Lopez v. Morel-Ulla

• Decision Date: 15 November 2016
• Citation: 2016 N.Y. Slip Op. 07607,144 A.D.3d 504,41 N.Y.S.3d 39
• Parties: Lujanny LOPEZ, Plaintiff–Appellant, v. Ariosto MOREL–ULLA, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 504

41 N.Y.S.3d 39

2016 N.Y. Slip Op. 07607

Lujanny LOPEZ, Plaintiff–Appellant,

v.Ariosto MOREL–ULLA, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Nov. 15, 2016.

William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovitz, P.C., Brooklyn (Robert D. Grace of counsel), for Ariosto Morel–Ulla and Castillo Auto Corp., respondents.

Varvaro, Cotter & Bender, White Plains (Patricia A. Mooney of counsel), for Gail P. Fernandez, respondent.

MAZZARELLI, J.P., ANDRIAS, SAXE, FEINMAN, GISCHE, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 9, 2015, which granted the motion of defendants Ariosto Morel–Ulloa and Castillo Auto Corp. (Castillo defendants) for summary judgment dismissing the complaint as against them based on their lack of liability for the motor vehicle accident, and granted defendant Gail Fernandez's cross motion for summary judgment dismissing the complaint as against her based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to deny defendant Fernandez's cross motion and reinstate plaintiff's complaint to the extent based on claims of serious injury to her lumbar spine and within the 90/180–day category, and otherwise affirmed, without costs.

Plaintiff alleges she suffered serious injuries to her knees

, back and neck as the result of an accident that occurred when defendant Fernandez's car collided with the Castillo defendants' livery cab in which she was a passenger.

The Castillo defendants established their absence of fault in connection with the accident. Defendant Morel–Ulloa testified that Fernandez's vehicle backed up into the cab while it was stopped to discharge plaintiff, even though he honked his horn in warning; plaintiff testified that Fernandez's car backed into the cab while it was slowing down; and Fernandez did not believe there was an accident, but testified that she rolled back slightly to let a truck pass and was informed that she made contact with another vehicle. While these versions differ, none of them provide any basis for finding that Morel–Ulloa was at fault. Fernandez did not oppose the motion, and thus did not offer any further explanation for her action in rolling back into the Castillo vehicle, which is negligent as a matter of law (see Vehicle and Traffic Law § 1211[a] ; Garcia v. Verizon N.Y., Inc., 10 A.D.3d 339, 781 N.Y.S.2d 93 [1st Dept.2004] ). Plaintiff's assertion that Morel–Ulloa could have done something to avoid the accident does not raise an issue of fact, since it is speculative (10 A.D.3d at 340, 781 N.Y.S.2d 93 ; Mendez v. City of New York, 110 A.D.3d 421, 972 N.Y.S.2d 242 [1st Dept.2013] ).

Defendants made a prima facie showing of a lack of serious injury through the reports of their radiologist, who found MRI evidence of preexisting degenerative disease in the claimed injured body parts, and their orthopedist, who found normal to near normal ranges of motion and no evidence of orthopedic injury caused by the subject accident (see Clementson v. Price, 107 A.D.3d 533, 967 N.Y.S.2d 357 [1st Dept.2013] ).

In opposition, plaintiff raised an issue of fact as to whether she sustained serious injuries to her lumbar spine, by...