Sanchez v Draper

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Sanchez v Draper 2013 NY Slip Op 33987(U) June 28, 2013 Supreme Court, Bronx County Docket Number: 308214/09 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 10 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Present: Honorable Ben R. Barbato ANTONIO SANCHEZ, DECISION/ORDER Plaintiff, -againstIndex No.: 308214/09 DAWN DRAPER, ROMEO MARQUEZ, JR., ROSEMARY MAGTIBAY and LAURA LABRIANA, Defendants. The following papers numbered 21 to read on these motions and cross motion for summary judgment noticed on May 31, June 25, July 16 and July 27, 2012 and duly transferred on April 1, 2013. Papers Submitted Notice of Motion, Affirmation & Exhibits (Manus) Affirmation in Opposition & Exhibits Reply Affirmation 6 Notice of Motion, Affirmation & Exhibits (Walker) 7, 8, 9 Notice of Cross-motion, Affirmation & Exhibits (Nanni) 10, 11, 12 Notice of Motion, Affirmation & Exhibits (Walsh) Affirmations in Opposition Reply Affirmations 13, 14, 15 16, 17, 18 19,20,21 Numbered 1, 2,3 4,5 The above Motions have been consolidated for the purpose of this Decision and Order. Upon the foregoing papers, and after reassignment of this matter from Justice Sharon A.M. Aarons on April 1, 2013, Defendants, Romeo Marquez, Jr., Rosemary Magtibay and Dawn Draper, seek an Order granting summary judgment dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold under Insurance Law §5102(d). By Cross-motion Defendant, Laura Labriana, seeks an Order granting summary judgment dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold under Insurance Law §5102(d). In addition, the [* 2] FILED Jul 10 2013 Bronx County Clerk Defendants, Romeo Marquez, Jr., Rosemary Magtibay and Dawn Draper, seek an Order granting summary judgment on the issue of liability. This is an action to recover for personal injuries allegedly sustained as a result of a motor vehicle accident which occurred on August 5, 2008, on the Bruckner Boulevard Expressway at or near Bronx River Avenue, in the County of Bronx, City and State of New York. On November 3, 2010, the Plaintiff appeared for an orthopedic examination conducted by Defendants' appointed physician Dr. Robert Israel. Upon examination, Dr. Israel determined that Plaintiff suffered cervical and lumbar spine sprain as a result of the subject accident, both of which had resolved at the time of the examination. Dr. Israel opines that Plaintiff presented no disability as a result of the accident of record and that he is capable of work activities and activities of daily living without restrictions. On September 22, 2010, the Plaintiff appeared for a neurological evaluation conducted by Defendants' appointed physician Dr. Michael J. Carciente. Upon examination, Dr. Carciente determined that Plaintiff had a normal neurological examination with no evidence of a myotomal weakness, dermatomal sensory deficits, asymmetric reflexes or atrophy to support the presence of a radiculopathy. He finds no correlation between the findings in the spine MRI reports and his examination of Plaintiff. Dr. Carciente further opines that Plaintiff presented no evidence of neurological injury, disability or permanency as a result of the subject accident. Defendants also submit the Affirmed report of Dr. David A. Fisher, a radiologist, who reviewed the MRI of Plaintiff's cervical spine taken on September 2, 2008 which reveals diffuse degenerative changes, most pronounced at the CS-6 and C6-7 levels. Dr. Fisher opines that these degenerative changes represent a preexisting condition. He further notes that there are no disc herniations and no radiographic evidence of recent traumatic or causally related injury to the [* 3] FILED Jul 10 2013 Bronx County Clerk cervical spine. Plaintiff offers the undated narrative report of Dr. Madhu B. Boppana. Dr. Boppana states that the Plaintiffs last visit was on July 12, 2012 and that Plaintiff presented spinal range of motion loss, impaired neurological function, impaired use of extremities, impaired sensorimotor function, impaired gait, quality of life loss, acute and chronic pain and suffering, and social, recreational and occupational impairment. Dr. Boppana determined that Plaintiff suffered cervical myelopathy and spinal cord compression secondary to intervertebral disc displacement, lumbar disc displacement, nerve root impingement and radiculopathy. Dr. Boppana opines that Plaintiffs injuries are permanent and causally relates them to the August 5, 2008 accident. Plaintiff submits an Affirmation from Dr. Michael Shapiro who states that he took or supervised the taking of the MRis of Plaintiffs cervical and lumbar spine on September 2, 2008. Dr. Shapiro states that the MRI of Plaintiffs cervical spine reveals central disc herniations at C34 and C5-6, mild degenerative disease, hyperthrophic spur formation, no central spinal stenosis and muscle spasm. The MRI of Plaintiffs lumbar spine reveals central disc bulging at 13-4 and muscle spasm. Dr. Shapiro further noted disc dessication at 13-4and15-Sl. The Court notes that any reports, Affirmation or medical records not submitted in admissible form were not considered for the purpose of this Decision and Order. Under the "no fault" law, in order to maintain an 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); Wine grad v. 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 [* 4] FILED Jul 10 2013 Bronx County Clerk evidentiary proof in admissible form, that Plaintiff has not suffered a "serious injury." Lowe v. Bennett, 122 A.D.2d 728 (I st Dept. 1986) ajf'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 prima facie 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, disc bulges and herniated disc alone do not automatically fulfil the requirements oflnsurance Law §5102(d). See: Cortez v. Manhattan Bible Church, 14 A.D.3d 466 (I st Dept. 2004). Plaintiff must still establish evidence of the extent of her purported physical limitations and its duration. Arjona v. Calcano, 7 A.D.3d 279 (1st Dept. 2004). In the instant case Plaintiff has failed to demonstrate by admissible evidence an objective and quantitative evaluation that he 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, he has failed to demonstrate by admissible evidence the extent and duration of his 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 submitted, the Court finds that Defendants have met that burden. Therefore it is [* 5] FILED Jul 10 2013 Bronx County Clerk ORDERED, that Defendants' motion and cross-motion for an Order granting summary judgment and dismissing Plaintiffs Complaint for failure to satisfy the serious injury threshold pursuant to Insurance Law §5102(d) is granted; and it is further ORDERED, that Defendants' motion for an Order granting summary judgment on the issue ofliability is denied as moot. Dated: June 28, 2013

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