Pimentel v Feliciano
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Pimentel v Feliciano 2012 NY Slip Op 31398(U) May 10, 2012 Supreme Court, Nassau County Docket Number: 13702/10 Judge: Thomas Feinman 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] .f't SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice ISMALLA PIMENTEL , AN INFANT UNDER THE AGE OF EIGHTEEN YEARS OLD BY HER MOTHER AND NATUL GUARDIAN SANTA B. AMADOR AND SCARLEN PIMENTEL , AN INFANT UNDER TH AGE OF EIGHTEEN YEARS OLD BY HER MOTIER AND NATURA GUARDIAN SANTA B. AMADOR Plaintiffs, TRI/IAS, PART 9 NASSAU COUNTY INEX NO. 13702/10 MOTION SUBMISSION DATE: 3/30/12 MOTION SEQUENCE NOS, 2 , 3 - against Action 1 HA YDEE R. FELICIAO , ROQUE ROSA- SANTANA AND LUIS A. MARTIZ Defendants. DAISA FIGUEORA individually and as parent and natural guadian of JENNIFER ROSA and INDEX NO. 23257/10 MARIOLBIS ROSA Plaitiffs, - against - LISA MARTINEZ and ROQUE ROSA Defendats. The following papers read on this motion: Notice of Motion and Affdavits Notice of Cross- Motion and Affidavits............. Affrmations in Opposition......... Reply Affirmations.... ..... Action 2 t.pJ( [* 2] pursuat to CPLR The defendats, Haydee R. Feliciano and Roque Rosa- Santaa, move for an order claims by 3212 granting defendats sumar judgment dismissing all claims and crossdefendats are not liable plaintiffs , Ismalla Pimentel and Scarlen Pimentel, on the ground that the for the happening of plaintiffs ' accident, or in the alterative, on the ground that the injures of the plaitiffs , Ismalla Pimentel , Scarlen Pimentel , and Jennifer Rosa do not, as a matter of law 5102(d). The defendant, Luis A. Marinez, constitute serious injur as defined by Inurance Law judgment and opposes only that branch of the motion on the issue of cross-moves for Ismalla Pimentel and Scarlen Pimentel , submit opposition to the motion and liabilty. The plaintiffs, cross-motion, The movants each submit reply affrmations. sum Notably, the above action bearng Index Number 23257/10 setted, and therefore, that of defendants' motion concerning plaitiff, Jennfer Rosa, is now moot. branch Theshold Motion 3212, for an order granting summar judgment in their favor and dismissing the plaintiffs ' complaint on the grounds that the plaintiffs, Ismalla Law Pimentel and Scarlen Pimentel , did not suffer a " serious injur" as defined by Insurance 51 04( a) of the New York 51 02( d), and thus , plaintiffs ' claim for non-economic loss is bared by The defendats move , pursuat to CPLR Insurance Law. The plaitiffs submit opposition. The defendats submit a reply afrmation. The plaintiffs commenced an action to recover for personal injuries sustaed as a result of an automobile accident which occured on Febru 4 2010. The plaintiff, Ismalla Pimentel , alleges injuries including cervical internal derangement, cervcal and lumbar radiculitis, thoracic and lumbar subluxation, and decreased rage of motion of the cervca and lumbar spines. The plaintiff, Scarlet Pimentel , aleges injures including cervical internal derangement , cervical and lumbar radiculitis thoracic and lumbar subluxation , and decreased range of motion of the cervical and lumbar spines and bilateral shoulder and knee internal derangement. The defendants submit the affrmed medical reports of Dr. Raghava Polavarpu , M. ortopedist. Dr. Polavarapu examed the plaitiff, Ismalla Pimentel, on April 21 , 2011 and found that her cervcal , thoracic and lumbar sprain/strin was resolved and found no objective evidence of any disabilty or permanency, Dr. Polavarapu also examined the plaitiff. Scarlen Pimentel , on April 2011 and found tht her cervical , lumbosacral and thoracic spraistrain were resolved, as well as her bilateral knee contusions. Dr. Polavarapu found no objective evidence of any disabilty or permanency. The defendats also submit the afrmed medical report of Dr. Mara DeJesus, M, neurologist , who examned Ismalla Pimentel and Scarlen Pimentel on April 21 , 20 II, Dr. DeJesus found no objective evidence of any disabilty or peranency for either plaitiff. ... [* 3] , chiropractor. Dr. Plaintiffs submit, in opposition , the reports of Dr. Walter Mendoza D. 2012. Dr. Mendoza Mendoza conducted a physical examination of each of the plaintiffs on March 1, ange of states, essentially, that the plaintiffs suffered from objectively determned restriction of the functIOns and motion of the cervical spine which constitutes a significant limitation of use of body motion. Serious Injur" 51 02( d) as: is defmed in Insurance Law (A) personal injur which results in death; dismemberment; significant disfiguement; a fractue; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ significat limitation of use of a body or member fuction or system; or a medically determined injur or impairment or a non- pennanent nature which prevents the injured person from performng substatially all of the material acts which consitutes such person th s usual and ninety day durng the one customar daily activities for not less hundred eighty days imediately following the occurence of the injur or impainnent." A defendant can establish that the plaintiffs injures are not serious within the meaning of the Insurance Law ~ 51 02( d) by submitting the afdavits or afrmations of medical experts who examned the plaintiff and conclude that no objective medical findings support the plaintiffs claim Wright 268 AD2d 79). The cours have consistently held a " plaintiffs subjective v. (Grossman claim of pai and limitation of motion must be supported by verified objective medical findings v. Penta 261 AD2d 365). The theshold question in Kauderer 268 AD2d 79, v. Wright, (Grossman determining a sumar judgment motion on the issue of serious injur focuses on the suffciency of the moving papers. Once the defendats submit evidence establishig that the plaintiffs did not sufer a serious injur within the meaning of Insurce Law 51 02( d), the burden shifts to the plaintiff to produce evidence in adissible form demonstrating the existence of a trable issue of 582 NYS2d 990). The proof shall be viewed in a light most favorable to the v. Eyler (Gadd fact. 562 NYS2d 808). Vilanova, v. (Cammarer non-moving par. When a claim is raised under the " permanent consequential limitation of use of a body organ or member , or " signficant limtation of use of a body fuction or system " or " a medically determined injur or impairment of a non-permanent natue which prevents the injured person from performng substatially all of the material acts which constitute such person s usua 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 " in order to prove the extent or degree of physical limitation , an expert' s designation of a numeric percentae of a plaintiffs loss of range of (Toure v. Avis Rent A Car Systems, Inc. 746 NYS2d 865). An expert' motion is acceptable. quaitative assessment of a plaintiffs condition is also probative provided that the evaluation has an objective basis , and the evaluation compares the plaitiffs limitations to the normal function (ld.) purose and use of the afected body organ, member, fuction or system. [* 4] -.. ---.--. - The defendats have met their burden of establishing that the plaitiffs have not sustained , the burden shift As the defendants have met the initial burden of proof trable plaintiffs to provide evidence in admssible fonp to demonstrate the existence of a 582 NYS2d 990). v. Eyler, (Gaddy fact. a serious injur. to the issue of The plaintiffs , in its opposition, have submitted admissible evidence indicating the plaintiffs quatified limitaons of motion in their susned objectively-measured, causally related specifically-AD2d). An expe' s designation of a Choi 298 v. (Molina lumbar spine. her cervcal and/or s loss of motion can be used to substatiate 98 NY2d 345, we canot say that the plaintiffs numeric percentage or a plaitiff injur. Here , as in Toure v. Avis, a claim of serious claimed limitations are so ' minor, mild or slight' as to be considered insignficant. Therefore , while the defendants have met the initial burden of establishing that the plaintiffs insurance law, as the plaintiffs have submitted have not sustaned a serious injur as set fort in the the defendants ' submission that there competent objective evidence for the puroses of overcoming sumar judgment on the issue are not trable issues of fact in ths case, the defendants ' motion for of theshold is denied. Liabilty Motion referred to as The defendants, Haydee R. Feliciano and Roque Rosa- Santaa, (hereinafer Rosa- Santaa), move for summar judgment puruat to CPLR dismissing all claims and crosshappening of claims agains Rosa- Santaa on the ground that the movant is not liable for the as "Marinez )j crossplaintiffs ' accident. The defendant , Luis A. Marinez, (hereinafer referred to moves and opposes ths brach of defendants ' motion, The defendants submit a reply affrmation. The plaintiffs were passengers in the Rosa- Santaa vehicle which collded with the Marinez Vilage of Freeport vehicle at or near the intersection of South Bayview Avenue and Pine Street, vehicle made a leftCounty ofN assau, State of New York. Rosa- Santan submits tht the Marnez Santaa vehicle , and pushed the Rosahad tur in front of the Rosa- Santaa vehicle, hit the RosaSantaa vehicle to the right side of the street where it came to a stp. Vehicle and Traffc Law 1141 Vehicle turing left" provides as follows: tu to the left within an intersection or The drver of a vehicle intending to into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is withn the intersection or so close as to constitute an immediate hazard. A drver of a vehicle intendig to to any oncoming trffc withn the intersection, is a violation of Vehicle and Traffc Law tu left as a green v. (Vogel 1141. AD2d 274). Violation of Vehicle and Traffc Law Lieberman 266 AD2d 494). (Mattera trafc signal must yield the right of way Gilbo 276 AD2d 977). Failure to do so Avis Rent a Car System, Inc., 245 v. 1141 constitutes negligence per se. (Ciatto - - -- +- .-- _.. [* 5] showing entitlement to sumar mattr of law in failing to yield the right-of-way to judgment by prima facie Rosa- Santaa has made a establishing that Marinez was negligent as a Rosa- Santaa when Marez made a left-hand as Rosa-Santaa legally proceeded through the intersection. Cancelieno Dutchess 278 AD2d 304, v. Stiles demonstrated that Marez violated Vehicle and Traffc Law Santaa vehicle tu directly in the path ofthe Rosa-282 AD2d 448, (Welch v. v. Lorman, 264 AD2d 405). Rosa- Santaa Johnston, yield 1141 when Marinez failed to opposite direction as to constitute the right of way to the Rosa- Santaa vehicle approaching from the tral that he did not see the Rosaan immediate hazd. Marinez testified at his examination before right of way, Rosa- Santa is Santa had the (Jacino Santaa vehicle until impact. Inasmuch as RosaMarinez would obey the trafc laws which required him to yield. entitled to anticipate that 10 AD3d 593). v. Sugerman, bona fide issues of Marinez, in opposition to the motion, fails to raise the existence of any his foot off the gas Santana did not reduce his speed by taing fact. Marinez s arguent that Rosaunpersuasive. As already provided, Rosa- pedal , apply his brakes, or change lanes to avoid impact is Marnez would obey the trafc Santaa, who had the right-of-way, is entitled to anticipate that 284 AD2d 352). v. Rehfeildt, (Agin which required Marez to yield. laws Conclusion Upon the foregoing, it is hereby ORDERED that branch of the defendants ' motion for the plaitiffs ' injures do not constitute serious injures as denied, and it is hereby sumar judgment on the ground that defied by Insurance Law S102(d), is sumar judgment on liabilty on the ORDERED that branch of the defendants' motion for defendats are not responsible for the happening ground tht the and therefore , it is hereby of plaitiffs ' accident is granted, claims , as and against the ORDERED tht the plaintiffs ' complaint , and any and all crossSantaa, are hereby dismissed. defendants, Haydee R. Feliciano and Roque Rosa- Dated: May 10 2012 cc: Mallio & Grossman, Esqs. Lavin, O' Neil, Ricci, Cedrone & DiSipio , Esqs. Malone Tauber & Sohn, P. Law Offces of Robert P. Tusa cassisi & Cassisi, P. ENTERED MAY 15 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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