Meza v. Green Leasing Inc.

• Decision Date: 09 May 2023
• Docket Number: INDEX No. 511923/2019,NYSCEF DOC. No. 56,Motion Sequence No. I
• Citation: 2023 NY Slip Op 31651 (U)
• Parties: GRACIELA G. MEZA, Plaintiff, v. GREEN LEASING INC., JEREMY D. ELLISON and EMALYN GIUFFRIDA, Defendants.
• Court: New York Supreme Court

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2023 NY Slip Op 31651(U)

GRACIELA G. MEZA, Plaintiff,
v.
GREEN LEASING INC., JEREMY D. ELLISON and EMALYN GIUFFRIDA, Defendants.

INDEX No. 511923/2019, NYSCEF DOC. No. 56, Motion Sequence No. I

Supreme Court, Kings County

May 9, 2023

Unpublished Opinion

DECISION AND ORDER

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CARL J. LANDICINO, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion:

Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed.................................................	19-35,
Opposing Affidavits (Affirmations).................................................	40-50,
Reply Affidavits (Affirmations)......................................................	51-52.

Upon the foregoing papers, and after oral argument, the Court finds as follows:

This action concerns alleged personal injuries on the part of the Plaintiff, Graciela G. Meza (the "Plaintiff') as a result of a motor vehicle accident that purportedly occurred on December 2, 2018 in Brooklyn, NY. Defendants, Green Leasing Inc., Jeremy D. Ellison, and Emalyn Giuffrida (the "Defendants") now move (motion sequence #1) for summary judgment pursuant to CPLR 3212 dismissing the action on the contention that the Plaintiff has failed to meet the serious injury threshold, as such term is defined in Insurance Law 5104(a) and 5102(d). Plaintiff opposes the motion.

"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff 14 A.D.3d 493 [2^nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362

Thus, a plaintiff must have suffered a "serious injury" by, among other things, demonstrating: (1) permanent consequential limitation of use of a body organ, member, function or system, (2) significant limitation of use of a body function or system or (3) a non-permanent medical injury which prevents her

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N.Y. S.2d 131,320 N.E.2d 853 [1974], The proponent for the summary judgment must make aprimafacie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2^nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2^nd Dept, 1989], Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2^nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2^nd Dept, 1994], Insurance Law §5102 (d) 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 niedically 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" (emphasis added).

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from performing substantially all of her customary daily activities for at least 90 days during the 180 days immediately following the accident.

To succeed on a summary judgment motion based on the lack of a serious injury, defendant must submit evidence eliminating any material issues of fact with respect to all categories of the "serious injury" threshold (see generally Ocasio v Henry, Tib A.D.2d 611 [2d Dept 2000]). Typically, it is necessary that defendants proffer medical...