Montesino v. Chewuli

Full title: MAXIMO MONTESINO, Plaintiffs, v. JASMINE CHEWULI and PV HOLDING CORP.…

Court: Supreme Court, Bronx County

Date published: Jan 25, 2022

2022 N.Y. Slip Op. 34645 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 22780/2019E NYSCEF Doc. No. 62

01-25-2022

MAXIMO MONTESINO, Plaintiffs, v. JASMINE CHEWULI and PV HOLDING CORP., Defendant.

Hon. Ben R. Barbato, JSC

Unpublished Opinion

DECISION

Hon. Ben R. Barbato, JSC

The instant action sounds in personal injury sustained from a motor vehicle accident occurring on July 17, 2018, at or near its intersection of West Tremont Avenue and University Avenue, in the County of Bronx, City and State of New York. The Defendants, Jasmine Chewuli and PV Holding Corp., move this court for an Order pursuant 46 USC § 30106 commonly known as the Graves Amendment, to dismiss and remove from the caption, the action as against PV Holding Corp. Defendants, Jasmine Chewuli and PV Holding Corp., also move pursuant to CPLR § 3212 for an Order awarding Summary Judgment in favor of the Defendants, dismissing Plaintiff s Complaint, claiming that the Plaintiff, Marimo Montesino, cannot meet the serious injury threshold requirement mandated by Insurance Law §§ 5102(d).

Defendants offer the affirmed statement of Dr. Eial Faierman, Board Certified Orthopaedic Surgeon who examined Plaintiff on September 30, 2019. Dr. Faierman determined that the examination of Plaintiff revealed preexisting degenerative disc decease with the present of osteophytes of the cervical and lumbar spines. Dr. Faierman finds no traumatic injury of either the cervical or lumbar spines relating to the July 17, 2018 accident. He does note that Plaintiff had undergone left knee arthroscopic surgery on May 29, 2019 and right shoulder arthroscopic surgery on February 13, 2019.

Defendants also offer the affirmed report of Dr. Jessica F. Berkowitz, a Board Certified Radiologist, who reviewed the MRIs of Plaintiff s lumbar and cervical spines taken at Comprehensive MRI of White Plains on August 3, 2018, the MRIs of Plaintiffs right and left knees taken at Comprehensive MRI of White Plains on August 8, 2018 and the MRI of Plaintiff s right shoulder also taken at Comprehensive MRI of White Plains on August 7, 2018. Dr. Berkowitz opines that those injuries revealed by the MRI's are non-traumatic in nature and the result of age related degeneration not resulting from the July 17, 2018 accident.

Plaintiff offers the affirmation of Dr. Gabriel Dassa, a Board Certified Orthopedic Surgeon, who performed the surgery to Plaintiff right shoulder on February 13, 2019 and left knee on May 29, 2019. Dr. Dassa states that the necessity for the surgery on Plaintiffs right shoulder and the left knee were related to the accident of July 17, 2018. Dr. Dassa goes on to state that he had read the reports of both Dr.'s Faierman and Berkowitz and disagrees with their findings opining that the complex tears sustained by Plaintiff in both the knee and shoulder could have only resulted from the subject accident.

Plaintiff also offers the Affirmation of Dr. Steven Winter, a Board Certified Radiologist who reviewed the MRIs of Plaintiffs right shoulder, right and left knee .

It is settled law that on a motion for summary judgment, the moving party has the initial burden of demonstrating, by admissible evidence, their right to judgment. The burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists warranting a trial. CPLR §1129(b); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Singer v. Friedman, 220 A.D.2d 574 (2^nd Dept 1995). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient to raise a triable issue of fact. Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276 (1978) Further, issue finding rather than issue determination is the function of the court on motions for summary judgment. Esteve v. Abad, 271 A.D. 725 (1^st Dept 1947); Stillman v. Twentieth Century Fox F. Corp., 3 N.Y.2d 395 (1957); Clearwater Realty Co. v. Hernandez, 256 A.D.2d 100 (1^st Dept 1998). Additionally, the role of the court is not to resolve issues of credibility. Knepka v. Tallman, 278 A.D.2d 811 (4^th Dept 2000) Since summary judgment is a drastic remedy it should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). Thus, where the existence of an issue of fact is arguable summary judgment should not be granted. Stone v. Goodson, 8 N.Y.2d 8 (1960). Viewing the evidence in the light most favorable to the party opposing the motion for summary judgment, namely the Plaintiff, there exists triable issues of material fact for determination by a jury. See: Bacon v. County of Westchester, 149 A.D.2d 451 (2^nd Dept 1989); Mutschnik v. Summit Brokerage Corp., 148 A.D.2d 427 (2^nd Dept 1989).

Turning to the portion of the application seeking dismissal of the action as against PV Holding Corp, on the basis that the action is barred based upon the "Graves Amendment" (49 USC §30106) insofar as PV Holding Corp, is in the business of renting consumer motor vehicles the same must be granted. The record establishes that PV Holding Corp, as averred by Jeanne Motosko, is a subsidiary of Avis Budget Car Rental, LLC, an entity that is squarely afforded Graves Amendment protections. As pointed out in reply Plaintiffs arguments in opposition are deficient in attempting to defeat that prong of the application.

Accordingly

The Defendants' motion for an Order pursuant to CPLR § 3212 awarding Summary Judgment in favor of the Defendants dismissing Plaintiff s Complaint for failure to comply with the threshold requirement of Insurance Law § 5102(d) is denied.

The Defendant PV Holding Corp.'s motion for an Order pursuant 46 USC §30106 commonly known as the Graves Amendment, to dismiss and remove from the caption, the action as against PV Holding Corp, is granted.

Settle Order.