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N.G. an infant BY her mother and natural guardian Sandra MARQUEZ and Sandra Marquez, individually, Plaintiffs, v. Warren HARRIS, Defendant.
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1
Answering Affidavits — Exhibits (Memo) 2
Replying Affidavits (Reply Memo) 3
This personal injury action arises from a motor vehicle accident that occurred on March 20, 2012 on Clarkson Avenue, at or near its intersection with East 96th Street, in Brooklyn, New York. N.G. (infant plaintiff), a 16 year-old pedestrian at the time of the accident, was struck by the vehicle owned and operated by Warren Harris (defendant). As a result of the first impact, infant plaintiff fell down on her right side at which point defendant's vehicle allegedly stuck infant plaintiff a second time causing injuries to her face. Infant plaintiff alleges that she hit her chin and was bleeding from her nose. Infant plaintiff, by her mother and natural guardian Sandra Marquez (Marquez) and Marquez, individually (collectively, plaintiffs) commenced this action by a Summons and Verified Complaint on June 9, 2013, to recover damages for the injuries sustained by the infant plaintiff. Marquez alleges a cause of action for loss of companionship. Now before the Court is a motion by defendant for summary judgment, pursuant to CPLR 3212, seeking to dismiss the Complaint on the grounds that the injuries claimed by infant plaintiff did not satisfy the “serious injury” threshold requirement of New York Insurance Law §§ 5102(d) and 5104. Plaintiffs oppose the motion and defendant submits a reply.
SERIOUS INJURY STANDARD
A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine “serious injury” categories as set forth in Insurance Law § 5102(d) (see Licari v. Elliott, 57 NY2d 230  ). Insurance Law § 5102(d) defines a “serious injury” as:
“ a personal injury which results in death;
 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 [the 90/180 category]”
The Court must determine whether, as a matter of law, plaintiff has sustained a “serious injury” under one or more of the claimed categories. “Serious injury” is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104[a] ). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to “ ‘weed out frivolous claims and limit recovery to significant injuries’ ” (Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 , quoting Dufel v. Green, 84 NY2d 795, 798  ). As such, to satisfy the statutory threshold, plaintiff is required to submit competent and objective medical evidence of his or her injuries (id. at 350). Plaintiff's subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).
BURDEN OF PROOF ON SUMMARY JUDGMENT
The issue of whether a claimed injury falls within the statutory definition of “serious injury” is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). Where a defendant is the movant, the defendant bears the initial burden of establishing, by submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a “serious injury” as defined in section 5102(d) (see Toure, 98 NY2d at 352; Gaddy v. Eyler, 79 NY2d 955, 956-57  ). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question as to whether a serious injury exists (see Franchini v. Palmieri, 1 NY3d 536, 537 ; Rubensccastro v. Alfaro, 29 AD3d 436, 437 [1st Dept 2006] ).
“In cases such as the present one, a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim” (Grossman v. Wright, 268 AD2d 79, 83-84 [2d Dept 2000] ). “This established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law” (id.; see Gaddy v. Eyler, 79 NY2d 955  ). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at 84). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id.; Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999] ).
The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words “substantially all” mean that the person has been “curtailed from performing his usual activities to a great extent rather than some slight curtailment” (id.).
In support of his motion for summary judgment, defendant submits, inter alia, a copy of the pleadings; a copy of infant plaintiff's Examination Before Trial (EBT) transcript, dated April 18, 2014; an affirmed independent dental examination report from Dr. Robert Madison, D.D.S., dated November 11, 2014 (Dr. Madison's report); and an affirmed report from Dr. Edward A. Toriello, M.D., an orthopedic surgeon, dated November 26, 2014 (Dr. Toriello's report).
In opposition to defendant's motion, plaintiffs submit, inter alia, infant plaintiff's sworn affidavit, dated September 25, 2015; an affidavit from Dr. Kurt Hellinger, D.C., a licensed chiropractor, dated November 13, 2015 (Dr. Hellinger's affidavit); and, an affirmation from Dr. Linda Carr, M.D., dated November 12, 2015, together with a final MRI report of infant plaintiff's cervical spine.
After giving consideration to the foregoing papers, the Court finds that defendant has sustained his initial burden of establishing his prima facie case that infant plaintiff did not suffer orthodontic related “serious injury” within the meaning of Insurance Law § 5102[d] as a result of the accident on March 20, 2012 (see Jean-Pierre v. Park, 138 AD3d 1064 [2d Dept 2016]; Olagunju v. Anna & Diane Cab Corp., 139 AD3d 924 [2d Dept 2016] ) based on the submission of Dr. Madison's report. Specifically, in his report, Dr. Madison concluded that his clinical evaluation of infant plaintiff's upper four incisors (No. 7,8, 9, and 10) revealed that the incisors were not lost, but were still in infant plaintiff's mouth with no mobility present (see Notice of Motion, exhibit E). Dr. Madison further concluded that infant plaintiff's Bill of Particulars (BP) erroneously asserted that root canal therapy was performed on the upper four incisors as Dr. Madison's clinical evaluation revealed that infant plaintiff did not receive root canal therapy on the four upper incisors (see id.). Dr. Madison also concluded with a reasonable degree of dental certainty that infant plaintiff did not suffer a dental disability (see id.).
The Court finds that infant plaintiff, in opposition, failed to raise a triable issue of material fact with regard to whether she sustained a serious orthodontic injury as a result of the accident (see e.g. Villalta v. Schecter, 273 AD2d 299 [2d Dept 2000]; D'Alba, 33 AD3d at 651; Piperis v. Wan, 49 AD3d 840 [2d Dept 2008]; Sapienza v. Ruggiero, 57 AD3d 643 [2d Dept 2008] ). In fact, a search of the complete record before this Court, as well as the County Clerk's minutes, reveals that counsel for infant plaintiff did not oppose that portion of defendant's motion seeking to dismiss infant plaintiff's claims of the alleged dental injuries. Therefore, the portion of defendant's motion for summary judgment on the grounds that infant plaintiff did not sustained a serious orthodontic injury as a result of the accident is granted and those claim injuries are dismissed.
However, the Court finds that the parties submitted conflicting medical reports, which raise triable issues of fact as to whether infant plaintiff sustained a serious injury to her cervical and lumbar spine within the meaning of Insurance Law § 5102(d) (see Pommells v. Perez, 4 NY3d 566, 576 ; see also Wilcoxen v. Palladino, 122 AD3d 727, 728 [2d Dept 2014] [finding that “in light of the conflict expert medical opinions submitted by the parties, the Supreme Court properly denied the defendants' motion for summary judgement dismissing the complaint”]; Garcia v. Long Island MTA, 2 AD3d 675, 675 [2d Dept 2013] ). Specifically, defendant submitted Dr. Toriello's report wherein Dr. Toriello stated that he used an objective test to measure infant plaintiff's range of motion which revealed that range of motion to her cervical and lumbar spine were all within the normal parameters (see Notice of Motion, exhibit F, at 2-3). Dr. Toriello further opined that the medical evidence revealed that “no objective evidence of orthopedic disability” (id. at 4).
In opposition, infant plaintiff submits Dr. Hellinger's affidavit, wherein Dr. Hellinger states that on March 31, 2015 he used an objective test to measure range of motion to plaintiff's cervical and lumbar spine which revealed significant range of deficiencies to regions of infant plaintiff's cervical spine: [“extension: 25 degrees out of a normal of 45 degrees; right rotation: 40 degrees out of a normal 80 degrees”], and lumbar spine: [flexion: 40 degrees out of a normal 90 degrees](see Aff. in Opp., exhibit B). Dr. Hellinger further opined with a reasonable degree of chiropractic certainty that the injuries to infant plaintiff's cervical and lumbar spine are a direct result of the motor vehicle knockdown on March 20, 2012 (id. at 5). Dr. Hellinger also concluded that infant plaintiff is severely disabled in her ability to use her spine, as a direct result of the accident (id.). Therefore, given the conflicting expert opinions, the Court denies the portion of defendant's motion seeking to dismiss infant plaintiff's claims of serious injury to her cervical and lumbar spine.
However, the Court finds that defendant submitted evidence demonstrating prima facie that plaintiff did not sustain a serious injury under the 90/180 category. In the absence of medical proof, a defendant can establish the nonexistence of a serious injury under the 90/180 category by citing to evidence, such as plaintiff's own testimony, demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting his/her usual and customary daily activities for the prescribed period (see Copeland v. Kasalica, 6 AD3d 253, 254 [1st Dept 2004] ). Here, infant plaintiff's own testimony establishes that there is no serious injury under 90/180 category as she testified that after the accident she was confined to bed for three weeks (see Notice of Motion, exhibit D, Gomez Tr at 62). Infant plaintiff also testified that as a result of the accident, she could no longer swim, is unable to creatively write, cannot listen to music with her headphones on and that she cannot sit or stand for long periods of time (id. at 67-68). The Court finds infant plaintiff's allegation that she was forced to curtail recreational and household activities insufficient to demonstrate that she had sustained a medically-determined injury or impairment which prevented her from performing substantially all of the material acts constituting her normal daily activities for not less than 90 of the first 180 days following the accident (see McFarlane v. Klein, 131 AD3d 1139 [2d Dept 2015]; Lanzarone v. Goldman, 80 AD3d 667, 669 [2d Dept 2011]; Jean v. Labin-Natochenny; 77 AD3d 623 [2d Dept 2010]; Lauretta v. County of Suffolk, 273 AD2d 204 [2d Dept 2000] ). In opposition, infant plaintiff fails to raise a triable issue of fact as to the 90/180 category. Therefore, the branch of defendant's motion to dismiss plaintiff's claims under the 90/180 category is granted.
Accordingly it is hereby,
ORDERED that defendant's motion for summary judgment dismissing the Complaint on the issue of serious injury as to her cervical and lumbar spine is denied; and it is further,
ORDERED that the portion of defendant's motion to dismiss infant plaintiff's claims of dental injuries and her claims under the 90/180 category of New York Insurance Law § 5102(d) is granted and those claims are dismissed; and it is further,
ORDERED that counsel for defendant is directed to serve a copy of this Order with Notice of Entry upon defendant and the County Clerk who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Paul Wooten, J.
Response sent, thank you
Docket No: 11165/2013
Decided: April 24, 2018
Court: Supreme Court, Kings County, New York.
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