Reyes v Reyes-Echeverria

Annotate this Case

Download PDF

Reyes v Reyes-Echeverria 2021 NY Slip Op 33565(U) November 16, 2021 Supreme Court, Suffolk County Docket Number: Index No. 610332/2019 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. INDEX NO. 610332/2019 FILED: SUFFOLK COUNTY CLERK 11/16/2021 10:12 AM NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 11/16/2021 . 0 RI··•;i,t:!.1tr~· •.•, b- ~' .·., . :7A·i;, s110RrFoRMORDER .· .;,,i'\, p . 1 --D.t ,., . lL'INDEX No. "]\ ;/ CAL. No. 610332/2019 202001121MV SUPREMECOURT SUPREME COURT - STATEOFNEWYORK STATE OF NEW YORK I.A.S. LA.S. PART PART 10 - SUFFOLK SUFFOLK COUNTY COUNTY PRESENT: PRESENT: Hon. MOTION TE 9/2/21 MOTION DA DATE ADJ. DATE DATE ADJ. 10/14/21 10/14/21 Mot. Seq. # 005 MD Mot. MD Mot. Seq.# Seq. # 006 006 MD MD JOSEPH SANTORELLI JOSEPH A. SANTORELLI Justice of Justice Supreme Court of the the Supreme Court -----------------------------------------------------------------------------------------------)( ------------------------------X.. CARNER & DEVITA, CARNER DEVITA, PC Attorney for Plaintiff Attorney Plaintiff 350 Veterans Veterans Highway Highway Commack, New Commack, 11725 New York York 11725 VALERIE REYES, VALERIE REYES, Plaintiff, Plaintiff, GENTILE GENTILE & TAMBASCO TAMBASCO Attorney Attorney for Defendant Defendant Reyes-Echeverria Reyes-Echeverria 115 Broad Broad Hollow Suite 300 Hollow Road, Road, Suite 300 Melville New New York Melville 11747 York 11747 against- - against NAIN REYES-ECHEVERRIA NAIN REYES-ECHEVERRIA and DEBBY DEBBY TORRES, TORRES, RUSSO RUSSO & GOULD GOULD LLP Attorney for Defendant Defendant Torres Torres Attorney 12 Fountain Fountain Plaza, Suite 600 Plaza, Suite Buffalo, 14202 Buffalo, New New York York 14202 Defendants. Defendants. -----------------------------------------------------------------------------------------------)( ------------------------------X Upon the the following following papers papers read read on these these e-filed e-filed motions Upon Show motions for summary summary iudgment judgment:: Notice Notice of of Motions/Order Motions/Order to Show Cause and supporting papers by defendant defendant Torres, Cause supporting papers 12,2021; Echeverria, dated Torres, dated dated August August 12, 2021; by defendant defendant ReyesReyes-Echeverria, dated August August 23,2021 23, 2021 ; Notice of papers_; Answering Affidavits Notice of Cross-Motion Cross-Motion and and supporting supporting papers _; Answering and supporting supporting papers defendant Reyes-Echeverria, Affidavits and papers by defendant Reyes-Echeverria, dated 2021 ; by plaintiff, plaintiff, dated dated August August 23, 23,2021 dated September September 28, 28,2021 September 28, 28,2021 Replying Affidavits Affidavits and supporting supporting 2021 and September 2021 ; Replying papers 0, 2021; papers by defendant defendant Torres, Torres, dated dated October October l10, 2021; by defendant defendant Reyes-Echeverria, Reyes-Echeverria, dated dated October October 13, 13,2021 Other _; it is 2021 ; Other_; ORDERED that these these motions motions are hereby hereby consolidated ORDERED that of this consolidated for purposes purposes of this determination; determination; and it further is further ORDERED that this this motion motion by defendant ORDERED that defendant Debby Debby Torres Torres for an order order pursuant pursuant to CPLR CPLR 3212 3212 granting summary judgment dismissing dismissing the complaint complaint and all cross granting summary judgment cross claims claims against against her her is denied; denied; and it is further further [* 1] 1 of 4 ll FILED: SUFFOLK COUNTY CLERK 11/16/2021 10:12 AM NYSCEF DOC. NO. 147 INDEX NO. 610332/2019 RECEIVED NYSCEF: 11/16/2021 Reyes v Reyes-Echeverria Reyes-Echeverria Reyes 610332/2019 Index No. 610332/2019 Page 2 ORDERED that that the the motion motion by defendant defendant Nain Reyes-Echeverria for summary summary judgment ORDERED Nain Reyes-Echeverria judgment dismissing the complaint complaint on the the ground ground that that plaintiff sustain a "serious "serious injury" injury" as defined defined in dismissing plaintiff did not sustain Insurance Law Law § S 5102 ((d) denied. Insurance d) is denied. This is an action action to recover recover damages damages for personal injuries sustained sustained by plaintiff, when the the vehicle vehicle This personal injuries plaintiff, when which she was was a passenger collided with with a vehicle vehicle owned owned and operated operated by defendant defendant Nain Reyesin which passenger collided Nain ReyesEcheverria. p.m., on Echeverria. The The accident accident allegedly allegedly occurred occurred on September September 10, 2017, 2017, at approximately approximately 7:20 7:20 p.m., Wicks Road, Road, at or near near the the intersection intersection of of Bluejay Bluejay Drive, Drive, in Brentwood, Brentwood, New York. At the time time of of the New York. Wicks accident, plaintiff was a passenger vehicle owned owned and operated operated by defendant defendant Debby Debby Torres. Torres. 1I accident, plaintiff was passenger in the vehicle Defendant Torres Torres now now moves moves for summary summary judgment dismissing the the complaint complaint and all cross cross Defendant judgment dismissing claims against against her her on the the ground ground that that the accident accident was was solely solely the result result of of defendant defendant Reyes-Echeverria's Reyes-Echeverria's claims failure to control control his vehicle vehicle by making making an illegal illegal U-tum. V-turn. She also also seeks seeks summary summary judgment failure judgment on the ground that plaintiff plaintiff did not not sustain sustain a "serious "serious injury" injury" as defined defined in Insurance Insurance Law Law § S 5102 ((d). ground d). In support, Torres Torres submits, submits, inter inter alia, alia, the pleadings, pleadings, the transcripts transcripts of of the parties' parties' testimony, testimony, and an support, affirmed report report of of Dr. Noah Finkel. Noah Finkel. affirmed deposition, plaintiff testified that that she was was a front-seat front-seat passenger the vehicle vehicle operated operated by At her deposition, plaintiff testified passenger in the mother, defendant defendant Torres. Torres. Prior Prior to the accident, accident, plaintiff had been traveling on the left lane of of the her mother, plaintiff had been traveling southbound Wicks Wicks Road. Road. When When she first saw saw the Reyes Reyes vehicle vehicle coming coming from Bluejay Bluejay Drive, Drive, it was southbound approximately 100 feet away away from the Torres Torres vehicle. vehicle. Plaintiff Plaintiff testified testified that that the the Reyes-Echeverria Reyes-Echeverria approximately vehicle traveled traveled through through her her lane, lane, made made a U-tum, V-turn, and stopped stopped in front front of of the the Torres Torres vehicle. vehicle. Plaintiff Plaintiff vehicle testified that that although although Torres Torres slowed slowed down down her vehicle, vehicle, she was was not not able able to avoid avoid the the accident. accident. The The front front testified of the Torres Torres vehicle vehicle came came into into contact contact with with the rear rear driver's driver's side of of the the Reyes-Echeverria Reyes-Echeverria vehicle. vehicle. of Plaintiff testified testified that that when when the the impact impact occurred, occurred, the Reyes-Echeverria Reyes-Echeverria vehicle vehicle was was facing facing east. Plaintiff At her deposition, deposition, Torres Torres testified testified that that she had had been been traveling traveling southbound southbound on on Wicks Wicks Road. Road. When When saw the Reyes Reyes vehicle, vehicle, it came came from a side street street on her her left, made made a U-tum, V-turn, and and stopped stopped in front she first saw of her. Torres Torres testified testified that that although although she applied applied her her brakes hard, she was was not not able able to avoid avoid the accident. accident. of brakes hard, testified that that the the front front of of her her vehicle vehicle came came into into contact contact with with the the rear rear driver's driver's side side of of the ReyesReyesShe testified Echeverria vehicle. vehicle. Echeverria deposition, Reyes-Echeverria Reyes-Echeverria testified testified that that after after he left a gas station station located located on Wicks Wicks At his deposition, Road, one block block north north of of Bluejay Bluejay Drive, Drive, he had had traveled traveled about about a half half block block on the left lane lane of of the Road, _the left southbound Wicks Wicks Road Road at approximately approximately 20 to 25 miles miles per hour. He testified testified that that as he was was about about to southbound per hour. turn lane, lane, the rear rear left side side of of his vehicle vehicle was struck struck by the front front of of the Torres Torres vehicle, vehicle, get into the left tum which had been traveling behind vehicle. Reyes-Echeverria Reyes-Echeverria testified testified that that the the accident accident happened happened which been traveling behind his vehicle. before arrived the intersection intersection with with Bluejay Bluejay Drive, Drive, and that that when when the impact impact occurred, occurred, his vehicle vehicle was before he arrived was south. facing south. Court notes notes that that in its order order issued issued on August August 10, 2021, 2021, it misidentified misidentified the owners owners The Court operators of of the respective respective vehicles. vehicles. and operators 1 I [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 11/16/2021 10:12 AM NYSCEF DOC. NO. 147 INDEX NO. 610332/2019 RECEIVED NYSCEF: 11/16/2021 Reyes-Echeverria Reyes v Reyes-Echeverria 61033212019 Index No. 610332/2019 Page 3 Here, Reyes-Echeverria's Reyes-Echeverria's deposition deposition testimony testimony conflicts conflicts with with plaintiffs Torres' deposition deposition plaintiffs and Torres' Here, testimony as to the the happening happening of of the accident accident (see Pyke AD3d 994, 994,999 testimony Pyke v Bachan, Bachan, 123 AD3d 999 NYS2d NYS2d 508 [2d Dept 2014]; 2014]; Viggiano Viggiano v Camara, Camara, 250 250 AD2d AD2d 836,673 836, 673 NYS2d Dept 1998]). 1998]). Plaintiff Plaintiff and Torres Torres Dept NYS2d 714 [2d Dept testified that that the accident accident happened happened after after the the Reyes-Echeverria Reyes-Echeverria vehicle vehicle drove drove out out of of Bluejay Bluejay Drive Drive and testified made an illegal illegal U-tum U-turn at the the intersection intersection of of Wicks Wicks Road Road and Bluejay Bluejay Drive. Drive. Reyes-Echeverria, Reyes-Echeverria, made however, testified testified that that while while traveling traveling on Wicks Wicks Road Road his vehicle vehicle was was struck struck in the the rear rear by the Torres Torres however, vehicle, and that that the the accident accident happened happened before before the intersection intersection of of Bluejay Bluejay Drive. Drive. Under Under these these vehicle, circumstances, there there are questions questions of of fact as to how how and and where where the the accident accident happened, happened, whether whether ReyesReyescircumstances, Echeverria was making making an illegal illegal U-turn U-turn at the the time time of of the accident, accident, and whether whether the the alleged alleged negligence negligence Echeverria of Reyes-Echeverria Reyes-Echeverria was was a proximate proximate cause cause of of the injuries injuries to plaintiff. plaintiff. Thus, Thus, Torres Torres has has failed failed to sustain sustain of initial burden burden of of demonstrating demonstrating that that she was not not negligent. negligent. Accordingly, Accordingly, the the branch branch of of her her motion motion for the initial summary judgment the issue issue of of liability liability is denied. denied. summary judgment on the remaining branch branch of of Torres' Torres' motion, motion, a defendant defendant has has the the initial initial burden burden of of making making a As to the remaining prima showing, through through the the submission submission of of evidence evidence in admissible admissible form, form, that that the injured injured plaintiff prima facie showing, plaintiff sustain a "serious "serious injury" injury" within within the meaning meaning of ofInsurance Law § S 5102 ((d) Toure v Avis Insurance Law d) (see Toure Avis did not sustain Rent 345, 746 NYS2d [2002]; Gaddy Gaddy v Eyler, 955, 582 NYS2d Rent A A Car Sys., Sys., 98 NY2d NY2d 345, NYS2d 865 [2002]; Eyler, 79 NY2d NY2d 955, NYS2d 990 Gonzalez v Krumholz, 192AD3d 1086,141 [2dDept2021]). Thedefendantmay [[1992]; 1992]; Gonzalez Krumholz, 192 AD3d 1086, 141 NYS3d NYS3d 715 [2d Dept 2021 ]). The defendant may satisfy this burden burden by submitting submitting the the plaintiffs deposition testimony testimony and the affirmed affirmed medical medical report report of of plaintiffs deposition satisfy defendant's own own examining examining physician physician (see Ocasio Ocasio v New York City City Tr. Auth., AD3d 789, 789, 20 the defendant's New York Auth., 134 AD3d NYS3d Dept 2015]; 2015]; Pamphile AD3d 659, 659,877 Dept 2009]). 2009]). Pamphile v Bastien, Bastien, 61 AD3d 877 NYS2d NYS2d 137 [2d Dept NYS3d 655 [2d Dept Torres failed failed to make make a prima showing that that plaintiff not sustain sustain a serious serious injury injury Here, Torres prima facie showing plaintiff did not within the meaning meaning oflnsurance of Insurance Law§ Law S 5102 (d) (see McGee AD3d 1033, 132 NYS3d within McGee v Bronner, Bronner, 188 AD3d NYS3d Dept 2020]; 2020]; Singleton &R AD3d 837, 88 NYS3d Dept 2018]). 2018]). On 692 [2d Dept Singleton v F & R Royal, Royal, Inc., Inc., 166 AD3d NYS3d 81 [2d Dept October 1, 1,2020, approximately three three years years after after the subject subject accident, accident, defendant defendant Torres' Torres' examining examining 2020, approximately October orthopedist, Dr. Noah Finkel, examined examined plaintiff certain orthopedic orthopedic and and neurological neurological orthopedist, Noah Finkel, plaintiff and performed performed certain Finkel found found that that all the the test test results results were were negative negative or normal. normal. Dr. Finkel Finkel also also performed range tests. Dr. Finkel performed range of motion testing on plaintiffs cervical and lumbar regions and shoulders, using a goniometer to of motion testing plaintiff s cervical lumbar regions and shoulders, using goniometer measure her joint movement. Dr. Finkel Finkel found found that that plaintiff plaintiff had had significant significant range range of of motion motion restrictions restrictions measure joint movement. cervical region: region: 30 degrees degrees of of flexion flexion (normal (normal 60 degrees), degrees), 20 degrees degrees of of extension extension (normal (normal 35 in her cervical degrees), and 70 degrees degrees of of right right rotation rotation and 30 degrees degrees ofleft ofleft rotation rotation (normal (normal 80 degrees). degrees). He also degrees), that plaintiff plaintiff had had significant significant range range of of motion motion restrictions restrictions in her her lumbar lumbar region: region: 40 degrees degrees of of found that flexion (normal (normal 60 degrees), degrees), 25 degrees degrees of of extension extension (normal (normal 35 degrees), degrees), and and 25 degrees degrees of of right right lateral lateral flexion flexion and 30 degrees degrees of of left left lateral lateral flexion flexion (normal (normal 35 degrees) degrees) (see Reddick AD3d 581, Reddick v Hickey, Hickey, 197 AD3d flexion 04674 [2d Dept Dept 2021]; 2021]; Singleton & R noted that that 2021 NY Slip Op 04674 Singleton v F & R Royal, Royal, Inc., Inc., supra). supra). It is noted although Dr. Finkel Finkel indicated indicated that that the range-of-motion range-of-motion limitations limitations in plaintiffs cervical and and lumbar lumbar although plaintiff's cervical regions were were self-imposed, self-imposed, he failed failed to explain explain or to substantiate, substantiate, with with objective objective medical medical evidence, evidence, the regions basis for that conclusion conclusion (see Mercado AD3d 833, 834, 19 NYS3d 757 [2d Dept Dept 2015]; 2015]; basis Mercado v Mendoza, Mendoza, 133 AD3d NYS3d 757 Uvaydov v Peart, AD3d 891,951 891, 951 NYS2d Dept 2012]; 2012]; Iannello Vazquez, 78 AD3d AD3d 1121, Uvaydov Peart, 99 AD3d NYS2d 912 [2d Dept Iannello v Vazquez, Dept 2010]). 2010]). In view view of of the foregoing, foregoing, Dr. Finkel's Finkel's report report is insufficient insufficient to 911 NYS2d NYS2d 654 [2d Dept establish a prima facie case case that that plaintiff sustain a serious serious injury injury within within the the meaning meaning of of Insurance Insurance establish prima facie plaintiff did not sustain Law §S 5102 (d). [* 3] 3 of 4 INDEX NO. 610332/2019 FILED: SUFFOLK COUNTY CLERK 11/16/2021 10:12 AM NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 11/16/2021 Reyes v Reyes-Echeverria Reyes-Echeverria Index No. 610332/2019 610332/201'9 Page 4 Inasmuch as Torres failed to meet meet her prima prima facie burden, burden, it is unnecessary unnecessary to consider consider whether whether Inasmuch Torres failed plaintiff in opposition opposition to the motion motion were were sufficient sufficient to raise raise a triable triable issue issue of of fact the papers papers submitted submitted by plaintiff (see Blau Blau v Benodin, Benodin, 190 AD3d AD3d 922,140 922, 140 NYS3d NYS3d 576 [2d Dept Dept 2021]; 2021]; Giangrasso Giangrasso v Callahan, Callahan, 87 AD3d 521, 928 NYS2d AD3d NYS2d 68 [2d Dept Dept 2011]). 2011 ]). Accordingly, Accordingly, the branch branch of of defendant defendant Torres' Torres' motion motion for summary judgment dismissing complaint on the ground ground that that plaintiffs plaintiffs injuries injuries failed failed to meet meet the summary judgment dismissing the complaint Insurance Law Law §S 5102 (d) (d) is denied. denied. serious threshold of serious injury injury threshold ofInsurance Defendant Reyes-Echeverria moves moves for summary summary judgment judgment dismissing dismissing the complaint complaint on the Defendant Reyes-Echeverria ground plaintiff did not sustain injury" as defined defined in Insurance Insurance Law Law §S 5102 (d). (d). In ground that plaintiff sustain a "serious "serious injury" Reyes-Echeverria submits, submits, inter inter alia, the pleadings pleadings and the affirmation affirmation of of his support support of of his motion, motion, Reyes-Echeverria attorney, which which attempts adopt and incorporate attorney, attempts to adopt incorporate by reference reference the portion portion of of the arguments arguments and exhibits exhibits relating issue of injury submitted submitted in'the in the motion motion by defendant defendant Torres. Torres. Since branch of of relating to the issue of serious serious injury Since the branch defendant motion for summary judgment on the issue issue of of serious serious injury injury is denied, denied, as discussed discussed defendant Torres' Torres' motion summary judgment above, Reyes-Echeverria for summary summary judgment judgment on the issue issue of of serious serious injury injury is above, the motion motion by by defendant defendant Reyes-Echeverria denied, denied, as moot. Dated: NOV 11 66 2021 .. --------FINAL DISPOSITION DISPOSITION FINAL X ~. [* 4] 4 of 4 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.