Collado v Argueta

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Collado v Argueta 2012 NY Slip Op 31532(U) June 5, 2012 Supreme Court, Nassau County Docket Number: 15437/10 Judge: Jeffrey S. Brown 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] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 17 AURELIA COLLADO and ORLANDO COLLADO, Plaintiffs Index No. 15437/10 Mot. Seq. # 1 Motion Date 5. 11. Submit Date 5- 11- -against- JUAN A. ARGUETA, ERNESTO ME LARA, KEITH LYNCH and T ABA THA A. ENCALADA, Defendants. The following papers were read on this motion: Papers Numbered Notice of Motion , Affidavits (Affirmations), Exhibits Annexed.................... Notice of Cross- Motion , Affdavits (Affirmations) Exhibits Annexed................ Answering Affidavit ........ ............................. Reply Affidavit...................................................................................................... Upon the foregoing papers, the defendants ' motions seeking an order granting summary judgment pursuant to CPLR 9 3212 and dismissal of plaintiffs complaint , on the grounds that the plaintiffs injuries do not satisfy the " serious injury " 9 51 02 (d) is threshold requirement ofInsurance Law determined as hereinafter provided. The plaintiff commenced this lawsuit by fiing a summons and complaint wherein the plaintiff claimed personal injuries resulting from a motor vehicle accident , which occurred on September 22 2007. Issue was then joined by service of the defendant' s answer. In a personal injury action , a summary judgment motion seeking to dismiss the complaint case that the plaintiff did not sustain a serious prima facie requires that a defendant establish a v. Eyler 79 N. Y.2d 955 (1992)). (Gaddy injury within the meaning ofInsurance Law 9 5102(d). Upon such a showing, it becomes incumbent on the plaintiff to come forward with suffcient [* 2] evidence , in admissible form , to demonstrate the existence of a question of fact on the issue. Id. The court must then decide whether the plaintiff has established a prima facie case of sustaining (Licari v. Ellot 57 N. Y.2d 230 (l983)). a serious injury In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant' s examining physicians or the unsworn 182 A.D. 2d 268 (2nd v. Kingsbury, (see, Pagano reports of the plaintiffs examining physicians Dept. 1992)). However , unlike the movant' s proof, unsworn reports of the plaintiffs examining doctors or chiropractors . are not sufficient to defeat a motion for summary judgment 79 N. Y.2d 813 (1991)). A ngerami, (Grasso Essentially, in order to satisfy the statutory serious injury threshold requirement , the legislature requires objective proof of a plaintiffs injury. v. Toure The Court of Appeals in Avis Rent-a- Car Systems 98 N. Y.2d 345 (2002), stated that a plaintiffs proof of injury 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 the plaintiff and v. Vasquez 301 A.D. 2d 438 (1st Dept. 2003)). (see , Gonzalez the defendant rely on those reports Conversely, even where there is ample proof of a plaintiffs injury, certain factors may nonetheless override a plaintiffs objective medical proof of limitations and permit dismissal of a plaintiffs complaint. Specifically, additional contributing factors such as a gap in treatment , an intervening medical problem or a pre-existing condition would interrupt the chain of causation v. Perez 4 N. Y.3d 566 (2005)). (Pommels between the accident and the claimed injury Insurance Law 95102 (d) defines serious injury to mean a personal injury which results death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ , member , function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function 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 constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. in: (1) To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function 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 injury v. Ellot 67 N. Y.2d 230 (1982)). A minor , mild or v. Eyler , supra; Licari (Gaddy or condition slight limitation will be deemed insignificant within the meaning of the statute (Licari v. Ellot A claim raised under the " permanent consequential limitation of use of a body organ or member " or " significant limitation of use of a b?dy function or system " categories , can be made by an expert' s designation of a numeric percentage of a plaintiffs loss of motion , in order to supra). [* 3] In addition , an Avis , supra). expert' s qualitative assessment of a plaintiffs condition is also probative , provided: (1) the prove the extent or degree of the physical limitation (see , Toure v. evaluation has an objective basis and (2) the evaluation compares the plaintiffs limitation to the normal function , purpose and use of the affected body organ , member , function or system (Id). Finally, to prevail under the " medically determined injury or 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 customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" category, a plaintiff must demonstrate through competent , objective proof a " medically determined injury or impairment of a non- permanent nature which would have v. Dupuis 287 A.D. 2d 187 caused the alleged limitations on the plaintiffs daily activities (Monk (3rd Dept. 2001)). A curtailment of the plaintiffs usual activities must be " to a great extent at 236). Under this category v. Ellott , supra (Licari rather than some slight curtailment" specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff v. Ford Motor Credit Co. 10 Misc. 3d 900 (Sup. Ct. , NY Cty. , 2005)). (Gomez qualifies With these guidelines in mind , the court wil turn to the merits of the defendant' s motion. In support of their motion , the defendants submit the following: the summons and verified complaint; verified answer with cross- claim and demands; verified bil of particulars; deposition testimony of plaintiff; and independent medical examination report of Dr. Richard Weiss. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law , tendering sufficient (see evidence to eliminate any material issues of fact from the case Twentieth 562; Silman City of New York 49 NY2d 557 Zuckerman Century- Fox Film Corp. 3 NY2d 395 , 404). Failure to make such showing requires denial of the motion , regardless of the suffciency of the Wiliams , 84 (Matter of Redemption Church of Christ opposing papers 43 AD2d 968 969). Manion Realty, AD2d 648 649; Greenberg Winegradv. NY Univ. Med. Ctr. 64 N. Y.2d 851 853 (N. Y. 1985) As a result of the accident plaintiff alleges to have sustained inter alia the following injuries as per her verified bill of particulars: disc bulge of the C3- C4 level effacing the thecal sac; disc bulge of the C4- C5 level; disc bulge of the C5- C6 level effacing the thecal sac; straightening of the mid-cervical spine; and cervical myofascial syndrome with radiculopathy. Furthermore , as per the bill of particulars , plaintiff was not confined to a hospital , bed , or home for any period oftime; nor did she miss any time from work because of the accident. Plaintiff claims that she sustained a serious injury as defined in the Insurance Law Section she was disabled for a period in excess of 90 out of the first 180 days following the occurrence; that she sustained a permanent loss of use of a body organ , member , function or system; permanent consequential limitation of use of a body organ or member; significant 51 02( d) in that [* 4] limitation of use of a body organ or member; significant limitation of use of a body function or system; significant disfigurement; a fracture. The movant relies on the orthopedic medical evaluation of Dr. Richard Weiss dated With respect to the cervical spine , Dr. Weiss found the following: no spasm in the trapezil or paracervical muscles. Range of motion tests performed by a goniometer were all found to be in the normal range and the testing elicited no complaint of pain. No tenderness was elicited on palpation of the paracervical muscles; Spurling s maneuver failed to elicit any sign of radiculopathy to the shoulders bilaterally; motor strength was 5/5 in the upper extremities; sensation was normal; and December 22 2011 in support of the application for summary judgment. reflexes were 2+ With respect to the lumbar spine , Dr. Weiss found that there was no spasm in the paralumbar muscles; no tenderness on palpation of the paralumbar muscles. Range of motion tests performed by a goniometer were all found to be in normal range. Straight leg raise testing was negative bilaterally; heel/toe walking as well as tandem walk was performed without diffculty; minor s sign was absent; motor strength was 5/5 in the lower extremities; sensation was normal and reflexes were 2+ With respect to the shoulders , Dr. Weiss found that there was no creptius noted in either shoulder; impingement sign was negative. Range of motion tests performed by a goniometer were all found to be in normal range. Dr. Weiss ' impression after performing the physical examination upon plaintiff and the history as reported , if correct , by plaintiff was a resolved cervical sprain/strain; resolved lumbosacral sprain/strain; and resolved right shoulder sprain/strain. Furthermore , he concluded that there was no objective evidence of any disability. Based on the admissible evidence , the court finds that the defendant has established a case that the plaintiff has not sustained a serious injury within the meaning of prima facie Insurance Law 9 51 02 (d), specifically, a fracture , a disfigurement , a permanent loss of use of a body organ , member , function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body organ or member; significant limitation of use of a body function or system; or medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. The burden now shifts to the plaintiff to raise an issue of fact with respect to whether she meets the serious injury threshold requirement. In opposition to the application , the plaintiff submitted only the following documentary evidence: an unsigned MRI report dated October 26 2007 by Five Towns Total Medical Care C. The court notes that the MRI report of plaintiffs cervical spine was not signed or sworn Zerilo , 6 (see , Mahoney therefore , any reference to it by a physician for plaintiff is disregarded [* 5] 845 815 N. Y.S.2d 693; Dowling Haul Truck Rental Friedman AD3d 403; v. Mosey, 216 AD2d 266; Vista Surgical Supplies, Inc. 32 AD. 3d 1190 , 1191). Bycinthe v. Travelers Ins. Co. Kombos 29 AD. 50 AD3d 778; showing that the plaintiff did not sustain a " serious injury " pursuant to the Insurance Law. Further , the plaintiff did not successfully counter this showing with suffcient medical evidence , in admissible form to demonstrate the existence of material issues of fact that she has in fact sustained a " serious injury " pursuant to the aforementioned insurance law. In the instant matter , the defendants did succeed in making a prima facie Accordingly, based on the foregoing, the motion and cross-motion by the defendants for summary judgment dismissing the claims against them must be GRANTED , with prejudice. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York May 30 , 2012 . BROWN , JSC Attorney for Plaintiffs Dell Little Trovato & Vecere , LLP 5 Orvile Drive , Ste. 100 Bohemia , NY 11716- 2535 Attorney for Defendants Lynch and Encalada Russo Apoznanski & Tambasco , Esqs. 875 Merrick Avenue Westbury, NY 11590 Attorney for Defendants Argueta and Melara Robert P. Tusa , Esq. 1225 Franklin Avenue , Ste. 500 Garden City, NY 11530 TERED JUN 0 5 2012 NASfaAU COUNTY COUNTY CLERK' S OFFiCE

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