Boine v. Arevalo
| Citation | 2019 NY Slip Op 34549 (U) |
| Decision Date | 03 April 2019 |
| Docket Number | Index 16-617423 |
| Parties | RICHARD BOINE, Plaintiff, v. LUIS ANTONIO AREVALO and ACT ENTERPRISES, INC., Defendants. CAL. No. 18-01226MV Mot. Seq. No. 001 - MD |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
MOTION DATE 9-13-18
ADJ. DATE 10-4-18
THE HARRISON LAW GROUP, P.C.
Attorney for Plaintiff
PICCIANO &SCAHILL, P.C.
Attorney for Defendants
SHORT FORM ORDER
Upon the following papers numbered 1 to 23 read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers 1-13; Notice of Cross Motion and supporting papers ____; Answering Affidavits and supporting papers 14-21; Replying Affidavits and supporting papers 22-23; Other ____; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendants Luis Arevalo and ACT Enterprises, Inc., seeking summary judgment dismissing the complaint is denied.
Plaintiff Richard Boine commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Joshuas Path and Nostrand Avenue in the Town of Islip on February 14, 2016. It is alleged that the accident occurred when the vehicle owned and operated by plaintiff struck the entire right passenger side of the vehicle owned by defendant ACT Enterprises and operated by defendant Luis Arevalo when it attempted to make a left turn onto Nostrand Avenue across the path of plaintiff s vehicle. At the time of the accident, plaintiff s vehicle was traveling southbound and defendants' vehicle was traveling northbound on Joshuas Path. By his bill of particulars, plaintiff alleges that he sustained various personal injuries as a result of the subject collision, including a tear of the medial and lateral meniscus of the right knee; right knee internal derangement; partial tear of the rotator cuff of the right shoulder; and multilevel disc bulges and herniations of the cervical and lumbar spine. Plaintiff further alleges that he was incapacitated from his employment for approximately one week immediately following the accident, and then for approximately two months following the right knee surgery he underwent as a result of the injuries he sustained in the subject accident.
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 fail to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendants submit copies of the pleadings, plaintiffs deposition transcript, the sworn medical reports of Dr. Mathew Chacko and Dr. David Weissberg. At defendants' request, Dr. Chacko conducted an independent neurological examination of plaintiff on March 8, 2018. Also at defendants' request, Dr. Weissberg conducted an independent orthopedic examination of plaintiff on April 2, 2018. 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 he sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits his own affidavit, unsworn copies of his medical reports concerning the injuries at issue, and the sworn medical reports of Dr. Harold Tice, Dr. Marc Katzman, and Dr. Christopher Durant.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984], aff'd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law § 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, 662 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, supra-, Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Based upon the adduced evidence, defendants established, prima facie, their entitlement to judgment as a matter of law on the ground that the injuries allegedly sustained by plaintiff as a result of the subject collision failed to meet the serious injury threshold requirement of the Insurance Law (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Al-Khilwei v Truman, 82 A.D.3d 1021, 919 N.Y.S.2d 361 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]; Pierson v Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726 [2d Dept 2010]). Defendants' examining orthopedist, Dr. Weissberg, states in his medical report that an examination of plaintiff reveals he has full range of motion in his spine, shoulders, and knees. Dr. Weissberg states that no spasms or tenderness were detected upon palpation of plaintiffs paraspinal muscles. He states the examination of plaintiff showed that there are no motor, sensory or reflex deficiencies, that his muscle strength is 5/5, that he has a nonantalgic gait, and that the impingement and apprehension signs are negative. Dr. Weissberg opines that the strains plaintiff sustained to his spine, right shoulder, and right knee have resolved, and that the ongoing symptoms experienced by plaintiff are due to pre-existing conditions, which were sustained during his past career as a professional mixed martial artist and body builder. Dr. Weissberg further states that plaintiff does not require any additional orthopedic care or treatment presently, and that he is capable of performing all activities of his usual and customary activities and working without restrictions.
Similarly, defendants' examining neurologist, Dr. Chacko, states that an examination of plaintiff reveals he has full range of motion in his spine, that there was no tenderness or spasm upon palpation of the paraspinal muscles, that he walks with a normal gait, and that there was no sign of cerebellar dysfunction. Dr. Chacko states that plaintiff reported pressure in his back and a stretching sensation in his thighs at 60 degrees out of 90 degrees during the straight leg raising test, bilaterally, but that there was no radiating back pain reported or observed. Dr. Chacko opines that the strains plaintiff sustained to his spine have resolved, that plaintiff does not have any focal neurological deficits, and that there is no evidence of cervical, thoracic or lumbar radiculopathy or myelopathy. Dr. Chacko further states that there is no objective evidence that plaintiff has any neurological disabilities or limitations, or that he is unable to perform his normal daily living activities, and that there is no objective evidence consistent with any neurological permanency or residuals casually related to the subject accident.
Furthermore plaintiffs deposition testimony demonstrates that "substantially all" of his daily activities were not curtailed for the first 90 out 180 days following the subject accident (see e.g. Karpinos v Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383 [2d Dept 2011]; Kolodziej v Savarese. 88 A.D.3d 851, 931 N.Y.S.2d 509 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]). Plaintiff testified at an examination before trial that prior to the accident he works as a mixed martial arts instructor in New...
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