Opinion
Index 610963/2018
06-15-2021
KAREN URVALEK, Plaintiff, v. GREGORY C. MACCIA and MARLA GALE MACCIA, Defendants. Mot. Seq. No. 001 MD
SOBO & SOBO, LLP Attorney for Plaintiff MARTYN MARTYN SMITH & MURRAY Attorney for Defendants
Unpublished Opinion
MOTION DATE 4/8/21
ADJ. DATE 5/6/21
SOBO & SOBO, LLP
Attorney for Plaintiff
MARTYN MARTYN SMITH & MURRAY
Attorney for Defendants
PRESENT: Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court
Joseph A. Santorelli Judge
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated March 11, 2021; Notice of Cross Motion and supporting papers__; Answering Affidavits and supporting papers by plaintiff, dated April 29, 2021; Replying Affidavits and supporting papers by defendant,' dated May 5, 2021; Other __; it is
ORDERED that the motion by defendants Gregory Maccia and Marla Maccia seeking summary judgment dismissing the complaint is denied.
Plaintiff Karen Urvalek commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred in front of the parking lot to the premises known as Bridgehampton Commons located at 2044 Montauk Highway, Southampton, New York, on August 11, 2016. It is alleged that the accident occurred when the vehicle operated by defendant Marla . Maccia and owned by defendant Gregory Maccia struck the rear of plaintiff s vehicle while it was . stopped in traffic at a red light. By her bill of particulars, plaintiff alleges that she sustained various injuries as a result of the subject collision, including an aggravation of a preexisting left shoulder condition; tears of the distal supraspinatus and infraspinatus tendons of the left shoulder; a complex tear of the glenoid labrum of the left shoulder; disc bulges at level C-3-C4; and listhesis of the cervical spine at levels C5 through C7.
Defendants now move for summary judgment on the basis that the injuries plaintiff alleges to have to sustained as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendants submit copies of the pleadings, and the sworn medical reports of Dr. Raymond Shebairo and Dr. Marc Katzman. At defendants' request, plaintiff underwent an independent orthopedic examination conducted by Dr. Shebairo on November 8, 2019. Also at defendants' request, Dr. Katzman performed an independent radiological review of the magnetic resonance imaging (MRI) scans of plaintiff's cervical spine and left shoulder taken on February 16, 2017, as well as MRI scans of plaintiffs left shoulder taken on June 19, 2015. Plaintiff opposes the motion on the grounds that defendants failed to make a prima facie showing that she did not sustain a serious injury as a result of the subject collision, and that the evidence submitted in opposition demonstrates that she sustained injuries within the "limitations of use" categories of the Insurance Law. In opposition to the motion, plaintiff submits the sworn medical report of Dr. Michael Genereux.
The purpose of New York State's No-Fault Insurance Law is to "assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trial[s]" (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]), and requiring every case, even those with minor injuries, to be decided by a jury would defeat the statute's effectiveness (see Licari v. Elliott, supra). Therefore, the No-Fault Insurance law precludes the right of recovery for any "non-economic loss, except in the case of serious injury, or for basic economic loss" (see Insurance Law § 5104 [a]; Martin v. Schwartz, 308 A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]). Any injury not falling within the definition of "serious injury" is classified as an insignificant injury, and a trial is not allowed under the No-Fault statute (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Martin v. Schwartz, supra).
Insurance Law § 5102 (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 plaintiff s negligence claim is barred under the No-Fault 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., supra; Gaddy v. Eyler, 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 plaintiff s deposition testimony and medical reports and records prepared by the plaintiff s 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]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [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, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; Tornabene v. Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2d Dept 2003]; Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). However, if a defendant does not establish a prima facie case that the plaintiffs injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers (see Burns v. Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v. Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Here, defendants have failed to establish their prima facie entitlement to judgment as a matter of law that plaintiff did not sustain a serious injury as a result of the subject accident (see Toure v. Avis Rent A Car Sys., supra; Hodge v. St. Eloi, 168 A.D.3d 690, 89 N.Y.S.3d 691 [2d Dept 2019; Stead v. Serrano, 156 A.D.3d 67 N.Y.S.3d 244 [2d Dept 2017]; Jensen v. Nicmanda Trucking, Inc., 47 A.D.3d 769, 851 N.Y.S.2d 594 [2d Dept 2008]). Despite Dr. Shebairo concluding in his report that the strains plaintiff sustained to her spine and left shoulder as a result of the subject accident have resolved, Dr. Shebario notes significant range of motion limitations in plaintiffs spine and left shoulder during active range of motion testing when he examined plaintiff approximately three years after the subject accident (see Katanov v County of Nassau, 91 A.D.3d 723-, 936 N.Y.S.2d 285 [2d Dept 2012]; Grisales v. City of New York, 85 A.D.3d 964, 925 N.Y.S.2d 633 [2d Dept 2011]; Rhodes v. Stoddard, 79 A.D.3d 997, 912 N.Y.S.2d 908 [2d Dept 2010]; Kjono v. Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157 [2d Dept 2010]; Held v. Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246 [2d Dept 2009]; Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527 [2d Dept 2009]). Although Dr. Shebairo indicates that plaintiffs decreased range of motion is subjective in nature, he failed to substantiate with any objective medical evidence the basis for his conclusion that such limitations were self-imposed (see Raguso v. Ubriaco, 97 A.D.3d 560, 947 NYS2s 343 [2d Dept 2012]; Roc v. Domond, 88 A.D.3d 862, 931 N.Y.S.2d 522 [2d Dept 2011]; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517 [2d Dept 2010]).
While defendants' examining radiologist, Dr. Katzman, concludes in his medical reports that plaintiff suffers from preexisting chronic degeneration and degenerative-type injuries in her left shoulder and cervical spine, and that there is no evidence of a "recent post-trauma" injury to either plaintiffs left shoulder or cervical spine, neither he nor Dr. Shebairo addressed plaintiff s allegations that the subject accident aggravated her preexisting left shoulder condition (see Little v Ajah, 97 A.D.3d 801, 949 N.Y.S.2d 109 [2d Dept 2012]; Edouazin v. Champlain, 89 A.D.3d 892, 933 N.Y.S.2d 85 [2d Dept 2011]; Pero v. Transervice Logistics, Inc., 83 A.D.3d 681, 920 N.Y.S.2d 364 [2d Dept 2011]).
In light of defendants' failure to meet their initial burden of establishing a prima facie case, it is unnecessary to consider whether plaintiffs papers in opposition were sufficient to raise a triable issue of fact (see Cervantes v. McDermott, 159 A.D.3d 669, 71 N.Y.S.3d 612 [2d Dept 2018]; Chiara v. Dernago, 70 A.D.3d 746, 894 N.Y.S.2d 129 [2d Dept 2010]; Stern v. Oceanside School Dist., 55 A.D.3d 596, 865 N.Y.S.2d 325 [2d Dept 2008]). Accordingly, defendants' motion for summary judgment dismissing the complaint is denied.