Opinion
Index No. 719602/19 Mot. Seq. 1
01-20-2022
VICTOR GARCIA, Plaintiff, v. EDSON M. CHAPA PUIN, Defendant.
Unpublished Opinion
Mot. Date: 1/18/22
FILED: 01/25/2022
HON. TIMOTHY J. DUFFICY J.S.C.
The following papers were read on the motion by defendant for an order, pursuant to CPLR 3212, granting summary judgment in his favor dismissing the complaint of plaintiff Victor Garcia, on the basis that said plaintiff did not sustain a "serious injury" under Insurance Law § 5102(d).
PAPERS NUMBERED
Notice of Motion-Affidavits-Exhibits ........................
EF 13-20
Answering Affidavits-Exhibits ....................................
EF 23-36
Replying Affidavits ......................................................
EF 38
Upon the foregoing papers, it is ordered that the motion by defendant is denied.
In this action seeking damages for personal injuries, allegedly sustained in a motor vehicle accident, that occurred on February 25, 2018, te defendant moves for an order granting summary judgment dismissing plaintiff Victor Garcia's complaint on the basis that the plaintiff did not sustain a "serious injury", under Insurance Law § 5102(d).
As a general proposition, the proponent of a summary judgment motion of this type must make a prima facie showing of entitlement to summary judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Licari v Elliot, 57 N.Y.2d 230 [1982]; Alvarez v Prospect Hospital, 68 N.Y.2d 320 1986]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The defendant's motion papers must demonstrate, through admissible medical evidence, which may include medical reports and records and affidavits and/or affirmed reports of medical examinations, including range-of-motion testing, that address all of the plaintiff's claims, that the plaintiff did not sustain functional limitations which would constitute either a permanent consequential limitation of use of a body organ, member, a significant limitation of use of body function or system, or a medically determined injury or impairment of a non-permanent nature that prevented the plaintiff from performing substantially all of the material, acts which constituted his or her usual customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. (See Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Choi v Guerrero, 82 A.D.3d 1080 [2d Dept. 2011]; Jilani v Palmer, 83 A.D.3d 786 [2d Dept 2011]). The failure to make a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see e.g. Reed v Righton Limo, Inc., 82 A.D.3d 1070 [2d Dept 2011]; Joris v UMF Car & Limo Service, 82 A.D.3d 1050 [2d Dept 2011]; Keenum v Atkins, 82 A.D.3d 843 [2d Dept 2011]; Pero v Transervice Logistics, 83 A.D.3d 681 [2d Dept 2011]).
Here, the moving papers present proof in admissible form via, inter alia, the affirmed report of the movant's independent examining orthopedic surgeon, Dr. H. Hillsman, M.D. Based upon the foregoing, the movant provided proof demonstrating, prima facie, the absence of any condition that might have arguably met the serious injury threshold of Insurance Law § 5102(d). Thus, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (See Gaddy v Eyler, supra).
A medical affirmation or affidavit which is based upon a physician's personal examinations and observation of plaintiff is an acceptable method to provide a doctor's opinion regrading the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 A.D.2d 418 [1st Dept 1980]). The causal connection must ordinarily be established by competent medical proof (see Kociocek v Chen, 283 A.D.2d 554 [2d Dept 2001]; Pommels v Perez, 4 N.Y.3d 566 [2005]). Plaintiff submitted medical proof that was contemporaneous with the accident showing, inter alia, range of motion limitations of the plaintiff's lumbar spine (Pajda v Pedone, 303 A.D.2d 729 [2d Dept 2003]). The narrative report submitted by plaintiff's physician, Dr. Teodoro Y. Pang, M.D., sets forth the tests and review of medical records which were performed contemporaneously with the accident to support his conclusion that the plaintiff suffered from significant injuries, to wit, inter alia, range of motion limitations of the lumbar spine. Plaintiff has established a causal connection between the accident and the plaintiff's lumbar spine injuries. Furthermore, te plaintiff has provided a recent medical examination detailing the status of his injuries at the current point in time (Kauderer v Penta, 261 A.D.2d 365 (2d Dept 1999). The sworn narrative report of Dr. Ida Tetro, M.D. provides that a recent examination of the plaintiff was conducted, on January 18, 2021, by Dr. Tetro and sets forth the objective examination, tests, and review of medical records which were performed to support her conclusion that the plaintiff suffers from significant injuries, to wit, inter alia, range of motion limitations of the lumbar spine. Dr. Tetro concludes that the injuries to plaintiff's lumbar spine are permanent in nature and causally related to the motor vehicle accident of February 25, 2018 . Clearly, the plaintiff's experts' conclusions are not based solely on the plaintiff's subjective complaints of pain, and therefore are sufficient to defeat the motion (DiLeo v Blumber, supra, 250 A.D.2d 364, [1st Dept 1998].
Additionally, despite movant's contentions that there is an unexplained gap or cessation in treatment (the Court of Appeals held in Pommells v Perez, 4 N.Y.3d 566 [2005], that a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so), the Court finds that the gap in treatment is adequately explained by plaintiff himself in his affidavit wherein he explains that: "The treatment failed to fully alleviate my pain and aid in recovery, and eventually no-fault cut-off my benefits so I was unable to attend even if I needed to. I did not have a 'gap in treatment' because I decided I felt better- I would have continued to seek further treatment had my no-fault benefits not been cut off by the provider." Additionally, Dr. Pang affirmed in his affirmation, dated November 30, 2021, that the plaintiff stopped treating because any further benefits would have been merely palliative and the plaintiff's no-fault benefits were about to expire. Such is a sufficient explanation.
Since there are triable issues of fact regarding whether the the plaintiff sustained a serious injury to his lumbar spine, plaintiff is entitled to seek recovery for all injuries allegedly incurred as a result of the accident (Marte v New York City Transit Authority, 59 A.D.3d 398 [2d Dept 2009]).
Therefore, the plaintiffs submissions are sufficient to raise a triable issue of fact on "serious injury" grounds (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
Accordingly, it is ORDERED that the motion by defendant for summary judgment on "serious injury" grounds is denied.
The foregoing constitutes the decision and order of the Court.