Vidal v Urena

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Vidal v Urena 2013 NY Slip Op 31160(U) May 23, 2013 Supreme Court, New York County Docket Number: 116598/10 Judge: Arlene P. Bluth 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: 22L Justice Index Number : 116598/2010 VIDAL, JUAN INDEX NO. VS. MOTION DATE URENA, MAXIM0 SEQUENCE NUMBER : 001 - MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to - l y Notice of MotionlOrder to Show Cause Answering Affidavits - Exhibits I were read on this motion tolfor - Affidavits - Exhibits &?. 5 f '- 591(Jus f r, '"r L/. I No(s). I IN O ( d " L IN W . Replying Affidavits Upon the foregoing papers, it i ordered that this motion is s , J.S.C. a CASE DISPOSED APPROPRIATE: .............. MOTION IS: 0GRANTED a DENIED 1. CHECK ONE: 2. CHECK AS ..................................................................... 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER u DO NOT POST @ NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FlDUCl ZRY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 22 Index No.: 116598/10 Motiqn Seq 01 Juan Vidal, Plaimt&f% -against- DECISION/ORDER Maximo Urena and Mohamed S . Oman, Defendants. HON. ARLENE P. BLUTH, JSC Defendants motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a serious injF f u c h E ; r r p g of Ilmrance Law §5012(d) is i denied. In this action, plaintiff alleges that &%&?er~!32008 NEW YQRK result of a motor vehicle accident--4io I he ustained personal injuries as a of East 79th Street and Park Avenue. To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a %erious injury (see Rodriguez v Goldstein, 182 AD2d 396 [ 19921). Such evidence includes affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff s claim (Shinn v Cutanzaro, 1 AD3d 195, 197 [ 1st Dept 20031, quoting Grossman u Wright, 268 AD2d 79, 84 [lstDept 20003). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiff s injury was caused by a pre-existing condition and not the accident (Furrington v Go On Time Car Serv. 76 AD3d 8 18 [ 1st Dept 20101, citing Pommells v ) Page 1 of 4 [* 3] Perez, 4 NY3d 566 [2005]). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v Mahlah, 2009 NY Slip Op 43 [ 1 St Dept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id.). Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 AD3d at 197). A plaintiffs expert may provide a qualitative assessment that has an objective basis and compares plaintiffs limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiffs loss of range of motion (Toure v Avis Rent A Cur Sys., 98 NY2d 345,350-35 1 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiff's expert must address causation (see Valentin v Pomilla,59 AD3d 184 [lstDept 20091; Style v Joseph, 32 AD3d 212, 214 [lst Dept 20061). In the verified bill of particulars plaintiff claimed he sustained injuries, inter alia, to his cervical and lumbar spine (exh. B to moving papers, para. 11). He further claimed that he was confined to home for 16 weeks after the accident and unable to go to work for approximately 9 months (para. 13-14). Page2of 4 [* 4] In support of their motion, defendants made a prima facie showing that plaintiff did not suffer from a permanent or significant limitation as a result of the accident, They submitted the affirmed report of a neurologist who set forth the tests he performed and recorded ranges of motion expressed in numerical degrees and the corresponding normal values. The objective tests he performed provided support for his conclusions that the ranges of motion were normal and that plaintiffs injuries had resolved as of the date of the exam, June 4,2012, and that he suffered no permanent injury to those parts as a result of the accident. Additionally, defendants submit the affirmed reports of their radiologist who reviewed the MRIs taken of plaintiff s cervical and lumbar spine, and concluded that the films showed degenerative changes only and no evidence of post-traumatic changes related to the accident. In further support of their motion, defendants submit the deposition testimony of plaintiff wherein he testified (through a translator) that after the accident he was was a week at home.,.. (exh E, p. 32, line 3-4). In opposition, plaintiff submits the affirmation of his treating physician, Dr. Liebowitz, who states, inter alia, that in his opinion, plaintiff, a bus driver, was medically disabled for eight months after the accident and was advised not to perform his normal and customary job duties (opp, exh Bypara. 3, p. 3). Additionally, plaintiff states in his affidavit (opp, exh A, para. 5 ) that Dr. Liebowitz advised him not to drive a school bus for eight months. As such plaintiff raised an issue of fact on his 90/180 claim sufficient to defeat this motion. See Coley v DeLarosa, 105 AD3d 527,964 NYS2d 25 (1st Dept 20 13) (plaintiff raised an issue of fact by submitting, inter alia, her affidavit stating that her doctors regarded her as unable to perform her job duties and an affirmation from her orthopedic surgeon that she was totally disabled). The Court notes that defendants did not submit a reply. Page 3 of 4 [* 5] Accordingly, because plaintiff raised a triable question of fact, defendants motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5012(d) is denied. This is the Decision and Order of the Court. Dated: May 23,2013 New York, New York I HON. ARILENE P. BLUTH, JSC i I I FILED MAY 2 9 2013 EW YORK c d s OFFICE Page 4 of 4

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