Sierra v Gonzalez First Limo

[*1] Sierra v Gonzalez First Limo 2009 NY Slip Op 51175(U) [23 Misc 3d 1137(A)] Decided on May 27, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 27, 2009
Supreme Court, Kings County

Francisco Sierra and Julia Sierra, Plaintiffs,

against

Gonzalez First Limo and Leonel Cantor, Defendants.



22759/06



Counsel:

For P-

Steinberg & Gruber

300 Garden City Plaza, Suite 218

Garden City, NY 11530

516-663-0999

For D-

Baker, McEvoy, Morrisey & Moskcovits, P.C.

330 W. 34th Street, 7th floor

NY, NY 10001

212-857-8230

Francois A. Rivera, J.

By notice of motion filed on February 10, 2009, under motion sequence number two, defendants Gonzalez First Limo (hereinafter GFL) and Leonel Cantor, (hereinafter Cantor), jointly move pursuant to CPLR 3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint of Francisco Sierra and Julia Sierra on the basis that the plaintiffs did not sustain a serious injury.

[*2]BACKGROU ND

On July 31, 2006, plaintiffs commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by defendants' verified answer filed on January 26, 2007. On December 8, 2008 a note of issue was filed.

BACKGROUND

Plaintiffs' complaint and bill of particulars allege that on December 26, 2003 at around 1:30 pm, Cantor was driving a livery car owned by GFL and carrying both plaintiffs as passengers when he negligently struck the rear of another vehicle in the vicinity of 18th street and Eighth Avenue, in Brooklyn, New York. Plaintiffs claim that the collision caused them to sustain, among other things, permanent serious injuries in the cervical and lumbar spine area.

DEFENDANTS' MOTION PAPERS

GFL and Cantor's motion papers consist of an affirmation of their counsel, a memorandum of law and nine annexed exhibits labeled A through I. Exhibit A is a copy of the summons and complaint, defendants' answer, and their various disclosure requests. Exhibit B is plaintiffs' verified bill of particulars. Exhibit C is the affirmed medical report of Dr. Weiland, defendants' examining neurologist, pertaining to his neurological examination of Francisco Sierra. Exhibit D is the affirmed medical report of Dr. Lim, defendants' examining orthopedic surgeon, pertaining to his examination of Francisco Sierra. Exhibit E is the affirmed medical report of Dr. Weiland, pertaining to his examination of Julia Sierra. Exhibit F is the affirmed medical report of Dr. Lim, pertaining to his examination of Julia Sierra. All of the aforementioned examinations of both Francisco and Julia Sierra occurred on July 2, 2008. Exhibit G is the affirmed medical report of Dr. Eisenstadt, a radiologist, pertaining to his review of a lumbar MRI and cervical MRI studies performed on Julia Sierra on February 21, 2004. Exhibit H and I are the respective deposition transcripts of Francisco and Julia Sierra.

Defendants also separately submitted their attorney's affirmation and two annexed exhibits to supplement their motion papers. Exhibits A and B are the affirmed medical report of Dr. Eisenstadt pertaining to his review of a cervical and lumbar MRI studies performed on Francisco Sierra on February 21, 2004.

PLAINTIFFS' OPPOSITION PAPERS

Plaintiffs' opposition papers consist of an affirmation of their counsel and ten annexed exhibits labeled A through I. Exhibit A is an amended police report of the accident. Exhibit B is part of the Maimonides Medical Center chart of Julia Sierra. [*3]Exhibit C is Dr. Richard Rizzuti's report of a lumbar spine MRI performed on Julia Sierra on February 21, 2004. Exhibit D is Dr. Richard Rizzuti's report of cervical spine MRI performed on her on the same date. Exhibit E is Dr. Richard Rizzuti's affirmation attesting to the accuracy of the cervical and lumbar MRI films he reviewed and reports he prepared pertaining to Julia Sierra and Francisco Sierra. Exhibit F is Dr. Richard Rizzuti's report of lumbar spine MRI performed on Francisco Sierra on February 21, 2004. Exhibit G is Dr. Richard Rizzuti's report of cervical spine MRI studies performed on her on the same date. Exhibit H is an affidavit of Scott H. Leist, D.C., the plaintiffs' treating chiropractor. Exhibit I and J are the affidavits of Julia Sierra and Francisco Sierra, respectively.

Defendants replied to plaintiffs' opposition with an affirmation of their counsel.

Law and Application

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra , 68 NY2d at 324).

In order for the defendants to prevail on their motion for dismissal of the complaint, they must establish a prima facie entitlement to judgment that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject motor vehicle accident (Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]).Drs. Weiland and Lim both opined in their respective affirmed medical reports that Francisco Sierra had no neurologic or orthopedic anomalies in the cervical or lumbar spine based on his full range of motion in both areas measured by objective testing. They both examined Francisco Sierra on July 2, 2008, over four years after the accident. Dr. Audrey Eisenstadt, reviewed Francisco Sierra's lumbar and cervical MRI studies taken on February 21, 2004, about eight weeks after the accident. He found degenerative changes and a disc bulge in the C5-6 disc level and a disc herniation at the C6-7 disc level of the cervical spine. He also found degenerative changes, a disc herniation and a superimposed annular tear in the L4-5 level of the lumbar spine. He opined that degenerative changes in the C5-6 level suggested a degenerative etiology of the disc herniation at the C6-7 disc level.

Similarly, Drs. Weiland and Lim both opined in their respective affirmed medical [*4]reports that Julia Sierra had no neurologic or orthopedic anomalies in the cervical or lumbar spine based on her full range of motion in both areas measured by objective testing. Dr. Audrey Eisenstadt, reviewed Julia Sierra's lumbar and cervical MRI studies taken on February 21, 2004 and found degenerative changes and a bulge at the C4-5 and C5-6 level of the cervical spine and degenerative changes and a bulge at the L4-5 level of the lumbar spine and cervical spine. He found no evidence of acute or recent injury.

In opposition to the motion the defendants submitted the affirmation of Dr. Rizzuti who prepared and attested to the accuracy of the cervical and lumbar MRI films and the reports of Julia Sierra and Francisco Sierra taken on February 21, 2004. Dr. Rizzuti found that Julia Sierra had disc herniations at L4-5, L5-S1 and C4-5. Dr. Rizzuti also found that Francisco Sierra had disc herniations at L4-5, C3-4, C5-6 and C6-7.

Plaintiffs also submitted the affidavit of Scott H. Leist, (Leist) their treating chiropractor. Leist's affidavit establishes that he began treating the plaintiffs on January 12, 2004 and continued to do so until for two years until they received the maximum benefit therapy could achieve. He conducted a computerized range of motion testing of Francisco Sierra on July 7, 2004 and compared his findings to normal ranges of motion finding significant limitations of range of motion in the cervical and lumbar spine. He retested him on February 16, 2009 and found improved range of motion but with continued restriction in both the cervical and lumbar area. He also conducted a computerized range of motion testing of Julia Sierra on July 9, 2004 and compared his findings to normal ranges of motion. He found significant limitations of range of motion in the cervical and lumbar spine. He retested her on October 2, 2004 and found improved range of motion but with continued restriction in both the cervical and lumbar spine. Leist found that the cervical and lumbar herniations of the plaintiffs were causally linked to the accident of December 26, 2003 and that their continued restriction of range of motion in the cervical and lumbar spine was also caused by the accident.

It is noted that none of the defendants' medical experts addressed either Francisco Sierra or Julia Sierra's claim, clearly set forth in their bill of particulars, that as a result of the accident, they each sustained a medically determined injury which prevented them from performing substantially all of the material acts which constituted their usual and customary daily activities for not less then 90 days during the 180 days immediately following the injury or impairment (see Ins Law § 5102(d); see Smith v. Quicci, NYS2d , 2009 WL 1413149 [2nd Dept 2009]); also Museau v. New York City Transit Authority, 34 AD3d 772 [2 Dept. 2006]).

Since the defendants failed to meet their initial burden of establishing a prima facie case, it is unnecessary to consider whether the plaintiffs' papers, submitted in opposition to the defendants' motion, were sufficient to raise a triable issue of fact (Giammalva v. Winters, 59 AD3d 595 [2nd Dept. 2009]; see also Museau v. New York City Transit Authority, supra ). [*5]

Nevertheless, the court also finds that the plaintiffs' opposition papers do raise material issues of fact as to whether they sustained a serious injury within the meaning of Insurance Law 5102(d).

Defendants' motion to dismiss plaintiffs complaint is therefore denied.

The foregoing constitutes the decision and order of this court

 1;-x

Francois A. Rivera, J.S.C.