Opinion
Index No. 602619/2018 Mot. Seq. Nos. 003 MD 004 MD CAL. No. 20 I 902389MV
03-17-2021
M1GDONIO GRANADOS GUZMAN, Plaintiff, v. JASON M. MERCURIO, CHRISTINE E. MERCURIO and NORA YANEZ, Defendants.
JAKUBOWSKI ROBERTSO MAFFEI Attorney for Plaintiff. GENTILE & TAMBASCO ESQS. Attorney for Defendants Mercurio. ZAKLUKJEWICZ P ZO & MORRISSEY Attorney for Defendant Yanez.
Unpublished Opinion
JAKUBOWSKI ROBERTSO MAFFEI Attorney for Plaintiff.
GENTILE & TAMBASCO ESQS. Attorney for Defendants Mercurio.
ZAKLUKJEWICZ P ZO & MORRISSEY Attorney for Defendant Yanez.
PRESENT: HON. JOSEPH FARNETI JUDGE.
JOSEPH FARNETI JUDGE.
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendants Jason Mercurio and Christina Mercurio dated October 6, 2020 and by defendant Nora Yanez dated October 19, 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff dated June 9, 2020 and and October 21, 2020: Replying Affidavits and supporting papers by defendants Jason Mercurio and Christina Mercurio dated October 27, 2020. and by defendant Nora Yanez dated November 2, 2020: Other Memorandum of Law; it is
ORDERED that the motion (003) by defendants Jason Mercurio and Christina Mercurio, and the motion (004) by defendant Nora Yanez are consolidated for the purposes of this determination: and it is
ORDERED that the motion by defendants Jason Mercurio and Christina Mercurio for summary judgment dismissing the complaint against them is denied; and it is further
ORDERED that the motion by defendant Nora Yanez for summary judgment dismissing the complaint against her is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff Migdonio Granados Guzman as a result of a motor vehicle accident that occurred at the intersection of Pulaski Road and Cuba Hill Road in Huntington, New York on August I, 2017. The accident allegedly occurred when a vehicle owned and operated by defendant Nora Yanez. which was heading east on Pulaski Road. proceeded into the intersection on the green light and was suddenly struck by a vehicle owned by Jason Mercurio and operated by defendant Christina Mercuric Plaintiff was riding as a front seat passenger in the Yanez vehicle at the time of the accident. By way of a supplemental bill of particulars, plaintiff alleges that he sustained various personal injuries as a result of the subject accident, including disc herniations at levels C3 through C7. Tl through SI. and L3 through L5; cervical and lumbar radiculopathy, right shoulder tendon tear, and left knee subluxation. Plaintiff further alleges that he was confined to his home for approximately two months after the subject accident.
Defendants joined issue denying plaintiffs claims. By Order dated March 4. 2019. this Court granted a motion by defendant Yanez for an order joining for trial separate actions defendants filed against each other arising from the same accident. The Note of Issue in the instant action was filed on December 6, 2019. Thereafter, this Court denied, without prejudice, motions by the Mercurio and Yanez defendants seeking summary judgment dismissing the complaint against them, as such defendants failed to submit a copy of the bill of particulars in support of their motions.
The Mercurio defendants now resubmit their motion for summary judgment seeking dismissal of plaintiff s complaint against them on the basis that plaintiff s alleged injuries do not come within the meaning of the "serious injury" threshold requirement of Insurance Law § 5102 (d). In support of the motion, the Mercurio defendants submit copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Raymond Shebairo and Dr. Jeffrey Warhit. Defendant Yanez also moves for summary judgment dismissing the complaint against her on a similar basis. In support of her motion, defendant Yanez submits, among other things, identical copies of the sworn medical reports by Dr. Raymond Shebatro and Dr. Jeffrey Warhit that were submitted by the Mercurio defendants. Plaintiff opposes both motions on the grounds that defendants failed to establish, as a matter of law. that the injuries he sustained as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law § 5102 (d). Plaintiffs submissions include, among other things, the unsworn medical report of Dr. Sima Anand and the sworn medical report of Dr. Robert Buurma.
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" (Dufei 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 § 5 102 (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-Faull 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., 98 N.Y.2d 345, 345, 746 N.Y.S.2d 865: Gaddy v. Evler, 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]; Vtgnoia v. Varrichio, 243 A.D.2d 464.662N.Y.S.2d831 [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).
Here, both defendant Yanez. and the Mercurio defendants, by submitting plaintiffs deposition transcript and competent medical evidence, established a prima face case that plaintiff did not sustain an injury within the meaning of section 5102 (d) of the Insurance Law (see Toure v. Avis Rent A Car Sys., supra; Gaddy v. Eyler, supra; Torres v. Ozei, 92 A.D.3d 770. 938 N.Y.S.2d 469 [2d Dept 2012]; Wunderlich v. Bhuiyan. 99 A.D.3d 795, 951 N.Y.S.2d 885 [2d Dept 2007]). and that plaintiffs alleged injuries, in any event, were not caused by the subject accident (see Barkare v. Kakouras, 110 A.D.3d 838, 972 N.Y.S.2d 710 [2d Dept 2013]; J'dani v. Palmer, 83 A.D.3d 786. 920 N.Y.S.2d 424 [2d Dept 2011 ]). Significantly, Dr. Shebairo's report states that an orthopedic examination of plaintiff conducted on September 13, 2019. reveals full range of motion in his spine, shoulders, right wrist/ hand, and left knee, and that corresponding sprains allegedly sustained in the subject accident have all resolved. Dr. Shebairo's affirmation concludes that his examination of plaintiff and his review of plaintiff s medical records revealed no evidence of an orthopedic disability or a permanent condition. Dr. Warhit's report states that his impression, upon review of plaintiffs cervical and lumbar spines, left knee and right shoulder magnetic resonance images (MRI) examinations conducted on February 26. 2020. is that plaintiff suffered no fracture, tear, impingement, or traumatic injury to his left shoulder, no fracture, traumatic injury, or tears in his left knee, and that he suffers from degenerative changes, rather than traumatic injury, to his cervical and lumbar spines. Although Dr. Warhit notes a partial thickness tear of plaintiffs right subcapularis tendon, he observed no evidence of a traumatic injury to plaintiffs right shoulder.
Therefore, the burden shifted to plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v. Perez, 4 N.Y.3d 566. 797 N.Y.S.2d 380 [2005]; see generally Zuckerman v. City of New York, 49 N.Y.2d 557. 427 N.Y.S.2d 595 [1980]). 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 Sery. 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 2005J). "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 plaintiff's 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.2d322 [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]).
Initially, it is noted that the medical reports by plaintiffs examining physiatrist, Dr. Sima Anand, are inadmissible and were not considered, since the reports are unsworn and unaffirmed under the penalty of perjury, as is required by CPLR 2106 (see Grasso v. Angerami, 79 N.Y.2d 813. 588 N.Y.S.2d 76 [1991]; Quintana v. Arena Transp., Inc.. 89 A.D.3d 1002. 933 N.Y.S.2d 379 [2d Dept 2011]; Damas v. Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011]; Pagano v. Kingsbury. 1 82 A.D.2d 268, 587N.Y.S.2d 692 [2d Dept 1992]). Nevertheless, the sworn medical report of Dr. Robert Buunna submitted by plaintiff, which was submitted in admissible form, was sufficient to raise a triable issue of fact as to whether plaintiff sustained serious injuries to his spine within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Ragabear v. Lallmahamad, 90 A.D.3d 883. 935 NYs2d 77 [2d Dept 2011]: Abdeiaziz v. Fazfil, 78 A.D.3d 1086, 912 N.Y.S.2d 103 [2d Dept 2010]; Casey v. Mas Transp., Inc., 48 A.D.3d 610. 852 N.Y.S.2d [2d Dept 2010J). Specifically, Dr. Buurma. plaintiff s treating chiropractor, states, based upon his contemporaneous and recent examinations of plaintiff, as well as his review of the MR! films of plaintiff s cervical and lumbar spines, that plaintiff suffered significant range of motion limitations in his spine, and that the observed range of motion limitations in those regions were permanent and causally related to the subject accident (see Awadh v. Moronta, 86 A.D.3d 524. 926 N.Y.S.2d 172 [2d Dept 2011]; Tai Ho Kang v. Young Sun Cho, 74 A.D.3d 1328, 904 N.Y.S.2d 743 [2d Dept 2010]; Jules v. Barbecho, 55 A.D.3d 548, 866 N.Y.S.2d 214 [2d Dept 2008]). Additionally. Dr. Buurma states that, white a more recent examination shows varying degrees of improvement and minor improvement in range of motion, he determined that plaintiff continues to have residual symptoms from his injuries which continue to interfere with his daily living activities. Dr. Buurma further opines, based upon tests conducted during plaintiffs examination and review of his lumbar and cervical MR! studies, that as a result of the subject accident, plaintiff suffers from traumatic strains/sprains, bulging and herniated discs of the cervical, thoracic and lumbar spines, which are supported by objective findings, including MR! results, positive orthopedic testing and palpatory findings. Although disc bulges and herniations, standing alone are not evidence or a serious injury under Insurance Law § 5102 (d). evidence of disc bulges and herniations coupled with evidence of range of motion limitations, positive MRI findings and objective test results, is sufficient to defeat summary judgment (see Wadford v. Gruz, 35 A.D.3d 258. 826 N.Y.S.2d 57 [2d Dept 20061; Meefy v. 4G's Truck Renting Co., Inc., 16 A.D.3d 26. 789 N.Y.S.2d 277 [2d Dept 2005]; Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 28 I [2d Dept 2005]).
Accordingly, defendants" motions for summary judgment dismissing the complaint against them are denied.