Lopez v. Target Mech.
| Decision Date | 20 April 2023 |
| Docket Number | Index No. 156973/2020,MOTION SEQ. Nos. 005,006 |
| Citation | 2023 NY Slip Op 31286 (U) |
| Parties | DANIEL LOPEZ, REINA CINTRON, JASMINE VEGA Plaintiff, v. TARGET MECHANICAL INC., JOHN DOE, Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 96, 97, 98, 99, 100, 106, 108, 109, 110, 111, 119, 120, 121 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 103, 104, 105, 107, 112, 113, 114, 115, 116 117, 118, 122 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that Motion Sequence Numbers 5 and 6 are consolidated for decision and decided as follows:
This personal injury action arises from an incident which occurred on August 17, 2019 at approximately 9:56 p.m., when plaintiff Daniel Lopez ("Lopez") was driving on the Willis Avenue Bridge on East 125th Street and 1st Avenue, with plaintiff Reina Cintron ("Cintron") a front seat passenger, and plaintiff Jasmine Vega ("Vega") a rear seat passenger (Cintron Tr. [NYSCEF Doc. No. 99] at 26 line 15; 30, line 15; NYSCEF Doc. No. 92 at ¶ 2). Plaintiffs were struck in the rear by a white van owned by defendant Target Mechanical Inc. ("Target") and operated by codefendant, John Doe. After colliding with Plaintiffs' car, defendants' white van then allegedly moved to the adjoining lane and fled the scene (Cintron Tr. at 41, line 18). Plaintiffs allege that they sustained serious injuries as a result of the subject accident due to defendants' negligence.
Defendant Target's Answer to the Complaint asserts a counterclaim against plaintiff Lopez, alleging that if plaintiffs Cintron and Vega sustained injuries or damages, they were caused by Lopez, and that he should be held liable for the full amount of any judgment against Target.
In the Verified Bill of Particulars dated December 18, 2020 and Supplemental Bill of Particulars dated September 14, 2021, Cintron alleges that she sustained, amongst other injuries, injuries to her right knee, right shoulder, neck, and back (NYSCEF Doc. No. 92 at ¶ 5b; NYSCEF Doc. No. 94). Cintron claims that she sustained a serious injury as defined in Insurance Law 5102(d), in that her injuries from the subject accident resulted in: a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body organ or member: a 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 (NYSCEF Doc. No. 92 at ¶ 16).
In Motion Sequence Number 5. defendant Target moves for an order, pursuant to CPLR. 3212, granting summary judgment to dismiss the claims alleged by plaintiff Reina Cintron ("Cintron") for failing to meet the serious injury threshold requirement as mandated by Insurance Law 5102(d), or in the alternative, to dismiss any or all sub-portions of Insurance Law 5102 that are not viable as a matter of law with respect to said plaintiff Cintron.
Plaintiff Cintron opposes defendant Target's motion, claiming that Target failed to present a prima facie case that Cintron did not sustain a serious injury as defined by Insurance Law 5102(d), and that a question of fact remains as Cintron's physicians opined in their findings that Cintron's alleged injuries were traumatic, sustained as a direct result of the motor vehicle accident at issue, and that she sustained a serious injury under the Insurance Law.
In reply, Target argues that it met its prima facie case to show that any injuries Cintron sustained were minor, mild, or slight and are otherwise classified as insignificant within the meaning of the Insurance Law and not a "serious injury" pursuant to the same statute. It further contends that the supporting medical documentation that Cintron proffered is inadequate and/or inadmissible to bolster her claims.
In Motion Sequence Number 6, Lopez (Plaintiff on the Counterclaim) moves for an order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissal of Plaintiff Cintron's Complaint and any and all cross-claims against Lopez on the grounds that Cintron did not sustain a serious injury as defined under Insurance Law 5102(d), and any and all counterclaims[1] against Lopez. Lopez argues that Cintron did not meet the threshold requirement pursuant to Insurance Law 5102(d) and adopts and incorporates the facts, legal arguments, procedural history, and exhibits of Target defendant's moving papers, as they relate to Cintron, in Motion Sequence Number 5.
Plaintiffs opposition papers mirror its opposition papers in Motion Sequence Number 5.
Lopez's reply papers adopt and incorporates the facts, legal arguments, procedural history and exhibits of Target's reply papers in Motion Sequence Number 5.
Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law (Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974]). "In determining a motion for summary judgment where the issue is whether the plaintiff suffered serious injury, . . [t]he initial burden is on defendants to present evidence, in competent form, showing that plaintiff has no cause of action," (Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208, 209 [1st Dept 1996] [internal quotation marks and citation omitted]) and "that the injuries sustained by plaintiff are not serious" (Style v. Joseph, 32 A.D.3d 212, 214 [1st Dept 2006] [internal quotation marks and citation omitted]). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985]). Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining (Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992], citing Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521 [1st Dept 1989]). The court's role is "issue-finding, rather than issue-determination" (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957] [internal quotations omitted]).
Pursuant to Insurance Law 5104 (a), "in any action by ... a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle ... there shall be no right of recovery for non-economic loss, except in the case of a serious injury". Accordingly, the court must consider the threshold inquiry of whether plaintiff suffered serious injuries within the meaning of Insurance Law 5102(d). Such statute defines 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 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
Pursuant to CPLR 2106, physician reports constitute evidentiary proof in admissible form if "[t]he statement of... a physician . . . authorized by law to practice in the state, who is not a party to the action, when subscribed and affirmed by him to be true under penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit."
In order to establish a basis for entitlement to summary judgment on the issue of serious injury, the defendant has the initial burden of submitting competent evidentiary proof in admissible form demonstrating that plaintiff has not suffered serious injury as defined by Insurance Law 5102(d).
In support of its motion (Motion Sequence Number 5), Target proffered, inter alia, the medical reports of Drs Richard Semble, Elizabeth Ortof, and Jonathan Lerner dated October 21, 2021, October 8, 2021, and September 2, 2021 respectively (NYSCEF Doc. Nos. 96 - 98).
Dr Semble conducted an orthopedic medical evaluation of Cintron and noted that Cintron's current complaints are of pain in the right shoulder and right knee (NYSCEF Doc. No. 96). Dr. Semble measured the range of motion for Cintron's cervical spine, lumbar spine, right and left shoulders, and right and left knees and noted that Cintron fell within the normal range of all the aforementioned except for the right knee, where range of motion is flexion at 125 degrees (150 degrees normal) (id.). Dr. Semple reports that the diagnoses of the cervical and lumbar spine sprains, right shoulder sprain, and right knee sprain have all been...
To continue reading
Request your trial