Pena v. Hanh Thi Le

• Decision Date: 09 August 2018
• Docket Number: Index No. 620191/2016E,Motion Sequence No. 002; MD
• Parties: John Pena, Plaintiff, v. Hanh Thi Le and Linda Nguyen, Defendants.
• Court: New York Supreme Court

2018 NY Slip Op 34310(U)

John Pena, Plaintiff,
v.
Hanh Thi Le and Linda Nguyen, Defendants.

Index No. 620191/2016E, Motion Sequence No. 002; MD

Supreme Court, Suffolk County

August 9, 2018

Unpublished Opinion

Motion Date: 1/31/18

Submitted: 5/2/18

Attorney for Plaintiff: Ferro, Kuba, Mangano, Sklyar, P.C.

Attorney for Defendants: Adams & Kaplan

PRESENT: WILLIAM B. REBOLINI Justice

HON. WILLIAM B. REBOLINI, J.S.C.

Upon the E-file document list numbered 23 to 44 read on this application by defendants for an order granting them summary judgment pursuant to CPLR 3212 dismissing the complaint; it is

ORDERED that defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d) is denied.

This is an action to recover damages for injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident that occurred on November 24,2015 on State Highway 27, in the Town of Islip, State of New York. The action was commenced by the filing of a summons and verified complaint on December 13, 2016. Issue was joined on January 19, 2017. Plaintiff served his bill of particulars on April 14, 2017. The bill of particulars alleges that, as a result of the accident, plaintiff sustained various serious injuries and conditions, including an L5-S1 disc herniation, disc bulges at LI-2 through L4-5 and right L5 lumbar radiculopathy.

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Defendants now move for summary judgment seeking an order dismissing the complaint on the ground that the objective medical evidence establishes that none of the injuries claimed by plaintiff satisfy the "serious injury" threshold requirements of the No-Fault Law as defined in Insurance Law §5102 (d) and that plaintiffs claim for non-economic loss if barred by §5104 (a) of the Insurance Law. In support of their motion, defendants submit an affirmation of counsel, a copy of the pleadings, verified bill of particulars, transcript of the examination before trial of plaintiff, affirmed report of Dr. Mathew M. Chacko dated August 24, 2017, affirmed report of Dr. Anthony J. Spartaro dated February 25, 2016, affirmed report of Dr. Anthony J. Spartaro dated January 12, 2017, reports of Dr. Jeffrey Perry dated April 27, 2016 and June 29, 2016, and the affirmed report of Dr. Sanjeev Agarwal dated August 15, 2016.

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, 622 N.Y.S.2d 900 [1995]; see also 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 [l 982]; Porcano v Lehman, 255 A.D.2d430, 680N.Y.S.2d 590 [1988];Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [1984], aff''d 64 N.Y.S.2d 681,485 N.Y.S.2d 526 [1984]).

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 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."

In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).

On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler,

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79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Akhtar v Santos, 57 A.D.3d593, 869 N.Y.S.2d 220 [2dDept 2008]). The defendant may satisfy this burden by submitting the plaintiff s deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672,811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d458,802N.Y.S.2d 706 [2d Dept 2005]). 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 [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 [2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [1997]; Torres v Micheletti, 208 A.D.2d 519,616 N.Y.S.2d 1006 [ 1994]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]; Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2005]).

Plaintiffs deposition was held on July 31, 2017, at which he testified that he went to the hospital after the subject accident but only spent about two hour there, that he went for physical therapy treatment within a month of the subject accident, he did not receive any injections for pain, he only received physical therapy which he decided to cease in late 2016, and he missed three days from work following the accident.

Dr. Mathew M. Chacko performed a neurological examination of plaintiff on August 24, 2017 which included range of motion testing measured by visual observation and goniometer. Dr. Chacko's affirmed report indicates that plaintiffs history of cervical, thoracic and lumbar strains were resolved, there were no findings consistent with lumbar radiculopathy or...