Mugavero v. Cafiero
| Decision Date | 28 February 2020 |
| Docket Number | Index 17-608510 |
| Citation | 2020 NY Slip Op 34998 (U) |
| Parties | DAVID MUGAVERO and ELLEN MUGAVERO, Plaintiffs, v. RICHARD CAFIERO, Defendant. Mot. Seq. Nos. 003-MD, 004-MD |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 3-29-19
ADJ. DATE 5-14-19
GRUENBERG KELLY DELLA ATTORNEY FOR PLAINTIFF
RUSSO & TAMBASCO ATTORNEY FOR DEFENDANT
Upon the following papers read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated February 4. 2019: Notice of Cross Motion and supporting papers Answering
Affidavits and supporting papers by plaintiff, dated March 22, 2019 and May 13. 2019: Replying Affidavits and supporting papers by defendant, dated March 27. 2019 and May 14. 2019: Other; it is, ORDERED that the motions by defendant Richard Cafiero seeking summary judgment are consolidated for the purposes of this determination; and it is
ORDERED that the motion by defendant Richard Cafiero seeking summary judgment dismissing the complaint on the ground that his conduct was not a proximate cause of the subject accident's occurrence is denied; and it is further.
ORDERED that the motion by defendant Richard Cafiero seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident is denied.
Plaintiff David Mugavero commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Phelps Lane and Pacific Street in the Town of Babylon on August 15 2016. Plaintiff, by his complaint, alleges that the accident occurred when the vehicle owned and operated by defendant Richard Cafiero struck the rear of his vehicle after he reversed out of his own driveway and began to drive forward. Plaintiffs wife, Ellen Mugavero, also instituted a derivative cause of action for loss of services. By his bill of particulars, plaintiff alleges that he sustained various personal injuries as a result of the subject collision, including a tear of the suprasinatus of the right shoulder, tendinosis of the right elbow, and multilevel disc bulges and herniations of the spine.
Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the accident do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical report of Dr. Bradley White. At defendant's request, Dr. White conducted an independent orthopedic examination of plaintiff on February 26, 2018. Plaintiff opposes the motion on the grounds that defendant failed to satisfy his prima facie burden, and that the evidence submitted in opposition demonstrates that he sustained injuries within the "limitations of use" and the "90/180" categories of the Insurance Law as a result of the subject accident. In opposition to the motion, plaintiff submits uncertified copies of his medical records regarding the subject accident, and an affidavit by his treating chiropractor, Dr. Christopher Haas.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept 1984], affd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
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, 582N.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, 82 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, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vlgnola v Varrichio, 243 A.D.2d 464, 662N.Y.S.2d 831 [2dDept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Based upon the adduced evidence, defendant failed to establish his prima facie entitlement to judgment as a matter of law to demonstrate that the injuries sustained by plaintiff as a result of the subject accident do not come within the meaning of the serious injury threshold requirement of Section 5102 (d) of the Insurance Law (see Pommells v Perez, supra; Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Buchanan v Keller, 169 A.D.3d 989, 95 N.Y.S.3d252 [2d Dept 2019]; Rivas v Hill, 162 A.D.3d 809, 79 N.Y.S.3d 225 [2d Dept 2018]). Defendant's examining orthopedist, Dr. White, who examined plaintiff on February 26, 2018, almost two years after the subject accident, despite concluding that the sprains to plaintiff s spine, right shoulder, and right elbow have resolved, found significant range of motion limitations in plaintiffs cervical region and right shoulder, and that plaintiff did not have any evidence of a contributing pre-existing condition (see Katanov v County of Nassau, 91 A.D.3d 723, 936 N.Y.S.2d 285 [2d Dept 2012]; Quiceno v Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643 [2d Dept 200]; Morales v Theagene, 46 A.D.3d 775, 848 N.Y.S.2d 325 [2d Dept 2007]).
Further, while, a defendant is permitted to use a plaintiffs deposition testimony to establish that he or she did not sustain a nonpermanent injury during the 90 days out of the 180 days immediately following the accident (see e.g. Yanping Xu v Gold Coast Freiglttways, Inc., 107 A.D.3d 885, 968 N.Y.S.2d 111 [2d Dept 2013]; Takaroff v AM USA. Inc., 63 A.D.3d 1142, 882 N.Y.S.2d 265 [2d Dept 2009]; Shaw v Jalloh, 57 A.D.3d 647, 869N.Y.S.2d 189 [2d Dept 2008]; Sanchez v Williamsburg Volunteer of Hatzolah, 48 A.D.3d 664, 852 N.Y.S.2d 287 [2d Dept 2008]), defendant's reliance on plaintiffs testimony in the instant matter is insufficient to meet his burden on the motion (see Aujour v Singh, 90 A.D.3d 686, 934 N.Y.S.2d 240 [2d Dept 2011]; Bangar v Man Sing Wong, 89 A.D.3d 1048, 933 N.Y.S.2d 536 [2d Dept 2011]; Tinsley v Bah, 50 A.D.3d 1019, 857 N.Y.S.2d 180 [2d Dept 2008]; cf. Master v Boiakhtchion, 122 A.D.3d 589, 996 N.Y.S.2d 116 [2d Dept 2014]; Geliga v Karibian, 56 A.D.3d 518, 867 N.Y.S.2d 519 [2008]). Plaintiff testified at an examination before trial that following the accident, he was informed by the doctors at Good Samaritan Hospital and his primary care physician that he had two herniated discs in his lower back and neck, and a torn rotator cuff in his right shoulder, that he was advised by his doctors to remain home and "take it easy," and that he missed approximately two months from his employment as an union ironworker. Plaintiff testified that he continues to receive physical therapy, acupuncture, and chiropractic treatment twice a week, and that his treatments continue to be covered by his No-Fault benefits. Plaintiff further testified that he has never injured his neck, back or shoulder in any prior accident, although he did injure his finger and right knee in a previous accident while working for the Metropolitan Transit Authority.
Having determined that defendant failed to establish his initial burden, it is unnecessary for the court to consider whether plaintiffs opposition papers were sufficient to raise a triable issue of fact (see Cervantes v McDermott, 159 A.D.3d 669, 71 N.Y.S.3d 612 [2d Dept 2018]; Kharzis v PV Holding Corp., 78 A.D.3d 1122, 912 N.Y.S.2d 114 [2d Dept 2010]; McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]). Accordingly, defendant's motion for...
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