Opinion
Index 16-617423
04-03-2019
RICHARD BOINE, Plaintiff, v. LUIS ANTONIO AREVALO and ACT ENTERPRISES, INC., Defendants. CAL. No. 18-01226MV Mot. Seq. No. 001 - MD
THE HARRISON LAW GROUP, P.C. Attorney for Plaintiff PICCIANO &SCAHILL, P.C. Attorney for Defendants
Unpublished Opinion
MOTION DATE 9-13-18
ADJ. DATE 10-4-18
THE HARRISON LAW GROUP, P.C.
Attorney for Plaintiff
PICCIANO &SCAHILL, P.C.
Attorney for Defendants
SHORT FORM ORDER
HON. JOSEPH A. SANTORELLI, J.S.C.
Upon the following papers numbered 1 to 23 read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers 1-13; Notice of Cross Motion and supporting papers ____; Answering Affidavits and supporting papers 14-21; Replying Affidavits and supporting papers 22-23; Other ____; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendants Luis Arevalo and ACT Enterprises, Inc., seeking summary judgment dismissing the complaint is denied.
Plaintiff Richard Boine commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Joshuas Path and Nostrand Avenue in the Town of Islip on February 14, 2016. It is alleged that the accident occurred when the vehicle owned and operated by plaintiff struck the entire right passenger side of the vehicle owned by defendant ACT Enterprises and operated by defendant Luis Arevalo when it attempted to make a left turn onto Nostrand Avenue across the path of plaintiff s vehicle. At the time of the accident, plaintiff s vehicle was traveling southbound and defendants' vehicle was traveling northbound on Joshuas Path. By his bill of particulars, plaintiff alleges that he sustained various personal injuries as a result of the subject collision, including a tear of the medial and lateral meniscus of the right knee; right knee internal derangement; partial tear of the rotator cuff of the right shoulder; and multilevel disc bulges and herniations of the cervical and lumbar spine. Plaintiff further alleges that he was incapacitated from his employment for approximately one week immediately following the accident, and then for approximately two months following the right knee surgery he underwent as a result of the injuries he sustained in the subject accident.
Defendants now move for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident fail to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendants submit copies of the pleadings, plaintiffs deposition transcript, the sworn medical reports of Dr. Mathew Chacko and Dr. David Weissberg. At defendants' request, Dr. Chacko conducted an independent neurological examination of plaintiff on March 8, 2018. Also at defendants' request, Dr. Weissberg conducted an independent orthopedic examination of plaintiff on April 2, 2018. Plaintiff opposes the motion on the grounds that defendants failed to meet their prima facie burden, 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 as a result of the subject accident. In opposition to the motion, plaintiff submits his own affidavit, unsworn copies of his medical reports concerning the injuries at issue, and the sworn medical reports of Dr. Harold Tice, Dr. Marc Katzman, and Dr. Christopher Durant.
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 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 [2d Dept 1984], aff'd 64 N.Y.2d 681, 485 N.Y.S.2d 526 [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."
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).
Based upon the adduced evidence, defendants established, prima facie, their entitlement to judgment as a matter of law on the ground that the injuries allegedly sustained by plaintiff as a result of the subject collision failed to meet the serious injury threshold requirement of the Insurance Law (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Al-Khilwei v Truman, 82 A.D.3d 1021, 919 N.Y.S.2d 361 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]; Pierson v Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726 [2d Dept 2010]). Defendants' examining orthopedist, Dr. Weissberg, states in his medical report that an examination of plaintiff reveals he has full range of motion in his spine, shoulders, and knees. Dr. Weissberg states that no spasms or tenderness were detected upon palpation of plaintiffs paraspinal muscles. He states the examination of plaintiff showed that there are no motor, sensory or reflex deficiencies, that his muscle strength is 5/5, that he has a nonantalgic gait, and that the impingement and apprehension signs are negative. Dr. Weissberg opines that the strains plaintiff sustained to his spine, right shoulder, and right knee have resolved, and that the ongoing symptoms experienced by plaintiff are due to pre-existing conditions, which were sustained during his past career as a professional mixed martial artist and body builder. Dr. Weissberg further states that plaintiff does not require any additional orthopedic care or treatment presently, and that he is capable of performing all activities of his usual and customary activities and working without restrictions.
Similarly, defendants' examining neurologist, Dr. Chacko, states that an examination of plaintiff reveals he has full range of motion in his spine, that there was no tenderness or spasm upon palpation of the paraspinal muscles, that he walks with a normal gait, and that there was no sign of cerebellar dysfunction. Dr. Chacko states that plaintiff reported pressure in his back and a stretching sensation in his thighs at 60 degrees out of 90 degrees during the straight leg raising test, bilaterally, but that there was no radiating back pain reported or observed. Dr. Chacko opines that the strains plaintiff sustained to his spine have resolved, that plaintiff does not have any focal neurological deficits, and that there is no evidence of cervical, thoracic or lumbar radiculopathy or myelopathy. Dr. Chacko further states that there is no objective evidence that plaintiff has any neurological disabilities or limitations, or that he is unable to perform his normal daily living activities, and that there is no objective evidence consistent with any neurological permanency or residuals casually related to the subject accident.
Furthermore, plaintiffs deposition testimony demonstrates that "substantially all" of his daily activities were not curtailed for the first 90 out 180 days following the subject accident (see e.g. Karpinos v Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383 [2d Dept 2011]; Kolodziej v Savarese. 88 A.D.3d 851, 931 N.Y.S.2d 509 [2d Dept 2011]; Bamundo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]). Plaintiff testified at an examination before trial that prior to the accident he works as a mixed martial arts instructor in New Jersey, that following the accident he missed approximately one week from his employment, and that upon his return to work he worked his normal shift, but he was only allowed to teach "beginner bag trainer" class, because he was unable to demonstrate the moves and techniques required to teach his regular classes. Plaintiff testified that he missed an additional week from his employment after his surgery on his right knee on April 9, 2016, and that when he returned to work after the surgery "his boss allowed him to come into work a little bit later, nothing much, and he only performed managerial work. He testified that he received chiropractic treatment for the injuries he sustained in the accident for approximately six months, that he ceased all treatments for injuries related to the accident after his No-Fault benefits were terminated approximately six month after the accident, and that he did not have private medical insurance. He further testified that he left his employment as a mixed martial arts instructor in July 2016, and that he began working part-time as a custodian for a school district in April 2017, although he accepted the position in July 2016. Lastly, plaintiff testified that he previously had surgery on his right knee when he was in high school after he tore his meniscus while wrestling, and that he injured his right bicep in June 2015 when he executed a punch incorrectly during mixed martial arts training.
Defendants, having made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of the statute, shifted the burden to plaintiff to come forward with evidence to overcome defendants' submissions by demonstrating the existence of a triable issue of fact that a serious injury was sustained (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important...), relates to medical significance and 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" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided 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 (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
In opposition to defendants' prima facie showing, plaintiff has raised a triable issue of fact as to whether he sustained a serious injury to his spine, right shoulder, and right knee within the meaning of Insurance Law § 5102 (d) (see Levin v Khan, 73 A.D.3d 991, 904 N.Y.S.2d 73 [2d Dept 2010]; Nisanov v Kiriyenko, 66 A.D.3d 655, 885 N.Y.S.2d 633 [2d Dept 2009]; Shtesl v Kokoros, 56 A.D.3d 544, 867 N.Y.S.2d 492 [2d Dept 2008]). Plaintiff primarily relies upon the affirmed medical report of his treating orthopedist, Dr. Christopher Durant, in opposition to the motion. Based upon his contemporaneous and recent examinations of plaintiff, which revealed significant range of motion limitations in plaintiffs spine, right shoulder, and right knee, and his performance of a right knee arthrosporic surgery on plaintiff on April 9, 2016, Dr. Durant concluded that the injuries sustained by plaintiff to those areas of his body were significant, permanent, and causally related to the subject accident (see Johnson v Kara, 72 A.D.3d 901, 898 N.Y.S.2d 525 [2d Dept 2010]; Dizdari v Chhon, 72 A.D.3d 875, 898 N.Y.S.2d 506 [2d Dept 2010]; Su Gil Yun v Barber, 63 A.D.3d 1140, 883 N.Y.S.2d 242 [2d Dept 2009]; Modeste v Mercier, 67 A.D.3d 871, 888 N.Y.S.2d 427 [2d Dept 2009]). Thus, plaintiff has submitted competent medical evidence raising a triable issue of fact as to whether he sustained serious injuries to his spine, right shoulder, and right knee under the limitations of use categories of the Insurance Law as a result of the subject accident (see Young Chool Yoi v Rui Dong Wang, 88 A.D.3d 991, 931 N.Y.S.2d 373 [2d Dept 2011]; Gussack v McCoy, 72 A.D.3d 644, 897 N.Y.S.2d 513 [2d Dept 2010]).
Plaintiffs medical evidence, therefore, conflicts with that of defendants' experts, who found that the injuries sustained by plaintiff were resolved or as a result of his prior sporting activities. "Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury" (Noble v Ackerman, 252 A.D.2d 392, 395, 675 N.Y.S.2d 86 [1st Dept 1998]; see Johnson v Garcia, 82 A.D.3d 561, 919 N.Y.S.2d 13 [1st Dept 2011]; LaMasa v Bachman, 56 A.D.3d 340, 869 NYS17 [1st Dept 2008]; Ocasid v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Reynolds v Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 [4th Dept 1996]). Moreover, "where [a] plaintiff establishes that at least some of his injuries meet the 'no-faulf' threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand [defendants'] motion for summary judgment" (Linton v Nawaz, 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239 [2010]; see Rubin v SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 [1st Dept 2010]). Accordingly, defendants' motion for summary judgment dismissing the complaint is denied.