Gonzalez v Longo

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Gonzalez v Longo 2017 NY Slip Op 31228(U) May 26, 2017 Supreme Court, Suffolk County Docket Number: 14-2457 Judge: Joseph C. Pastoressa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHU!/ r H JRM ORDFR INDEX '.'Jo. l 4-245 7 C1 L. No. \ l 6-00650MV SUPR EME COURT - STA TC OF NEW YORK I.A. S. PART 3-l - SUFFOLK COL J NTY con. PR E S ENT: Hon. JOSEPH C. PASTORESSA Justice of the Supreme Co urt MOTIO DATE ADJ. DATE I 1-16-16 I 1-16-16 Mot. eq. # 003 - MG; CASEDISP ---------------------------------------------------------------){ .TACAL YN GONZALEZ, Plaintiff. SIBEN & SIBEN, ESQS. Attorney for Plaintiff 90 East Main Street Bay Shore, New York 11706 - against JENNIFER M. LONGO, Defendant. RICHARDT. LAU & ASSOCIATES Attorney for Defendant P.O. Box 9040 300 Jericho Quadrangle, Suite 260 Jericho, New York 11753-9040 ---------------------------------------------------------------)( Upon the following papers numbered 1 to_lL_ read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers.1.:.!;L_; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 15-23 ; Replying Affidavits and supporting papers 24-25 ; Other_; (and aA:e1 lie111 i11~ eotmsel i11 sttpport 1111 d opposed to the 111 otio11) it is, ORDERED that the motion by defendant Jennifer Longo fo r summary judgment dismi ssing the complaint is granted. Plai nti ff Jacalyn Gonzalez commenced this action to recover damages for injuries she al legedly sustained as a result of a motor vehicle accident that occurred at the intersection of Express Drive South and Veterans Memorial fl ighway in the Tom1 of fslip on July 1-J.. 2012. It is alleged that the accident occurred "·hen the vehicl e owned and operated by defendant Jen11i fer Longo struck the rear of the vehicle owned and operated by plaintiff wb ilc it was stopped at a red traffic li ght in th e left Jane of eastbound Express Dri ve South. By her bill of pa11iculars. pla intiff alleges that she sustained various personal injuries as a resu lt of the subject collision. including hern iated disc at le\'el C6-C7. cervical radic ulopathy. and cervical artlu·opathy. Defendant now moves fo r summary judgment on the basis that the injuries all egedly sustained by plaintiff as a resu lt of the subject acc ident do not come within the mean ing of the seri ous injury [* 2] Gonzalez v Longo Index No . 14-2457 Page 2 threshold req uirement of Section 5102( cl) of the Insurance Law. In support of the motion. defendant submits copies of the pleadings. plaintiffs deposition transcript. unce1tifiecl copies of the plaintiffs medical records regarding the injuries at issue. and the sworn medical report of Dr. Gary Kelman. At defendant's request, Dr. Kelman conducted an independent 01thoped ic examination of plaintiff on July 2 7. 2015. Plaintiff opposes the motion on the gro unds that defendant foiled to meet her prima facie burden demonstrating that she did not sustain a serious injury as a result of the subject accident, and that the evidence submitted in opposition shows that she sustained injuries within the ·'] imitations of use'' and the ·'90/ 180·· categories of the Insurance Law. In opposition to the motion. plaintiff submits her own deposition transcript. unce1 iified copies of plaintiffs medical records concerning the injuries at issue. and the sworn medical reports of Dr. Marco Palmieri and Dr. Paul Miller. It has long been established that the ..legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Du/el v Green , 84 NY2d 795; see also Toure v Avis Rent A Car Sys., 98 NY2d 345). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Lict.tri v Elliott, 57 NY2d 230; Porcano v Lehman , 255 AD2d 430; Nolan v Ford, I 00 AD2d 579). Insurance Law § 5102 (cl) defines a "serious injury" as ''a personal injury which results in death; dismembennent; significant disfigurement; a fracture; loss of a fetus; 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 detem1ined 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 Jess than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys. , supra; Gaddy v Eyler, 79 NY2d 955). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant 's own witnesses, '·those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports'' to demonstrate entitlement to j udgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, 270). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger. 288 AD2d 431; Grossman v Wrig/11, 268 AD2d 79; Vignola v Varricl1io. 243 AD2d 464; Torres v J °l'ficlteletti. 208 AD2d 5 l 9]). Once defendant has met this burden. plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for '·serious injury" under Ne\.\' York's No-Fault Insurance Law (see Du/el v Green. suprn: Tornabene v Pawlewski. 305 AD2d 1025: Pagano v Kiugsbury.182 AD2d 268). However. if a defrndant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injLiry threshold. the court need not consider the sufficiency of the plaintiff's opposition papers (see Bums v Stranger. 31 AD3d 360; Rich-Wing v Ba boo/al. 18 AD3d 726: see genera/~1· Winegrad v Ne1 York U11fr. Jl!fed. Ctr.. 64 TY2d 851 ). v [* 3] Gonzalez v Longo Index No . l .f-2457 Page 3 Here. defendant. by subm itting competent med ical evidence and plai ntiff s depositio n transcript. has demonstrated. prima facie . that plaintiff d id not s ustai n a serious injury \Vithin the meaning of Sectio n 5102(d) of the Insurance Law as a res ult o f the s ubject collision (see Toure vAvis Rent A Car ~rs.. supra: Gaddy v Eyler. supra: Green v Ca11ada D1:i· Bottling Co. of N. Y.. L.P. , 133 AD3d 566). Defendant" s orthopedi c expe1 Dr. Kelm an. in hi s report states that an examination of plaintiff reveals i. she has full range of motion in her cervical spine. shoulders. elbows. wrists. hands and fingers. Dr. Kelman states that the exam ination did not reveal any evidence of spasms or tenderness upon p alpation of plaintiffs paraspinal muscles. that she does no t have an antalgic gait that there is no crepitus or atrophy of plaintiffs muscles, and that there was no svvelling in her hands or elbows. Dr. Kelman opines that the strains/sprains plaintiff sustained to her cervical regio n and the pain that radiated from her neck to her left upper extremity have resolved. Dr. Kelman fu11her states that plaintiff does not have an orthopedic disability as a result of the subject accident. Furthermore, plaintiffs deposition testimony establishes that she did not sustain an injury within the 90/ 180 category of the Insurance Law (see Pryce v Nelson. 124 AD3d 859; Knox v Lemzilum , 65 AD3d 615 ; Rico v Figueroa, 48 AD3d 778). Plaintiff testified at an examination before trial that following the accident she missed approximately three to four days from her employment as a nursing station clerk at Stony Brook University Hospital as a result of the injuries she sustained to her neck, and that when she returned to work she returned in her normal capacity, although she placed restrictions on her ability to lift heavy items. Plaintiff testified that she was not provided with a disability note restricting her work requirements or stating that she was not able to lift heavy objects . Plaintiff testified that she voluntarily terminated her employment w ith Stony Brook University Hospital in 2015 due to personal reasons and not as a result of the injuries she sustained in the subject accident. Plaintiff further testified that she modeled as a hobby prior to the subject accident, but that she stopped modeling because of personal reasons, including the fact that the " modeling was sporadic," that she did not receive compensation for modeling, and that her injuries prevented her from '"holding the poses. " Defendant shifted the burden to plaintiff to come forward w ith evidence in admissible form to raise a material triable issue of fact as to whether she sustained an injury within the meaning of the Insurance Law (see Pomme/ls v Perez. 4 NY3d 566; see generally Zuckerman v City of New York, 49 NY2d 557). A plaintiff claiming a sig nificant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 AD3d 498; il1ejia v DeRose. 35 AD3d 407; Lan~[fa v Yui Ming Lau. 32 ADJd 996: Kearse v N ew York City Tr. A uth.. 16 AD3d 45 ). '·Whether a limitation of use or function is "significanf o r ·consequential" (i.e. imp011ant .. . ). relates to medical significance and involves a comparatiw determination of the degree or quali tati ve nature of an injury based on the normal func tion . purpose and use of the body part" (Dufel v Green , supra at 798 ). To prove the extent o r degree of physical limitation with respect to the ·'limitations of use·· categories. either objective evidence of the extent. percentage or degree of the limitation or loss of range of m otion and its duration based o n a recent exam inati o n of the plainti ff must be provided o r there must be a sufficient descriptio n of the ··q ua li tati\'e nature .. of plaintiffs limitations. wi th an objective basis. correlating plaintiffs limitations to the normal fu nctio n. purpose and use of the body part (see Perl v Melter. 18 NY3d 208: Toure 1· A vis Rent A Car Systems, Inc.. supra at 3 50: see also Valera 1• Si11glt. 89 AD3d 929: Rovelo v Volcy. 83 AD3d 1034). A minor. mild or s light limitation of use is [* 4] GonLalez ,. Longo Index No. J-t-2.+57 Page 4 considered ins ign ificant within the meaning of the statute (see Licari 1· Elliott. supra). Howe,·er. e\'idence of contemporaneous range of motion limitations is not a prerequisite to reco,·ery (see Perl .Heller. supra: Paulino 1• R odrigue:. 91 ..\DJd 559 ). 1• In oppos ition. plaintiff has fai led to raise a triable issue of fact as to whether she sustained a seri ous injury within the limitati ons of use cateirories or the 90/ 1SO cate!rnry of the Insurance La\\' (see .._ . Boettcher 1• Ryder Truck Rental, Inc.. 133 AD3d 625 : Posa v Guerrero. 77 ADJd 898: Wallace" Adam Rental Transp., Inc.. 68 AD3d 857 ). A plai ntiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged inju1y is within the serious injury threshold or Insurance Law§ 5102(d). but also that the inj ury was casually related to the subject accident in order to recover for noneconomic loss related to personal injury sustained in a motor vehicle accident (see Valentin v Pomilla. 59 AD3d 184). The medica l evidence proffered by plaintiff was insufficient to establish a serious injury or to defeat defendant 's prima facie showing. Notwithstanding the fact that plaintiff has submitted the affirmed medical report of Dr. Paul Miller, showing that plaintiff sustained range of motion limitations in her cervical spine with radiating pain into her left arm contemporaneous with the subj ect accident, she fai led to subm it any objecti ve admissible medical proof demonstrating the existence of such limitations based upon a recent examination (see Estrella v GEICO Ins. Co., l 02 AD3d 730; Nesci v Roma11elli, 74 AD3d 765; Sharma v Diaz, 48 AD3d 442). In fact, the limitations noted by Dr. Miller in his most recent report, dated January 28. 2013, are insignificant within the meaning of Section 5102(d) of the Insurance Law (see Lively v Ferna11dez, 85 ADJd 981; Morris v Edmond, 48 AD3d 432; Whitfield-Forbes v Pazmino, 36 AD3d 90 1). Furthermore, Dr. Miller even states in his report that plaintiffs cervical strain/sprain is resolving, that she is capable of performing her normal daily activities, including working, without restrictions, and that she does not require any additional physical therapy. ~ Similarly, the sworn medical report of Dr. Marco Palmieri fails to raise a triable issue of fact as to whether plaintiff sustained a serious injury to her cervical region within the meaning of Insurance Law § 5102(d), since his examinations were not contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Husbands v Levine , 79 A03d 1098: Sreh11ick v Quinn . 75 AD3d 637). Consequently, absent findings from a recent exam ination. Dr. Palmieri caJIDot substantiate the extent or degree of the limitations in plaintiffs cervical region caused by the alleged injury and its duration (see JJl011g v Cruz. 140 AD3d 860; S chilling v Labmdor. 136 AD3d 884: Bacon v Bosta11y, 104 AD3d 625). Jn fact, Dr. Palmieri states in his report that his initial exami nation of plaintiff was on January 29, 20 13, that his final examination of her was on March 2 1, 20 13. and that such examinations of plain tiffs cervical spine revealed she docs not have any tenderness in her cervical spine and had mini mally restricted ranges of motion in her cen·ical region. Lastly. plaintiff failed to submit competent medical c\·iclcnce demonstrating that the injuries she allegedly sustained as a result of the subject accident rendered her unable to perform substantially all of her usual and customary activities fo r not less than 90 days out of the first 180 days immediately fo llowing the accident (see Posa v Guerrero. supra: ,\ 'ieves 1· 1 lliclwel. 73 AD3d 716: Sltmerkovitch 1• Sitar. 61 AD3d 8-+3 ). The subjecti,·e complaints of pain and impaired joint function expressed by plaintiff during her deposition arc insufficient to raise a triable issue of fact (see Slteer v Koubek. 70 NY2d 678: Ro1•efo v Volcy. 83 ADJd I 03-L I 035: J'ou11g 1· Russell. 19 AD3d 688. 689: Sham v B&P [* 5] Gonzalez v Longo .... Index o. l-l-2457 Page 5 Cltim11ey Clea11i11g & Repair, Co., Inc.. 71 AD3d 979. 979). Accordingly. defendant" s motion for summary judgment dismissing the complaint is Qrantcd. -; .---- .... .. -. Dated: May 26. 2017 ' - ... ··· ·- ............ HO N. JOS EPH C. PASTORESSA, J.S :~ X FINAL DISPOSITION NON-FINAL DISPOSIT ION

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