Rexon v. Giles
| Decision Date | 30 May 2019 |
| Docket Number | Index 602133/2017E |
| Parties | Briana Rexon, Plaintiff, v. Adrienne Giles, Defendant. Motion Seq. Nos. 001; MD, 002; MG |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: 11/7/18, 1/2/19
Submitted: 3/6/19, 3/6/19
Attorney for Plaintiff: Edelman, Krasin & Jaye, PLLC
Attorney for Defendant: Law Offices of Jennifer S. Adams One Executive Boulevard
Upon the E-file document list numbered 10 to 32 read on the application by defendant for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102[d] and upon the cross-motion for summary judgment in favor of plaintiff on the issue of liability or in the alternative, precluding defendant from offering any evidence at the time of trial for her failure to appear for a deposition; it is
ORDERED that the defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law §5102[d] is denied; and it is further ORDERED that plaintiffs cross-motion for summary judgment on the issue of liability is granted; and it is further
ORDERED that the plaintiffs cross-motion for an order precluding plaintiff from offering any testimony at the time of trial is denied as academic.
This is an action seeking damages for personal injuries sustained by the plaintiff as a result of a motor vehicle accident that occurred on June 14, 2014 at the intersection of Cuba Hill Road and Elwood Road, in the Town of Huntington, County of Suffolk, New York. The action was commenced by the filing of a summons and complaint on February 2, 2017. Issue was joined on July 7, 2017. A preliminary conference was held on September 25, 2017, resulting in an order and plaintiffs deposition was held on March 12, 2018 pursuant thereto. Plaintiff, who was 18 years of age at the time of the accident, alleges in her verified bill of particulars that she sustained permanent consequential limitation of use of a body organ or member, significant limitation of use of body function or symptom and a medically determined injury of impairment of a non-permanent nature which have prevented her from performing substantially all of the material acts which constitute plaintiffs usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. In particular, plaintiff alleges in her verified bill of particulars the following injuries: C6/C7 disc protrusion, cervical radiculopathy, lumbar radiculopathy with cervical disc bulge, contusion of scalp, cervical pain, and back pain. Defendant now moves for summary judgment on the grounds that plaintiff did not sustain a serious injury, as that term is defined by Insurance Law §5102 [d]. In support of the motion, defendant submits a copy of the pleadings, plaintiffs verified bill of particulars, the transcript of plaintiff s deposition, and the independent medical report ("IME") of Dr. Mathew M. Chacko ("Dr. Chacko"). Plaintiff opposes the motion and cross-moves for summary judgment on the issue of liability or in the alternative, for an order precluding defendant from offering any testimony at the time of trial due to her failure to appear for a deposition. Plaintiff submits a copy of the preliminary conference order, her physical therapy records, the MRI report of her cervical spine, the affirmed report of Dr. Aron Rovner ("Dr. Rovner"), an affidavit of Nicholas Vitale, D.P.T, and an affirmation of good faith. Defendant opposes the cross-motion and replies to the opposition papers submitted on her motion. Plaintiff submits a reply to her cross-motion.
Plaintiff testified at her deposition that at the time of the accident, her vehicle was completely stopped on Cuba Hill Road when her vehicle was struck on the front driver's side by defendant's vehicle, which was traveling on Elwood Road. Prior to the accident, plaintiff s vehicle was stopped for a red light behind the line existing in the right turning lane on Cuba Hill Road. Plaintiff further testified that she had observed to her left that defendant's vehicle was traveling on Elwood Road approximately a quarter of a mile away. While the light controlling Cuba Hill Road turned green prior to the impact, plaintiff decided to let defendant's vehicle pass before her before entering the intersection, as it appeared to plaintiff that defendant's vehicle was going to "blow the light" controlling Elwood Road. Plaintiff testified that despite the fact that she had the right of way, defendant's vehicle continued to drive straight ahead, crossing over into the lanes of travel on Cuba Hill road, striking her stopped vehicle. Plaintiff further testified that the force of the impact caused her vehicle to spin 270 degrees pushing it onto a grass shoulder where it collided with a sign, which resulted in her head, left knee, and left ankle making contact with the driver's side door. Plaintiff further testified that she was taken by ambulance to Huntington Hospital complaining of pain to her head, left knee and left ankle. Plaintiff was discharged and instructed to refrain from physical activity and consult with her primary care physician. Plaintiff presented to her primary care physician at NYU Langone and Huntington Medical Group and was referred to Dr. Christopher Frendo, a spine specialist. Plaintiff testified that Dr. Frendo referred her for a cervical MRI and prescribed a course of physical therapy. An MRI of plaintiff s cervical spine was taken on January 22, 2015, which revealed a C6-7 left paracentral disc protrusion with slight mass effect upon the exiting left C7 nerve root. Plaintiff then also began treatment with Dr. Rovner and was evaluated by Dr. Rovner several times between 2014 and 2018. Plaintiff testified that she continued physical therapy until her no-fault insurance denied coverage. Plaintiff further testified that she had been a referee of youth soccer games on weekends for three years prior to the accident but has ceased this activity since the accident, is no longer a member of her taekwondo club, and that she has trouble sleeping, standing, and bending.
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 [1982]; Porcano v. Lehman, 255 A.D.2d 430, 680 N.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 ]). A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Schilling v Labrador, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2d Dept 2011]). 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 plaintiff s 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 Toure v Avis Rent A CarSys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v. Eyler, 79 N.Y.2d 955, 582N.Y.S.2d 990 [1992]; Akhtar v. Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). A defendant can establish that a plaintiffs injuries are not serious within the meaning of Insurance Law § 5102 (d) "by...
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