Davino v Pomarico

Annotate this Case

Download PDF

Davino v Pomarico 2021 NY Slip Op 33267(U) March 1, 2021 Supreme Court, Suffolk County Docket Number: Index No. 612649/2018 Judge: Joseph A. Santorelli 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: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 INDEX INDEX No. No. 612649/2018 612649/2018 CAL. No. No. . 202000164MV 202b00164MV SUPREME SUPREME COURT COURT - STATE STATE OF NEW NEW YORK YORK I.A.S. LA.S. PART PART 10 10- ·_ SUFFOLK SUFFOLK COUNTY COUNTY PRESENT: PRESENT: JOSEPH A. S=A=N~T~O~RE=L=L=I_ SANTORELLI Hon. -~JO~S=E=P~H~A~. Hon. Justice Justice of of the the Supreme Supreme Court Court / MOTION DATE DATE 6/11/20 (001) (001) MOTION 6/11/20 MOTION 10/1/20 MOTION DATE DATE 10/1/20 (002) (002) MOTION DATE DATE 10/22/20 10/22/20 (003) (003) MOTION MOTION DATE DATE 10/29/20 10/29/20 (004) (004) MOTION ADJ. DATE DATE 11/5/20 (001 & 002) ADJ. 11/5/20 ADJ. DATE DATE 10/29/20 (003 & 004) 004) ADJ. 10/29/20 Mot. Seq.# Seq. # 001 MD; MD; Mot. Mot. Seq.# Seq. # 002 XMD XMD Mot. Mot. Seq. # 003 MG MG Mot. Mot. Mot. Seq. # 004 MD MD ---------------------------------------------------------------X ---------------------------------------------------------------X RAPPAPORT GLASS GLASS LEVINE LEVINE & ZULLO ZULLO RAPPAPORT Attorney Attorney for Plaintiff Plaintiff 13~5 Motor Motor Parkway Parkway Islandia, New York 11749-:11749.; New York Islandia, JANAE DAVINO, VINO, JANAE Plaintiff, Plaintiff, - against against- . i . .. < • • MILBER MILBER MAKRIS MAKRIS PLOUSADIS PtOUSADIS & SEIDEN SEIDEN Attorney Attorney for Defendant Defendant Pomarco Pomarco Woodbury Road, Road, Suite Suite 402 1000 Woodbury Woodbury, New York Woodbury, New York 11797 11797 JOHN JOHN POMARICO, POMARICO, JENNIFER JENNIFER SEMENDOFF SEMENDOFF COURTNEY SEMENDOFF, SEMENDOFF, and COURTNEY ,. ,· i ..Defendants. Defendants. GENTILE & TAMBASCO TAMBASCO GENTILE Attorney for Defendants Defendants Semendoff Semendoff Attorney Broad Hollow Hollow Road, Road, Suite Suite 300 · 115 Broad Melville, New New York York 11747 11747 Melville, ---------------------------------· ------------.- _-------------X ---------------------------------~-------~------~--------------X Upon judgment and Upon the the following following papers papers read read on this this motion motion and cross cross motion motion for summary summary judgment and these these motions motions to strike strike the the pleadings pleadings ,: Notice Notice of of Motion/ Motion/ Order Order to Show Show Cause Cause and supporting supporting papers papers by defendant defendant Pomarico, Pomarico, dated dated May May 6, 2020, 2020, by defendant 21, 2020 Notice of defendant Pomarico, Pomarico, dated dated October October 15, 2020, 2020, and and by defendants defendants Semendoff, Semendoff, dated dated October October21, 2020 ; Notice of Cross Cross Motion Motion and supporting 2020 ; Answering supporting papers papers by plaintiff, plaintiff, dated dated September September 9, 9,2020 Answering Affidavits Affidavits and supporting supporting papers papers by plaintiff, plaintiff, dated dated October 22, 2020, 2020, by defendant defendant Pomarico, Pomarico, dated dated October October I15, 5, 2020, 2020, and and by defendants defendants Semendoff, Semendoff, dated dated October October 2 21, I, 2020 2020 ; October Replying Affidavits Affidavits and and supporting supporting papers papers by defendant defendant Pomarico, Pomarico, dated dated October October 29, 29,2020 Other _.; it is Replying 2020 ; Other_·; [* 1] 1 of 7 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 Davino v Pomarico Pomarico Davino Index No. 612649/2018 612649/2018 Page2 Page 2 ORDERED ORDERED that that the parties' parties' motions motions are consolidated consolidated for purpose purpose of of this this determination; determination; and it is ORDERED ORDERED that that the motion motion by defendant defendant John John Pomarico Pomarico seeking seeking summary summary judgment dismissing judgment dismissing the complaint complaint is denied; denied; and and it is ORDERED that the the cross motion by plaintiff ORDERED that cross motion Janae Davino seeking summary summary judgment plaintiff Janae Davino seeking judgment in her favor on the ground ground that that she sustained sustained a serious serious injury injury within of Section Section 5102 ((d) of the within the meaning meaning of d) of Insurance Insurance Law Law is denied; denied; and and it is ORDERED ORDERED that that the motion motion by defendant defendant John John Pomarico Pomarico for, inter inter alia, alia, an order order striking striking plaintiff'ss supplemental verified bill of plaintiff supplemental verified of particulars granted; and it is further further particulars is granted; ORDERED ORDERED that that the motion motion by defendants defendants Jennifer Jennifer Semendoff Semendoff and Courtney Courtney Semendofffor, Semendoff for, inter inter alia, an order order striking striking the supplemental supplemental verified verified bill of of particulars particulars is denied, denied, as moot. moot. Plaintiff Plaintiff Janae Janae Davino Davino commenced commenced this action action to recover recover damages damages for injuries injuries she allegedly allegedly sustained sustained as a result result of of a motor motor vehicle vehicle accident accident that that occurred occurred at the intersection intersection of of Smithtown Smithtown A Avenue venue nd Street and South South 2nd Street in the Town Town oflslip ofIslip on August August 7, 2015. 2015. Plaintiff, Plaintiff, by her her complaint, complaint, alleges alleges that that while she was riding riding as a front passenger in the vehicle while front seat passenger owned by defendant defendant Jennifer Semendoff and vehicle owned Jennifer Semendoff operated operated by defendant defendant Courtney Courtney Semendoff, Semendoff, the vehicle vehicle was struck struck in the rear rear right right passenger passenger side by the vehicle vehicle owned owned and operated operated by defendant defendant John John Pomarico Pomarico as it attempted attempted to make make a left turn tum from South South nd nd 2 Street venue. The force of Street onto onto Smithtown Smithtown A Avenue. of the impact impact allegedly allegedly caused caused the Semendoff Semendoff vehicle vehicle to flip over and land land on its roof. roof. By her her bill of of particulars, particulars, plaintiff plaintiff alleges, alleges, among among other other things, things, that that she sustained wrist central triangular fibrocartilage sustained a left wrist central triangular fibrocartilage disc tear intrasubstance tear of the left dorsal dorsal tear and intrasubstance tear of scapholunate scapholunate ligament ligament as a result result of of the accident. accident. Defendant Defendant Pomarico Pomarico now now moves moves for an order order striking striking plaintiff's plaintiff s supplemental supplemental bill of of particulars particulars dated 2020. In particular, particular, defendant Pomarico asserts dated September September 8, 8,2020. defendant Pomarico asserts that, approximately eight eight months that, approximately months after the filing of plaintiff, in an attempt of the note note of of issue, issue, plaintiff, attempt to undermine defenses and to oppose oppose his undermine his defenses motion judgment, served motion for summary summary judgment, served an amended amended bill of of particulars, particulars, improperly improperly denoted denoted as a supplemental supplemental bill of of particulars, particulars, alleging alleging new new claims. claims. Defendant Defendant Pomarico Pomarico further further contends contends that that plaintiff plaintiff was required required to obtain obtain leave leave of of the Court Court to serve serve the new new bill of of particulars particulars after after the note note of of issue issue was filed. Alternatively, Alternatively, defendant defendant Pomarico Pomarico seeks seeks an order, order, pursuant CPLR 3043, 3043, precluding pursuant to CPLR precluding plaintiff plaintiff from presenting presenting evidence evidence at the time time of of trial trial as to the new new injury injury set forth forth in the supplemental supplemental bill of of particulars. particulars. Defendants Defendants Jennifer Jennifer Semendoff Semendoff and Courtney Courtney Semendoff Semendoff also also move move to strike strike the the supplemental supplemental bill of of particulars particulars on the same same grounds grounds as defendant defendant Pomarico Pomarico and and rely on the same same evidence evidence as defendant defendant Pomarico. Pomarico. Plaintiff Plaintiff opposes opposes the the motion motion on the ground ground that that the supplemental supplemental bill bill of of particulars particulars does does not contain any new contain new injuries. injuries. Rather, Rather, plaintiff plaintiff asserts, asserts, the injuries injuries set forth forth in the supplemental supplemental bill of of particulars evince particulars evince the continuing continuing consequence consequence of of injuries injuries that that were suffered by her her as a result were previously previously suffered result of the subject accident, and that defendants were of subject accident, and that defendants were aware aware of of the claimed claimed injury injury of of significant significant disfigurement disfigurement and scarring, scarring, since since she was questioned questioned extensively extensively on the issue issue at her deposition, deposition, and cannot cannot claim claim they are being being prejudiced prejudiced by its inclusion. inclusion. [* 2] 2 of 7 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 Davino Pomarico Davino v Pomarico Index 612649/2018 Index No. 612649/2018 Page 3 prevent and prevent proof, and "The purpose the proof, limit the pleadings, limit amplify the pleadings, particulars is to amplify of particulars bill of of a bill purpose of "The NYS2d 424 [2d 825, 877 NYS2d surprise at trial" trial" (Jones (Jones v LeFrance AD3d 824, 824,825,877 Partnership, 61 AD3d Ltd. Partnership, Leasing Ltd. LeFrance Leasing surprise party may Dept 2009]; 2009]; see Jurado AD3d 759, 759,940 Dept 2012]). 2012]). While While a party NYS2d 300 [2d Dept 940 NYS2d Ka/ache, 93 AD3d Jurado v Kalache, Dept ]), once note of serve a bill of of particulars once, as ofright, of right, before of a note of issue issue (CPLR (CPLR 3042 3042 [b [b]), once before the filing of particulars once, serve permitted to amend not be permitted will not party will trial, a party discovery is complete complete and and the case case is certified certified as ready amend ready for trial, discovery his or her bill of of particulars except upon showing of of "special "special and extraordinary extraordinary circumstances" circumstances" upon a showing particulars except 2008]). Dept 2008]). (Schreiber-Cross v State York, 57 AD3d 438 [2d Dept NYS2d 438 AD3d 881, 884, 870 NYS2d New York, of New State of (Schreiber-Cross of claims of respect to claims with respect particulars with of particulars Furthermore, supplemental bill of serve a supplemental may serve party may Furthermore, a party new or alleged are action of causes of action new causes that no new continuing special special damages and disabilities, provided that alleged new disabilities, provided damages and continuing NYS2d Mix, Inc., 98 AD3d Ready Mix, injuries claimed claimed (see CPLR CPLR 3043 [b]; Erickson Cross Ready AD3d 717, 950 NYS2d Erickson v Cross injuries ]). Thus, 2011 Dept [2d 7 64 NYS2d 931 924, 717[2d Dept 2012]; Alami v 215 E6th St., L.P., 88 AD3d NYS2d 647 Dept 2011]). Thus, AD3d 717[2d Dept 2012]; Alami 215 E6th St., L.P., updating plaintiff is updating when a plaintiff supplemental bill of of particulars served without leave of of the court court when without leave may be served particulars may a supplemental allegedly injuries continuing claims of special damages or alleging continuing consequences of the injuries allegedly of continuing claims of special damages alleging continuing consequences 856 AD3d 507, Monahan, 49 AD3d Kraycar v Monahan, suffered and described described in the original bill of particulars 507,856 particulars (see Kraycar bill of the original suffered 1993]). Dept [2d 801 NYS2d 598 580, NYS2d 123 [2d Dept 2008]; Aversa v Taubes, AD2d 580, NYS2d Dept AD2d 194 Dept 2008]; Aversa Taubes, NYS2d new liability or a new of liability theory of new theory injuries, a new new injuries, However, supplemental bill asserts new particulars asserts of particulars bill of where a supplemental However, where Hosp., Mem. Booth Pearce (see particulars of category of damages, it will be deemed an amended bill of particulars Pearce v Booth Mem. Hosp., amended deemed category of damages, will AD2d 553, 553,543 Dept 1989]), 1989]), requiring requiring the plaintiff plaintiff to obtain obtain leave leave of of the court court (see NYS2d 157 [2d Dept 543 NYS2d 152 AD2d CPLR 3025 [b [b]). ]). CPLR verified purported supplemental with a purported Pomarico with instant matter, served defendant defendant Pomarico supplemental verified plaintiff served matter, plaintiff In the instant bill of of particulars after the filing filing of of the note of issue. "A "A plaintiff cannot simply simply avoid avoid the application application of of plaintiff cannot note of particulars after but is in addition the rule that supplemental pleading does not supersede the original original pleading, addition to it (see pleading, but not supersede pleading does that a supplemental Dept 1989]), NYS2d 541 [2d Dept 913, 539 NYS2d Lovisa Constr. Co. v Facilities Corp., 148 AD2d 1989]), by AD2d 913,539 Dev. Corp., Facilities Dev. Lovisa Constr. damages, of damages, category of new category injuries [or] a new new injuries denominating asserts new that asserts pleading one that 'supplemental' pleading denominating as a 'supplemental' AD3d 171, 175, 868 (Mendrzycki v Cricchio, and which Cricchio, 58 AD3d pleading" (Mendrzycki amended pleading" properly an amended therefore properly which is therefore NYS2d 178 New York, NYS2d Dept 2008], 2008], quoting quoting Fuentes Fuentes v City of of New York, 3 AD3d AD3d 549, 550, 771 NYS2d NYS2d 107 [2d Dept Dept 2004]). 2004]). Here, Here, plaintiffs supplemental bill of of particulars was, in reality, reality, an amended amended bill of of particulars was, plaintiffs supplemental [2d Dept Suffolk, 23 particulars, sought to add add a new category of of injury injury (see Kyong Wohn v County County of of Suffolk, 2377 Hi Wohn Kyong Hi new category particulars, as it sought particulars served bill of AD2d consequence, the bill of particulars served in Dept 1997]). As a consequence, NYS2d 826 [2d Dept AD2d 412, 654 NYS2d NYS2d 455, 742 NYS2d AD2d 455, September 2020 York Methodist 294 AD2d Hosp., 294 Methodist Hosp., New York Bartkus v New nullity (see Bartkus 2020 was a nullity September 2001]). Dept 2001]). NYS2d 59 [2d Dept Golub v Sutton, AD2d 589, 723 NYS2d Sutton, 281 AD2d 2002]; Golub Dept 2002]; 554 [2d Dept that things, that other things, among other Plaintiffs alleged, among 2018, alleged, November 9, 2018, dated November particulars, dated of particulars, bill of original bill Plaintiffs original of the left tear of intrasubstance tear and an intrasubstance tear and disc tear she sustained fibrocartilage disc triangular fibrocartilage central triangular wrist central left wrist sustained a left dorsal scapholunate scapholunate ligament. ligament. Plaintiffs Plaintiffs original original bill of of particulars particulars does does not state that that she sustained sustained a dorsal plaintiff, body. However, significant disfigurement disfigurement or any scarring scarring to her left wrist wrist or to any part part of of her her body. However, plaintiff, significant within injury an in the September September 2020 2020 bill of particulars, alleges for the first time that suffered injury within the suffered she that time bill of particulars, alleges use" categories "significant disfigurement" disfigurement" and and the "permanent "permanent consequential consequential limitation limitation of of use" categories of of Insurance Insurance "significant DeNicola 2012]; Dept [2d 63 NYS2d 939 423, Law S 5102 (d) (see Brackenbury Franklin, AD3d 423,939 NYS2d Dept 2012]; DeNicola AD3d 93 Franklin, v Brackenbury Law§ Rochdale Alicino v Rochdale v Mary ef Alicino 2000]; cf Dept 2000]; NYS2d 152 [2d Dept AD2d 505, 708 NYS2d Hosp., 272 AD2d Immaculate Hosp., Mary Immaculate that the Pomarico has shown Defendant Pomarico Vii., Inc., shown that 2016]). Defendant Dept 2016]). NYS3d 557 [2d Dept 937, 37 NYS3d AD2d 937,37 Inc., 142 AD2d Vil., him, upon him, served upon inclusion serious disfigurement "supplemental" bill particulars served of particulars bill of disfigurement in the "supplemental" of a serious claim of of a claim inclusion of [* 3] 3 of 7 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 Davino v Pomarico Pomarico Davino 61264912018 Index No. 612649/2018 Page 4 Page4 approximately eight eight months months after after the filing filing of of the note note of of issue, issue, is not not merely merely sequelae sequelae of of plaintiffs plaintiff's approximately original injuries, injuries, but but is an entirely entirely new new claim; claim; therefore, therefore, it cannot cannot be said that that plaintiff plaintiff merely merely was original particularizing her originally originally pleaded pleaded allegations allegations in the amended amended verified verified bill bill of of particulars, particulars, which which can be particularizing asserted, as ofright, of right, pursuant CPLR 3043 (b) (see Davis Communities Hosp., asserted, pursuant to CPLR Davis v South South Nassau Nassau Communities Hosp., 26 NY3d [2015]; Pines AD2d 600, 600,568 Dept NY3d 563, 26 NYS3d NYS3d 231 [2015]; Pines v Muss Muss Dev. Dev. Co., 172 AD2d 568 NYS2d NYS2d 422 [2d Dept 1991]). Rather, plaintiff plaintiff is adding adding a new new claim claim for significant significant disfigurement, disfigurement, that that was was not not in the original original 1991 ]). Rather, complaint or bill of of particulars, particulars, and and consequently, consequently, such such attempt attempt was improper improper (see Castleton Castleton v complaint Broadway AD3d 410,837 410,837 NYS2d Dept 2007]; 2007]; Fuentes Fuentes v City City of o/New Broadway Mall Mall Props., Props., Inc., Inc., 41 AD3d NYS2d 732 [2d Dept New AD3d 549, 771 NYS2d Dept 2004]). 2004]). Nor can it be said said that that defendant defendant Pomarico Pomarico was NYS2d 178 [2d Dept Nor can York, 3 AD3d put on notice notice that that such such a category category of of injury injury would would be claimed, claimed, and and as a result, result, plaintiff was required required to put plaintiff was obtain the Court's Court's permission serve an amended amended bill of particulars particulars (see CPLR CPLR 3043; 3043; Hewitt seek and obtain permission to serve bill of Hewitt v Palmer Veterinary Clinic, Clinic, PC, 541,134 [2020]; Marrero Palmer Veterinary PC, 35 NY3d NY3d 541, 134 NYS3d NYS3d 312 [2020]; Marrero v 720 DeGraw DeGraw Funding Corp., Corp., 150 AD2d AD2d 762,542 762,542 NYS2d Dept 1989]; 1989]; Kurnitz Croft, 91 AD2d AD2d 972,457 972, 457 NYS2d 211 [2d Dept Kurnitz v Croft, Funding NYS2d Dept 1983]). 1983]). Accordingly, Accordingly, defendant defendant Pomarico's Pomarico's motion motion for, inter inter alia, alia, an order order striking striking NYS2d 560 [2d Dept plaintiff's supplemental bill of particulars particulars is granted. granted. plaintiffs supplemental bill of Since the Court Court has granted granted defendant defendant Pomarico's Pomarico' s motion motion to strike strike plaintiffs plaintiff's supplemental supplemental bill Since of particulars, particulars, the Semendoff Semendoff defendants' defendants' cross cross motion motion for the same same relief relief is denied, denied, as moot. moot. of Defendant Pomarico Pomarico also also moves moves for summary summary judgment that the the alleged alleged injuries injuries Defendant judgment on the basis basis that sustained by plaintiff result of of the the subject subject accident accident fail to meet meet the serious serious injury injury threshold threshold sustained plaintiff as a result requirement of of Insurance Insurance Law Law § 95102 support of of the motion, motion, defendant defendant Pomarico Pomarico submits submits copies copies 5102 ((d). d). In support requirement of the pleadings, plaintiff's deposition deposition testimony, testimony, uncertified uncertified copies copies of of plaintiffs plaintiff's medical medical records records of pleadings, plaintiffs concerning the injuries injuries at issue, issue, a certified certified copy copy of of the police accidet report, report, and and the the sworn sworn medical medical concerning police accidet report of of Dr. Anthony Anthony Spaturo, Spaturo, who who conducted conducted an independent independent orthopedic orthopedic examination examination of of plaintiff plaintiff on report August 16, 16,2015. August 2015. of New York State's State's No-Fault Insurance Law Law is to "assure "assure prompt prompt and full The purpose purpose of New York No-Fault Insurance compensation for economic economic loss loss by curtailing curtailing costly costly and time-consuming time-consuming court court trial[s]" trial[s]" (see Licari compensation Licari v Elliott, 230,455 NYS2d [1982]), and requiring requiring every every case, case, even even those those with with minor minor injuries, injuries, Elliott, 57 NY2d NY2d 230,455 NYS2d 570 [1982]), decided by a jury would defeat defeat the the statute's statute's effectiveness effectiveness (see Licari Therefore, to be decided jury would Licari v Elliott, Elliott, supra). supra). Therefore, Insurance law law precludes precludes the right right ofrecovery of recovery for any "non-economic "non-economic loss, loss, except except in the the No-Fault No-Fault Insurance of serious serious injury, injury, or for basic basic economic economic loss" loss" (see Insurance Insurance Law Law § 9 5104 5104 [a]; Martin Martin v Schwartz, Schwartz, case of AD2d 318, 318, 766 NYS2d Dept 2003]). 2003]). Any Any injury injury not not falling falling within within the the definition definition of of 308 AD2d NYS2d 13 [1st Dept "serious injury" injury" is classified classified as an insignificant insignificant injury, injury, and a trial trial is not not allowed allowed under under the the No-Fault "serious No-Fault statute (see Pommells [2005]; Gaddy Gaddy v Eyler, 955,582 statute Pommells v Perez, Perez, 4 NY3d NY3d 566, 797 NYS2d NYS2d 380 [2005]; Eyler, 79 NY2d NY2d 955,582 NYS2d [1992]; Martin NYS2d 990 [1992]; Martin v Schwartz, Schwartz, supra). supra). Insurance Law Law § 9 5102 ((d) defines a "serious "serious injury" injury" as "a "a personal personal injury injury which which results results in death; death; Insurance d) defines dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss of of a fetus; permanent permanent loss loss of of use of of a body body dismemberment; organ, member, member, function function or system; system; permanent consequential limitation limitation of of use of of a body body organ organ or organ, permanent consequential member; significant significant limitation limitation of of use use of of a body body function function or system; system; or a medically medically determined determined injury injury or member; impairment of of a non-permanent non-permanent nature nature which which prevents injured person from performing substantially impairment prevents the injured person from performing substantially all of of the material material acts acts which which constitute constitute such such person's usual and and customary customary daily daily activities activities for not less person's usual [* 4] 4 of 7 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 Davino v Pomarico Pomarico Davino 612649/2018 Index No. 612649/2018 Page 5 than ninety ninety days days during during the the one one hundred hundred eighty eighty days immediately immediately following following the the occurrence occurrence of of the injury injury than impairment." or impairment." defendant seeking seeking summary summary judgment the ground ground that that a plain~if~ negli~ence c!aim c~aim is plain~i~ s negli~ence A defendant judgment on the barred under the No-Fault Insurance Law Law bears the initial initial burden of estabhshmg establIshmg a pnma facIe case case that that barred under No-Fault Insurance bears the burden of pnma fac1e sustain a "serious "serious injury" injury" (see Toure Toure v Avis Car Sys., Gaddy v Eyler, the plaintiff plaintiff did not sustain Avis Rent Rent A A Car Sys., supra; supra; Gaddy Eyler, 955 582 NYS2d 990 [1992]). [1992]). When When a defendant defendant seeking seeking summary summary judgment based on the the . 79 NY2d NY2d 955,582 NYS2d 990 judgment ~ased of serious seriou~ injury injury relies relies on the the findings findings of of the the defendant's defendant's own own witnesses, witnesses, "those "those findings findings must must be m lack of admissible form, form, [[such affidavits and affirmations, affirmations, and and not not unswom unsworn reports" reports" to demonstrate demonstrate admissible such as], affidavits entitlement to judgment matter of of law law (Pagano (Pagano v Kingsbury, AD2d 268, 268, 270, 270, ~87 NYS2~ Kingsbury, 182 AD~d NYS2~ ~92 entitlement judgment as a matter Dept 1992]). 1992]). A defendant defendant may may also establish establish entitlement entitlement to summary summary Judgment, judgment, usmg usmg the plamtiffs [2d Dept plamt1ffs deposition testimony testimony and and medical medical reports reports and and records records prepared the plaintiffs own physicians physicians (see deposition prepared by the plaintiffs own Fragale v Geiger, Geiger, 288 AD2d AD2d 431, 431,733 Dept 2001]; 2001]; Grossman Grossman v Wrigltt, Wright, 268 AD2d AD2d 79, Fragale 733 NYS2d NYS2d 901 [2d Dept Dept 2000]; 2000]; Vignola Vignola v Varrichio, Varrichio, 243 AD2d AD2d 464, 464,662 Dept 1997]; 662 NYS2d NYS2d 831 [2d Dept 707 NYS2d NYS2d 233 [2d Dept Torres v Micheletti, AD2d 519, 616 NYS2d Dept 1994 1994]). Once a defendant defendant has met met this this Torres Micheletti, 208 AD2d NYS2d 1006 [2d Dept ]). Once burden, the plaintiff plaintiff must must then then submit submit objective objective and admissible admissible proof proof of of the the nature nature and and degree degree of of the burden, alleged injury injury in order order to meet meet the the threshold threshold of of the statutory statutory standard standard for "serious "serious injury" injury" under under New New alleged York's No-Fault Insurance Law Law (see Dufel Green, 84 NY2d 795, 622 NYS2d 900 [1995]; [1995]; Tornabene Tornabene York's No-Fault Insurance Dufel v Green, NY2d 795,622 NYS2d 900 AD2d 1025, 1025,758 Dept 2003]; 2003]; Pagano AD2d 268, 268, v Pawlewski, Pawlewski, 305 AD2d 758 NYS2d NYS2d 593 [2d Dept Pagano v Kingsbury, Kingsbury, 182 AD2d 270, 587 NYS2d NYS2d 692 [2d Dept Dept 1992]). 1992]). However, However, if if a defendant defendant does does not not establish establish a prima prima facie case case that the plaintiffs injuries do not not meet meet the serious serious injury injury threshold, threshold, the the court court need need not not consider consider the that plaintiff's injuries sufficiency of of the the plaintiffs plaintiffs opposition opposition papers papers (see Burns AD3d 360, 360, 819 NYS2d sufficiency Burns v Stranger, Stranger, 31 AD3d NYS2d 60 [2d Dept 2006]; 2006]; Rich-Wing AD3d 726, 726,795 Dept 2005]; 2005]; see Rich-Wing v Baboolal, Baboolal, 18 AD3d 795 NYS2d NYS2d 706 [2d Dept see generally generally Dept Winegrad v New York Univ. Med. 851, 487 NYS2d 316 [1985]). [1985]). Winegrad New York Med. Ctr., 64 NY2d NY2d 851,487 NYS2d 316 Defendant Pomarico, Pomarico, by submitting submitting competent competent medical medical evidence evidence and and plaintiffs deposition Defendant plaintiff's deposition transcript, has established a prima facie case that plaintiffs alleged injuries sustained as result of of the transcript, established prima facie case that plaintiff's alleged injuries sustained a result subject collision collision do not not meet meet the the serious serious injury injury threshold threshold requirement requirement oflnsurance of Insurance Law§ Law S 5102 (d) (see subject Toure v Avis Rent A CarSys.,supra; Car Sys., supra; GaddyvEyler,supra;LuckeyvBauch, Gaddy v Eyler, supra; Luckey v Bauch, 17 AD3d411, AD3d 411, 792 TourevAvisRentA NYS2d Dept 2005]). 2005]). Defendant Defendant Pomarico's Pomarico's examining examining orthopedist, orthopedist, Dr. Spaturo, Spaturo, used used a NYS2d 624 [2d Dept goniometer plaintiff's lumbar goniometer to test test the ranges ranges of of motion motion in plaintiffs lumbar spine spine and and left left wrist, wrist, and compared compared his respective findings findings to the normal normal range range of of motion motion values values for each each region region (see e.g. Cantave Cantave v Gelle, Gelle, 60 respective AD3d 988,877 988,877 NYS2d Dept 2009]; 2009]; Staffv Yshua, 59 AD3d AD3d 614,874 614,874 NYS2d Dept AD3d NYS2d 129 [2d Dept Staffv Ysl,ua, NYS2d 180 [2d Dept AD3d 557, 785 NYS2d 477 [2d Dept Dept 2004]). 2004]). Dr. Spaturo Spaturo states states in his 2009]; Desulme Desulme v Stanya, Stanya, 12 AD3d NYS2d 477 medical report report that that an examination examination of of plaintiff plaintiff reveals reveals she has full range range of of motion motion in her her left wrist, wrist, that that medical there is no swelling swelling or tenderness tenderness observed, observed, that that there there is no evidence evidence of of deformity deformity or atrophy atrophy in her left there wrist, and and that that the the Tinel Tinel sign sign is negative. negative. Dr. Spaturo Spaturo opines opines that that the sprains sprains plaintiff sustained to her wrist, plaintiff sustained wrist as a result result of of the accident accident have have resolved. resolved. Dr. Spaturo Spaturo further further states states that that plaintiff does not not left wrist plaintiff does require any further further orthopedic orthopedic treatment, treatment, and and that that she is capable capable of of performing her normal normal activities activities of of performing her require daily living living without without restrictions. restrictions. daily Plaintiff testified testified at an examination examination before before trial trial that that at the time time of of the the accident accident she was was a student student Plaintiff not miss miss any time time from from school. school. Plaintiff Plaintiff testified testified that that she did did not not receive receive any treatment treatment for the and did not injuries she sustained sustained to her her left left wrist wrist until until approximately approximately two and a half half years years after after the subject subject accident, accident, injuries [* 5] 5 of 7 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 INDEX NO. 612649/2018 RECEIVED NYSCEF: 03/01/2021 Davino Pomarico Davino v Pomarico Index 612649/2018 Index No. 612649/2018 Page 6 schizoaffective disorder her schizoaffective treat her Hospital to treat because admitted into Silver Silver Oaks Oaks Behavioral disorder Behavioral Hospital been admitted because she had been she that but 2018, O, 3 August wrist con~ition. She testified that she underwent surgery on her left wrist on August 30, 2018, but that she her surgery underwent con~ition. She testi~e~ that after therapy physical from discharged that she was discharged contm~es physical therapy after testified that wrist. She testified left wrist. the left m the pam in have pain contm~es to have her for her paid for that she paid terminated, that been terminated, had been approxImat~ly insurance already already had no-fault insurance her no-fault that her months, that approximately four ~onths, ts appointmen any have currently not does not currently have treatment appointments that she does coverage, and that healthcare coverage, private healthcare her prIvate with her treatment WIth that testified that further Plaintiff accident. the in sustained scheduled for any treatment the injuries sustained the accident. Plaintiff further testified she injuries for treatment scheduled vehicle motor prior a in back and neck her neck when back prior motor vehicle injuries to her sustained injuries old she sustained years old nine years was nine when she was the following the regions following those injuries for therapy accident, and that, although received physical therapy the injuries to those regions physical received she although that, accident, at asymptomatic at and was asymptomatic injuries and those injuries treatment for those prior medical treatment any medical receiving any not receiving was not accident, she was prior accident, the time subject accident. accident. of the subject time of in evidence in with evidence forward with come forward plaintiff to come Therefore, burden to plaintiff shifted the burden have shifted defendants have Therefore, defendants the within the injury within they sustained whether they admissible form to raise issue of of fact as to whether sustained an injury triable issue material triable raise a material admissible see NYS2d 380 [2005]; NY3d 566, 797 NYS2d Perez, 4 NY3d meaning [2005]; see Pommells v Perez, Law (see Pommells Insurance Law of the Insurance meaning of plaintiff claiming 1980]). [ NYS2d 427 557, generally Zuckerman v City of New York, 49 NY2d 427 NYS2d 595 [1980]). A plaintiff claiming NY2d generally Zuckerman City of New York, with complaints with her complaints substantiate his or her must substantiate aa significant system must function or system body function of a body use of of use limitation of significant limitation its injury and caused by the injury limitation caused degree of objective showing the of the limitation and its extent or degree the extent evidence showing medical evidence objective medical v Mejia 2008]; Mejia v Dept 2008]; 408 [2d Dept NYS2d 408 498, 854 NYS2d duration AD3d 498, Serv., 49 AD3d Car Serv., Ridge Car Ferraro v Ridge duration (see Ferraro 996, 821 AD3d 996,821 Lau, Ming Yui Laruffa DeRose, 35 AD3d 407,825 NYS2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 AD3d 2006]; Dept AD3d 407, 825 NYS2d DeRose, Dept 281 NYS2d 789 NYS2d 281 [2d AD3d 45, 789 Auth., 16 AD3d NYS2d Dept 2006]; 2006]; Kearse [2d Dept York City Tr. Auth., New York Kearse v New NYS2d 642 [2d Dept ), important ... 'consequen tial' (i.e. important 2005]). ... ), 'significant' or 'consequential' function is 'significant' use or function of use limitation of Whether a limitation 2005]). Whether qualitative or degree the degree ion of relates significancee and involves comparativee determinat determination of the qualitative involves a comparativ medical significanc to medical relates to (Du/el part" body of and nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, Green, purpose function, nature of injury based on the normal use" "limitations the to respect limitation with respect supra at 798). of physical "limitations of of use" physical limitation degree of extent or degree prove the extent 798). To prove supra at of range of of range loss of limitation or loss of the limitation degree of percentage or degree categories, extent, percentage of the extent, evidence of objective evidence either objective categories, either a be must there or provided be must plaintiff must of the plaintiff motion provided there be a examination of recent examination based on a recent duration based and its duration motion and basis, objective limitations, plaintiffs sufficient description of "qualitative nature" of plaintiffs limitations, with an objective of nature" "qualitative the of description sufficient Perl vv of the body part (see purpose and use of correlating (see Perl function, purpose normal function, limitations to the normal plaintiffs limitations correlating plaintiffs see 350; see supra Inc., Systems, Car Rent A A vis Rent Meher, 18 NY3d [2011];]; Toure Toure v Avis Systems, Inc., supra at 350; NYS2d 655 [2011 NY3d 208, 936 NYS2d Meher, 18 921 AD3d 1034, 921 Rovelo v Volcy, 83 AD3d 2011]; Rovelo Dept 2011]; also Valera v Singh, NYS2d 530 [2d Dept AD3d 929, 923 NYS2d Singh, 89 AD3d also Valera within use is considered NYS2d 322 [2d [2d Dept slight limitation limitation of of use considered insignifican insignificant t within mild or slight minor, mild 2011 ]). A minor, Dept 2011]). NYS2d 322 However, NYS2d 570 [1982]). 230, 455 NYS2d NY2d 230,455 the [1982]). However, Elliott, 57 NY2d Licari v Elliott, statute (see Licari the statute of the meaning of the meaning Perl vv (see Perl recovery e prerequisit a not evidence of contemporaneous range of motion limitations is not prerequisite to recovery evidence of contemporaneous range of motion limitations 2012]). Dept 2012]). NYS2d 198 [1st Dept Meher, AD3d 559, 937 NYS2d Rodriguez, 91 AD3d Paulino v Rodriguez, supra; Paulino Meher, supra; facie prima facie establish a prima failed to establish Pomarico failed Plaintiff opposes the motion, arguing that defendant Pomarico that defendant motion, arguing Plaintiff opposes and Law, and Insurance Law, of the Insurance category ofthe use" category of use" case "limitations s of within the "limitation injury within sustain an injury not sustain that she did not case that "limitation the within injuries within that evidence submitted submitted in opposition opposition demonstrat demonstrateses that sustained injuries "limitations s that she sustained the evidence that the the submits the plaintiff submits motion, plaintiff opposition to motion, of "90/180" categories Insurance Law. In opposition the Insurance of the categories of the "90/180" and the use" and of use" wrist. left her sworn medical of Dr. Justin of the scar scar on her wrist. photographs of Mirza and photographs Justin Mirza report of medical report sworn issue of triable issue raising a triable evidence raising In submitted competent of fact as as medical evidence competent medical has submitted plaintiff has opposition, plaintiff In opposition, the of categories uses of limitations the to whether she sustained serious injury to her left wrist under the limitations of uses categories of the under wrist her injury serious a to whether she sustained Matthes, Ledee v Matthes, 2021]; Ledee Dept 2021]; NYS3d 899 [2d Dept Insurance _ _ AD3d _ , 135 NYS3d AD3d _' Pieters, Foy v Pieters, Law (see Foy Insurance Law [* 6] 6 of 7 INDEX NO. 612649/2018 FILED: SUFFOLK COUNTY CLERK 03/01/2021 01:34 PM NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/01/2021 Davino Pomarico Davino v Pomarico Index No. 612649/2018 612649/2018 Page 7 188 AD3d NYS3d 311 [2d Dept 2020]; Reyes Reyes v Kashem, Kashem, 187 AD3d AD3d 1080, 131 NYS2d 175 AD3d 857, 132 NYS3d Dept 2020]; 131 NYS2d [2d Dept plaintiff is required present nonconclusory Dept 2020]). 2020]). A plaintiff required to present nonconclusory expert expert evidence evidence sufficient sufficient to support support a finding within the serious serious injury of Insurance finding not only that that the alleged alleged injury injury is within injury threshold threshold of Insurance Law §9 5102 was casually casually related related to the subject subject accident order to recover recover for ((d), d), but also that the injury injury was accident in order noneconomic personal injury motor vehicle noneconomic loss related related to personal injury sustained sustained in a motor vehicle accident accident (see Valentin Valentin v NYS2d 537 [1st Dept Pomilla, 59 AD3d Pomilla, AD3d 184,873 184, 873 NYS2d Dept 2009]). 2009]). Plaintiff Plaintiff has has submitted submitted the the affirmed affirmed medical medical who opines opines that that she suffers wrist report report of of Dr. Justin Justin Mirza, Mirza, her treating treating orthopedic orthopedic surgeon, surgeon, who suffers from a left wrist ulnar impaction impaction syndrome, tears in the central ulnar syndrome, left carpal carpal and cubital cubital tunnel tunnel syndrome, syndrome, and tears central triangular triangular fibrocartilage dorsal scapholunate scapholunate ligament of the left wrist, fibrocartilage disc and the left dorsal ligament of wrist, that that her her prognosis prognosis is guarded, injuries were were causally related to the subject guarded, and that that such injuries causally related subject accident accident (see Vaughan-Ware Vaughan-Ware v AD3d 621, 959 NYS2d NYS2d 698 [2d Dept Dept 2013]; Bykova v Sisters Sisters Trans, Inc., 99 AD3d AD3d 654, Darcy, 103 AD3d Darcy, 621,959 2013]; Bykova Trans, Inc., Dept 2012]; 2012]; Kanard AD3d 714, 928 NYS2d Dept 2011]; 2011]; Harris 952 NYS2d NYS2d 95 [2d Dept Kanard v Setter, Setter, 87 AD3d NYS2d 782 [2d Dept Harris NYS2d 631 [2d Dept Dept 2010]; 2010]; Pearson Pearson v Guapisaca, v Boudart, Boudart, 70 AD3d AD3d 643,893 643,893 NYS2d Guapisaca, 61 AD3d AD3d 833,876 833,876 NYS2d 890 [2d Dept further states that, although plaintiff has undergone surgery, NYS2d Dept 2009]). 2009]). Dr. Mirza Mirza further states that, although plaintiff has undergone surgery, she continues to have range of of motion motion in her left wrist, wrist, and that that she will require additional surgery surgery in continues have limited limited range require additional Thus, Dr. Mirza' Mirza's s affidavit affidavit is sufficient sufficient to raise raise a triable triable issue issue of of fact as to whether whether plaintiff plaintiff the future. Thus, sustained a serious serious injury injury to her wrist within within the limitations limitations of of use categories categories of of the Insurance Insurance Law as sustained her left wrist of the subject subject accident accident (see Young Young Choo/ Chool Yoi v Rui Wang, 88 AD3d AD3d 991, 931 NYS2d Rui Dong Dong Wang, NYS2d 373 a result result of Dept 201 2011]; Gussack v McCoy, AD3d 644, 644,897 Dept 201 2010]). [2d Dept I]; Gussack McCoy, 72 AD3d 897 NYS2d NYS2d 513 [2d Dept 0]). Consequently, report of plaintiff's expert Consequently, the affirmed affirmed medical medical report of plaintiff's expert conflicts conflicts with with that of of defendant's defendant's experts, who found found that that there there were were no significant significant limitations of motion motion in her left experts, limitations in the plaintiff's plaintiff's range range of wrist, and that that she did not not have have an orthopedic orthopedic disability disability causally causally related related to the subject subject collision. collision. "Where "Where wrist, conflicting medical medical evidence evidence is offered offered on the issue issue of of whether whether a plaintiff's injuries are permanent plaintiff's injuries permanent or conflicting significant, and varying inferences may drawn, the question question is one for the jury" (Noble v Ackerman, jury" (Noble Ackerman, significant, varying inferences may be drawn, AD2d 392, 392,395,675 [1998]; see LaMasa AD3d 340, 340, 869 NYSl7 252 AD2d 395, 675 NYS2d NYS2d 86 [1998]; LaMasa v Bachman, Bachman, 56 AD3d NYS 17 [1st 2008]; Ocasio Ocasio v Zorbas, AD3d 499, 789 NYS2d Dept 2005]; 2005]; Reynolds Zorbas, 14 AD3d NYS2d 166 [2d Dept Reynolds v Burghezi, Burghezi, Dept 2008]; 227 AD2d AD2d 941, 643 NYS2d 248 [4th Dept 1996]). Thus, plaintiff has submitted sufficient evidence to NYS2d [4th Dept Thus, plaintiff submitted sufficient evidence triable issue issue of of fact as to whether injuries are causally causally related subject accident accident (see whether her injuries related to the subject raise a triable Barry AD3d 996, 996,902 2010]; Paula 61 AD3d 944,879 Barry v Valerio, 72 AD3d 902 NYS2d NYS2d 97 [2d Dept Dept 2010]; Paula v Natala, Natala, 61 AD3d 944, 879 NYS2d Dept 2009]; 2009]; Azor Torado, 59 AD3d AD3d 367, 367,873 Dept 2009]). 2009]). NYS2d 153 [2d Dept Azor v Torado, 873 NYS2d NYS2d 655 [2d Dept Having determined determined that triable issue issue of of fact as to whether whether the plaintiff sustained a plaintiff sustained Having that there there is a triable serious injury injury within within the meaning meaning of of the Insurance Insurance Law, plaintiff's cross motion motion for summary summary judgment serious plaintiff's cross judgment in her favor on the same same issue issue is denied. denied. HAR 0 NARO 2021 1 1 Dated:- - - - - --SANTORELLI PH A. SANTORELLI J.S.c. J.S.C. FINAL DISPOSITION DISPOSITION FINAL [* 7] X 7 of 7 NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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.