Hallett v. Town of Islip

• Decision Date: 07 February 2019
• Docket Number: Index No. 16-612890,Cal. No. 18-00224MV
• Citation: 2019 NY Slip Op 34764 (U)
• Parties: DEBRA A. HALLETT, Plaintiff, v. TOWN OF ISLIP and LIAM M1LLIGAN, Defendant. Mot. Seq.# 003 -MG; CASEDISP
• Court: New York Supreme Court

2019 NY Slip Op 34764(U)

DEBRA A. HALLETT, Plaintiff,
v.
TOWN OF ISLIP and LIAM M1LLIGAN, Defendant.

Mot. Seq.# 003 -MG; CASEDISP

Index No. 16-612890

Cal. No. 18-00224MV

Supreme Court, Suffolk County

February 7, 2019

Unpublished Opinion

MOTION DATE 6-14-18.

ADJ. DATE 9-6-18.

COSTANTINO & COSTANTTNO, ESQS., Attorney for Plaintiff.

CREEDON & GIL, PC Attorney for Defendant.

PRESENT: Hon. JOSEPH FARNETI, Acting Justice Supreme Court.

Hon. JOSEPH FARNETI, Acting Justice Supreme Court.

Upon the following papers numbered to 25 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1-4; Notice-of Cross Motion and supporting papers; Answering Affidavits and supporting papers 15-23; Replying Affidavits and supporting papers 24-25; Other ____; it is, ORDERED that the motion by defendants Town of Islip and Liam Miiligan seeking summary judgment dismissing the complaint is granted.

Plaintiff Debra Hallett commenced this action to recover damages for injuries she allegedly sustained as..-a result of a motor vehicle accident that occurred at the intersection of Veterans Memorial Highway and Johnson Avenue in the Town of Islip on June 4, 2015. It is alleged that the accident occurred when a truck owned by defendant Town of Islip and operated by defendant Liam Milligan struck the rear-end of the vehicle plaintiff was riding in as a back seat passenger while it was stopped at a red traffic light on Veterans Memorial Hospital. At the time of the accident, defendant Milligan was Operating the truck in the course of his employment With the Town of Islip. By her bill of particulars, plaintiff alleges, among other things, that she sustained various personal injuries and conditions as a result of the subject collision, including sciatica of the left leg and disc bulging at levels L4 through S1.

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Defendants now move for summary judgment on the basis that the injuries plaintiff alleges to have sustained 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 General Municipal Law § 50-h hearing and deposition transcripts, uncertified copies of plaintiff s medical records concerning the injuries at issue, and the sworn medical report of Dr. Michael Winn and Dr. Jean-Robert Desrouleaux. At defendants' request, Dr. Winn performed an independent radiological review of the magnetic resonance imagines ("MRI”) films of plaintiff s lumbar spine taken on June 30, 2015. Also at defendants' request, Dr. Desrouleaux conducted an independent neurological examination of plaintiff on January 8, 2018. Plaintiff opposes the motion on the grounds that defendants failed to make a prima facie case, 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 as a result of the subject accident. In opposition to the motion, plaintiff submits her own affidavit, the sworn medical report of Dr. Daniel Kohane, and the affidavit of Dr. Paul Beberman.

It is well-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 Leliman, 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], affd 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...