Sant v. Iglesias
| Decision Date | 07 December 2020 |
| Docket Number | 002; MG,Motion Seq. Nos. 001; MG,Index No. 607733/2018 |
| Citation | 2020 NY Slip Op 35158 (U) |
| Parties | MARIA SANT ANA SAENZ LAINEZ, Plaintiff, v. ARNELGE A. IGLESIAS, ASMEL IGLESIAS, VICTOR GARCIA AND DIANA GARCIA-DIAZ, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Motion R/D: 03/06/2020
Submission Date: 07/10/2020
Case Disposed: Yes
Attorney for Plaintiff: Law Offices of Robert S. Fader, P.C.
Attorney for Defendants Victor Garcia and Diana Garcia-Diaz Gentile & Tambasco
Attorney for Defendants Arnelge A. Iglesias and Asmel Iglesias: Martyn & Martyn
Present: Hon. Denise F. Molia, Justice
Upon the E-file document list numbered 12 to 42 read on the application of defendants Arnelge A. Iglesias and Asmel Iglesias and defendants Victor Garcia and Diana Garcia-Diaz for an Order pursuant to CPLR 3212, granting defendants Arnelge A. Iglesias and Asmel Iglesias and defendants Victor Garcia and Diana Garcia-Diaz summary judgment dismissing the plaintiffs complaint and any cross-claims on the grounds that plaintiff Maria Santana Saenz Lainez did not sustain a serious injury under Insurance Law § 5102 (d); it is
ORDERED that the motion by defendants Arnelge A. Iglesias and Asmel Iglesias for an Order pursuant to CPLR 3212, granting them summary judgment dismissing the plaintiff's complaint and any cross-claims on the grounds that plaintiff Maria Santana Saenz Lainez did not sustain a serious injury under Insurance Law § 5102 (d) is GRANTED for the reasons set forth herein; and it is further
ORDERED that the motion by defendants Victor Garcia and Diana Garcia-Diaz for an Order pursuant to CPLR 3212, granting them summary judgment dismissing the plaintiff's complaint on the grounds that plaintiff Maria Santana Saenz Lainez did not sustain a serious injury under Insurance Law § 5102 (d) is GRANTED for the reasons set forth herein.
By the filing of a summons and complaint on April 23, 2018, plaintiff Maria Santana Saenz Lainez ("plaintiff') commenced this personal injury action arising from a motor vehicle accident alleged to have occurred on April 26, 2017 on Candlewood Road, at or near its intersection with Commack Road, in the Town of Islip, County of Suffolk, and State of New York. Issue was joined by defendants Victor Garcia and Diane E. Garcia-Diaz ("the Garcia defendants") on June 13,2018 through the service of an answer with cross-claims. Defendants Arnelge A. Iglesias and Asmel Iglesias (the "Iglesias defendants") served their answer on July 27,2018 and their amended answer on the same date.
Plaintiff served her bill of particulars dated July 30, 2018 and therein she alleges that she sustained various personal injuries, including the following: C6/7 posterior disc herniation in the midline right paramedian, causing impression on the ventral cord margin, central spinal stenosis, C4/5 posterior focal disc herniation, extending focally into the left anterior recess impressing upon the C5 ventral nerve root, C5/6 midline posterior disc herniation impressing upon the thecal sac and encroaching into the left C6 nerve root, C3/4 midline focal posterior disc herniation and radial annular tear with impression on the ventral thecal sac, generalized straightening of the cervical lordosis through C6 evidencing muscular spasm, L4/5 posterior disc bulging impressing on the ventral thecal sac impinging upon the left L5 root with left lateral recess stenosis, L5/S1 2mm retrolisthesis with a broad posterior disc herniation and midline radial annular tear, L3/4 diffuse posterior disc bulge impressing upon the ventral thecal sac with peripheral bulging extending eccentrically into the left most right neural foramen, L1/2 and L2/3 posterior left peripheral subligamentous disc bulges, posterior paraspinal fascitis, left convexity to lumbar curvature and kyphotic angulation with apex at L1/2, severe headaches, constant left-sided neck pain and associated radicular pain into the left upper extremity, constant debilitating mid-back pain, lower back pain radiating to the lower extremities, difficulty walking, bending, lifting, and moving upward from sitting positions, right L/4 radiculopathy, and bilateral median nerve neuropathy. Plaintiff alleges she was confined to her bed and home for several weeks following the accident as well as intermittently as a result of the accident.
The Iglesias and Garcia defendants now move for summary judgment dismissing the complaint on the grounds that plaintiff has not sustained a serious injury under Insurance Law § 5102 (d). In support of their motion, the Iglesias defendants submit, inter alia, an attorney affirmation, a copy of the pleadings, verified bill of particulars, the transcript of plaintiff's examination before trial, and the affirmed report of Dr. Richard Weiss (the "IME report"). The Garcia defendants rely upon the arguments raised by the iglesias defendants and submit an attorney affirmation, a copy of the pleadings, and the motion papers of the Iglesias defendants. Plaintiff opposes the motions and submits, inter alia, an attorney affirmation, her sworn affidavit, the affirmed report of Dr. Neal H. Frauwirth, a copy of plaintiff's medical records from Southside Hospital emergency room, Community Chiropractic Care, and Long Island Spine Specialists, the MRI reports of plaintiff's cervical and lumbar spines, the medical report of Dr. Jasjit Singh, and the affirmation of Dr. Steven Winter, a board certified radiologist. Plaintiff argues that defendants have not met their prima facie burden and that, in any event, issues of fact preclude granting defendants summary judgment. The Iglesias defendants and Garcia defendants reply by attorney affirmations.
Plaintiff's examination before trial was held on October 3, 2019. Thereat, she testified to being a passenger in her boyfriend's car at the time of the accident, that she was taken from the scene by ambulance to Southside Hospital, she was given a neck collar, released the same day, and confined to her bed and home for approximately four months, as her back would hurt when she walked. Plaintiff further testified that she received therapy for pain in her neck and back at Community Chiropractic Care three times a week for approximately six months, which was reduced to twice a week. Plaintiff further testified that she stopped receiving treatment around February or March of 2019. Plaintiff testified she was referred to a neurologist whom she saw "a few times" and she was sent by the neurologist for MRIs of her neck and back. Plaintiff was recommended for injection treatments in her back and surgery for her dislocated disc. Plaintiff testified that she refused the injections for fear of same and she did not pursue surgery. Plaintiff testified that she was not advised by any doctors that she was required to stay home for four months and when she presented for her physical therapy appointments, she did not require much assistance to walk to the vehicle or the physical therapy location. Plaintiff further testified that she was not working at the time of the accident but had since been working at a medicine factory and has not missed any days of work due to her alleged injuries. Plaintiff testified that prior to the accident, she did house work and played soccer with her nephew and that since the accident she cannot cook as she did previously and has difficulty going back and forth with her children as well as bending down and lifting heavy things. Plaintiff also testified she is unable to run since the accident.
Plaintiff was examined by Dr. Weiss on November 7, 2019 on behalf of the defendants. According to the IME report, Dr. Weiss diagnosed plaintiff with resolved cervical, thoracic, and lumbar spine sprain/strain, resolved right and left hand/wrist sprain/ strain, and resolved bilateral knee sprain/strain. Dr. Weiss' examination of plaintiffs cervical, thoracic, and lumbar spines revealed no spasms, tenderness to palpation, full range of motion, and no impingement sign or crepitus noted at the joints. Dr. Weiss performed range of motion tests using a goniometer, with the normal ranges of motion pursuant to the American Medical Association "Guides To The Evaluation Of Permanent Impairment", Fifth Edition. According to the IME report, the cervical compression test was negative and the straight leg raise was negative. Dr. Weiss opines in his report that there is no disability and that plaintiff is capable of working and performing all activities of daily living without restrictions or limitations.
Under New York law, there is no right of recovery for non-economic loss in an action arising out of negligence in the use or operation of a motor vehicle in the absence of evidentiary proof of a "serious injury" as that term is defined in Insurance Law § 5102 (d). It has long-been established that the legislative intent underlying the No-Fault Law, as codified in Article 51 of the Insurance 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, 746 N.Y.S.2d 865 [2002]). 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], 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,...
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