Opinion
Index No. 608288/2018 CAL. No. 202000177MV Mot. Seq. Nos. 001 MD002 MD
12-18-2020
MARY PROPHETE, Plaintiff, v. OSCAR A. RUIZ-GARCIA and JOSE ARGUETA, Defendants. OSCAR A. RUIZ-GARCIA and JOSE ARGUETA, Third-Party Plaintiffs, v. MARY PROPHETE and PIERRE PROPHETE, Third-Patty Defendants.
EDWARD R. YOUNG & ASSOCIATES Attorney for Plaintiff. LEWIS JOHS AVALLONE AVILES Attorney for Defendants. DESENA & SWEENEY, ESQS. Attorney for Third-Party Defendants.
Unpublished Opinion
EDWARD R. YOUNG & ASSOCIATES Attorney for Plaintiff.
LEWIS JOHS AVALLONE AVILES Attorney for Defendants.
DESENA & SWEENEY, ESQS. Attorney for Third-Party Defendants.
PRESENT: Hon. JOSEPH A. SANTORELL Justice of the Supreme Court.
SHORT FORM ORDER
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by third-patty defendant Prophete. dated May 20, 2020, and by defendants, dated May 21, 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated September 8, 2020; Replying Affidavits and supporting papers by third-party defendant Prophete. dated September 22. 2020. and by defendants, dated September 22. 2020; Other; it is
ORDERED that the motion (#001) by third-party defendant Pierre Prophete and the motion (#002) by defendants/third-party plaintiffs Oscar Ruiz-Garcia and Jose Argueta hereby are consolidated for the purposes of this determination; and it is
ORDERED that the motion by third-party defendant Pierre Prophete seeking summary judgment dismissing plaintiffs complaint is denied; and it is
ORDERED that the motion by defendants/third-party plaintiffs Oscar Ruiz-Garcia and Jose Argueta seeking summary judgment dismissing plaintiffs complaint is denied.
Plaintiff Mary Prophete commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Great Neck Road and Brefini Street in the Town of Babylon on March 5, 2017. Plaintiff, by her complaint, alleges that she was riding as a front seat passenger in the vehicle operated by her husband, third-party defendant Pierre Prophete, when the vehicle owned by defendant/third-party plaintiff Jose Argueta and operated by defendant/third-party plaintiff Oscar Ruiz-Garcia crossed over the double yellow lines, striking the front passenger side of the Prophete vehicle. By her bill of particulars, plaintiff alleges, among other things, that she sustained various personal injuries as a result of the subject accident, including cervicalgia, cervical radiculopathy, and multilevel disc bulges and herniations of the cervical and lumbar spine. Thereafter, defendants/third-party plaintiffs Oscar Ruiz-Garcia and Jose Argueta commenced a third-party action against Pierre Prophete to recover damages for contribution and indemnification.
Third-party defendant Pierre Prophete now moves for summary judgment on the basis that the injuries plaintiff alleges to have sustained as a result of the subject accident fail to meet the serious injury threshold requirement of Insurance Law S 5102 (d). In support of the motion, third-party defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Craig Ordway and Dr. Jean-Robett Desrouleaux. At the request of third-party defendant Prophete, Dr. Ordway performed an independent orthopedic examination of the plaintiff on November 19, 2019. Also at the request of third-party defendant Prophete, Dr. Desrouleaux conducted an independent neurologic examination of the plaintiff on November 11, 2019. Defendants/third-party plaintiffs Oscar Ruiz-Garcia and Jose Argueta (hereinafter "defendants") also move for summary judgment on the basis that the plaintiffs injuries do not come within the meaning of the serious injury threshold requirement of the Insurance Law. In support of the motion, defendants submit copies of the pleadings, plaintiffs deposition transcript, and the sworn medical report of Dr. Frank Oliveto. At the request of defendants, Dr. Oliveto conducted an independent orthopedic examination of the plaintiff on September 9, 2019.
Plaintiff opposes the motions on the grounds that third-party defendant Prophete and defendants failed to meet their prima facie burden, and that the evidence submitted in opposition demonstrates that she sustained injuries in the "limitations of use" and the "90/180" categories of the Insurance Law due to the subject accident. In opposition to the motion, plaintiff submits her own affidavit, a certified copy of the police accident report, the sworn medical report of Dr. James McGhee, the certified records of Perry Physical Medicine & Rehabilitation, and uncertified copies of her medical records concerning the injuries at issue.
It has long been established that the "legislative intent underlying the No-Fautt 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 Tome 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 430,600 N.Y.S.2d 590 [2d Dept 1988]; Nolan v. Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept], aff'd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law S 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 persons 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."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fautt 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 defendants 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. Pawlewsk,, 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. Strange,, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v. Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Based upon the adduced evidence, third-party defendant Prophete failed to establish a prima facie case that plaintiff did not sustain a serious injury as a result of the subject accident (see Hernandez v. Pagan Corp., 174 A.D.3d 513, 101 N.Y.S.3d637 [2d Dept 2019]; Mercado v. Mendoza, 133 A.D.3d 833, 19 N.Y.S.3d 757 [2d Dept 2015]; Sanclemente v. MTA Bus Co., 116 A.D.3d 688,933 N.Y.S.2d 280 [2d Dept 2014]). Third-party defendant Prophetess examining orthopedics, Dr. Craig Ordway, during an examination of the plaintiff, approximately two years after the subject accident, found significant range of motion limitations in plaintiffs right shoulder despite concluding that "plaintiffs ranges of motion in her spine and right shoulder are within normal limits for a person of her age and body hiabtus" (see Gui Hyun NA v. Five Stars Trucking, Inc., 178 A.D.3d 673, 111 N.Y.S.3d 236 [2d Dept 2019]; Farrah v. Pinos, 103 A.D.3d 831, 959 N.Y.S.2d 741 [2d Dept 2013]; Borras v. Lewis, 79 A.D.3d 1084,913 N.Y.S.2d 577 [2d Dept 2010]; Grant v. Parson Coach, Ltd., 12 A.D.3d 484, 784 N.Y.S.2d 647 [2d Dept 2004]). Third-party defendant Prophetess examining neurologist, Dr. Desrouleaux, who also examined the plaintiff approximately two years after the subject accident, and concluded that the spinal myofascitis that plaintiff sustained as a result of the subject collision was resolved, failed to address plaintiffs allegations regarding her right shoulder clearly listed in her bill of particulars (see Bitterman v. Dennis, 78 A.D.3d 627, 909 N.Y.S.2d 672 [2d Dept 2010]; McMillian v. Naparano, 61 A.D.3d 943,879 N.Y.S.2d 152 [2d Dept 2009] Lopez v. Felton, 60 A.D.3d 822,875 N.Y.S.2d 550 [2d Dept 2009]). Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significant, and varying inferences may be drawn, an issue of credibility for the jury has been presented (see Barrett v. New York City Tr. Auth., 80 A.D.3d 550, 914 N.Y.S.2d 269 [2d Dept 2011]; Jacobs v. Rolon, 76 A.D.3d 905,908 N.Y.S.2d 31 [1st Dept 2010]; Mercado-Ari/v Garcia, 74 A.D.3d 446,902 N.Y.S.2d 72 [1st Dept 2010]). Thus, the reports of third-party defendant Prophetess experts submitted in support of the motion for summary judgment create an issue of fact for the jury to determine (see 0'Shea v. Johnson, 49 A.D.3d 614, 853 N.Y.S.2d 608 [2d Dept 2008]).
Defendants also have failed to meet their prima facie burden to establish that plaintiffs injuries do not come within the meaning of the Insurance Law (see Konstantinov v. MTLR Corp., 106 A.D.3d 1055,966 N.Y.S.2d 183 [2d Dept 2013]; Roc v. Domond, 88 A.D.3d 862, 931 N.Y.S.2d 522 [2d Dept 2011]; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517 [2d Dept 2010]). Defendants' examining orthopedist, Dr.Oliveto, noted significant range of motion limitations in plaintiffs cervical and lumbar regions during his examination of her approximately two years after the subject accident despite concluding that the strains and sprains that plaintiff sustained to her spine were resolved (see Cruz v. Advanced Concrete Leasing Corp., 101 A.D.3d 666, 954 N.Y.S.2d 491 [2d Dept 2012]; Scott v. Gresio, 90 A.D.3d 736,934 N.Y.S.2d 351 [2d Dept 2011]; Nelms v. Khokar, 12 A.D.3d 426, 784 N.Y.S.2d 572 [2d Dept 2004]). Although Dr. Oliveto indicated that plaintiffs limitations are subjective in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the observed limitations in plaintiffs spinal ranges of motion were self-imposed (see Morafates v. Macchia, 127 A.D.3d 1150,7 N.Y.S.3d 546 [2d Dept 2015]; Raguso v. Ubriaco, 97 A.D.3d 560,947 N.Y.S.2d 343 [2d Dept 2012]; Artis v. Lucas, 84 A.D.3d 84?, 921 N.Y.S.2d 910 [2d Dept 2011]).
Since third-party defendant Prophete and defendants failed to meet their prima facie burden, it is unnecessary for the Court to consider whether plaintiffs papers in opposition were sufficient to raise a triable issue of fact (see Werthner v. Lewis, 120 A.D.3d 490,990 N.Y.S.2d 267 [2d Dept 2014]; Keenum v. Atkins, 82 A.D.3d 843, 918 N.Y.S.2d 547 [2d Dept 2011]). Accordingly, third-party defendant Prophetess and defendants' motions for summary judgment dismissing plaintiffs complaint are denied.