Salazar v Louis Food Serv.

[*1] Salazar v Louis Food Serv. 2008 NY Slip Op 52433(U) [21 Misc 3d 1140(A)] Decided on December 3, 2008 Supreme Court, Kings County Jacobson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2008
Supreme Court, Kings County

Cesar Trujillo Salazar, Plaintiff,

against

Louis Food Service, Cesar Rivera and Manuel Rivas, Defendants.



26384/04

Laura Lee Jacobson, J.

Plaintiff moves for an order pursuant to CPLR §3212 granting summary judgment in favor of plaintiff on the issue of serious injury threshold and setting this matter down for an inquest on damages. Plaintiff commenced this action seeking damages for injuries allegedly sustained in a motor vehicle accident on December 10, 2003. Plaintiff was a passenger in a motor vehicle operated by defendant Manuel Rivas that collided with a vehicle operated by defendant Cesar Rivera and owned by defendant Louis Food Service at or near the intersection of 4th Avenue and 39th Street in Brooklyn, New York. Defendants in this action previously moved and cross moved for summary judgment in their favor and dismissal of the complaint on the grounds that plaintiff has not sustained serious injury within the meaning of Insurance Law §5102(d). By decision and order dated March 26, 2007, I denied defendants' applications for summary judgment finding that questions of fact existed as to whether plaintiff sustained serious injury as a result of the alleged accident.

Defendants argue that as a result of this Court's March 26, 2007, determination, plaintiff is collaterally estopped from relitigating the issue of serious injury. However, plaintiff contends that the doctrines of Res judicata and claim preclusion do not apply in this instance because the [*2]court's determination denying defendant's motion was not a final judgment on the merits. Plaintiff contends that the court merely issued a non-final decision determining that there was a question of fact and that the threshold issue needed to be determined by a jury. Plaintiff further alleges that its motion is neither a motion to reargue or to renew the prior court's determination. Plaintiff contends that the instant motion is not based on papers that were previously submitted to the Court. Plaintiff asserts that at the time of the prior motions, plaintiff opposed defendants' motions but did not cross move to seek an affirmative determination that plaintiff did, in fact, meet serious injury threshold. Plaintiff further contends that since the court decided the prior motions in plaintiff's favor, plaintiff does not seek to reargue the prior motion. Plaintiff further states that this is not a motion to renew. Plaintiff asserts that at the time that defendants filed the previous motions, plaintiff had not undergone surgery, nor had plaintiff been reexamined by defendant's physicians. Plaintiff argues that the instant motion is based on the most recent reports of both plaintiff's treating physicians and the physicians that examined plaintiff on behalf of the defendants. Plaintiff contends that since there was no cross-motion by plaintiff at the time seeking a determination that plaintiff had indeed sustained a serious injury, the present issue before the court has not been determined.

It is well settled that the doctrine of collateral estoppel precludes a party from relitigating an issue which was previously decided against him or her in a proceeding in which he or she had a fair opportunity to fully litigate the issue (see Laing v. Cantor, 1 AD3d 406 [2nd Dept. 2003]). Here, the issue of serious injury has previously been fully litigated and the court has determined that issues of fact exist that require a jury determination. Although plaintiff, at the time, did not cross move for a determination that plaintiff indeed had sustained serious injury, plaintiff had a fair opportunity to do so but instead, plaintiff opted to merely oppose defendant's motion. Consequently, plaintiff is precluded from relitigating the issue. Furthermore, even if plaintiff's motion were permitted, the court would adhere to its original determination. Plaintiff contends that the instant motion is based on "the most recent reports of both the plaintiff's treating physicians and [sic] the more pertinently, the reports of physicians that examined [plaintiff] on behalf of the defendants". However, although defendant's physician orthopedic surgeon Michael R. Miller, MD, finds that "Based on a review of the information provided, and an MRI taken after the accident of record, unless there is any evidence of prior MRIs documenting disc herniations, then I would, with the information currently available to me causally relate the surgery to the accident of 12/10/03", he also finds no objective orthopedic or neurologic findings. In Dr. Miller's opinion, plaintiff is capable of working and performing activities of daily living. Clearly, issues of fact exist as to whether plaintiff sustained serious injury which must be determined at the trial of this action.

Accordingly, plaintiff's motion for summary judgment on the issue of "serious injury" is denied.

This constitutes the decision and order of this court.

[*3]

ENTER:

LAURA JACOBSON, JSC