Gonzalez have joined Roberts' application for dismissal of the complaint by separate cross-motions.

The defendants made a prima facie showing of their entitlement to summary judgment (see, Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d Dept. 2005]). In opposition, the plaintiff submitted an affirmation of her chiropractor identifying limitations of motion of her cervical and lumbar spines as evidenced by objective findings, along with evidence of a cervical bulging disc and a lumbar bulging disc as confirmed by magnetic resonance imaging tests. Additionally, the plaintiff submitted an affirmation of her orthopedic surgeon who set forth that he performed surgery on the plaintiff to repair the torn meniscus of the left knee. Both the chiropractor and the orthopedic surgeon asserted that the plaintiff's injuries were related to the subject motor vehicle accident. This evidence is sufficient to raise a triable issue of fact precluding the granting of summary judgment on the issue of serious injury (see, Toure v. Avis Rent A Car Sys., supra; Noriega v. Sauerhaft, 5 AD3d 121 [1st Dept. 2004]; Papadonikolakis v. First Fidelity Leasing Group, 283 AD2d 470 [2d Dept. 2001]).

In reply, the defendants contend that the plaintiff's evidence was insufficient to raise a triable issue of fact because neither the chiropractor's nor the orthopedic surgeon's findings were based on a recent examination of the plaintiff. However, in his affirmation, the chiropractor set forth that further treatment would not be beneficial, the plaintiff attained the maximum potential [*2]in terms of therapy and only surgical intervention would be of assistance. Additionally, the orthopedic surgeon stated that the plaintiff was no longer under his care as the derangement of the left knee had been resolved with surgery. Under these circumstances, a recent examination was not necessary to substantiate the medical findings (compare, Laruffav. Ming Lau, 32

AD3d 996 [2d Dept. 2006]; Young v. Russell, 19 AD3d 688 [2d Dept. 2005]).

ORDERED, that the motion of defendant Roberts and the cross-motions of defendants Marengo and Gonzalez for summary judgment are denied.

E N T E R,

Dated: December 5, 2006

J.S.C.