Garcia v Caccamo

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Garcia v Caccamo 2021 NY Slip Op 33112(U) November 18, 2021 Supreme Court, Queens County Docket Number: Index No. 710481/2019 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. "l'~-------------------------------- ~--~\I!I'. [*FILED: 1] QUEENS COUNTY CLERK 11/23/2021 02:45 PM _______ NYSCEF DOC. NO. 50 I INDEX NO. 710481/2019 RECEIVED NYSCEF: 11/23/2021 I FILED 11/23/2021 SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF QUEENS _ COUNTY QUEENS . ----------------------------~------~------~-----~._------~-----------)( ----------------------------------------------- -------------------X MARISOL GARCIA, GARCIA, MARISOL Plaintiffs, Plaintiffs, COUNTY CLERK QUEENS COUNTY Index No.: 710481//2019 Index No.: 710481//2019 Motion Seq. No. Motion No. 001 -against-against- Decision and and Order Order Decision KATHLEEN BARBARA BARBARA CACCAMO, CACCAMO, KATHLEEN Defendants. Defendants. ----------~-----------------------------~-----------------------_.~-)( --------------------------------------- -------------- --------- --X Present: HONORABLE HONORABLE ULYSSES ULYSSES B. LEVERET: LEVERET: Present: Notice of Motion-Affirmation-Exhibits Motion- Affirmation-Exhibits .......... . Notice of Affirmation In Opposition-Exhibits Opposition-Exhibits ............... . Affirmation Notice Cross Motion-Exhibits-Memo Motion-Exhibits-Memo ................ . of Cross Notice·'of Reply Affirmation/Motion Affirmation/Motion ................................. . Reply ,,,."".-_- Papers Numbered Papers Numbered EF-08-19 EF-08-19 EF-22- 38 EF-22EF-39-45 EF-39-45 EF-43 EF-43 ~ ~ Upon the foregoing foregoing papers,it papers, it is ordered ordered that that defendant defendant Kathleen Kathleen Barbara Barbara Caccamo's Caccamo's Upon 3212 for summary summary judgment favor of of defendant, defendant, and and motion for an order order pursuant CPLR §S 3212 judgment in favor motion pursuant to CPLR dismissing the complaint complaint of of plaintiff plaintiff Marisol Marisol Garcia Garcia on the grounds grounds that that plaintiff has failed failed to dismissing plaintiff has 5102 ((d) denied. meet the serious serious injury injury threshold threshold requirement requirement mandated mandated by Insurance Insurance Law Law §S 5102 d) is denied. meet Plaintiffs cross cross motion motion for an order order granting granting partial summary judgment issue of of liability liability Plaintiffs partial summary judgment on the issue against defendant defendant and striking striking the affirmative affirmative defense defense of of comparative comparative negligence negligence from the answer answer against granted. is granted. PlaintiffMarisol Garcia seeks seeks to recover recover for personal personal injuries injuries allegedly allegedly sustained sustained as a Plaintiff Marisol Garcia result of of a motor motor vehicle vehicle accident accident which which occurred occurred on October October 23, 2017 2017 on the the Cross Cross Island Island result Parkway near near the Linden Linden Boulevard Boulevard underpass, underpass, County County of of Queens, Queens, State State of of New York. New York. Parkway ........~ '='..•.•... ~ ~ Plaintiff Marcia Marcia Garcia Garcia asserts asserts that that on October October 23, 23,2017, driving on the Cross Cross Plaintiff 2017, as she was driving Island Parkway Parkway on her her way to work, work, her vehicle vehicle was suddenly suddenly and and without without warning warning struck struck in the Island rear by a vehicle vehicle operated operated by defendant defendant Kathleen Kathleen Barbara Barbara Caccamo. Caccamo. Plaintiff Plaintiff alleges.that alleges ,that as a rear result of ofthe accident, she sustained sustained injuries injuries to her her neck, neck, left shoulder, shoulder, left left hand, hand, and and lower lower back. back. the accident, result Insurance Law Law §S 5102 ((d) defines a "serious "serious injury" injury" as " a personal injury which which results results in d) defines personal injury Insurance dismemberment; significant significant disfigurement; disfigurement; a fracture, fracture, loss of of a fetus,,permanent fetus"permanent Joss of of use death; dismemberment; of a body organ, organ, member, member, function function or system; permanent permanent consequential consequential limitation limitation of of use of of a of permanent nature nature which which prevents prevents the injured injured from performing performing substantially substantially all oftfie odile material material acts, acts, permanent which constitute constitute such person's person's usual and customary customary daily activities activities for not less than than 90 days during during which immediately following following the occurrence occurrence of of the injury injury or impairment." impairment." the 180 days immediately Defendant Kathleen Kathleen Barbara Barbara Caccamo Caccamo allege that plaintiff plaintiff has not suffered suffered a serious serious injury injury Defendant within the meaning meaning of of the No Fault Fault Law. In support support of of the motion, motion, defendant defendant submitted submitted an within orthopedic evaluation evaluation dated September September 30, 2020 2020 of of plaintiff Arnold T. Berman, Berman, an plaintiff by Dr. Arnold orthopedic orthopedic surgeon, surgeon, who examined examined plaintiff plaintiff on 8/26/2020 8/26/2020 using using a goniometer goniometer and reviewed reviewed orthopedic 1 of 4 '•. [*FILED: 2] QUEENS COUNTY CLERK 11/23/2021 02:45 PM NYSCEF DOC. NO. 50 INDEX NO. 710481/2019 RECEIVED NYSCEF: 11/23/2021 plaintiff's medical medical records. Berman reports reports that the examination examination of plaintiff's records. Dr. Berman of plaintiff's plaintiff's cervical cervical spine spine of motion motion revealed revealed flexion flexion to 50 degrees degrees (normal (normal 50 degrees), degrees), extension extension to 60 degrees degrees range of (normal 60 degrees), degrees), right/left right/left lateral degrees(normal 45 degrees), (normal lateral flexion 45 degrees(normal degrees), right/left right/left rotation rotation to degrees (normal (normal 80 degrees). degrees). Dr. Berman Berman states that inspection of the cervical cervical spine spine revealed revealed no 80 degrees inspection of tenderness, spasm spasm or pain with palpation palpation but mild pain on range of motion. range of motion. tenderness, Plaintiff's lumbar spine range range of of motion motion examination examination revealed Plaintiff's lumbar spine revealed flexion flexion 60 degrees degrees (normal (normal degrees), extension extension to 25 degrees degrees (normal (normal 25 degrees), degrees), right/left right/left lateral 60 degrees), lateral bending bending to 25 degrees degrees (normal 25 degrees). degrees). There There was no tenderness, (normal tenderness, spasm or pain with with palpation palpation and mild mild pain pain on of motion. motion. Heel and toe walk walk was normal. normal. range of Plaintiff's right/left right/left hand hand range range of of motion revealed findings motion revealed findings of of proximal proximal interphalangeal interphalangeal Plaintiff's joint flexion 100 degrees degrees (normal (normal 100 degrees), degrees), distal interphalangeal joint flexion joint flexion interphalangealjoint flexion 70 degrees degrees (normal 70 degrees), degrees), and extension extension 0 degrees degrees (normal (normal 0 degrees). degrees). There There was of the (normal was full closing closing of hands to the distal palmer palmer crease, crease, no atrophy, atrophy, tenderness, swelling, erythema hands tenderness, swelling, erythema or ecchymosis ecchymosis noted. noted. Berman states that that plaintiff plaintiff sustained sustained a cervical/lumbar cervical/lumbar strain/sprain, strain/sprain, left shoulder Dr. Berman shoulder contusion/strain/sprain and left hand contusion contusion as a result ofthe subject accident contusion/strain/sprain result of the subject accident which which is now now resolved with no clinical clinical residuals. residuals. There There was no radiculopathy, radiculopathy, no atrophy atrophy of resolved of the upper/lower upper/lower extremities indicating indicating normal normal usage. Dr. Berman Berman states that plaintiff did not sustain extremities that plaintiff sustain any permanency of of injury injury or disability. disability. Plaintiff's Plaintiff's left shoulder shoulder surgery surgery is not related permanency related to the subject subject accident and was done for pre-existing pre-existing disease disease and not this injury. accident injury. Dr. Berman Berman states states that that plaintiff plaintiff participate in all aspects aspects of of daily living living and she may work work at her her regular regular employment, employment, full time, time, can participate without restrictions. restrictions. without Defendant submitted submitted a sworn sworn report 22,2020 Defendant report dated August August 22, 2020 by Dr. Jonathan Jonathan S. Luchs, Luchs, a board certified radiologist who reviewed plaintiff's 12/2/2017 cervical spine MRI. The board certified radiologist reviewed plaintiff's 12/2/2017 cervical spine MRI. The MRI MRI review review revealed no post post traumatic traumatic findings findings causally causally related related to the subject subject accident revealed accident but but degenerative degenerative disc disc disease and degenerative degenerative arthropathy, arthropathy, most most prominent disease prominent at C5/6 resulting resulting in flattening flattening of of ventral ventral thecal sac. thecal Plaintiff's 11 11/21/2017 shoulder MRI review showed mild subacromial Plaintiff's /21/2017 left shoulder review showed subacromial impingement impingement resulting in mild supraspinatus tendinosis tendinosis that are chronic chronic and degenerative degenerative and not resulting mild supraspinatus not post post traumatic. traumatic. Plaintiff's 12/2/2017 12/2/2017 lumbar lumbar spine MRI utilizing Plaintiff's utilizing multiplanar multiplanar imaging imaging techniques techniques found degenerative disc disease disease and degenerative degenerative arthropathy arthropathy as well as dextroscoliosis dextroscoliosis of degenerative of the lumbar lumbar retrolisthesis of of L5 which which are all chronic chronic and not spine and minimal minimal retrolisthesis not post post traumatic. traumatic. When defendant defendant has established established that plaintiff's plaintiff's injuries When injuries are not serious serious within within the meaning meaning of No-Fault plaintiff to come come forward of No-Fault Law, the burden burden shifts to the plaintiff forward with with evidence evidence to overcome overcome the the defendant's submissions submissions by demonstrating demonstrating a triable triable issue of of fact that defendant's that a serious serious injury injury was was sustained sustained within the meaning meaning of of the Insurance Insurance Law. See Jin v Reilly, Reilly, 296 296 AD 2d 373 (2002). (2002). within Plaintiff in opposition opposition to defendants defendants motion summary judgment Plaintiff motion for summary judgment asserts asserts that that plaintiff plaintiff sustained a serious serious injury injury in that she sustained sustained both consequential limitations sustained both permanent permanent consequential limitations and significant limitations limitations of of the use of of her cervical, cervical, lumbar lumbar spine and left shoulder shoulder and and a medically medically significant determined injury injury or impairment impairment of of a non permanent permanent nature determined nature to her cervical cervical spine, spine, left shoulder shoulder and lumbar spine which which prevented prevented her from performing performing her usual and customary customary daily activities lumbar activities for not not 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 11/23/2021 02:45 PM NYSCEF DOC. NO. 50 INDEX NO. 710481/2019 RECEIVED NYSCEF: 11/23/2021 injury or less than following the occurrence occurrence of of the injury immediately following during the 180 days immediately than 90 days during McMahon, a Mark S. McMahon, impairment. submitted a sworn sworn physician of Dr. Mark dated of affirmation dated physician affirmation Plaintiff submitted impairment. Plaintiff reviewed board surgeon who April 21, 2021 and reviewed plaintiff on April examined plaintiff who examined orthopedic surgeon certified orthopedic board certified of examination of McMahon's examination plaintiffs accident. Dr. McMahon's subject accident. relating to the subject records relating medical records plaintiffs medical degrees plaintiff's flexion to 50 degrees revealed flexion goniometer revealed of a goniometer motion by use ofa of motion range of spine range cervical spine plaintiff's cervical degrees(normal (normal bending 35 degrees(normal degrees), left bending (normal 60 degrees), degrees (normal extension to 60 degrees degrees), extension (normal 50 degrees), degrees), right degrees (normal (normal 40 degrees). degrees). Plaintiff decreased sensation sensation to Plaintiff has decreased bending 35 degrees right bending 45 degrees), light touch extremity. upper extremity. touch on her left upper Plaintiffs of motion examination found found flexion flexion 35 degrees degrees (normal (normal 90 motion examination range of lumbar spine range Plaintiff's lumbar degrees), (normal 20 degrees), (normal pain (normal with pain degrees with bending 15 degrees degrees), left bending degrees (normal extension to 10 degrees degrees), extension 25 degrees) right bending 25 degrees with pain (normal 25). Plaintiff has decreased sensation to sensation decreased Plaintiff pain (normal degrees degrees) right bending light touch extremity upper extremity touch on her left upper Plaintiff's mild with mild portals with arthroscopic portals healed arthroscopic revealed four healed examination revealed shoulder examination Plaintiff's left shoulder atrophy of her deltoid. Elevation 160 degrees with pain (normal degrees), internal rotation to rotation internal degrees), 180 pain (normal degrees atrophy of her deltoid. Elevation the posterior, superior, iliac spine spine with (normal Tl TIO), external rotation degrees with pain with pain rotation 30 degrees 0), external pain (normal with pain posterior, superior, (normal 70). Plaintiff palpation. tender to palpation. Plaintiff is tender (normal Dr. McMahon's shoulder has multiple of round foci of multiple round plaintiff's left shoulder that plaintiff's diagnosis is that McMahon's diagnosis posterior, superior abnormal secondary to trauma. superior of the posterior, Fraying of trauma. Fraying humerus secondary proximal humerus abnormal signal in the proximal Cervical effusion. Cervical labrum joint effusion. Glenohumeral joint labrum. Glenohumeral inferior labrum. interior, inferior of the interior, degeneration of labrum and degeneration spine ventral the ventral of the flattening of bulge and flattening C5-6 disc bulge indentation, C5-6 thecal sac indentation, with thecal bulge with spine C4-5 disc bulge margin of the cord, lumbar spine L3-4 and L4-5 subligamentous disc bulges, L5-S shallow central central shallow 1 L5-S bulges, subligamentous margin of the cord, lumbar spine subligamentous states McMahon states thecal sac. Dr. McMahon ventral thecal midline ventral impressing on the midline herniation impressing subligamentous disc herniation living, is that plaintiffs condition interferes quality of of life and her activities of of daily daily living, her activities plaintiff's quality interferes with plaintiff's plaintiffs condition permanent causally related subject accident. accident. related to the subject permanent and causally Plaintiff submitted medical Staten Island Neuro Total Neuro Hospital and Total University Hospital Island University records from Staten medical records Plaintiff submitted unafffirmed .. Care, P.C. However, unsworn and unafffirmed they are unsworn inadmissible as they records are inadmissible medical records However, the medical (2010). Bernier v Torres, 79 Ad 3d 776 (2010). See Bernier It is well established prima make a prima must make motion must judgment motion summary judgment of summary proponent of that the proponent established that evidence to facie showing sufficient evidence tendering sufficient of law, tendering matter of judgment as a matter entitlement to judgment of entitlement showing of NY New York, 49 NY ofNew demonstrate the absence absence of of any material City of Zuckerman v City of fact. See Zuckerman issue of material issue demonstrate (1980). Here Here the affirmed affirmed medical medical reports of the parties' doctors directly directly contradict contradict each parties' doctors reports of 2d 557 (1980). injury, the offer conflicting conflicting medical evidence on the existence existence of of a serious serious injury, medical evidence parties offer Where parties 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 (2011). 674 (2011). and defendant and against defendant Plaintiff ofliability against issue ofliability judgment on the issue summary judgment moves for summary cross moves Plaintiff cross that alleges that Plaintiff alleges striking answer. Plaintiff negligence from the answer. comparative negligence of comparative defense of affirmative defense striking the affirmative her vehicle unable defendant is unable that defendant negligence and that defendant's negligence of defendant's result of rear as a result struck in the rear was struck vehicle was to provide any reasonable excuse for the rear end collision. Plaintiff asserts that defendant is the the defendant that asserts collision. Plaintiff rear reasonable excuse provide cause of of the subject subject accident. accident. proximate cause sole proximate A rear-end collision with a stopped or stopping stopping vehicle creates a prima of prima facie case of rear-end collision rebut the negligence against the operator operator of of the moving vehicle, thereby operator to rebut requiring that operator thereby requiring negligence against 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 11/23/2021 02:45 PM NYSCEF DOC. NO. 50 INDEX NO. 710481/2019 RECEIVED NYSCEF: 11/23/2021 inference of of negligence negligence by providing explanation for the collision. collision. See Kimyagarov infer~nce providing aanon-negligent non-negligent explanation Kimyagarov v Nixon Taxi Corp., et al, aI, 45 A.D. 3d 736, 846 N.Y.S. 2d 309 (2007). Ifthe If the operator operator of of the moving moving vehicle cannot come forward with the evidence to rebut the inference inference of of negligence, negligence, the occupants occupants and owner judgment on the issue of owner of of the stationary stationary vehicle are entitled to summary judgment of liability; See Piltser Piltser v Donna Donna Lee Mgt Corp., 29 AD 3d 973, 973,816 816 NYS 2d 543 (2006). (2006). provides that "the Vehicle "the driver driver of of a motor motor vehicle vehicle shall Vehicle and Traffic Traffic Law Law (VTL) (VTL) §S 1129 (a) provides follow another another vehicle vehicle more more closely closely than is reasonable reasonable and prudent, having due regard' regard' for the not follow prudent, having speed of of such vehicles vehicles and the traffic traffic uponand uponand the condition condition of of the highway". highway". Failure Failure to do so speed constitutes negligence entitling the plaintiff whose vehicle vehicle was rear-en9ed rear-ended to summary summary constitutes negligence per per se, entitling plaintiff whose judgment the absence absence of of an adequate adequate non-negligent non-negligent explanation. explanation. See Comas~Bourne Comas-Bourne v City of of judgment in the New York, 146 AD 3d 855 (2017). (2017). Here, defendant defendant does does not not oppose oppose plaintiff's cross motion motion for summary summary judgment on the Here, plaintiffs cross judgment on the issue of of liability liability and striking striking the affirmative affirmative defense defense of of comparative comparative negligen2e· negligen2e from the answer. answer. issue Court finds finds that that plaintiff has inet met his burden burden of of establishing establishing his facie entitlement entitlement to plaintiff has his prima prima facie The Court judgment the issue issue of of liability liability against against defendants defendants without without opposition opposition judgment on the . . Accordingly, defendant Kathleen Kathleen Barbara Barbara Caccamo's Caccamo's motion motion for~ for,an order pursuant Accordingly, defendant an order pursuant to · CPLR 3212 for sum,nary CPLR §S 3212 sum~ary judgment judgment in favor favor of of defendant, defendant, and and dismissing dismissing the,pqmpiaint the,..compiaint of of Garcia on on the grounds grounds that failed to meet serious injury injury · plaintiffMarisol plaintiff Marisol Garcia that plaintiff plaintiff has failed :meet the serious threshold requirement Insurance Law§ Law S 5102 denied. Plaintiff's Plaintiff's cross cross motion 5102 (d) is denied. motion threshold requirement mandated mandated by Insurance order granting granting partial summary judgment issue of of liabiHty liability against against defendant defendant and for an order partial summary judgment on the issue striking the affirmative affirmative defense defense of 6f comparative comparative negligence negligence from the answer answer is granted. granted. ·-. striking \. decision and order order of of this Court. This is the decision Dated: November · Dated: November (g, (&, 2021 FILED 11/23/2021 COUNTY CLERK QUEENS COUNTY 4 of 4 .~

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