Amico v. Reed

• Decision Date: 25 August 2020
• Docket Number: Mot. Seq. Nos. 001 MD,Index No. 624487/2017,Cal. No. 201902099MV,002 MG
• Citation: 2020 NY Slip Op 35189 (U)
• Parties: ANGELA M. AMICO, Plaintiff, v. STACEY L. REED and CHRISTOPHER REED, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 35189(U)

ANGELA M. AMICO, Plaintiff, v. STACEY L. REED and CHRISTOPHER REED, Defendants.

Index No. 624487/2017, Cal. No. 201902099MV, Mot. Seq. Nos. 001 MD, 002 MG

Supreme Court, Suffolk County

August 25, 2020

Unpublished Opinion

MOTION DATE 1/9/20

MOTION DATE 3/5/20

ADJ. DATE 7/16/20

MICHAEL G. LORUSSO, ESQ. Attorney for Plaintiff

JAMES F. BUTLER & ASSOCIATES Attorney for Defendants

PRESENT: Hon. WILLIAM G. FORD Justice of the Supreme Court

SHORT FORM ORDER

WILLIAM G. FORD, J.S.C.

Upon the following papers read on these motions for summary judgment: Notice of Motion! Order to Show Cause and supporting papers by plaintiff, dated November 27, 2019: by defendants, dated February 3, 2020: Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by defendants, dated February 27, 2020: by plaintiff, dated July 2, 2020: Replying Affidavits and supporting papers by plaintiff. March 5,2020: by defendants dated July 15,2020; Other; it is

ORDERED that the motion (#001) by plaintiff Angela Amico and the motion (#002) by defendants Stacey Reed and Christopher Reed hereby are consolidated for the purposes of this determination; and it is

ORDERED that the motion by plaintiff Angela Amico seeking summary judgment in her favor on the issue of negligence is denied, as moot; and it is further

ORDERED that the motion by defendants Stacey Reed and Christopher Reed seeking summary judgment dismissing the complaint is granted.

Plaintiff Angela Amico commenced this action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Round Swamp Road and the Northern State Parkway in the Town of Huntington on January 7,205.. It is alleged that the accident occurred when the vehicle operated by defendant Stacey Reed and owned by defendant Christopher Reed struck the front left side of the vehicle operated and owned by plaintiff when it made a left turn directly into the path of plaintiff s vehicle. At the time of the accident, plaintiff was traveling straight on northbound Round Swamp Road, and Stacey Reed was attempting to make left turn onto the ramp of the Northern State Parkway from the southbound lane of Round Swamp Road. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject collision, including multilevel cervical spine disc herniations, cervical and lumbosacral radiculitis, and exacerbation of pre-existing degenerative condition of the cervical spine.

Defendants now move for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law S 5102 (d). In support of the motion, defendants submit, among other things, copies of the pleadings, plaintiffs deposition transcripts, uncertified copies of plaintiff s medical records regarding the injuries at issue, and the sworn medical reports of Dr. Dorothy Scarpinato and Dr. Jean-Robert Desrouleaux. At defendants' request, Dr. Scarpinato conducted an independent orthopedic examination of plaintiff on August 23, 2019. Also at defendants' request, Dr. Desrouleaux conducted an independent neurologic examinaiion of plaintiff on September 16, 2019. Plaintiff opposes the motion on the grounds that defendants failed to meet their prima facie burden, and that the evidence submitted in opposition demonstrates that she sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law. In opposition to the motion, plaintiff submits her own affidavit, the sworn medical reports of Dr. Salvatore Corso, Dr. Adam Wilner and Dr. Fabien Bitan, and uncertified copies of her medical records regarding the injuries at issue.

The purpose of New York State's No-Fault Insurance Law is to "assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trial[s]" (see Licari v Elliott 57 N.Y.2d 230 455 N.Y.S.2d 570 [1982]), and requiring every case, even those with minor injuries, to be decided by a jury would defeat the statute's effectiveness (see Licari v Elliot,, supra). Therefore, the No-Fault Insurance law precludes the right of recovery for any "non-economic loss, except in the case of serious injury or for basic economic loss" (see Insurance Law S 5104 [a]; Martin v Schwartz, 308 A.D.2d 318 766 N.Y.S.2d 13 [1st Dept 2003]). Any injury not falling within the definition of "serious injury" is classified as an insignificant injury, and a trial is not allowed under the No-Fault statute (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Gaddy v Eyler, 79 N.Y.2d 955,582 N.Y.S.2d 990 [1992]; Martin v Schwartz, supra).

Insurance Law S 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ member function or system; permanent consequential limitation of use of a body organ or member- significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler 79 N.Y.2d 955,582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268,270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment, using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464,622 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; Tornabene v Pawlewsk,, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2d Dept 2003]; Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see Burns v Strange,, 31 A.D.3d 360,899 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316 [1985]).

Here defendants, through the submission of competent medical evidence and plaintiffs deposition transcrip,, established their prima facie entitlement to summary judgment as a matter of law, that plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler 79 N.Y.2d 955,582 N.Y.S.2d 990 [1992]; Davis-Hassan v Siad, 101 A.D.3d 932,957 N.Y.S.2d 205 [2d Dept 2012]). Defendants' examining orthopedist, Dr. Scarpinato, used a goniometer to test the ranges of motion in plaintiffs spine, and compared her respective findings to the normal range of motion values for each region (see e.g. Cantave v Gel/e, 60 A.D.3d 988,877 N.Y.S.2d 129 [2d Dept 20091- Staff v Yshua 59 A.D.3d 614,874 N.Y.S.2d 180 [2d Dept 2009]; Desulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]). Dr. Scarpinato states that an examination of plaintiff reveals full range of motion in her spine, that plaintiff complains of tenderness upon palpation of the cervical paraspinal muscles although no evidence of swelling was observed, and that there was no evidence of tenderness muscle spasms or trigger points upon palpation of the lumbar paraspinal muscles. She states that there was no evidence of sensory deficits or neurotrophic changes, and that plaintiffs muscle strength is good with no atrophy. Dr. Scarpinato states that the straight leg raising test is negative, and that plaintiff is able to stand on toes and heels without difficulty. Dr. Scarpinato opines that the strains to plaintiff s spine that she sustained as a result of the accident have resolved. Dr. Scarpinato further states that plaintiff does not have an orthopedic disability, that there is no medical necessity for additional orthopedic treatment or physical therapy, and that plaintiff is capable of working full time and performing all of her daily living activities with no restrictions (see e g Cabrera v Apple Provisions Inc., 151 A.D.3d 594,57 N.Y.S.3d 471 [1st Dept 2017]; Watt v Eastern Investigative Bureau Inc., 273 A.D.2d 226, 708 N.Y.S.2d 472 [2d Dept 20...