Lopez v Davis

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Lopez v Davis 2012 NY Slip Op 30451(U) February 9, 2012 Sup Ct, Nassau County Docket Number: 10295/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIAL/IAS PART 31 NASSAU COUNTY MARIO LOPEZ and HIMILICE LOPEZ Index No. : 10295/10 Plaintiffs Motion Seq. No. : 01 Motion Date: 01/06/12 - against - RONNELL R. DAVIS and ELRAC , INC., Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in O osition and Exhibits Reply Affirmation Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendants move , pursuant to CPLR 3212 and Aricle 51 of the Insurance Law of the State of New York, for an order granting them sumar judgment on the ground that plaintiffs did not suffer a " serious Law injur" in the subject accident as defined by New York State Insurance 5102(d); and move for an order dismissing the action as against defendant ELRAC , Inc. ELRAC" ) pursuant to the Graves Amendment , as there is no vicarious liabilty rental car companies under N ew York Vehicle and Traffic Law for leasing or 388. Plaintiffs oppose the motion. The above entitled action stems from personal injlJies allegedly sustained by plaintiffs [* 2] a result of a pedestran knockdownautomobile accident with defendants which occured on March 12 , on Albany Avenue , Amityile , County of Suffolk 2010 , at approximately 9:15 a. State of New York. At the time of the accident , plaintiff Mariano Lopez was a pedestrian and defendant Ronnell R. Davis (" Davis ) was the operator of a 2009 Dodge Charger that was owned by renta company, defendant ELRAC. Defendant Davis ' girlfriend , Natasha Barwell , had rented the vehicle from defendant ELRAC. See Defendants ' Affrmation in Support Exhibit M. Plaintiffs allege that at the time of the accident, plaintiff Mariano Lopez , a school security guard , was struck by the front of defendants ' automobile when it was in the driveway in front of the school where plaintiff Mariano Lopez was working. It is alleged that defendants ' vehicle entered the school driveway to drop off a child and was unable to back out of said one-way driveway due to a school bus pullng behind it. Plaintiffs conten that , when defendants ' vehicle was moving forward after being blocked by the school bus , it struck plaintiff Mariano Lopez in the area of his right knee , causing him to fall onto the hood of defendants ' vehicle. Defendant Davis argues that his vehicle never struck plaintiff Mariano Lopez and that the only contact between plaintiff Mariano Lopez and defendants ' vehicle was when plaintiff Mariano Lopez placed his hands on said vehicle to prevent defendant Davis from moving the vehicle any fuher. As a result of the collsion, plaintiff Mariano Lopez claims that he sustained the following injuries: Lumbar radiculopathy; Cervical radiculopathy; MRI. ofthe lumbosacral spine reveals subligamentous posterior disc herniations at L4/L5 and at L5/S 1 impinging on the anterior aspect of the spinal canal and on the neural foramina bilaterally; [* 3] Right hip sprain; Right knee medial meniscus tear; Surgical recommendation for right knee aroscopy; Lumbar spine lumbago; Lumbar spine HNP; EMGINCV testing to the lower extremities revealed right S 1 radiculopathy; MRI of the right knee revealed: synovial effusion knee joint , lateral patellar tilt and lateral lateral patellar subluxation with patellofemoral chondromalacia spuring and narowing patellofemoral joint comparment , medial femorotibial joint comparment narowing with chondromalacia, strain medical collateral ligament and motion arifact noted. Knee Chondromalacia; Knee internal derangement; , Right joint effusion. See Defendants ' Affirmation in Support Exhibit E. Plaintiffs commenced this action by service of a Sumons about May 20 , 2010. See and Verified Complaint on or Defendants ' Affrmation in Support Exhibit A. Issue was joined by defendant ELRAC on or about September 8 , 2010. See Defendants ' Affrmation in Support Exhibit B. Plaintiffs served a Supplemental Sumons withAmended Verified Complaint on or about August 17 2010. See Defendants ' Affirmation in Support Exhibit C. Issue was joined by defendants Davis and ELRAC on or about September 9 , 2010. See Defendants ' Affirmationin Support Exhibit D. It is well settled that the proponent of a motion for summar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient See Silman evidence to demonstrate the absence of material issues of fact. v. Twentieth Century- [* 4] 3 N. Y.2d 395 , 165 N. Y.S.2d 498 (1957); Fox Film Corp. Y.2d 320 508 N. Y.S.2d 923 (1986); v. Bhatti Y.S.2d 595 (1980); Alvarez v. Zuckerman v. Prospect Hospital, 68 49 N. Y.2d 557, 427 City of New York, Roche 140 A.D.2d 660 528 N. Y.S. 2d 1020 (2d Dept. 1988). To obtain summar judgment , the moving par must establish its claim or defense by tendering suffcient evidentiar proof, in admissible form , suffcient to warant the cour, as a matter of law , to direct judgment in the movant's favor. Mfrs., Inc. 46 N. Y.2d 1065, v. 64 N. Y.2d Farrell Lines Inc. prima facie If a suffcient Associated Fur 416 N. Y.S. 2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney Olan v. See Friends of Animals, Inc. 1092, See s affirmation. CPLR~. 3212 (b); 489 N. Y.S.2d 884 (1985). showing is demonstrated, the burden then shifts to the non- moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar See Zuckerman judgment and necessitates a trial. 49 N. Y.2d City of New York, 557 , 427 When considering a motion for summar judgment , the fuction supra. Y.S.2d 595 (1980), v. of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. v. See Silman supra. 3 N. Twentieth Century- Fox Film Corp., 2d 395 , 165 N. Y.S. 2d 498 (1957), Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable issue. v. See Gilbert Frank Corp. Federal Ins. Co., S. 2d 793 (1988). 70 N. Y.2d 966 525 N. Furher , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this type of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. Albany County, 50 N. Y.2d 247, 428 N. Y.S.2d 665 (1980); 312 543 N. Y.S.2d 987 (2d Dept. 1989). Daliendo v. See Barr Johnson 147 A. [* 5] Within the paricular context of a threshold motion which seeks dismissal of a personal injur complaint , sustain a " serious v. the movant bears a specific burden of establishing that the plaintiff did not injur" as enumerated in Aricle 51 ofthe Insurance Law 9 51 02( d). See Gaddy Eyler 79 N. Y.2d 955, 582 N. S.2d 990 (1992). Upon such a showing, it becomes incUmbent upon the non-moving pary to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a " serious injury. v. See Licari Ellott 57 N. Y.2d 230 , 455 Y.S. 2d 570 (1982). In support of a claim that the plaintiff has not sustained a serious injur, the defendant may rely either on the sworn statements of the defendant' s examining physicians or the unsworn See Pagano reports of the plaintiffs examining physicians. v. 182 A.D. 2d 268 587 Kingsbury, 2d 692 (2d Dept. 1992). However , unlike the movant' s proof, unsworn reports ofthe plaintiff s examining doctors or chiropractors are not sufficient to defeat a motion for judgment. See Grasso v. Angerami, 79 N. Y.2d 813 , 580 N. Y.S.2d 178 (1991). Essentially, in order to satisfy the statutory serious jnjur threshold , Toure requires objective proof of a plaintiffs injury. The Cour of Appeals in Systems 98 N. Y.2d 345, 746 N. summar 2d 865 (2002) stated that a plaintiffs the legislature v. Avis Rent..a- Car proof of injur must be supported by objective medical evidence , such as sworn MRI and CT scan tests. However , these sworn tests must be paired with the doctor s observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on reports. See Gonzalez v. Vasquez 301 A.D.2d 438 , 754 N. Y.S.2d those 7 (1 Dept. 2003). Conversely, even where there is ample proof of a plaintiffs injur, certain factors may nonetheless override a plaintiff s objective medical proof of limitations and permit dismissal of a plaintiffs complaint. Specifically, additional contributing factors such as a gap in treatment, an [* 6] intervening medical problem or a pre-existing condition would interrpt v. See Pommells between the accident and the claimed injury. Perez, the chain of causation 4 N. YJd 566 , 797 S.2d 380 (2005). Plaintiffs claim that , as a consequence of the above described automobile accident with defendants , plaintiff Mariano Lopez has sustained serious injuries as defined in New York State Insurance Law 9 5102(d) and which fall within the following statutory categories of injuries: 1) permanent loss of a body organ , member , fuction or system; (Category 6) 2) a permanent consequential limitation of use of a body organ or member; (Category 7) 3) a significant limitation of use ofa body fuction or system; (Category 8) 4) a medically determined injur or impairment of a non- permanent natue whicb prevents the injured person from performing substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days . during the one hundred eighty days immediately following the occurence ofthe injur or impairment.(Category 9). See Defendants ' Affirmation in Support Exhibit E. For a permanent loss of a body organ , member , fuction or system to qualify as a " serious See Oberly v. Bangs injur" within the meaning of No-Fault Law , the loss must be total. Ambulance, Inc. 96 N. Y.2d 295 , 727 N. Y.S. 2d 378 (2001); 42 AD. 3d 477, 840 N. Amata v. Fast Repair Incorporated, S.2d 394 (2d Dept. 2007). To meet the threshold regarding significant limitation of use of a body fuction or permanent consequential limitation of a body fuction or system , or system the law requires that the limitation be more than minor , mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injur or condition. See Gaddy v. Eyler, 79 N. 2d 955 582 N. 2d 990 (1992); Licari Y.2d 230 455 N. Y.S. 2d 570 (1982). A minor , mild or slight limitation wil be v. Ellot , 57 deemed [* 7] See Licari insignificant within the meaning of the statllte. the " permanent v. EllQt A claim raised llder , supra. consequential limitation of use of a body organ or member" or system" limitation of use of a body fuction or " significant categories can be made by an expert' s designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. v. See Toure In addition , an expert' AvisRent-a- Car Systems, supra. qualiative assessment of a plaintiff s condition is also probative , provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs fuction, purose and use of the affected body organ , member , limitation to the fuction or system. normal See id. Finally, to prevail under the " medically determined injury or impairment of a nonpermanent natue which prevents the injured person from pcrforming substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days durng the one hundred eighty days immediately following the occurence of the injur or impairment" category, a a " medically determined injur impairment of a non-permanent competent , plaintiff must demonstrate though or natue " objective proof (Insurance Law 5102(d)) "which would have caused the alleged limitations on the plaintiff's daily activities. See Monk v. Dupuis 287 AD.2d 187 , 734 N. plaintiffs usual activities must be Licari v. Ellott, supra "to a great extent rather than some slight curailment." See at 236. Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies. Misc.3d 900 S.2d 684 (3d Dept. 2001). A curailment of the v. See Gomez Ford Motor Credit Co. 810 N. Y.S. 2d 838 (Sup. Ct. , Bronx County, 2005). With these guidelines in mind , the Cour will now tur to the merits of defendants motion. In Sllpport of their motion , defendants submit the pleadings , plaintiffs ' Verified Bil Pariculars and Supplemental Verified Bil of Pariculars , the transcript of plaintiff Mariano [* 8] Lopez s Examination Before Trial (" EBT" ) testimony, the transcript of plaintiff Himilice Lopez s EBT testimony, the transcript of defendant Davis ' EBT testimony, the transcript of non, who par witness Kim Hargwood' s EBT testimony, the affrmed report of Leon Sultan, M. , the rental car performed an independent orthopedic examination of plaintiff on June 2 2011 agreement entered into by Natasha Barwell, the Police Accident Report and the Affidavit of Daniel Madden , a risk manager for defendant ELRAC. When moving for dismissal of a personal injur complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injur. 2d 955, 582 N. See Gaddy Eyler v. S.2d 990 (1992). Within the scope of the movant' s burden , defendant' medical expert must specify the objective tests upon which the stated medical opinions are based and when-rendering an opinion with respect to the plaintiffs range of motion , must compare any See Gastaldi findings to those ranges of motion considered normal for the paricular body par. 56 AD.3d 420 866 N. Y.S. 2d 750 (2d Dept. 2008),' Chen, 845 N. Meiheng Qu Dept. 2007); Browdame Nociforo S.2d 415 (2d Dept. 2007); v. D.3d 506 v. Doshna 12 A. v. v. Malave Basikov 45 ADJd 539, Penna 42 A. DJd 514 , 840 N. Y.S. 2d 2d 112 (2d Dept. 2004); 3d 578, 785 N. Candura 25 A. DJd 747 807 N. Y.S.2d 658 (2d Dept. 2006); 820 N. 396 (2d Mondi v. Keahan , 32 2d625 (2d Dept. 2006). Dr. Leon Sulta , a board certified orthopedist , reviewed plaintiff Mariano Lopez See medical records and conducted an examination of him on June 2, 2011. Defendants Affrmation in Support Exhibit J. Dr. Sultan examined plaintiff Mariano Lopez and performed quantified and comparative range of motion tests on his cervical spine , thoracolumbar spine right hip and right knee. The range of motion testing was conducted by way of a goniometer and the results of the tests indicated no deviations from normal. Ik Sultan s diagnosis was " (tJoday [* 9] ortopedic examination in reg(id tQ this gentleman s cervical spine, thora.colurbar spine, right hip and right knee reveals him to be orthopedically stable and neurologically intact. Today examination does not confirm any ongoing causally related ortopedic or neurological impairment in regard to the occurence of3112/10. From a clinical point of view , there is no described MRI readings. correlation between today s examination and the above- Defendants argue that plaintiffs ' Bil of Pariculars , dated September 14 2010, alleges that plaintiff Mariano Lopez suffered a medial meniscus tear , but the Supplemental Bil of Pariculars, dated August 19 , 2011 , only alleges chondromalacia. Defendants contend that plaintiff Mariano Lopez had a. right knee MRI on July 13, 2010 , which found no proof of any tears , but contained the diagnosis of chondromalacia and joint effusion. Defendants that plaintiff Mariano Lopez has not had any diagnostic fuher (igue testing which found any meniscus tear. Defendants submit that , on the date of the accident , plaintiff Mariano Lopez went to the Emergency Room at New Island Hospital, had x-rays done of the femur and was found to have mild degenerative disease in his right hip. With respect to plaintiff s 90/180 claim , defendants rely on plaintiff s testimony af his EBT , which indicated that , as a result of the subject accident he was not confned to bed or home for more than , he missed one day of work and that three days. Defendants submit that the subject accident occlJed on a Friday and that plaintiff Mariano Lopez only missed work on the following Monday. When plaintiff Mariano Lopez returned to work, he duties as a security guard at the school. Defendants contend that retured to his usual , other than less marital relations and the inabilty to play baseball with his grandchildren, plaintiff Mariano Lopez has not been unable to engage in his usual activities. Defendants argue that " inabilty to play baseball does not give rise to satisfaction of (r)eduction in relations and the requirement to be unable to '" [* 10] engage in material acts which constituted his usual and customar daily activities for more than 90 (sic) during the 180 days immediately following the occurence. Defendants fuer argue that " (t)here have been no specific fidings as to the frequency, the severity, or the duration of the pain in the right knee , back or neck areas of the plaintiff or whether those pains were associated with and/or occasioned by muscle spasms or limitation of motion. of the spine. Accordingly, any alleged pains are subjective and are not supported by credible medical foundation. With respect to defendants Graves Argument " defendants submit that " (c)onceding for the puroses of this motion that defendant, ELRAC , Inc. was the actual vehicle owner as alleged in the complaint , the plaintiffs Complaint as against defendant, ELRAC , Inc. , must be dismissed as against it. Specifically, pursuant to federal law Transportation Equity Act of2005 , Section 14 as embodied in Federal statute as 49 United States Code , chapter 301 , Subchapter I Section 30106 entitled ' Rented or leased motor vehicle safety and responsibilty' , New York Vehicle & Traffic Law Section 388 does not apply hereto.... Clearly the federal law, otherwise known as the Graves Amendment , pre-empts (sic) New York Vehicle & Traffic Law 9 388.... Under the Transportation Equity Act of2005 , 49 U. C. section 30106 , there can be no vicarious liabilty as against defendant , ELRAC , Inc. , a non-actively negligent owner of the rented/leased vehicle over which it had no control at the time of the accident. There is no liabilty upon a leasing/rental company vehicle owner for the alleged negligent acts of a renter/lessee. Based upon this evidence , the Court finds that defendants have established a prima facie case that plaintiff Mariano Lopez did not sustain serious injuries within the meaning of New York State Insurance Law 9 5102(d). The burden now shifts to plaintiffs to come forward with evidence to overcome 10- [* 11] that defendants ' submissions by demonstrating the existence of a trable issue of fact injuries were sustained. v. Grossman v. See Pommells Wright 268 AD. 2d 79 , Perez, 4 N. serious 3d 566 , 797 N. Y.S.2d 380 (2005); 707 N. Y.S.2d 233 (2d Dept. 2000). To support their burden , plaintiffs submit the affrmed report of Richard Rizzuti , M. , of All County Open MRI & Diagnostic Radiology, who performed an MRI of plaintiff Mariano Lopez s lumbosacral spine on May 8 , 2010 , the affrmed report of Robert Diamond 2010 , the unaffrmed medical narative reports of Richard Parker , M. Nassau Orthopedic Surgery & Sports Medicine , P. , of s right knee on Stand- Up MRI of Carle Place , who performed an MRI of plaintiff Mariano Lopez July 14, , M. , of South , dated March 18 2010 , April 15 , 2010 , May 12, 2010 and September 13, 2010 , the affirmed medical narative reports of Richard Parker , of South Nassau Orthopedic Surgery & Sports Medicine , P. , dated July 18 2011 and December 13, 2011 , theunaffirmed operative report of Jacob Rauchwerger , M. , of South Nassau Communities Hospital , dated August 5 , 2011, the affrmed medical narative report of Walter E. Mendoza, D. , dated Januar 16 2010 (with plaintiff Mariano Lopez s EMG report dated May 15, 2010) and the unsigned report of Nidi a R. Curero , M. , dated July 22 , 2010. Plaintiffs argue that "the concomitant effects of all Plaintiff s aforementioned injuries (as detailed in the Verified Bil of pariculars and Supplemental Verified Bil of Pariculars) and it sequelae wil be permanent in natue , and that the aforementioned injuries were caused, aggravated , exacerbated and/or precipitated by the aforementioned accident , together with their natural flowing sequelae , are permanent and progressive in nature , and/or effects. Plaintiffs submit the report of Dr. Richard Rizzuti , of All County Open MRI & Diagnostic Radiology, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff Mariano Lopez s lUIbosacral spine performed on May 8 11- [* 12] 2010., See Plaintiffs ' Affirmation in Opposition Exhbit 1. With respect to the MRI of the lumbosacral spine , the impression was, " (s )ubligamenious posterior disc herniations at L4- 5 and at L5- S1 impinging on the anterior aspect of the spinal canal and on the neural foramina bilaterally. See id. Plaintiffs also submit the report of Dr. Robert Diamond , of Stand-Up MRI of Carle Place, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff Mariano Lopez s right knee on July 14 See 2010. Plaintiffs ' Affirmation in Opposition Exhibit 2. With respect to the MRI of the right knee, the impression was effusion knee joint. Lateral patellar tilt and lateral patellar subluXation chQndromalacia spuring and (s)ynovial with patellofemoral narowing lateral patellofemoral joint comparent. Medial femorotibial joint comparment narowing with chondromalacia. Strain medical collateral ligament. Motion arifact noted. See id. As previously stated , unlike the movant' s proof, unsworn reports of the plaintiffs examining doctors or chiropractors are not sufficient to defeat a motion for summar judgment. See Grasso v. Angerami 79 N. Y.2d 813 , S.2d 178 (1991). Therefore, the unsWorn 580 N. medical narative reports of Richard Parker , M. D., of South Nassau Orthopedic Surgery & Sports Medicine , P. , dated March 18, 2010 , April 15, 2010 , May 12 2010 and September 13, 2010 are not suffcient to defeat defendants ' instat motion. See Plaintiffs ' Affrmationin Opposition Exhibit 3. Additionally, the unaffirmed operative report of Jacob Rauchwerger , M. Nassau Communities Hospital and the unsigned report of Nidi a R. Curero , M. 2010 are not suffcient to defeat defendants ' instant motion. See , of South , dated July 22 Plaintiffs ' Affirmation in Opposition Exhibits 4 and 6. However , the July 18 2011 and December 13 2011 medical narative reports of Richard 12- , p. [* 13] Parker , M. , of South Nassau Ortopedic Surgery & Sports Medicine See , were affirmed. Plaintiffs ' Affirmation in Opposition Exhibit 3. Dr. Parker s July 18 2011 report indicates that plaintiff Mariano Lopez was seen that date in follow-up for injuries sustained as a result of a work related accident 3/12/2010. On said date , range of motion tests performed on plaintiff , which occured on Marano Lopez s right knee spine indicated deviations from normal. Examination of plaintiff Mariano Lopez revealed "patient has pain and tenderness over the medial joint line. " Dr. Parker s lUlbar s assessment was " (1)umbar Spine Lumbago. Lumbar Spine Right Side Herniated Nucleus Pulposus. Right Knee Chondromalacia. " Dr. Parker stated " (d)ue to the subjective and objective findings , the patient is recommended physical therapy at a frequency of two time per week for six to eight weeks for exercise , ultrasound, electrical stimulation and massage therapy. The goal is to increase flexibilty and decrease pain and increase motion. Assuming the history to be correct as provided by the patient, it is my orthopedic opinion that the aforementioned occurence is the competent producing cause of the injur and disabilty See id. sustained by this patient." Dr. Parker s December 13, 2011 report indicates that plaintiff Mariano Lopez first presented to his offce on March 18 , 2010 for evaluation of right hip pain and right knee pain. Plaintiff Mariano Lopez advised Dr. Parker that he was a pedestrian who was struck by a car during the working hours on 3/12/10. On said date, range of motion tests , conducted by way of a goniometer and performed on plaintiff Mariano Lopez s lumbar spine, indicated deviations from normal. Examination of plaintiff Mariano Lopez s right knee revealed pain and tenderness. Dr. Parker s assessment was " (r)ight Knee Sprain. Herniated Nucleus Pulposus Lumbar Spine. Lumbar Radiculopathy Right. Sciatica Right." Dr. Parker fuher stated ,H (t)he patient has a Scheduled Loss of Use of the Right knee of 15%. Right Hip is not amenable to a Schedule of 13- ," [* 14] Loss of Use since the pain is coming from the back. The patient has Right Sciatica.... Patient responded to epidural steroid injection; patient needs another epidural steroid injection. Patient has pain in the lumbar spine with radiation into the right lower extremity. There are paresthesias in the right lower extremity. " Dr. Parker concluded (a)ssuming the history to be correct as provided by the patient , it is my orthopedic opinion that the aforementioned competent producing cause of the injur and disabilty sustained by occurence is the this patient." See id The affrmed medical narrative report of Walter E. Mendoza, D. C., dated Januar 16 2010 indicates that plaintiff Mariano Lopez first presented to his office on March 12, 2010 and rewred for re-examinations seven separate times between April 26 , 2010 and August 10 2011. See Plaintiffs Affirmation in Support Exhibit 5. At all of the visits , quantified and computerized range of motion tests performed on plaintiff Mariano Lopez s lumbosacral spine indicated deviations from normal. Additionally, at all of the visits , tests performed on plaintiff Mariano Lopez s right knee revealed pain. Dr. Mendoza concluded his reports stating, " (t)he patient (sic) remains parially disabled she can no longer perform all duties, including lifting, bending, climbing or kneeling. His concluding symptoms and disabilty are consistent with those of experience as well as the chiropractic , medical and automotive literatue. Mr. Lopez has permanent ratable factors of disabilty that wil affect his home and work activity. It is reasonably certain that he will have future pain and disability solely from the residual musculoskeletal dysfuction he suffered in the motor vehicle accident of 3/12/2010. Based on the evaluation of Ms. (sic) Lopez history, subjective complaints and objective findings , it is evident from a chiropractic/medical standpoint that this tye of injur is consistent with the tye vehicle accident she (sic) of motor experienced on 3/12/2010 , and that his above injuries are traumatic in nature and caused by the above dated motor vehicle accident. In my opinion , stated with a 14- [* 15] reasonable degree of certainty, the patient sustained limitation of use of a body fuction or system and has sustained a permanent injury as a result of the accident on 3/12/2010 from this date to present... .It is therefore my opinion to a reasonable degree of chiropractic certainty that a prognosis for a full and complete recovery is most certainly poor. The patient wil be left with a permanent parial disabilty. With respect to the 90/180 claim , plaintiffs submit that , in his EBT testimony, plaintiff Mariano Lopez stated that his employment duties have become more diffcult due to his inabilty to stading without feeling pain to his right knee. Additionally, plaintiff Mariano Lopez testified that, prior to the subject accident , he would regularly play baseball with his grandchildren since the date of accident, and solely as a result of said accident play baseball. Plaintiff Mariano Lopez added that he canot , but , he has been totally unable to stand , walk up/down stairs and walk for long periods oftime without feeling pain due to the injuries he sustained in the subject accident. Plaintiffs failed to address defendants ' arguments with respect to dismissal of the action against defendant ELRAC based upon the Graves Amendment. Accordingly, the portion of defendants ' motion for an order dismissing the action as against defendant ELRAC , Inc. pursuant to the Graves Amendment as there is no vicarious liabilty for leasing or rental car hereby companies under New York Vehicle and Traffic Law 9 388 is GRANTED. However , with respect to plaintiffs ' claims of " serious injury " under the categories of permanent loss of a body organ, member , fuction or system; (Category 6), a permanent consequential limitation of use of a body organ or member (Category 7), a significant limitation of use of a body fuction or system (Category 8) and a medically determined injur 15- or [* 16] 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 customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence ofthe injur or impairment (Category 9), the Court concludes that the acceptable evidentiar documentation presented by plaintiffs clearly raise genuine issues of fact as to injuries causally related to the March 12 2010 accident. Consequently, the portion of defendants motion for an order pursuant to CPLR 9 3212 and Aricle 51 of the Insurance Law ofthe State of New York granting them sumar judgment and dismissing plaintiffs ' Verified Complaint is hereby DENIED. The remaining paries shall appear for a Pre- Trial Conference in Nassau County Supreme Cour, Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive , Mineola, New York , on Februar 28 2012 , at 9:30 a. This constitutes the Decision and Order of this Cour. ENTERED Dated: Mineola, New York Februar 9, 2012 FEB 15 2012 MASSAU COUNTY COUNTY CLERK' S OFftCE 16-

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