Rivera v Gonzalez

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Rivera v Gonzalez 2021 NY Slip Op 33097(U) December 12, 2021 Supreme Court, Queens County Docket Number: Index No. 704055/2019 Judge: Ulysses B. Leverett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 12/13/2021 12:23 PM NYSCEF DOC. NO. 46 INDEX NO. 704055/2019 RECEIVED NYSCEF: 12/13/2021 ~SUPREME SUPREME COURT COURT OF THE THE STA STATE TE OF NEW NEW YORK YORK COUNTY COUNTY OF QUEENS QUEENS C ---------------------------------------------------------------------X ---------------------------------------------------------------------)( MARIA MARIA I. 1. RIVERA RIVERA and and MARIA MARIA AUGUSTA AUGUSTA GUAMAN GUAMAN SERRANO SERRANO Plaintiffs, Plaintiffs, Index No.: 704055//2019 Index No.: 704055//2019 Motion No. 002 Motion Seq. No. 002 -against-againstDecision and Order Order Decision JOSE M. GONZALEZ GONZALEZ and and RIGO RIGO LIMO-AUTO LIMO-AUTO CORP., CORP., JOSE FILED 12/13/2021 Defendants. Defendants. --------------------------------------------------------------------X --------------------------------------------------------------------)( Present: HONORABLE HONORABLE ULYSSES ULYSSES B. LEVERET: LEVERET: Present: Notice of Motion-Affirmation-Exhibits Motion-Affirm ation-Exhibits .......... . Notice of Affirmation In Opposition-Exhibits Opposition-Exhibits ..................... . Affirmation Notice of Notice of Cross Cross Motion-Exhibits-Memo Motion-Exhibits-Memo ................ . Reply Affirmation/Motion Affirmation/Motion ................................. . Reply Affirmation in Opposition/Cross Opposition/Cross Moti~n Moti~n ............... . Affirmation COUNTY CLERK QUEENS COUNTY Papers Numbered Papers Numbered EF-11-26 EF-II-26 EF-43 EF-43 EF-32-39 EF-32-39 EF-41-42 EF-41-42 EF-43-44 EF-43-44 Upon the foregoing foregoing papers, ordered that that defendants defendants Jose Jose M. Gonzalez Gonzalez and and Rigo Rigo Upon papers, it is ordered Limo-Auto Corp's Corp's motion motion for an order order pursuant CPLR §S 3212 3212 for summary summary judgment favor pursuant to CPLR judgment in favor Limo-Auto of defendant, defendant, and and dismissing dismissing the complaint complaint of of plaintiffs plaintiffs Maria Maria I. 1. Rivera Rivera and and Maria Maria Augusta Augusta of Guaman Serrano Serrano on the the grounds grounds that that plaintiffs plaintiffs have have failed failed to meet meet the the serious serious injury injury threshold threshold Guaman d) is denied. requirement requirement mandated mandated by Insurance Insurance Law Law §S 5102 5102 ((d) denied. Plaintiffs' Plaintiffs' cross cross motion motion for an order granting granting partial summary judgment issue .of of liability liability against against defendants defendants and and order partial summary judgment on the issue scheduling the matter matter for an inquest inquest on damages damages is granted. granted. scheduling Plaintiffs Maria Maria I. 1. Rivera Rivera and and Maria Maria Augusta Augusta Guaman Guaman Serrano Serrano seek seek to recover recover for Plaintiffs personal injuries allegedly allegedly sustained sustained as a result result of of a motor motor vehicle vehicle accident accident which which occurred occurred on on personal injuries June 2018 on New York. June 18, 18,2018 on 110-35 110-35 Horace Horace Harding Harding Expressway, Expressway, County County of of Queens, Queens, State State of of New York. Plaintiffs Maria Maria Rivera Rivera and and Maria Maria Augusta Augusta Guaman Guaman Serrano Serrano assert assert that that on June June 18, 18,2018, 2018, Plaintiffs they passengers seated plaintiff Maria they were were passengers seated in the the rear rear of of a motor motor vehicle vehicle driven driven by plaintiff Maria Rivera's Rivera's husband, Herman Herman Rivera. Rivera. Plaintiffs Plaintiffs state state that that the the vehicle vehicle was was stopped stopped waiting waiting to make make a turn turn into into husband, a gas station warning, it was was struck station when when suddenly suddenly and and without without warning, struck in the the rear rear by a vehicle vehicle owned owned by defendant Rigo Rigo Limo-Auto Limo-Auto Corp. Corp. and and operated operated by defendant defendant Jose Jose M. Gonzalez. Gonzalez. Plaintiff Plaintiff Rivera Rivera defendant alleges back and alleges that that as a result result of of the accident, accident, she sustained sustained injuries injuries to her her neck, neck, back and right right shoulder. shoulder. Plaintiff Serrano Serrano alleges alleges that that she sustained sustained injuries injuries to her neck, neck, back and left shoulder. Plaintiff back and left shoulder. Insurance Law Law §S 5 5102 defines a "serious "serious injury" injury" as " a personal injury which which results results in J 02 ((d) d) defines personal injury Insurance dismemberment; significant significant disfigurement; disfigurement; a fracture, fracture, loss of of a fetus, permanent permanent loss loss of of use death; dismemberment; ofaa body organ, organ, member, member, function function or system; system; permanent permanent consequential consequentiallimitation of use ofa ofa of limitation of permanent nature which which prevents injured from performing substantially all of of the the material material acts, permanent nature prevents the injured performing substantially which constitute constitute such person's customary daily activities activities for not not less than than 90 days days during during which person's usual and customary immediately following following the occurrence occurrence of of the injury injury or impairment." impairment." the 180 days immediately 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 12/13/2021 12:23 PM NYSCEF DOC. NO. 46 INDEX NO. 704055/2019 RECEIVED NYSCEF: 12/13/2021 of meaning of within the meaning injury within serious injury Defendants suffered a serious not suffered have not plaintiffs have that plaintiffs alleges that Defendants alleges the No Fault support of of the motion, defendants submitted submitted an orthopedic orthopedic evaluation evaluation dated dated motion, defendants Fault Law. In support performed who performed January Salvatore Corso, Corso, an orthopedic orthopedic surgeon, surgeon, who Rivera by Dr. Salvatore plaintiff Rivera of plaintiff January 25, 2021 of goniometer. Dr. using a goniometer. I 0/13/2020 using an independent Rivera on 10/13/2020 plaintiff Rivera of plaintiff evaluation of orthopedic evaluation independent orthopedic revealed motion of range spine cervical Corso Rivera's cervical spine range of motion revealed plaintiff Rivera's of plaintiff examination of that the examination reports that Corso reports right/left degrees), right/left (normal 60 degrees), degrees (normal flexion extension to 60 degrees degrees), extension (normal 50 degrees), degrees (normal flexion to 50 degrees degrees (normal rotation to 80 degrees right/left rotation lateral bending degrees(normal4545 degrees), degrees), right/left (normal 80 bending 45 degrees(normal paracervical revealed no paracervical degrees). cervical spine revealed of the cervical examination of that examination Corso states that degrees). Dr. Corso musculature. cervical tenderness, no spasm or atrophy of the cervical musculature. of spasm atrophy tenderness, flexion 60 forward flexion revealed forward examination revealed Plaintiff motion examination of motion range of spine range lumbar spine Rivera's lumbar Plaintiff Rivera's rotation to 25 right/left rotation degrees (normal (normal 60 degrees), degrees), extension extension to 25 degrees degrees (normal (normal 25 degrees), degrees), right/left degrees No spasm paralumbar. No right and left paralumbar. over the right tenderness over degrees spasm There was tenderness degrees). There (normal 25 degrees). degrees (normal noted. noted. degrees elevation to 180 degrees forward elevation of forward Plaintiff motion of of motion range of shoulder range right shoulder Rivera's right Plaintiff Rivera's (180 degrees (180 abduction 180 degrees degrees), abduction (normal 180 degrees), (normal 60 degrees), degrees (normal extension 60 degrees degrees), extension (normal rotation 80 degrees internal rotation degrees normal), external rotation degrees (normal (normal 90 degrees), degrees), internal degrees rotation 90 degrees normal), external degrees not were not crepitus were Erythema and crepitus were not seen. Erythema effusion were (normal Swelling, heat and effusion degrees). Swelling, (normal 80 degrees). present. present. permanent injury Dr. Corso Corso opines opines that sustain any significant significant or permanent injury as Rivera did not sustain plaintiff Rivera that plaintiff present a of indicative findings clinical objective clinical findings indicative of present a result subject motor There are no objective vehicle. There motor vehicle. of the subject result of activities usual activities her usual engaging in her plaintiff from engaging disability, prevents plaintiff which prevents impairment, which functional impairment, disability, and functional hobbies. including school and hobbies. work, school including work, plaintiff Serrano 25, 2021 of January 25,2021 Defendants submitted an orthopedic orthopedic evaluation evaluation dated dated January of plaintiff Serrano Defendants submitted orthopedic independent orthopedic performed an independent by Dr. Salvatore Salvatore Corso, surgeon, who performed orthopedic surgeon, Corso, an orthopedic that the reports that Corso reports goniometer. Dr. Corso evaluation Serrano on 10/13/2020 10/13/2020 using using a goniometer. plaintiff Serrano of plaintiff evaluation of flexion to 50 forward flexion revealed forward motion revealed of motion examination range of spine range cervical spine Serrano's cervical plaintiff Serrano's of plaintiff examination of bending lateral bending right/left lateral degrees), right/left (normal 60 degrees), degrees degrees (normal extension to 60 degrees degrees), extension (normal 50 degrees), degrees (normal degrees). Dr. Corso degrees (normal rotation to 80 degrees 45 degrees(normal degrees(normal 45 degrees), degrees), right/left (normal 80 degrees). Corso right/left rotation musculature. cervical musculature. of the cervical atrophy of No atrophy plaintiff. No states that pain for plaintiff. elicits pain motion elicits of motion range of that range flexion 60 forward flexion revealed forward examination revealed Plaintiff motion examination of motion range of spine range lumbar spine Serrano's lumbar Plaintiff Serrano's rotation right/left degrees), right/left rotation to 25 (normal 25 degrees), degrees degrees (normal extension to 25 degrees degrees), extension (normal 60 degrees), degrees (normal lumbosacral spine plaintiff. The lumbosacral motion elicits degrees (normal (normal 25 degrees). of motion elicits pain for plaintiff. spine Range of degrees). Range degrees noted. No spasm noted. tenderness. No demonstrates paralumbar tenderness. midline paralumbar demonstrates midline degrees elevation to 150 degrees forward elevation of forward Plaintiff motion of of motion range of shoulder range Serrano's left shoulder Plaintiff Serrano's (normal I180 degrees), extension extension 60 degrees degrees (normal (normal 60 degrees), degrees), abduction abduction 180 degrees degrees (180 80 degrees), (normal rotation 70 degrees degrees normal), external rotation degrees (normal (normal 90 degrees), degrees), internal internal rotation degrees rotation 90 degrees normal), external degrees not were not crepitus were Erythema and crepitus (normal Swelling, heat were not seen. Erythema effusion were heat and effusion degrees). Swelling, (normal 80 degrees). present. present. permanent injury Dr. Corso Corso opines opines that Serrano did not sustain sustain any significant significant or permanent injury plaintiff Serrano that plaintiff of a indicative of findings indicative clinical findings objective clinical as a result subject motor There are no objective vehicle. There motor vehicle. of the subject result of engaging in her usual plaintiff from engaging prevents plaintiff present which prevents impairment, which functional impairment, disability, and functional present disability, hobbies. and school activities hobbies. work, school including work, activities including 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 12/13/2021 12:23 PM NYSCEF DOC. NO. 46 INDEX NO. 704055/2019 RECEIVED NYSCEF: 12/13/2021 meaning the meaning within the serious within not serious When injuries are not plaintiff's injuries that plaintiff's established that defendant has established When defendant with evidence of No-Fault Law, the burden come forward forward with evidence to overcome overcome the plaintiff to come burden shifts to the plaintiff ofNo-Fault injury was sustained that a serious of fact that defendant's submissions by demonstrating serious injury sustained triable issue of demonstrating a triable defendant's submissions (2002). 373 2d 296 AD Reilly, 296 within (2002). Insurance Law. See Jin v Reilly, of the Insurance meaning of within the meaning plaintiff that plaintiff asserts that judgment asserts summary judgment Plaintiffs motion for summary defendants' motion opposition to defendants' Plaintiffs in opposition lumbar spine Rivera sustained serious serious personal shoulder, cervical cervical spine spine and lumbar spine right shoulder, injuries to her right personal injuries Rivera sustained sustained Serrano plaintiff shoulder right requiring spine injections and injections to her right shoulder and plaintiff Serrano sustained injections requiring spine injections requiring left spine, requiring lumbar spine, spine and lumbar serious cervical spine shoulder, cervical injuries to her left shoulder, personal injuries serious personal Mark S. 2021 by Dr. Mark dated May 17, shoulder 17,2021 affirmation dated sworn affirmation submitted a sworn Plaintiff submitted surgery. Plaintiff shoulder surgery. reviewed Rivera and reviewed plaintiff Rivera examined plaintiff McMahon, surgeon who examined orthopedic surgeon certified orthopedic board certified McMahon, a board McMahon's examination plaintiff's subject accident. accident. Dr. McMahon's examination of of relating to the subject records relating medical records plaintiff's medical flexion to 30 revealed flexion goniometer revealed of a goniometer motion by use ofa of motion plaintiff range of cervical spine range Rivera's cervical plaintiff Rivera's degrees bending 35 degrees degrees), left bending (normal 60 degrees), degrees degrees (normal extension to 60 degrees degrees), extension (normal 50 degrees), degrees (normal nonPlaintiff is nondegrees). (normal 40 degrees with ). Plaintiff degrees (normal bending 35 degrees right bending degrees), right (normal 45 degrees), pain (normal with pain upper extremities. tender sensation is intact intact on her upper extremities. palpation and sensation tender to palpation with degrees with flexion 85 degrees found flexion examination found Plaintiff motion examination of motion range of spine range lumbar spine Rivera's lumbar Plaintiff Rivera's bending 25 degrees), left bending (normal 20 degrees), pain (normal pain with pain degrees with extension to 10 degrees degrees), extension (normal 90 degrees), pain (normal Plaintiff (normal 25). Plaintiff pain (normal with pain degrees with degrees bending 15 degrees right bending degrees) right (normal 25 degrees) pain (normal with pain degrees with extremity lower touch on her left lower extremity light touch Rivera decreased sensation sensation to light Rivera has decreased pain with pain degrees with elevation 150 degrees revealed elevation Plaintiff examination revealed shoulder examination right shoulder Rivera's right Plaintiff Rivera's pain with pain degrees rotation external TIO), (normal degrees), internal rotation to Tl2 (normal T1O), external rotation 70 degrees with (normal T12 rotation internal degrees), 180 (normal palpation. tender to palpation. (normal Plaintiff is tender degrees). Plaintiff (normal 70 degrees). impingement, right shoulder Rivera's right plaintiff Rivera's Dr. McMahon's shoulder has impingement, that plaintiff diagnosis is that McMahon's diagnosis tear and a tear bursitis and surfaces, bursitis articular surfaces, supraspinatus bursa] and articular both bursal along both tearing along thickness tearing partial thickness supraspinatus partial found examination motion of range spine of the superior glenoid labrum.PlaintiffRivera's lumbar spine range of motion examination found lumbar Rivera's superior glenoid labrum.Plaintiff of (normal 20 pain (normal with pain degrees with flexion extension to 10 degrees degrees), extension (normal 90 degrees), pain (normal with pain degrees with flexion 85 degrees pain with pain bending 15 degrees right bending degrees), degrees with (normal 25 degrees) degrees) right degrees with pain (normal with pain bending 25 degrees degrees), left bending extremity lower extremity her left lower touch on her light touch (normal sensation to light decreased sensation Rivera has decreased Plaintiff Rivera (normal 25). Plaintiff pain with pain degrees with elevation 150 degrees revealed elevation Plaintiff examination revealed shoulder examination right shoulder Rivera's right Plaintiff Rivera's pain with pain degrees with rotation 70 degrees Tl 0), external Tl2 (normal (normal 180 degrees), internal (normal T1O), external rotation rotation to TI2 internal rotation I 80 degrees), (normal palpation. tender to palpation. (normal Plaintiff is tender degrees). Plaintiff (normal 70 degrees). impingement, shoulder has impingement, right shoulder Dr. McMahon's Rivera's right plaintiff Rivera's that plaintiff diagnosis is that McMahon's diagnosis tear and a tear bursitis and surfaces, bursitis articular surfaces, supraspinatus bursal and articular both bursal along both tearing along thickness tearing partial thickness supraspinatus partial based, central broad based, of the superior superior glenoid glenoid labrum. labrum. Cervical Cervical spine C3-4, C4-5 and C5-6 small broad central disc of ventral cerebrospinal upon the ventral herniations compression and mild impingement upon cerebrospinal fluid mild impingement mild compression herniations with mild based broad based rolled broad space and C5-6 Spondylolisthesis, L4-5 rolled Grade 1I Spondylolisthesis, Lumbar spine Grade radiculopathy. Lumbar C5-6 radiculopathy. neural of the neural narrowing of mild narrowing disc bulge, with mild thecal sac with ventral thecal of the ventral flattening of mild flattening resulting in mild bulge, resulting formina bilaterally. formina bilaterally. the related to the causally related Dr. McMahon permanent, causally injuries are permanent, Rivera's injuries plaintiff Rivera's that plaintiff McMahon states that daily of activities and of subject accident and that her condition interferes with her quality of life and her activities of daily quality that her condition interferes subject accident living. 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 12/13/2021 12:23 PM NYSCEF DOC. NO. 46 INDEX NO. 704055/2019 RECEIVED NYSCEF: 12/13/2021 related to the causally related permanent, causally injuries are permanent, Dr. McMahon Rivera's injuries plaintiff Rivera's that plaintiff McMahon states that daily of daily activities of her activities of life and her quality of with her quality subject accident interferes with condition interferes that her condition accident and that subject living. Mark S. I 7, 2021 by Dr. Mark May 17, dated May Plaintiff Serrano submitted affirmation dated sworn affirmation submitted a sworn Plaintiff Serrano plaintiff Serrano McMahon, a board certified certified orthopedic orthopedic surgeon surgeon who who examined examined plaintiff Serrano and reviewed reviewed McMahon, plaintiff McMahon's examination plaintiffs subject accident. accident. Dr. McMahon's examination of of plaintiff relating to the subject records relating medical records plaintiff's medical degrees flexion to 50 degrees revealed flexion Serrano's cervical cervical spine spine range of motion of a goniometer goniometer revealed motion by use of range of Serrano's bending 40 degrees), left bending pain (normal (normal 50 degrees), degrees), extension extension to 40 degrees degrees with (normal 60 degrees), with pain (normal pain (normal degrees with pain (normal (normal 40 degrees), degrees), right degrees with pain (normal 40 degrees). degrees ). bending 40 degrees right bending degrees extremities. upper extremities. Plaintiff sensation is intact intact on her upper palpation and sensation tender to palpation Plaintiff is tender degrees flexion 65 degrees found flexion examination found motion examination Plaintiff Serrano's lumbar of motion range of lumbar spine range Plaintiff Serrano's bending left degrees), 20 (normal pain (normal with degrees), bending degrees with pain IO degrees extension to 10 degrees), extension (normal 90 degrees), with pain (normal Non tender degrees (normal (normal 25 degrees) degrees) right bending bending 25 degrees degrees (normal (normal 25). Non tender to palpation. palpation. 25 degrees Sensation was intact on her upper upper extremities. extremities. Sensation portals. healed arthroscopic revealed healed Plaintiff Serrano's Serrano's left shoulder shoulder examination examination revealed arthroscopic portals. Plaintiff pain (normal with pain rotation to L2 with Elevation degrees with (normal 180 degrees), degrees), internal internal rotation (normal pain (normal with pain Elevation 165 degrees tender to non tender Plaintiff is non pain (normal TIO), external external rotation degrees with pain (normal 70 degrees). degrees). Plaintiff rotation 70 degrees palpation. palpation. edema from a marrow edema shoulder has marrow Dr. McMahon's Serrano's left shoulder plaintiff Serrano's that plaintiff diagnosis is that McMahon's diagnosis synovitis. bursitis and synovitis. with bursitis tears with biceps tears bone contusion labral and biceps clavicle, labral involving the distal clavicle, contusion involving with mild Cervical spine spine C3-4 small broad broad based, central central disc herniations herniations with mild compression compression and Cervical based, central broad C4-5-small impingement upon ventral cerebrospinal fluid C4-5-small broad based, central disc disc space. cerebrospinal ventral the impingement ventral cerebrospinal herniations compression and impingement impingement upon the ventral cerebrospinal fluid space. space. herniations with mild compression mild resulting in mild herniation, resulting Lumbar spine L5-S lI small shallow shallow broad central disc herniation, broad based central Lumbar spine based central broad based compression and impingement impingement upon small shallow shallow broad central thecal sac. L4-5 small ventral thecal upon the ventral compression with sac thecal ventral upon impingement disc herniation, resulting in mild compression impingement upon the ventral thecal with and herniation, resulting mild compression bilaterally mild narrowing foramina bilaterally neural foramina of the neural narrowing of related to the causally related permanent, causally injuries are permanent, Dr. McMahon Serrano's injuries plaintiff Serrano's that plaintiff states that McMahon states daily subject accident accident and that that her condition condition interferes quality of of life and her her activities activities of of daily interferes with her quality subject Plaintiff Serrano Serrano is currently currently only to work part time as a result result of of her injuries. injuries. work part living. Plaintiff board Plaintiff Serrano Serrano submitted submitted a May I10,2021 affirmation from Dr. John John T. Rigney, Rigncy, a board 0, 2021 affirmation Plaintiff tearing of found tearing certified radiologist 8/9/2018 left shoulder shoulder MRI and found of the plaintiff's 8/9/2018 radiologist who read plaintiffs certified superior glenoid glenoid labrum, labrum, marrow change involving involving the distal clavicle, clavicle, the appearance appearance of of marrow signal change superior lumbar spine cervical and lumbar which Serrano's 8/11/2018 8/11/2018 cervical spine Plaintiff Serrano's contusion. Plaintiff bone contusion. with a bone consistent with which is consistent that the findings who states radiologist who MRI was reviewed states that findings certified radiologist board certified Imam, a board Naiyer Imam, reviewed by Dr. Naiyer herniations. central disc herniations. based, central broad based, revealed lordosis and C3-4 small broad cervical lordosis straightened cervical mildly straightened revealed mildly affidavit from Sam Chang, Chang, licensed licensed Plaintiff Rivera Rivera submitted submitted a March l 8thth 2021 affidavit March 18 Plaintiff joint pain and joint chiropractor who examined examined plaintiffs thoracic spine spine and found mild to moderate moderate pain plaintiff's thoracic chiropractor trapezius. Lumbar restriction in upper thoracic region, region, moderate moderate muscle muscle spasms spasms in the trapezius. Lumbar spine spine exam exam upper thoracic restriction inflexion, region lumbar lower on revealed restricted range of motion well moderate pain lower lumbar region in flexion, moderate as as motion of range restricted revealed motion muscle spasms moderate muscle revealed moderate Right shoulder flexion, and rotation. shoulder exam revealed spasms and motion rotation. Right lateral flexion, that the subject restriction supra-spinatus and biciptal Chang states states that subject tendon area. Sam Chang biciptal tendon restriction in the supra-spinatus 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 12/13/2021 12:23 PM ', ,, NYSCEF DOC. NO. 46 INDEX NO. 704055/2019 RECEIVED NYSCEF: 12/13/2021 injuries. plaintiff's injuries. of plaintiff's cause of accident producing cause accident was the producing prima make a prima must make It is well established motion must judgment motion summary judgment of summary proponent of that the proponent established that evidence to sufficient evidence tendering sufficient of law, tendering facie showing matter of judgment as a matter entitlement to judgment of entitlement showing of NY New York, 49 NY Zuckerman v City of demonstrate the absence absence of of any material material issue of of fact. See Zuckerman of New demonstrate parties' doctors (1980). Here, Here, the affirmed affirmed medical of the parties' doctors directly directly contradict contradict each each reports of medical reports 2d 557 (1980). Where parties offer conflicting conflicting medical evidence on the existence existence of of a serious serious injury, injury, the medical evidence parties offer other. Where existence of of such injury injury is a matter determination. See Cracchiolo Cracchiolo v Omerza, Omerza, 87 AD 3d jury's determination. matter for aajury's existence 674 (2011). (2011). against liability against of liability issue of judgment on the issue Plaintiffs summary judgment partial summary move for partial cross move Plaintiffs cross vehicle their vehicle that their allege that Plaintiffs allege damage. Plaintiffs defendants inquest on damage. down for an inquest matter down the matter setting the defendants and setting unable to defendants are unable that defendants was struck negligence and that defendants' negligence of defendants' result of rear as a result struck in the rear provide reasonable excuse excuse for the rear rear end collision. collision. Plaintiffs Plaintiffs assert assert that that defendants defendants are the provide any reasonable cause of of the subject subject accident. accident. proximate cause sole proximate prima facie case of A rear-end collision with a stopped or stopping stopping vehicle creates a prima of rear-end collision rebut the requiring that operator thereby requiring negligence against the operator operator of ofthe operator to rebut the moving vehicle, thereby negligence against Kimyagarov v inference of negligence explanation for the collision. collision. See Kimyagarov non-negligent explanation providing a non-negligent negligence by providing inference of moving of the moving operator of If the operator Nixon Taxi Corp., et ai, A.O. 3d 736, 846 N.Y.S. 2d 309 (2007). If al, 45 A.D. occupants negligence, the occupants of negligence, inference of vehicle cannot evidence to rebut the inference cannot come forward with the evidence of liability. See judgment on the issue of and owner summary judgment stationary vehicle are entitled to summary of the stationary owner of 973, 816 NYS 2d 543 (2006). Piltser Mgt Corp., 29 AD 3d 973,816 Donna Lee Mgt Piltser v Donna provides that "the Vehicle and Traffic Traffic Law Law (VTL) (VTL) §S 1129 (a) provides "the driver driver of ofaa motor motor vehicle vehicle shall Vehicle regard for the having due regard prudent, having not follow follow another another vehicle closely than is reasonable reasonable and prudent, more closely vehicle more Failure to do so highway". Failure speed of of such such vehicles condition of of the highway". traffic upon and the condition vehicles and the traffic speed rear-ended to summary vehicle was rear-ended whose vehicle plaintiff whose per se, entitling constitutes negligence entitling the plaintiff summary negligence per constitutes judgment absence of of an adequate explanation. See Comas-Bourne Comas-Bourne v City City of of non-negligent explanation. adequate non-negligent judgment in the absence (2017). New New York, 146 AD 3d 855 (2017). end rear end the rear explanation for the non-negligent explanation Here, sufficient non-negligent offered a sufficient not offered have not defendants have Here, defendants collision. The Court Court finds finds that that plaintiffs plaintiffs have have met met their their burden burden of of establishing establishing their their prima prima facie facie collision. entitlement to judgment issue of of liability liability against against defendants. defendants. judgment on the issue entitlement motion for an Rigo Limo-Auto Accordingly, defendants Jose Jose M. Gonzalez Gonzalez and Rigo Limo-Auto Corp's Corp's motion Accordingly, defendants order pursuant CPLR § 3212 3212 for summary summary judgment favor of of defendant, defendant, and and dismissing dismissing the judgment in favor pursuant to CPLR order that grounds that the grounds Augusta Guaman complaint of of plaintiffs Guaman Serrano Serrano on on the Maria Augusta Rivera and Maria I. Rivera Maria 1. plaintiffs Maria complaint Insurance mandated by Insurance requirement mandated plaintiffs serious injury threshold requirement injury threshold the serious meet the failed to meet have failed plaintiffs have judgment partial summary granting partial order granting Law summary judgment motion for an order cross motion Plaintiffs' cross denied. Plaintiffs' (d) is denied. 5102 (d) Law S§ 5102 damages is on damages inquest on matter for an inquest on the issue scheduling the matter defendants, scheduling against defendants, liability against of liability issue of granted. granted. s decision and order order of of this Court. Court. This is the decision December Dated: December Dated: /,2.., /2.., 2021 FILED 12/13/2021 COUNTY CLERK QUEENS COUNTY 5 of 5

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