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Richardson v. Garcia

Supreme Court, New York County

August 27, 2013

ZACHARY RICHARDSON, Plaintiff,
v.
ISAIAS D. GARCIA and CARLOS GARCIA, Defendants. Index No. 108269/10

Unpublished Opinion

ARLENE P. BLUTH, JUDGE.

In this motor vehicle accident action, defendants move for summary judgment dismissing the complaint for plaintiffs alleged failure to establish serious injuries, as that term is defined in the New York Insurance Law and also to dismiss for lack of liability. Plaintiff, then a seventeen year old high school senior, was hit by defendants' car on September 19, 2007 when he stepped out between two parked cars to hail a cab. At the time plaintiff was hit, he was about a foot or two past the cars into the street in the middle of a block (not in the crosswalk) (plaintiffs deposition, page 17). For the following reasons, the motion is granted and the case is dismissed.

To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a "serious injury" (see Rodriguez v Goldstein, 182 A.D.2d 396 [1992]). Such evidence includes "affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Shinn v. Catanzaro, 1 A.D.3d 195, 197 [1st Dept 2003], quoting Grossman v Wright, 268 A.D.2d 79, 84 [1st Dept 2000]). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiffs injury was caused by a pre-existing condition and not the accident (Farrington v. Go On Time Car Serv., 76 A.D.3d 818 [1st Dept 2010], citing Pommells v. Perez, 4 N.Y.3d 566 [2005]). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v. Mahlah, 2009 NY Slip Op 43 [1st Dept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id).

Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 A.D.3d at 197). A plaintiffs expert may provide a qualitative assessment that has an objective basis and compares plaintiffs limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiffs loss of range of motion (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351 [2002]). Further, where the defendant has established a pre-existing condition, the plaintiffs expert must address causation (see Valentin v. Pomilla, 59 A.D.3d 184 [1st Dept 2009]; Style v Joseph, 32 A.D.3d 212, 214 [1st Dept 2006]).

Serious Injury

Under Insurance Law § 5102, parties injured in motor vehicle accidents may only sue in court if they have sustained a "serious injury" as that term is defined in the statute. Perl v. Meher, 18 N.Y.3d 208 (2011). Insurance Law § 5102 (d) defines "serious injury, " as applicable to the instant case, as:

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 and eighty days immediately following the occurrence of the injury or impairment.

Since no recovery can be had for an injury suffered in a motor vehicle accident unless the accident results in a serious injury under the Insurance Law, the matter of the severity of the plaintiffs injuries should be determined before the question of liability is addressed.

Plaintiff claims a permanent consequential limitation to his left knee as well as a 90/180 claim. As relevant here, in his bill of particulars (exh B to moving papers), plaintiff contends that he suffered pain in the left knee, reduced range of motion, loss of one month from school, inability to walk stairs and inability to partake in events in and out of school.

Defendants, in order to meet their burden on summary judgment, must provide "expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident." Vega v. MTA Bus Co., 96 A.D.3d 506, 507 (1st Dept 2012).

In making their prima facie showing of entitlement to summary judgment as to plaintiffs lack of a serious injury, defendants produce the affirmed report of Dr. Howard Baruch (exh. F), an orthopedist who found normal range of motion in the knees, found plaintiff was able to squat to his toes without difficulty and reported that plaintiff complained only that he has some popping in his left knee on occasion (which apparently did not pop during Dr. Baruch's examination). Dr. Baruch reported that plaintiff was "on regular activity" and could continue his regular activities, and opined that plaintiff had no disability and did not sustain any permanent injury to his left knee as a result of the accident.

Regarding plaintiffs 90/180 claim, defendants point out that plaintiff stated in his deposition that no medical provider ever told him to curtail any of his activities. After the accident, he stayed out of school for about a month, but no doctor told him to stay out of school. (Deposition, page 24, line 25). Almost two months after the accident, plaintiff went to see Dr. Ehrlich, an orthopedic surgeon, who prescribed physical therapy, a leg brace and an MRI to determine the extent of the knee injury, but Dr. Ehrlich never told plaintiff to curtail any of his activities. The MRI showed bruising and a meniscal tear, and by the time plaintiff saw Dr. Ehrlich for a follow-up visit in January, the doctor determined that the knee injury was resolved. A diagnosis of a torn meniscus, without more, is not sufficient to meet the criteria of a serious injury. McLoud v. Reyes, 82 A.D.3d 848 (2d Dept 2011).

As there was no medically determined injury which caused a doctor to tell plaintiff to curtail any of his activities, defendants have fulfilled their burden showing that plaintiffs 90/180 claim should be dismissed. As for the claim of permanent consequential limitation, defendant's proof that plaintiff has full range of motion in his left knee and has no ...


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