Landron v. Orellana

• Citation: 2021 NY Slip Op 33615 (U)
• Docket Number: Index No. 4769/2016,Cal No. 201902345MV Mot. Seq. 004 MD
• Decision Date: 08 October 2021
• Parties: RAFAEL R. LANDRON and JEFFRIES DE LA ROSA MENDOZA, Plaintiffs, v. CARLOS ORELLANA and MARIA ESCOBAR, Defendants.
• Court: United States State Supreme Court (New York)

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2021 NY Slip Op 33615(U)

RAFAEL R. LANDRON and JEFFRIES DE LA ROSA MENDOZA, Plaintiffs,
v.
CARLOS ORELLANA and MARIA ESCOBAR, Defendants.

Index No. 4769/2016, Cal No. 201902345MV Mot. Seq. # 004 MD

Supreme Court, Suffolk County

October 8, 2021

Unpublished Opinion

MOTION DATE 2/6/20

ADJ. DATE 8/3/21

HARMON LENDER & ROGOWSKY, ESQS. Attorney for Plaintiffs

SOBEL PEVZNER, LLC Attorney for Defendants

Hon. WILLIAM J. CONDON, JUDGE

Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers bv defendants, dated November 4. 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiffs, dated July 6. 2021: Replying Affidavits and supporting papers by defendants. dated July 21. 2021; Other__; it is

ORDERED that the motion by defendants Carlos Orellana and Maria Escobar seeking summary judgment dismissing the complaint is denied.

Plaintiffs Rafael Landron and Jeffries De La Rosa Mendoza commenced this action to recover damages for injuries they allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of County Road 100 and Bergen Street in the Town of Islip on August 30, 2014. It is alleged that the accident occurred when the vehicle owned by defendant Maria Escobar and operated by defendant Carlos Orellana struck the left rear driver's side of the vehicle operated by plaintiff Landron after defendant Orellana lost control of his vehicle and crossed over the double yellow line into the Landron vehicle's lane of travel. At the time of the accident, plaintiff Mendoza was riding as a backseat passenger in the Landron vehicle. By their bill of particulars, plaintiff Landron alleges that he sustained various personal injuries as a result of the subject collision, including multilevel disc herniations and disc bulges of the cervical and thoracolumbar regions, and cervical and lumbar radiculopathy. Plaintiffs also allege, by their bill of particulars, that plaintiff Mendoza sustained numerous personal injuries due to the subject accident, including herniated discs at level L5-S1, cervical and lumbar radiculopathy.

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Defendants now move for summary judgment on the basis that neither plaintiff Landron nor plaintiff Mendoza sustained injuries within the meaning of the serious injury threshold requirement of Insurance Law § 5102 (d) as a result of the subject accident. In support of the motion, defendants submit, among other things, copies of the pleadings, plaintiffs' deposition transcripts, uncertified copies of plaintiffs' medical records concerning the injuries at issue, and the sworn medical reports of Dr. David Wcissberg and Dr. Dorothy Scarpianto. At defendants' request, Dr. Weissberg, an orthopedist, conducted independent orthopedic examinations of plaintiffs Landron and Mendoza on February 5, 2019. Additionally, Dr. Scarpianto, an orthopedist, performed independent orthopedic examinations of plaintiffs Landron and Mendoza on November 11, 2014. Plaintiffs oppose the motion on the basis that defendants failed to meet their prima facie burden, and that the evidence submitted in opposition demonstrates that they each sustained injuries within the "limitation of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiffs submit their own affidavits, the sworn medical reports of Dr. Paul Lerner, Dr. Harold Tice, Dr. Steven Winter, and Dr. Frantz Jasmin.

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 Elliott, 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 § 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 § 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,

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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...