Gonzalez v Irizarry

Annotate this Case

Download PDF

Gonzalez v Irizarry 2013 NY Slip Op 33785(U) July 15, 2013 Supreme Court, Bronx County Docket Number: 303785/11 Judge: Ben R. Barbato 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] FILED Jul 17 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Present: Honorable Ben R. Barbato MARIA E. GONZALEZ, DECISION/ORDER Plaintiff, -againstIndex No.: 303785111 JOHN IRIZARRY, COMPAS CAR SERVICE and YADIRA ESPINAL, Defendants. The following papers numbered 1 to 12 read on these motions for summary judgment noticed on October 25, 2012 and duly transferred on April 1, 2013. ' Papers Submitted Notice of Motion, Affirmation & Exhibits Memorandum of Law Notice of Motion, Affirmation & Exhibits Supplemental Affirmation in Support & Exhibits Affirmation in Opposition & Exhibits Reply Affirmation Numbered 1, 2, 3 4 5, 6, 7 8,9 10, 11 12 The above Motions have been consolidated for the purpose of this Decision and Order. Upon the foregoing papers, and afterreassignment of this matter from Justice Alison Y. Tuitt on April 1, 2013, Defendants, Compas Car Service and Yadira Espinal, seek an Order granting summary judgment and dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold under Insurance Law §5102(d). Defendant John Irizarry also seeks an Order granting summary judgment and dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold under Insurance Law §5102(d). This is an action to recover for personal injuries allegedly sustained as a result of a motor vehicle accident which occurred on December 18, 2010, on Boston Road at or near its intersection with Boller Avenue, in the County of Bronx, City and State of New York. [* 2] FILED Jul 17 2013 Bronx County Clerk Defendants offer the affirmations of Dr. David A. Fisher, a radiologist, who reviewed the MRis of Plaintiffs right shoulder, cervical spine and thoracic spine. Dr. Fisher's review of the January 31, 2011 MRI of Plaintiffs right shoulder reveals a normal examination with no radiographic evidence ofrecent traumatic or causally related injury. Dr. Fisher states that the rotator cuff appeared intact and that there was no finding of joint effusion or bursa! fluid collection. Dr. Fisher's review of the January 14, 2011 MRI of Plaintiffs cervical spine reveals diffuse degenerative changes most pronounced at C4-5 and C5-6 with no evidence of disc herniations. Dr. Fisher determines that there is no radiographic evidence of traumatic or causally related injury to Plaintiffs cervical spine. Dr. Fisher's review of the January 14, 2011 MRI of Plaintiffs thoracic spine reveals a normal examination with no evidence of disc herniation or significant annular bulge. Dr. Fisher opines that there is no radiographic evidence of recent traumatic or causally related injury to Plaintiffs thoracic spine. On December 12, 2011, the Plaintiff appeared for an orthopedic examination conducted by Defendants' retained physician Dr. John H. Buckner. Upon examination and review ofPlaintiffs medical records, Dr. Buckner determined that Plaintiff demonstrated no tenderness, spasm or deformity in her cervical and thoracic spine. The muscles of Plaintiffs cervical, lumbar and thoracic spines revealed normal reciprocating function with side bending range of motion and gait. Plaintiffs shoulders demonstrated normal range of motion with some clicking in Plaintiffs right shoulder. Dr. Buckner determines that Plaintiff suffered cervical muscle strain superimposed on pre-existing enthesopathy and congenital/developmental scoliosis, clinically resolved, as well as right shoulder strain superimposed on pre-existing enthesopathy with excellent post-surgery outcome. Dr. Buckner further notes in his Addendum that he reviewed Plaintiffs MRI films of her cervical/thoracic spine and right shoulder and finds no evidence of [* 3] FILED Jul 17 2013 Bronx County Clerk foraminal neural impingement at any spinal level or bleeding, swelling or edema in any of the soft tissues. His review of Plaintiffs right shoulder films showed evidence of acromioclavicular arthritis and impingement with no findings; to suggest a recent injury. Dr. Buckner opines that Plaintiff may have experienced an exacerbation of her previous right shoulder impingement with an excellent result from her shoulder decompression and further opines that Plaintiff did not sustain any cervical injury or disability as a result of the subject accident. This court has read the Affirmed reports of Dr. David T. Neuman, Dr. Eric Hausknecht and Dr. Arden M. Kaisman presented by Pl.aintiff. Under the "no fault" law, in order to maintain ai:i action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. Licari v. Elliot, 57 N.Y.2d 230 (1982). The proponent of a motion for summary judgment must tender sufficient evidence to the absence of any material issue of fact and the right to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegradv. New York University Medical Center, 64 N.Y.2d · 851 (1985). In the present action, the burden rests on Defendants to establish, by submission of evidentiary proof in admissible form, that Plaintiff has not suffered a "serious injury." Lowe v. Bennett, 122 A.D.2d 728 (1'1 Dept. 1986) aff'd 69 N.Y.2d 701 (1986). Where a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden then shifts and it is incumbent upon the plaintiff to produce primafacie evidence in admissible form to support the claim of serious injury. Licari, supra; Lopez v. Senatore, 65 N.Y.2d 1017 (1985). Further, it is the presentation of objective proof of the nature and degree of a plaintiffs injury which is required to satisfy the statutory threshold for "serious injury". Therefore, simple strains and even disc bulges and herniated dlisc alone do not automatically fulfil the requirements oflnsurance Law §5102(d). See: Cortez v. Manhattan Bible Church, 14 A.D.3d 466 (1 ' 1 Dept. [* 4] FILED Jul 17 2013 Bronx County Clerk 2004 ). Plaintiff must still establish evidence of the extent of his purported physical limitations i and its duration. Arjona v. Calcano, 7 A.D.3d 279 (1'1 Dept. 2004). In the instant case Plaintiff has demonstrated by admissible evidence an objective and quantitative evaluation that she has suffered significant limitations to the normal function, purpose and use of a body organ, member, function or system sufficient to raise a material issue of fact for determination by a jury. Further, she has demonstrated by admissible evidence the extent and duration of her physical limitations sufficient to allow this action to be presented to a trier of facts. The role of the court is to determine whether bona fide issues of fact exist, and not to resolve issues of credibility. Knepka v. Tallman, 278 A.D.2d 811 (4th Dept. 2000). The moving party must tender evidence sufficient to establish as a matter of law that there exist no triable issues of fact to present to a jury. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Based upon the exhibits and deposition testimony submittedi the Court finds that Defendants have not met that burden. However, based upon the medical evidence and testimony submitted, Plaintiff has not established that she has been unable to perfonn substantially all of her normal activities for 90 days within the first 180 days immediately following the accident and as such is precluded from raising the 90/180 day threshold provision of the Insurance Law. Therefore it is ORDERED, that Defendants' motions for an Order granting summary judgment dismissing Plaintiff's Complaint for failure tci satisfy the serious injury threshold pursuant to Insurance Law §5102(d) are granted to the extent that Plaintiff is precluded from raising the 90/180 day threshold provision of the Insurance Law. Dated:.July 15, 2013

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.