Miguel A. Kercado, Plaintiff, v. Francisco J. Placencio-Blanco, Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, defendant's motion for summary judgment is determined as follows:

Plaintiff Miguel A. Kercado commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident on November 8, 2024. Plaintiff's bill of particulars avers injuries to, among other things, his cervical spine, thoracic spine, and lumbar spine.

Motion for Summary Judgment

Defendant moves for an order, pursuant to CPLR 3212, for summary judgment dismissing the complaint on the basis that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under the categories of (i) permanent loss of use of a body organ, member, function or system, (ii) permanent consequential limitation of use of a body organ or member, (iii) significant limitation of use of a body function or system, or (iv) a medically determined injury or impairment of a non-permanent nature which prevents plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (90/180 category).

"Insurance Law § 5104 provides that there shall be no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle in the state, except in the case of serious injury or for basic economic loss" (Damas v Valdes, 84 AD3d 87, 91 [2d Dept 2011]; see Insurance Law § 5104). The defendant has the burden of establishing prima facie that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Jong Cheol Yang v Grayline NY Tours, 186 AD3d 1501 [2d Dept 2020]). "[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" (Nunez v Teel, 162 AD3d 1058, 1059 [2d Dept 2018], quoting Grossman v Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). By submitting the affidavits or affirmations of medical experts, who, through objective medical testing, conclude that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d), a defendant can meet his or her prima facie burden (see Fils-Aime v Hossan, 208 AD3d 559, 560 [2d Dept 2022]). Upon defendant meeting said burden, plaintiff must demonstrate, through sufficient admissible evidence, a triable issue of fact (see Licari v Elliott, 57 NY2d 230, 235 [1982]).

In support of his motion, defendant submits, among other things, the verified bill of particulars, plaintiff's deposition transcript, the independent medical examination report of Howard A. Kiernan, M.D. (Dr. Kiernan), and the MRI report of David Well, M.D. (Dr. Well). Dr. Kiernan, an orthopedic physician, examined plaintiff on January 5, 2026, approximately fourteen months after the accident. Using a goniometer and compared to normal values, Dr. Kiernan's examination of plaintiff's cervical spine, thoracic spine, lumbar spine, and hips revealed full range of motion, and all orthopedic tests performed were negative. Dr. Kiernan concluded that plaintiff did not sustain any significant or permanent injury as a result of the accident, that there are no objective clinical findings indicative of a present disability or functional impairment, and that plaintiff is able to return to full duty work without restrictions. Dr. Well reviewed the MRI films of plaintiff's cervical and lumbar spine performed on December 3, 2024, and concluded that said films reveal pre-existing degenerative disc disease, that the disc herniations seen at C5-6 and L4-5 are likely chronic in nature, and that there are no definitive changes causally related to the accident. Defendant also submits plaintiff's deposition testimony of November 13, 2025, wherein plaintiff testified that the accident caused his head to hit the back of the seat, that he drove himself from the scene of the accident in his vehicle, did not visit an emergency room, missed only four to five days from his employment as a result of the accident, and that he is still working but with very light duties. Upon these submissions, defendant meets his prima facie burden of demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident. The burden accordingly shifts to plaintiff to demonstrate, through sufficient admissible evidence, a triable issue of fact.

In opposition, plaintiff submits the affirmations of Richard Pashayan, D.C. (Dr. Pashayan), his treating chiropractor, David Shabtian, D.O. (Dr. Shabtian), the surgeon who performed plaintiff's lumbar discectomy, James Liguori, D.O. (Dr. Liguori), a neurologist, and David R. Payne, M.D. (Dr. Payne), a radiologist. Dr. Pashayan first examined plaintiff on November 11, 2024, three days after the accident. Using a goniometer and compared to normal values, Dr. Pashayan's examination of plaintiff's cervical and lumbar spine revealed limitations in range of motion. Dr. Pashayan, Dr. Shabtian, and Dr. Liguori each re-examined plaintiff in March 2026 and reported limitations in range of motion in plaintiff's cervical and lumbar spine. Each also expressed awareness of plaintiff's prior accidents of October 26, 2022 and April 21, 2024, and opined that plaintiff's injuries were exacerbated by and causally related to the November 8, 2024 accident. Each further opined that said injuries will continue to inhibit plaintiff's ability to carry out his normal activities of daily living. Dr. Pashayan and Dr. Liguori opined that plaintiff's injuries and limitations are significant and permanent in nature, while Dr. Shabtian opined that plaintiff will be left with a disability regarding the function of cervical and lumbar spine. Dr. Payne, in comparing plaintiff's December 2024 lumbar spine MRI with the prior MRI taken on November 7, 2022, reported the development of a superior extrusion component of the L4-5 herniation, which conflicts with Dr. Well's opinion that the L4-5 herniation is chronic and degenerative in origin.

Where, as here, there are conflicting opinions of experts, such conflicts may not be resolved on a motion for summary judgment (see Scully v Stephens, 214 AD3d 834, 835 [2d Dept 2023]; Macancela v Wyckoff Hgts. Med. Ctr., 176 AD3d 795, 798 [2d Dept 2019]; Tolpygina v Teper, 44 AD3d 747, 747 [2d Dept 2007]). Since plaintiff has raised a triable issue of fact as to whether he sustained a serious injury under at least one category of Insurance Law § 5102 (d), it is unnecessary to address the remaining categories (see Linton v Nawaz, 14 NY3d 821 [2010]). Accordingly, defendant's motion for summary judgment is denied.

False Material Statements in Defendant's Attorney Affirmation

The Court is now constrained to address material inaccuracies in the attorney affirmation submitted in support of defendant's motion (NYSCEF Doc No. 15). Under the Rules of the Chief Administrative Judge, an attorney who signs a paper certifies that, to the best of the attorney's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the paper and the contentions therein are not frivolous, and do not assert material factual statements that are false (see 22 NYCRR 130-1.1 [c] [3]; 130-1.1a [b]). Courts utilize and expend significant time and resources in carefully reviewing all of the parties' submissions.

Upon review of defendant's attorney affirmation, paragraph 11 of said affirmation avers that Dr. Kiernan's examination of plaintiff's lumbar spine "reveals flexion to 40 degrees (60 degrees normal), extension to 10 degrees (25 degrees normal), right lateral flexion to 20 degrees (25 degrees normal) and left lateral flexion to 20 degrees (25 degrees normal)." However, Dr. Kiernan's report (NYSCEF Doc No. 20) contains no such findings, as his examination revealed full range of motion. Further, defendant's counsel avers, in paragraph 15, that Dr. Kiernan "was clear that although [plaintiff] did exhibit some decrease in ROM in her neck and lower back, it should be noted that that [sic] they are voluntary moves which are under control of the individual and are not a simply objective finding." No such statement, and no such findings of decreased range of motion, appear anywhere in Dr. Kiernan's report. Defendant's counsel also recites, in paragraphs 12 and 13, thoracic and hip range of motion values that differ from those recorded in the medical report.

Submission of papers containing false material statements, filed without verification against the actual record, may warrant sanctions upon both the drafting attorney and their law firm, as sanctions serve to deter "future frivolous conduct not only by the particular parties, but also by the [b]ar at large" (Landberg v City of New York, ___ AD3d ___, 2026 NY Slip Op 03935 [2d Dept 2026] [internal quotation marks omitted]). The danger posed by such misstatements, as with GenAI hallucinations, lies in their inaccuracy and their tendency to masquerade as genuine statements, resulting in a waste of time and money to the opposing party in exposing the deception and an unnecessary burden on the court's resources (see Julien v Arthur, ___AD3d___, 2026 NY Slip Op 03308, *2 [2d Dept 2026]). Here, the Court unnecessarily expended considerable time reconciling counsel's assertions against the submissions before the discrepancies became apparent.

Counsel is strictly admonished that all affirmations, affidavits, and submissions to the court shall be accurate and truthful. Submitting false, misleading, or inaccurate affirmations subverts the administration of justice, violates the Rules of Professional Conduct, and warrants the imposition, upon counsel, counsel's law firm, or both, of costs, sanctions, and/or referral to the disciplinary committee (see 22 NYCRR 130-1.1 [a]). In its exercise of judicial restraint, premised upon a good faith expectation that such admonition will suffice to curtail the future submission of such papers in this or other proceeding, this Court declines to schedule a hearing for sanctions at this time.

Any requested relief and/or remaining contentions not expressly addressed herein have nonetheless been considered and are hereby expressly rejected.

Conclusion

For all the foregoing reasons, it is hereby

ORDERED that defendant's motion for summary judgment is denied; and it is further

ORDERED that plaintiff shall serve a copy of this Order with Notice of Entry upon defendant within twenty (20) days from the date of entry.

This constitutes the Decision and Order of the Court.

Dated: November 2, 2026

Jamaica, New York

Hon. Karen Lin

Justice of the Supreme Court

Karen Lin, J.