Hidalgo v. Padilla
| Docket Number | Index No. 150085/2018 |
| Decision Date | 14 June 2023 |
| Citation | 2023 NY Slip Op 32040 (U) |
| Parties | RAMON HIDALGO, Plaintiff, v. SELINES PADILLA - TORIBIO, WENCESLAO TORIBIO Defendant. |
| Court | New York Supreme Court |
DECISION+ ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21,22, 23, 24, 25, 26, 27 were read on this motion to/for _JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that the motion by defendants Selines Padilla-Toribio and Wenceslao Toribio (collectively, Defendants), for summary judgment and dismissal of the complaint against them pursuant to CPLR 3212 on the grounds that Plaintiff, Ramon Hidalgo, did not sustain a serious injury as defined by Insurance Law 5102 (d) is granted without opposition. Plaintiff did not file written opposition.
Plaintiff commenced this action alleging he sustained serious injuries to his left foot and Achilles' tendon as defined by Insurance Law 5102 (d) as a result of a motor accident that occurred on December 23, 2016 between Plaintiff pedestrian and a motor vehicle operated by defendant Wenceslao Toribio and owned by defendant Selines Padilla-Toribio.
Defendants submit their motion for summary judgment asserting that Plaintiff did not i sustain serious injuries within Insurance Law 5102 (d). Defendants allege that the injuries for which Plaintiff is seeking relief are not causally related to the underlying accident. In support of their motion, Defendants proffer the affirmed medical report of podiatrist. Dr. David Z Shechter, who examined Plaintiff on March 18, 2020.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1985]). In order to satisfy their burden under Insurance Law 5102 (d), plaintiffs must meet the "serious injury" threshold (Toure v Avis Rent a Car Systems Inc, 98 N.Y.2d 345, 352 [2002] [where the court found that in order to establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury plaintiff must establish the existence of either a "permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system"]). Insurance Law 5102 (d) outlines the serious injury threshold:
a personal injury which results in ... 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 nonpermanent 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Under the no-fault law, a plaintiff can maintain an action for non-economic loss, including pain and suffering, arising from a motor vehicle accident only if the accident caused a serious injury (Licari v Elliott, 57 N.Y.2d 230 [1982]). .
To establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident, or rely on a plaintiffs deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (Elias v Mahlah, 58 A.D.3d 434 [1st Dept 2009]). .
The burden rests upon the movant to establish that the plaintiff has not sustained a serious injury (Lowe v Bennett, 122 A.D.2d 728 [1st Dept 1986]). When the movant has made such a showing, the burden shifts to the plaintiff to produce prima facie evidence to support the claim of serious injury (see Licari, supra, and Lopez v Senatore, 65 N.Y.2d 1017 [ 1985]). In instances where a defendant asserts that the evidence reveals a preexisting injury or a degenerative condition, the plaintiff must present evidence to the contrary (Brewster v FTM Servo, Corp., 44 A.D.3d 351 [1st Dept 2007]).
In this case, Defendants have established that Plaintiff did not sustain a serious injury under Insurance Law 5102 (d). Defendants' podiatrist, Dr. David Z Shechter reviewed relevant records prior to his examination of Pla...
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