Warner v. Adao

• Decision Date: 27 October 2020
• Docket Number: Index 64376/2018
• Citation: Warner v. Adao, 2020 NY Slip Op 34933(U), Index 64376/2018 (N.Y. Sup. Ct. Oct 27, 2020)
• Parties: KIVA WARNER, Plaintiff, v. DIONE DALUZ ADAO and PATRICK HENRIQUES, Defendants. Sequence No. 1
• Court: New York Supreme Court

2020 NY Slip Op 34933(U)

KIVA WARNER, Plaintiff, v. DIONE DALUZ ADAO and PATRICK HENRIQUES, Defendants.

Sequence No. 1

Index No. 64376/2018

Supreme Court, Westchester County

October 27, 2020

Unpublished Opinion

DECISION & ORDER

HON CHARLES D. WOOD, JUSTICE

The court read NYSCEF documents Numbers 20 through 58, in connection with defendant Dione Daluz Adao's summary judgment motion (Seq 1), dismissing all claims asserted against her on the ground that she has no liability for the accident; and pursuant to Insurance Law §5104; and the cross-motion of defendant Patrick Henriques (Seq 2) on the basis that plaintiff has failed to satisfy the no-fault threshold set forth in §5102(d) and §5104 of the Insurance Law of the State of New York. This is an action for serious personal injuries arising out of an automobile accident that occurred on June 1, 2017, at the intersection of East Sidney Avenue and Rich Avenue, in Westchester County. At the time of the accident, plaintiff Warner was a passenger in co-defendant Henriques' Honda SUV. While the Henriques' vehicle was traveling northbound on Rich Avenue, the Daluz Adao's vehicle was traveling on East Sidney Avenue with the right of way when codefendant Henriques' vehicle impacted defendant Daluz Adao's vehicle on the passengerss side. Plaintiffs airbag did not deploy. After the accident, she was taken by ambulance to Mount Vernon Hospital where she was evaluated and discharged. Plaintiff was diagnosed with muscle spasms and discharged with pain medication. She had follow-up care with a chiropractor and received therapy treatments for approximately 6 months for her neck and lower back. Currently, plaintiff is not receiving any treatment for the neck or lower back.

NOW based upon the foregoing, the motions are decided as follows It is well settled that a proponent of a summary judgment motion must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 686-687 [2d Dept 2007]; Rea v Gallagher, 31 A.D.3d 731 [2d Dept 2007]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the motion papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1986]; Jakabovics v Rosenberg, 49 A.D.3d 695 [2d Dept 2008]; Menzel v Plotkin, 202 A.D.2d 558, 558-559 [2d Dept 1994]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; Khan v Nelson, 68 A.D.3d 1062 [2d Dept 2009]). In deciding a motion for summary judgment, the court is "required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters, 64 A.D.3d 762, 767 [2d Dept 2009]; Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).

A plaintiff claiming personal injury as a result of a motor vehicle accident must first demonstrate a prima facie case that he or she sustained serious injury within the meaning of Insurance Law §5104 (a) (Licari v Elliott, 57 N.Y.2d 230 [1982]). Insurance Law §5104(a) provides: "notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state there shall be no right of recovery for non-economic loss, except in the case of serious injury." Pursuant to Insurance Law §5102(d), serious injury means: 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.

Whether a plaintiff has sustained a serious injury within the meaning of the statute is a threshold legal question within the sole province of the court (Hambsch v New York City Transit Authority, 101 A.D.2d 807 [2d Dept 1987]). Insurance Law §5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" (Toure v Avis Rent-A-Car Systems, Inc., 98 N.Y.2d 345, 350 [2002]).

To recover under the permanent loss of use category, a plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance Inc., 96 N.Y.2d 295, [2001]). For the permanent consequential limitation category of use of a body organ or member or significant limitation of use of a body function or system, 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 (98 N.Y.2d 345). The consequential limitation of use category also requires that the limitation be permanent (Lopez v Senatore, 65 N.Y.2d 1017 [1995]).

A plaintiff claiming a significant limitation of use of a body function must substantiate his or her complaints with competent medical evidence of any range-of-motion limitations that were contemporaneous with the subject accident (Ferraro v Ridge Car Serv., 49 A.D.3d 498 [2d Dept 2008]). 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). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (Perl v Meher, 18 N.Y.3d 208, 218 [2011 ]). The Court of Appeals noted that "in our view, any assessment of the significance of a bodily limitation necessarily requires consideration not only of the extent or degree of the limitation, but of its duration as well." Although Insurance Law §5102(d) does not expressly set forth any temporal requirement for a "significant limitation," there can be no doubt that if a bodily limitation is substantial in degree yet only fleeting in duration, it should not qualify as a "serious injury" under the state (Thrall v City of Syracuse, 60 N.Y.2d 950, revg 96 A.D.2d 715; Partlow v Meehan, 155 A.D.2d 647, 648 [2d Dept 1989]).

To prove the 90/180 day category, an injury must be (1) medically-determined injury or impairment of a nonpermanent nature (2) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment and (3) there must be curtailment of usual activities to a great extent, rather than some slight curtailment (Damas v Valdes, 84 A.D.3d 87, 91 [2d Dept 2011]). Resolution of the issue of whether "serious injury" has been sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (98 N.Y.2d 345). In order to establish serious injury here, the plaintiff must establish that he "has been curtailed from performing his [or her] usual activities to a great extent" (57 N.Y.2d at 236; Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]).

To meet its burden of proof, a plaintiff is required to submit medical evidence based on an initial examination close to the date of the accident (Griffiths v Munoz, 98 A.D.3d 997, [2d Dept 2012]). Equally important, plaintiff must also establish through admissible medical evidence that the injuries sustained are causally related to the accident claimed (Pommells v Perez, 4 N.Y.3d 566 [2005]). A plaintiffs submission must contain a competent statement under oath and must demonstrate that plaintiff sustained at least one of the categories of serious injury as enumerated in Insurance Law §5102(d). Where there has been a gap or cessation of treatment, a plaintiff must offer some reasonable explanation for the gap in treatment or cessation (Neugebauer v Gill, 19 A.D.3d 567 [2d Dept. 2005]). While plaintiff is not required to submit contemporaneous range of motion testing, he or she is required to submit competent medical evidence demonstrating that he sustained range of motion limitations contemporaneously with the accident (Perl v Meher, 18 N.Y.3d 208, 218 [2011]). The absence of a contemporaneous medical report invites speculation as to causation (Griffiths v Munoz, 98 A.D.3d at 999). Even if plaintiff s doctor does not specifically address the findings in the reports submitted by defendants that the abnormalities in the tested areas were degenerative, rather than traumatic, the findings of the plaintiffs doctor that the injuries were indeed traumatic and were causally related to the collision, is sufficient as it implicitly addressed the defendants' contention that the injuries were degenerative (Fraser-Baptiste v New York City Transit Authority, 81...