LARITZA ALONSO v. DEVANANAD MAHABIR, CHANDRAWA MOHABIR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1332-04T21332-04T2

LARITZA ALONSO,

Plaintiff-Appellant,

v.

DEVANANAD MAHABIR, CHANDRAWA

MOHABIR, and CETSIO VAZQUEZ,

Defendants-Respondents.

 

Submitted November 29, 2005 - Decided

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-413-04.

Michael S. Simitz, attorney for appellant.

Respondents have not filed a brief.

PER CURIAM

Plaintiff Laritza Alonso appeals from the August 20, 2004 order of the Law Division judge dismissing her personal injury complaint against defendants Devananad Mahabir, Chandrawa Mohabir, and Cetsio Vazquez and from the October 14, 2004 order denying her motion for reconsideration. We reverse and remand.

Plaintiff's complaint arises from a motor vehicle accident on August 7, 2001, in which she was injured. At the time of the accident, she was sixteen years old. She was a passenger in a vehicle operated by defendant Cetsio Vazquez when it collided with a vehicle driven by defendant Chandrawa Mohabir and owned by defendant Devananad Mahabir. More specifically, plaintiff asserts that as a result of the accident she sustained injuries to her head, right knee, left arm, left elbow, back and neck. Because the complaint was governed by the verbal threshold, see Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, defendants Mahabir and Mohabir moved for summary judgment. Their motion challenged both the sufficiency of the objective, credible medical evidence of these injuries and the seriousness of the injuries as they subjectively impacted upon plaintiff. See Oswin v. Shaw, 129 N.J. 290, 318-19 (1992); James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

Defendant Vazquez cross-moved, seeking summary judgment on the same grounds. In opposition to this motion and cross-motion, plaintiff supplied the court with a variety of medical records, reports and expert opinions concerning her injuries, her course of treatment, and her prognosis in terms of permanency.

Applying the Oswin test, the motion judge concluded that plaintiff had demonstrated, by credible, objective medical evidence, that the injury to her knee was permanent and thus that plaintiff's proofs sufficed for purposes of the first part of the Oswin analysis. However, he found that the proffered evidence of a serious injury, in terms of the subjective impact of that injury on plaintiff's life, was insufficient for purposes of the second Oswin prong. He therefore based the two orders granting the motion and cross-motion for summary judgment and dismissing the complaint solely on the application of the second part of the Oswin test.

We need not detail the evidence and testimony presented to the motion judge in support of plaintiff's assertion that she had proven that her injuries were serious. Rather, we note that in the time while this appeal has been pending, our Supreme Court has held that AICRA does not include a serious impact requirement. See Juarez v. J.A. Salerno & Sons, Inc., N.J. , (2005)(slip op. at 6); DiProspero v. Penn, 183 N.J. 477, 481 (2005); Serrano v. Serrano, 183 N.J. 508, 509-10 (2005). Moreover, we have concluded that the rules established in these decisions are fully applicable to plaintiff's complaint. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). We therefore reverse the orders before us on appeal granting summary judgment in favor of defendants and dismissing plaintiff's complaint and we remand this matter to the Law Division for further proceedings consistent with these Supreme Court decisions.

Reversed and remanded. We do not retain jurisdiction.

 

The order denying the motion for reconsideration, although dated and apparently signed by the judge on September 14, 2004, was not filed until October 14, 2004.

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A-1332-04T2

December 14, 2005