Lopez v Espinal

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Lopez v Espinal 2012 NY Slip Op 31389(U) May 15, 2012 Supreme Court, New York County Docket Number: 103756/10 Judge: Joan M. Kenney 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] SUPREME COURT OF THE STATE OF NEW YORK - MEW YORK COUNTY PRESENT: JOAN M. KENNH PART % Jvsdce MOTION DATE -v- s &/L,Vdd &L a q L%pncd am4 .,, The following papers, numbered 1 to Bt3I MOTION SEd. NO. MOTION CAL. NO. , ) Lwwa read on thb m o t h talfor & & I I I FILED [* 2] DECISION AND ORDER Index Number: 10375% 0 Motion Seq. No.: 001 -against- FILED MAY 2 3 2012 Recitation, to dismiss. DS required by CPLR 22 19(a), of thc papers considered in review of this m o m W YORK COUNTY CLERKS OFFICE Papers Notice of Motion, Affirmation and Exhibits, and Memo of Law Opposition Affirmation, Memo of Law, and Exhibits Reply Affirmation Numbered 1-8 9-1 1 12 In this personal injury action, defendants, Bernardo Espinal and Berrosa Auto Corp., move for an Order, pursuant to CPLR fi 321 2, dismissing the complaint. Factual B a c bound On October 15,2009 plaintiff, Pedro Lopez, was in a car accident with defendant, Espinal, who was working for and driving a car owned by defendant Berrosa Auto Corp. (the accident). 1 is 1 undisputed that immediately following the accident, plaintiff did not seek medical assistance. However, on October 22, 2009 plaintiff sought medical assistance at S&S Medical (S&S), as he began to noticc pain in different areas on his body, The doctor at S&S, Dr. Stephen Silverman, slates that plninliff complained of injurics to his head, neck, lower back, lefi shoulder, and right knee. (Dr. Silverman Report at 1). At plaintiffs examination beforc trial (EH'T), he testified that after X-Rays were taken at S&S, it was recommended that he receive surgery on his knee, but opted not to do so out of fear. (Lopez EBT at 82). 1 - . .. . . . . . . .- . . . -. . ~ [* 3] In the exam conducted on October 22, 2009, Dr. Silverman compiled B Range of Motion Report, which found a substantial list of losses of range of niotion in plaintiffs cervical spine, lumbar spine, right knee. and left shoulder. (Range of Motion Report, 10/22/09). Dr. Silverinan states in thc same report that plaintiffs injuries were causally rclated to the accident. (Range of Motion Report. 10/22/09). l lairitiff thcn was examined by Dr. Joseph Gorum on December 8,2009, and July 15, 201 1, who concludcd that plaintiff had a reduced range of motion of the right knee, causally related to the accident, and pcnnanent in nature. (Dr. Gorum Affirmation). Per Dr. Gorum s request, plaintiff followed up with Dr. Paul Ackernian on August 1,201 1. Dr. hckerman found plaintiffs range of motion to be affected in the right knee, and that based on plaintiffs history, cxaininalions, MRI, and complaints, plaintiff had a torn medial meniscus of the right knee, and needed arthroscopic surgery. (Dr. Ackerinnn Affmiation). Dr. Ackerrnan also concluded that plainlirt s injuries were causally related to the accident and permanent in nature. (Dr. Ackerman Aflirmalion). Ar PUments Defendants contend that plaintiff did not sustain a serious injury, as defined under lnsurancc Law 5 102(d), because his alleged injuries do not qualify as: resulting in death; dismemberment; significant disfigurement; fracture; loss of a fetus; pernianent loss of use of a body organ, member, hnction, or system; permanent consequential limitation of use o r a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or inipnirment ol non-pcrmnnent naturc which prevcnted him from pcrforming substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days out of 180 days immediately following the accident. 2 [* 4] Plnintiffargiies that his alleged injuries have resulted i n permanent consequential limitatiou of iise of his knee nnd/or significant limitation of use o f his knec, thus proving he did sustain n 5 102(d) serious injury; or at the very least, raise a triable issue of fact rcgnrding the serious injury qucstion. Discussion I ursuatit L WL,R 32 12(b), a motion for summary judgment shall be supported by o affidavit, by a copy of the plcadings aiid by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action ofdefense has 110 merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court EL? a matter o f law in directingjudgment in favor of any party. Except as provided in subdivision c of this rule the motion shall be denied if any party shall show facts suficient to require a trial of any issue of fact. Ifit shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant sucli judgment without the necessity of a cross-motion. I he rule governing summary judgment is well established: The proponent of a summary judgment morion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Winegrad v New York Univer-si/yMedioul Center, 64 N.Y.2d 85 1 [ 19851; Torterello v Carlin, 260 A.D.2d 201 [ 1 Dept 19993). In deleriiiining a motion for summary judgment where the issue is whether plaintiff has sustained a serious injury defincd by Insurance Law 5 102(d), the defendant bears the initial burden to present competent evidence that the plaintiff has no cause of action. (Rodriguez v. Goldstein, 3 [* 5] 1 S2 A.D.2d 396, 582 N.Y.S.2d 395 [ 1 Dept. 19921). It then becomes the plaintiffs burden to submit proof, in admissible form, of the existence of triable issues offact with regard to the existencc of a serious injury. (E-ranchiniv. Palmer, I N.Y.3d 536, 775 N.Y.S.2d 232 [2003]). Additionally, plaintiff must cstahlisli, through admissible medicnl evidence, that the injuries sustained are causally related to the accident claimed. (Porninells v. Perez, 4 N.Y..id 566, 797 N.Y.S.2d 380 [200S]; Chatah 1 . Iglesiax, 5 A.D.3d 160, 772 N.Y.S.2d 522 [ l S t Dept. 20041). Insurance Law 5 104(a) states: Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss. lnsurancc LRW 5 102(d) states: Serious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss o f a fetus; permanent loss of use of a body organ, member, function or system; pennancnt consequential limitation of use of a body organ or member; signiiicant limitation of use of a body fuiiction or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constilute such person s usual and customary daily activitjes for not less than ninety days during the one hundred eighty days immediately following the occurrencc of thc injury or impairment. A plaintiffs submission of sworn medical reports of physicians who examined the plaintiff that state a diagnosis of loss of range of motion in the knee, which could require surgery, can establish a prima facie case ofserious injury, (see, Brown v. Achy, 9 h.D.3d 30, 776 N.Y.S.2d 56 [ I Dept. 20041; Toure v. Avis Reni A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; D e h g d o v. Fidel Gorp. Services, Inc., 171 A.D.2d 588, 567 N.Y.S.2d 454 [ I s t Dept. 19911). Plaintiff is basing his serious injury claim on the permanenthignificant limitation of use of a body function or system party of Insurance Law 5 102(d). Plaintiff alleges that his right knee that 4 [* 6] was injured in the Rccideiit restricts and/or limils him in daily life activities. Defendants mcet the iiiitinl burden by presenting sworn medical records staling that the plaintiff did not show any evidence of residuals or permanency of any alleged injury froin the accident. (Dr. Nason TME). Dr.Nmon further states that plaintiff is able to perform daily living 1 activities with 10 restrictions, and shows no loss of range of motion in his right knee. (Dr. Nason IME). Because of this, defendant contends that plaintiff did not sustain an injury meeting any of the threshold serious injury requirements. Plaintiff, however, has sufficiently rebutted defendants assertions by submitting affirmations detailing his permanent loss of range of motion in the right knee, causally relating to the accident. Accordingly, a factual dispute exists as to whether plaintiff suffcred serious injuries and summary judgment must be denied. It is thereby ORDERED, that defendants motion surnmmy judgment motion. is denied, in its entirety; and it is further ORDERED, that the parties proceed to mediation, forthwith. Dated: 5 -lf-& ENTER: v I Joan M. Kenney, J.S.C. 5

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