Hernandez v Pagan Corp.
Annotate this CaseDecided on July 5, 2017
Supreme Court, Kings County
MARIA HERNANDEZ, Plaintiff,
against
Pagan Corporation and OSVALDO PAGAN, Defendants.
510029/2014
Attorneys for plaintiff
Firm Name: MALLILO & GROSSMAN
Address:163-09 northern blvd, flushing, NY 11358
Phone:718-461-6633
Attorney for Defendants
Firm Name: BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C.
Address:1 METROTECH CENTER, BROOKLYN, NY 11201
Phone:(212) 857-8223
Paul Wooten, J.
The following papers, numbered 1 to 3, were read on this motion by defendants for summary judgment.PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1
Answering Affidavits — Exhibits (Memo) 2
Replying Affidavits (Reply Memo) 3
This personal injury action arises from a motor vehicle accident that occurred on March 27, 2014 at approximately 7:20 a.m. on eastbound Atlantic Avenue at its intersection with Eastern Parkway in Kings County, New York. Maria Hernandez (plaintiff) commenced this action via Summons and Verified Complaint on October 27, 2014. Plaintiff alleges that on the date of the alleged accident, the vehicle she was operating was rear-ended by a vehicle owned by defendant Pagan Corporation and operated by Osvaldo Pagan (Pagan) (collectively, Pagan [*2]defendants). Plaintiff claims that as a result of the accident, she sustained personal injuries to her cervical and lumbar spine, left shoulder, left knee, and left ankle. Plaintiff underwent surgery on her left ankle on April 6, 2015. Before the Court is a motion by the Pagan defendants for summary judgment, pursuant to CPLR 3212, dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104. Plaintiff is in opposition to this motion.
SERIOUS INJURY THRESHOLD
A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230 [1982]). Insurance Law § 5102(d) defines "serious injury" as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system [permanent loss]; permanent consequential limitation of use of a body organ or member [permanent consequential limitation]; significant limitation of use of a body function or system [significant limitation]; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment [90/180].
The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories. "Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104[a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to "'weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries (id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).
BURDEN OF PROOF
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). Where a defendant is the movant, the defendant, bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102(d) (see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006]).
"In cases such as the present one, a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). "This established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious [*3]injury was sustained within the meaning of the Insurance Law" (id.; see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at 84). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id.; Kauderer v Penta, 261 AD2d 365 [2d Dept 1999]).
The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.).
DISCUSSION
In support of their motion, defendants submit, inter alia, a copy of the pleadings; plaintiff's EBT testimony; an affirmed independent orthopedic evaluation report from Dr. Edward A. Toriello; affirmed medical report of Dr. Jay Walshon; and the affirmed medical report of radiologist Audrey Eisenstadt.
In opposition, plaintiff submits, inter alia, an attorney affirmation; her affidavit; the affirmed medical report of Dr. Miriam Kanter, a board certified doctor of physical medicine and rehabilitation; the affirmed medical report of Dr. Richard Seldes, a board certified orthopedic surgeon and sports medicine physician; and the affirmation of Dr. David Payne, a radiologist who supervised the taking of MRIs of plaintiff's cervical and lumbar spine and left ankle on July 23, 2014 and September 19, 2014, respectively.
After a review of the record, the Court finds that the defendants have sustained the initial burden of establishing prima facie that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d) as a result of the subject accident on March 27, 2014 (see Jean-Pierre v Park, 138 AD3d 1064 [2d Dept 2016]; Olagunju v Anna & Diane Cab Corp., 139 AD3d 924 [2d Dept 2016]). The defendants submitted competent medical evidence establishing that none of the alleged injuries constituted a serious injury under the permanent loss, permanent consequential limitation or significant limitation categories (see id.). In support of their motion, the Pagan defendants submitted the affirmed orthopedic report of Dr. Edward A. Toriello, dated February 17, 2016. While the report indicated that plaintiff suffered some very limited range of motion to her cervical spine, Dr. Toriello objectively concluded that the plaintiff revealed evidence of a resolved cervical sprain, resolved lower back sprain, resolved left shoulder contusion, resolved left knee contusion, resolved left ankle sprain and resolved left elbow contusion. Dr. Toriello concluded that plaintiff has no disability and is able to return to work and normal activities of daily living without restriction (see Pagan defendants' exhibit E). Moreover, in his report, Dr. Walshon, an emergency medicine doctor, found that based upon the emergency room records he reviewed, there were no acute traumatic findings to causally relate the plaintiff's accident on March 27, 2014 and the claimed injuries (see id., exhibit G). Additionally, the report by radiologist Dr. Audrey Eisenstadt indicated that a review of the cervical and lumbar spine MRIs taken on July 23, 2014 indicate plaintiff had a preexisting degenerative disc disease and there was no indication of a recent traumatic injury casually related to the March 27, 2014 motor vehicle accident (see id., exhibit F).
Defendants have also sustained the burden of proof with regard to the 90/180 category. A defendant can establish the nonexistence of a serious injury under 90/180 absent medical proof by citing to evidence, such as plaintiff's own testimony, demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting his usual and customary daily activities for the prescribed period (see Copeland v Kasalica, 6 AD3d 253, 254 [*4][1st Dept 2004]). Plaintiff's own testimony establishes that there is no serious injury under 90/180 as she testified that she was only confined to bed for two days and confined to her home for one day after the accident (see Defendants' exhibit E, pgs. 68-69). Plaintiff claims to have been unable to work for two days post accident, and that she worked on a limited basis for three months thereafter. Plaintiff claimed that she since the accident, she was unable to bike ride, play soccer in the park with her son and go food shopping (see id. pg. 69, 70). These deposition excerpts are self-serving and conclusory concerning subjective complaints of pain and the alleged inability to engage in these activities (see Traugott v Konig, 184 AD2d 765, 766 [2d Dept 1992]). There is no evidence to suggest that any medical provider instructed or suggested that she curtail the aforementioned activities, and the plaintiffs' subjective complaints of pain standing alone, are insufficient (see Pierre v Nanton, 279 AD2d 621 [2d Dept 2001]). Accordingly, defendants have demonstrated prima facie that the plaintiffs did not sustain a serious injury under the 90/180 category (see McFarlane v Klein, 131 AD3d 1139 [2d Dept 2015]; Lanzarone v Goldman, 80 AD3d 667, 669 [2d Dept 2011]; Jean v Labin-Natochenny; 77 AD3d 623 [2d Dept 2010]).
Since defendants have sustained the initial burden of establishing their prima facie entitlement to summary judgment, the burden shifts to plaintiffs to produce evidentiary proof in admissible form establishing the existence of a triable issue of fact necessitating a trial (see Gaddy, 79 NY2d at 957). In opposition, the plaintiff failed to submit sufficient evidence to raise a triable issue of fact with regard to whether she sustained a serious injury as a result of the accident (see e.g. Villalta v Schecter, 273 AD2d 299 [2d Dept 2000]; Piperis v Wan, 49 AD3d 840 [2d Dept 2008]; Sapienza v Ruggiero, 57 AD3d 643 [2d Dept 2008]). The affirmation of plaintiff's attorney is insufficient to raise a triable issue of fact (see Barbieri v D'Angelo, 128 AD2d 661 [2d Dept 1987]), her affidavit is conclusory, and the affirmed medical reports fail to raise triable issues of fact as well. While Dr. Kanter and Dr. Seldes find limitations in range of motion, their reports fail to acknowledge or address the injuries to the left ankle sustained by the plaintiff in a motor vehicle accident that took place on July 8, 2012, thus their conclusions that the injuries and limitations resulted from the subject accident of March 27, 2014 are merely speculative (see Joseph v A & H Livery, 58 AD3d 688, 688-689 [2d Dept 2009]; Varveris v Franco, 71 AD3d 1128, 1129 [2d Dept 2010]). Additionally, plaintiff fails to submit any medical evidence that addresses the finding by Dr. Eisenstadt that the spinal injuries claimed by the plaintiff are not causally related to the accident, but rather indicate a degenerative disc disease. Thus, the medical conclusions by plaintiff's doctors that any noted limitations during her examination were the result of the subject motor vehicle accident is speculative (see Larson v Delgado, 71 AD3d 739 [2d Dept 2010]).
Finally, plaintiff failed to submit any competent medical evidence to suggest that she was prevented from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident (Varveris, 71 AD3d at 1129; Rabolt v Park, 50 AD3d 995 [2d Dept 2008]; Villalta, 273 AD2d at 300; Piperis, 49 AD3d at 842 ["The plaintiff's admissible medical submissions were insufficient to raise a triable issue of fact as to whether he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident"]).
CONCLUSION
Accordingly it is hereby,
ORDERED that defendants' motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed with costs and disbursements to defendants as taxed [*5]by the Clerk of the Clerk upon submission of an appropriate bill of costs; and it is further,
ORDERED that counsel for defendants is directed to serve a copy of this Order with Notice of Entry upon the plaintiff and the Clerk of the Court, who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Dated: July 5, 2017
PAUL WOOTENJ.S.C
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