Opinion
No. EF003314-2019 Motion Seq. No. 1
07-09-2021
DAIJA RUSSELL, PLAINTIFF, v. EDWARD W. HINKSON, DEFENDANT.
Unpublished Opinion
DECISION & ORDER
MARIA S. VAZQUEZ-DOLES, J.S.C.
The following papers were read on this motion by defendants for summary judgment, pursuant to CPLR §3212, dismissing the complaint alleging plaintiffs failure to satisfy Insurance Law§5102(a)and(d):
Notice of Motion/Statement of Material Facts/Affirmation in Support/Exhibits A - P; Affirmation in Opposition/Exhibit 1; Reply Affirmation/Exhibit Q;
This personal injury action arises out of a motor vehicle accident that occurred on May 22, 2018 on Bear Mountain Road in Cortlandt, New York. Plaintiff commenced this action by filing a Summons and Verified Complaint on April 25, 2019 (Exhibit A to moving papers). Defendants filed a Verified Answer on June 13, 2019 (Exhibit B). Defendants move here for summary judgment pursuant to CPLR §3212 against plaintiff for failure to sustain excess of basic economic loss and serious injury under Insurance Law §5102(a) and (d).
Defendants argue that plaintiff fails to satisfy the serious injury threshold. Plaintiff was allegedly involved in a motor vehicle accident in June 2013, where her complaints and treatments were similar to that of the instant accident. In support of their motion, defendants offered plaintiffs Verified Bill of Particulars, deposition transcript, and medical records (Exhibits C, D, F, G, H, I, M and N). Defendants also submitted an Affirmation by Dr. Ira A. Neustadt, Board Certified Neurologist, dated February 22, 2021, where plaintiff displayed full cervical and lumbar range of motion (Exhibit O). Defendants further claims that plaintiff did not sustain a serious injury under the 90/180 threshold. As for excess of basic economic loss, plaintiff only incurred out of pocket expenses in the amount of $2,158.92.
Plaintiff asserts that the movant has failed to sustain his initial burden of proof. That defendant has failed to show, prima facie, lack of a serious injury which results in a permanent consequential limitation of use of a body organ or member or the significant limitation of a body function or system. Plaintiff claims to have sustained cervical disc herniations and lumbar disc protrusions and herniations. Plaintiff submitted a narrative report, by Dr. Gabriel Dassa, Board Certified Orthopedic Surgeon, dated May 5, 2020, displaying limited cervical and lumbosacral range of motion (Exhibit 1). Plaintiff argues that a triable issue of fact exists on serious injury.
Section 3212(b) of the Civil Practice Law & Rules states, in pertinent part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Section 3212(b) further states that "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." "Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact" (Anyanwu v. Johnson, 276 A.D.2d 572 [2d Dept 2000]). Issue finding, not issue determination, is the key to summary judgment (Krupp v. Aetna Casualty Co., 103 A.D.2d 252 [2d Dept 1984]). In deciding the motion, the court must view the evidence in the light most favorable to the non-moving party (Kutkiewicz v. Horton, 83 A.D.3d 904 [2d Dept 2011]).
Defendants move for summary judgment, claiming that plaintiff has failed to meet the threshold requirements of Insurance Law §5102 because she has not provided proof that she sustained a serious injury. As defined by that section, '"serious injury' means 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" (D'Iorio v. Brancoccio, 115 A.D.2d 634 [2d Dept 1985]). Defendant bears the initial burden of establishing & prima facie case that plaintiff did not sustain a serious injury (Toure v. Avis Rent-A-Car Sys., 98 N.Y.2d 345 [2002]).
Here, Dr. Dassa's orthopedic report provided limitations of the range of motion in plaintiffs cervical and lumbosacral spine (Exhibit 1). Defendants have failed to meet their initial burden of establishing a prima facie case. Plaintiffs papers in opposition are sufficient to raise a triable issue of fact (Omar v. Bello, 13 A.D.3d 430 [2d Dept 2004]; see Coscia v. 938 Trading Corp., 238 A.D.2d 538 [2d Dept 2001]; see also Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437 [2d Dept 1996]). Upon view of the foregoing, defendants motion for summary judgment as to "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system" under Insurance Law §5102(d) is denied. Plaintiff concedes the permanent loss of use claim and fails to address the 90/180 threshold in its opposition. In any event, Dr. Neudtadt stated in his report, "Plaintiff was not prevented from performing substantially all of her daily activities for 90 out of the first 180 days following the May 22, 2018 accident" (Exhibit O). In addition, plaintiff testified that she missed only one day of work after the subject accident (Exhibit D, p 55). Thus, defendants motion for summary judgment as to "permanent loss of use of a body organ, member, function or system" and the 90/180 threshold is granted.
Although a claim for economic loss does not require the plaintiff to have sustained a serious injury (see generally Montgomery, 38 N.Y.2d at 47-48; Colvin v. Slawoniewski, 15 A.D.3d 900 [4th Dept 2005]; Barnes v. Kociszewski, 4 A.3d 824 (4th Dept 2004), plaintiffs here "failed to produce any evidence in admissible form which supports such a claim" (Watford v. Boolukos, 5 A.D.3d 475 [2d Dept 2004]; see Insurance Law §§ 5102[a][1]-[3]; 5104[a]). Plaintiff failed to establish that plaintiffs total economic losses here did actually "exceed basic economic loss" (Watkins v. Bank of Castile, 172 A.D.2d 1061 [4th Dept 1991] [emphasis added]; see Diaz v. Lopresti, 57 A.D.3d 832 [2d Dept 2008]). Thus, defendants motion for summary judgment as to basic economic loss under Insurance Law §5102(a) is granted.
Accordingly, it is hereby
ORDERED that defendants motion for summary judgment is DENIED as to "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system" under Insurance Law §5102(d); and it is further
ORDERED that defendant's motion for summary judgment is GRANTED as to "permanent loss of use of a body organ, member, function or system" and the 90/180 threshold; and it is further
ORDERED that defendant's motion for summary judgment is GRANTED as to basic economic loss under Insurance Law §5102(a).
The foregoing constitutes the Decision and Order of this Court.