Turcios-Rodriguez v. Velasquez

• Decision Date: 17 December 2018
• Docket Number: 610266/2016,CALENDAR No. 201702123MV,MOTION SEQ. No. 002 MD
• Citation: 2018 NY Slip Op 34308 (U)
• Parties: WALTER TURCIOS-RODRIGUEZ, Plaintiff, v. JOSE VELASQUEZ, Defendant.
• Court: New York Supreme Court

2018 NY Slip Op 34308(U)

WALTER TURCIOS-RODRIGUEZ, Plaintiff,
v.
JOSE VELASQUEZ, Defendant.

No. 610266/2016, CALENDAR No. 201702123MV, MOTION SEQ. No. 002 MD

Supreme Court, Suffolk County

December 17, 2018

Unpublished Opinion

MOTION DATE: 3/15/18

PLAINTIFF'S ATTORNEY: Cannon & Acosta, LLP

DEFENDANT'S ATTORNEY: Picciano & Scahill, P. C.

PRESENT: HON. PAUL J. BAISLEY, JR., J.S.C.

Paul J. Baisley Jr., Judge

Upon the following papers numbered 1 to 22 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by defendant, dated November 6. 2017; Notice of Cross Motion and supporting papers___: Answering Affidavits and supporting papers by plaintiff, dated March 8, 2018; Replying Affidavits and supporting papers by defendant, dated March 13. 2018: Other___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (motion sequence no. 002) of defendant Jose Velasquez seeking summary judgment dismissing the complaint is denied.

Plaintiff Walter Turcios-Rodriguez commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection between the ramp for the Long Island Expressway's Motor Parkway exit, Exit 55, and Expressway Drive North in the Town of Smithtown on December 12, 2015. By his complaint, plaintiff alleges that the accident occurred when the vehicle operated by defendant Velasquez struck the driver's side of the vehicle operated by plaintiff. By his bill of particulars, plaintiff alleges, among other things, that he sustained various personal injuries as a result of the subject accident, including disc herniations at level L4-L5 and at levels C3 through C5: disc bulge at level L5-S1; a "left wrist tear of fibrocartilage and ligaments"; and cervical and lumbar radiculopathy.

Defendant now moves for summary judgment on the basis that the injuries plaintiff alleges to have sustained as a result of the subject accident do not come within 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 reports of Dr. Gary Kelman and Dr. Marc Katzman. At defendant's request, Dr. Kelman conducted an independent orthopedic examination of plaintiff on August 16, 2017. Also at defendant's

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request, Dr. Katzman performed an independent radiological review of the magnetic resonance imaging ("MRI") films of plaintiff s left wrist, lumbar spine, and cervical spine taken on January 28, 2016, March 3, 2016, and February 25, 2016, respectively. Plaintiff opposes the motion on the grounds that defendant failed to make a. prima facie case that he did not sustain a serious injury as a result of the subject accident, 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. In opposition to the motion, plaintiff submits the sworn medical reports of Dr. William Jones, Dr. Rashid Altafi, Dr. Daniel Shapiro, Dr. Michele Rubin, and Dr. Syeda Shazia Asad.

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 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 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [1984], affd64 N.Y.S.2d 681, 485 N.Y.S.2d 526 [2d Dept 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."

To recover under the "limitations of use" categories, a plaintiff must present objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration (see, Magid v Lincoln Servs. Corp., 60 A.D.3d 1008, 877 N.Y.S.2d 127 [2d Dept 2009]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Cerisier v Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140 [2d Dept 2006]; Meyers v Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773 [2d Dept 2005]). 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 may also suffice (see, Toure v Avis Rent A Car Systems, Inc., supra; Dufel v Green, supra). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see, Licari v Elliott, supra). Further, evidence of pain and discomfort alone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insufficient to sustain a finding of serious injury (see, Scheer v Koubek, 70N.Y.2d 678, 518 N.Y.S.2d 788 [1987]). Unsworn medical reports of a plaintiff's

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examining physician or chiropractor are insufficient to defeat a motion for summary judgment (see, Grasso v Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178 [1991]). However, a plaintiff may rely upon unsworn MRI reports if they have been referred to by a defendant's examining expert (see, Cautions v Vicinanzo, 71 A.D.3d 1224, 895 N.Y.S.2d 600 [3d Dept 2010]; Ayzen v Melendez, 299 A.D.2d 381, 749 N.Y.S.2d 445 [2d Dept 2002]).

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, 582 N.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, 182 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]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519,616 N.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). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see, Burns v Stranger, 31 A.D.3d...