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Mercado v. Lee

November 21, 2008


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff David Mercado brings this action to recover for economic and non-economic loss that he allegedly suffered after sustaining injuries in a car accident with Defendant Gina Lee. Following discovery, Defendants moved for summary judgment on the ground that Mercado did not sustain a "serious injury" within the meaning of New York Insurance Law § 5102(d). For the following reasons, Defendants' motion is granted.


A court must grant summary judgment if "there is no genuine issue as to any material fact" and the moving party shows that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "To survive . . . [a] motion for summary judgment," the non-moving party "must establish that there is a genuine issue of material fact" by doing more than "simply show[ing] that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A court should not grant summary judgment if, "after resolving all ambiguities and drawing all inferences in favor of the non-moving party," it determines that "a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

I. New York's No Fault Insurance Law

New York Insurance Law § 5104(a) provides that in a personal injury or negligence action between insured persons, "there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss." New York Insurance Law § 5102(d) defines "serious injury" to include, inter alia, a personal injury that results in: (1) a "permanent consequential limitation of use of a body organ or member" (hereafter the "permanent consequential limitation" category); (2) a "significant limitation of use of a body function or system" (hereafter the "significant limitation" category); or (3) "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" (hereafter the "90/180" category).

The New York Court of Appeals has held that because the purpose of the no-fault statute is to reduce litigation, "[i]t is incumbent upon the court to decide in the first instance whether [a] plaintiff has a cause of action to assert within the meaning of the statute" by "determin[ing] whether the plaintiff has established a prima facie case of sustaining serious injury." Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570 (1982). "If it can be said, as a matter of law, that plaintiff suffered no serious injury . . . , then plaintiff has no claim to assert and there is nothing for the jury to decide." Id. In order to prevail on a motion for summary judgment on this issue, the defendant must offer evidence establishing a "prima facie case that plaintiff's injuries were not serious." Gaddy v. Eyler, 79 N.Y.2d 955, 956, 582 N.Y.S.2d 990 (1992).

If the defendant does so, the "burden then shift[s] to [the] plaintiff to come forward with sufficient evidence to . . . demonstrate that []he sustained a serious injury within the meaning of the No-Fault Insurance Law." Id. at 957. To meet this burden, the plaintiff must offer "objective proof" of his injury. Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865 (2002). "[S]ubjective complaints alone are not sufficient." Id. Acceptable "objective" proof may include "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion" -- if supported by objective evidence -- or "[a]n expert's qualitative assessment of a plaintiff's condition . . . , provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Id. An expert medical analysis that "is obviously premised on plaintiff's subjective complaints . . . does not rise to the level of credible medical evidence required" to support a claim of serious injury. Dwyer v. Tracey, 105 A.D.2d 476, 477, 480 N.Y.S.2d 781, 783 (3d Dep't 1984).

II. Mercado's Claim for Non-Economic Damages

Mercado asserts that he is entitled to seek recovery for non-economic loss because he suffered cervical and lumbar spine injuries that qualify as "serious injuries" under the "permanent consequential limitation," "significant limitation" and "90/180" categories of "serious injury." (Pltf.'s Br. at 1-4) Defendants argue that they are entitled to judgment as a matter of law with respect to all three categories. (Def.'s Br. at 8) The Court agrees that Mercado has not met his burden of offering objective medical evidence sufficient for a reasonable jury to find that he suffered a "serious injury," and that Defendants are therefore entitled to summary judgment on this claim.

A. Defendants' Prima Facie Case as to the "Permanent Consequential Limitation" and "Significant Limitation" Categories

"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, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 (1995). A "minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute." Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 570. There is no basis to find a "consequential" or "significant" limitation where the doctor has "diagnosed only a mild injury, which plainly has not prevented plaintiff from continuing [his] daily activities." Dwyer, 105 A.D.2d at 478, 480 N.Y.S.2d at 783.

To make out a prima facie case that Mercado does not have a "permanent consequential limitation" or a "significant limitation," Defendants submitted sworn reports from Dr. Robert S. April, who examined Mercado on February 9, 2005, and Dr. Michael Katz, who examined Mercado on January 31, 2006. Based on his examination, Dr. April concluded that Mercado was "not disabled or limited in any daily physical activity" and was "independent in all activities of daily living" (p. 3). Dr. April further found that Mercado had no neurological injuries and a normal range of motion with no muscle spasms (p. 2). Similarly, based on testing and examination, Dr. Katz concluded that Mercado's cervical and lumbosacral strains were "resolved" (p. 3); that Mercado had a normal range of motion (p. 2); that Mercado showed "no signs or symptoms of permanence relative to the musculoskeletal system" (p. 3); and that Mercado was "capable of gainful employment" and "activities of daily living" (p. 4).

These reports provide objective medical evidence that Mercado recovered from his injuries, and that his injuries did not prevent him from engaging in his regular daily activities. They are sufficient to meet Defendants' burden of stating a prima facie case that Plaintiff did not suffer a "serious injury." See, e.g., Noll v. Avis Budget Group LLC, No. 07-Civ.-1908(RML), 2008 WL 4282985, at *3 (E.D.N.Y. Sep. 17, 2008) ("A prima facie case is frequently established when sworn ...

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