Santos v. Traylor-Pagan

6 Citing cases

  1. Jackson v. Doe

    173 A.D.3d 505 (N.Y. App. Div. 2019)   Cited 4 times

    Neither plaintiff nor the physician explained plaintiff's two separate two-year gaps in treatment (seePommells, at 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 ; Alverio v. Martinez, 160 A.D.3d at 455, 74 N.Y.S.3d 525 ). Furthermore, in the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident (seeSantos v. Traylor–Pagan, 152 A.D.3d 406, 58 N.Y.S.3d 350 [1st Dept. 2017] ; Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept. 2012] ).

  2. Hernandez v. Marcano

    161 A.D.3d 676 (N.Y. App. Div. 2018)   Cited 16 times
    Holding that "even an intoxicated person may be capable of forming the requisite intent" to commit a crime

    Defendants established prima facie that plaintiff did not suffer serious injury to her cervical or lumbar spine through the affirmed reports of their medical experts, who found normal ranges of motion and no objective evidence of injury in the subject body parts (seeReyes v. Se Park, 127 A.D.3d 459, 8 N.Y.S.3d 22 [1st Dept. 2015] ; Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013] ; Paduani v. Rodriguez, 101 A.D.3d 470, 955 N.Y.S.2d 48 [1st Dept. 2012] ). Defendants did not have to address plaintiff's claim of serious injury to her left shoulder, because that injury was not pleaded in the bill of particulars and was raised for the first time in opposition to their motion (seeSantos v. Traylor–Pagan, 152 A.D.3d 406, 58 N.Y.S.3d 350 [1st Dept. 2017] ; Boone v. Elizabeth Taxi, Inc., 120 A.D.3d 1143, 993 N.Y.S.2d 302 [1st Dept. 2014] ). However, in any event, defendants Marcano and Crescent Cab Corp.'s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff's hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (seeLee v. Rodriguez, 150 A.D.3d 481, 55 N.Y.S.3d 167 [1st Dept. 2017] ).

  3. Karounos v. Doulalas

    153 A.D.3d 1166 (N.Y. App. Div. 2017)   Cited 24 times

    However, as to plaintiff's remaining claims, defendants met their prima facie burden by showing the absence of limitations in range of motion and normal test results upon examination. In particular, plaintiff's injured shoulder had range of motion nearly identical to the uninjured shoulder, and negative results on tests of function (see Stevens v. Bolton, 135 A.D.3d 647, 647–648, 24 N.Y.S.3d 269 [1st Dept.2016] ; Camilo v. Villa Livery Corp., 118 A.D.3d 586, 586, 987 N.Y.S.2d 164 [1st Dept.2014] ). The minor, limited range of motion in the knee did not constitute a serious injury (see Aflalo v. Alvarez, 140 A.D.3d 434, 435, 31 N.Y.S.3d 866 [1st Dept.2016] ), and defendants' orthopedist found normal range of motion in the wrists, and Phalen's test and Tinel's sign were negative ( Santos v. Traylor–Pagan, 152 A.D.3d 406, 58 N.Y.S.3d 350 [1st Dept.2017] ; see Jacobs v. Slaght, 47 A.D.3d 679, 850 N.Y.S.2d 166 [2d Dept.2008] ). Plaintiff failed to submit any medical evidence to raise an issue of fact as to these claims.If plaintiff establishes a serious injury to her cervical or lumbar spine at trial, she will be entitled to recover damages for any other injuries caused by the accident, even those that do not meet the serious injury threshold ( Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 [1st Dept.2010] ).

  4. Mosso-Vargas v. Abubakari

    2020 N.Y. Slip Op. 32489 (N.Y. Sup. Ct. 2020)

    However, this does not abrogate the need for at least a qualitative assessment of injuries soon after an accident. Rosa v. Mejia, 95 AD 3d 402 (1st Dept 2012); Santos v. Traylor-Pagan, 152 AD 3d 406 (1st Dept 1017).

  5. Kolesar v. Pena

    2020 N.Y. Slip Op. 35243 (N.Y. Sup. Ct. 2020)

    More significantly, and applicable to all of the treating health care providers, without proof of contemporaneous, post-accident treatment or evaluation of plaintiff s alleged injuries, plaintiff cannot raise a triable issue of fact as to whether her conditions were causally related to the accident (see Jackson v Doe, 173 A.D.3d 505, 104 N.Y.S.3d 90 [1st Dept 2019]; Santos v Traylor-Pagan, 152 A.D.3d 406, 58 N.Y.S.3d 350 [1st Dept 2017]; see also, Yarosla v Shvartsman v Vildman, 47 A.D.3d 700, 849 N.Y.S.3d 600 . [2d Dept 2008]). It is undisputed that plaintiff did not seek medical treatment until six months after the accident, and the affirmations and affidavits indicate that most of her treatment did not begin until seven months following the accident.

  6. Diaz v. Diajkite

    2018 N.Y. Slip Op. 31331 (N.Y. Sup. Ct. 2018)

    There is no requirement that "contemporaneous" quantitative measurements be made. (Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] [permissible to observe and recording a patient's symptoms in qualitative terms shortly after the accident, and later perform more specific, quantitative measurements in preparation for litigation]; Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 [1st Dept. 2012] ["Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident."]; Santos v. Traylor-Pagan, 152 A.D.3d 406, 2017 N.Y. App. Div. LEXIS 5336 [1st Dept. 2017] [plaintiff had no medical treatment following receipt of sutures at emergency room until he first saw an orthopedist 13 1/2 months after the accident, and then allegedly had a few months of physical therapy, although there are no details of any such therapy in the record; he did not see a neurologist about his carpal tunnel syndrome until almost four years after the accident].)