Deleon-velasquez v. Vale
| Decision Date | 13 January 2011 |
| Docket Number | Index No.: 2297/09,Motion Seq. No.: 01 |
| Citation | 2011 NY Slip Op 30167 |
| Parties | MYNORR. DELEON-VELASQUEZ, Plaintiff, v. NELSON J. DO VALE, Defendant. |
| Court | New York Supreme Court |
Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him summary judgment to on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendant's motion.
The action arises from a motor vehicle accident involving a collision between a motor vehicle owned and operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 2:30 p.m. on November 29, 2007, at or near the intersection of El wood Road and Cuba Hill Road, Huntington, County of Suffolk, State of New York. Plaintiff contends that, when stopped at a red light, his automobile was rear-ended by defendant's automobile. As a result of the accident, plaintiff claims that he sustained the following injuries:
Plaintiff also indicates that on February 11, 2008, he underwent a surgical procedure that, using aseptic technique, trigger points were injected in the left lumbar paraspinal area. A total of two cc's of 1% Lidocaine was injected into four different areas of the paraspinal muscles. On March 17, 2008, plaintiff underwent a surgical procedure that, using aseptic technique, trigger points were injected in the bilateral lumbar paraspinal area. A total of three cc's of 1% Lidocaine was injected into four different areas of the paraspinal muscles.
On or about February 10, 2009, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on March 24, 2009.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v.Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as amatter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S. 2d 793 (1988). Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989).
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). See Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 (1992). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury." See Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982).
In support of a claim that the plaintiff has not sustained a serious injury, the defendants may rely either on the sworn statements of the defendants' examining physicians or the unswornreports of the plaintiff's examining physicians. See Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 (2d Dept. 1992). However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. See Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 (1991).
Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff s injury. The Court of Appeals in Toure v. Avis Rent-a-Car Systems, 98 N. Y.2d 345, 746 N.Y.S.2d 865 (2002) stated that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. See Gonzalez v. Vasquez, 301 A.D.2d 438, 754 N.Y.S.2d 7 (1st Dept. 2003).
Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. See Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005).
Plaintiff claims that as a consequence of the above described automobile accident with defendant, he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:
For a permanent loss of a body organ, member, function or system to qualify as a "serious injury" within the meaning of No-Fault Law, the loss must be total. See Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295, 727 N.Y.S.2d 378 (2001); Amata v. Fast Repair Incorporated, 42 A.D.3d 477, 840 N.Y.S.2d 394 (2d Dept. 2007). As previously stated, to meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. See Gaddy v. Eyler, 19 N.Y.2d 955, 582 N.Y.S.2d 990 (1992); Licari v. Elliot, 57 N.Y.2d 230, 455 NY.S.2d 570 (1982). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. See Licari v. Elliot, supra. A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. See ...
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