Epstein v. MTA Long Island Bus

Supreme Court, Appellate Division, Second Department, New York. May 09, 2018 161 A.D.3d 821 75 N.Y.S.3d 532

 

 

Holdings: The Supreme Court, Appellate Division, held that:

1 pedestrian sufficiently alleged that she sustained a serious injury under both the consequential limitation of use and the 90/180-day categories of no-fault law, and

2 on motion for summary judgment, defendants failed to meet their prima facie burden of showing that pedestrian did not sustain a serious injury within the meaning of the 90/180 day category of no-fault law.

 

n support of that motion, they submitted evidence that the plaintiff was involved in another car accident 2½ years after the accident at issue that resulted in injuries similar to the injuries alleged in this case.

 

he Supreme Court also should have, upon renewal, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) as a result of the subject accident (see Stead v. Serrano, 156 A.D.3d 836, 67 N.Y.S.3d 244; Che Hong Kim v. Kossoff, 90 A.D.3d 969, 969, 934 N.Y.S.2d 867; see also Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Stead v. Serrano, 156 A.D.3d 836, 67 N.Y.S.3d 244; Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867).

 

Rivera v. Alvarado

Supreme Court, Appellate Division, Second Department, New York. June 13, 2018 162 A.D.3d 811 79 N.Y.S.3d 223

 

on, and the plaintiff appeals.

1The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180), and that, in any event, the alleged injuries were not caused by the accident (see Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607; Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 1 N.Y.S.3d 324).

2In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424; see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).

 

Moreira v. Mahabir  Supreme Court, Appellate Division, First Department, New York. February 15, 2018 158 A.D.3d 518 71 N.Y.S.3d 38

 

 

In opposition, plaintiff raised an issue of fact through the affirmed reports of a physician who examined her soon after the accident, and another who examined her recently and observed significant limitations in range of motion of the affected body *519 parts, as well as positive results on objective tests for cervical and lumbar injury (see Encarnacion v. Castillo, 146 A.D.3d 600, 601, 44 N.Y.S.3d 744 [1st Dept. 2017]; DaCosta v. Gibbs, 139 A.D.3d 487, 487, 33 N.Y.S.3d 160 [1st Dept. 2016] ). Although the contents of some of the medical records submitted by plaintiff were inadmissible because they were unaffirmed (see Barry v. Arias, 94 A.D.3d 499, 499, 942 N.Y.S.2d 57 [1st Dept. 2012] ), they could “be considered for the purpose of demonstrating that plaintiff sought medical treatment for h[er] claimed injuries contemporaneously” (Vishevnik v. Bouna, 147 A.D.3d 657, 659, 48 N.Y.S.3d 93 [1st Dept. 2017] ).

To the extent that defendants raised an issue as to degeneration, plaintiff's physicians adequately addressed the issue by ascribing her injuries to a different, yet equally plausible, explanation—the accident (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]; Camacho v. Espinoza, 94 A.D.3d 674, 942 N.Y.S.2d 539 [1st Dept. 2012]; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 915 N.Y.S.2d 529 [1st Dept. 2011] ). Defendants' contention that plaintiff failed to adequately explain a cessation of treatment is unpreserved, since it was first raised in reply and may not be raised on appeal (see Paulling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 65 N.Y.S.3d 19 [1st Dept. 2017]; Tadesse v. Degnich, 81 A.D.3d 570, 917 N.Y.S.2d 569 [1st Dept. 2011] ). In any event, plaintiff's physician noted that therapy and other treatment ceased because it failed to improve her condition (see Pommells v. Perez, 4 N.Y.3d at 577, 797 N.Y.S.2d 380, 830 N.E.2d 278).

 

158 A.D.3d 1324

Supreme Court,

Appellate Division, Fourth Department, New York.

Pamela M. KRACKER and Steven M. Kracker, Plaintiffs–Respondents,

v.

Liam P. O'CONNOR, Defendant–Appellant.

 

We conclude that defendant met his initial burden on the motion by submitting evidence establishing as a matter of law that plaintiff did not sustain a serious injury under the permanent consequential limitation of use and 90/180–day categories (see Hoffman v. Stechenfinger, 4 A.D.3d 778, 779, 772 N.Y.S.2d 432 [4th Dept. 2004]; Cook v. Franz, 309 A.D.2d 1234, 1234–1235, 765 N.Y.S.2d 537 [4th Dept. 2003]; Winslow v. Callaghan, 306 A.D.2d 853, 854, 761 N.Y.S.2d 891 [4th Dept. 2003] ). Defendant submitted the affidavit of a physician who, after examining plaintiff and reviewing plaintiff's imaging studies, medical records and medical history, opined that plaintiff sustained a “sprain and strain” and “soft tissue injuries,” which are “not serious and permanent injuries.” Plaintiff testified at her deposition that she missed no work as a result of the accident, and her medical records establish that she was medically cleared to work “without restrictions” less than two weeks after the accident. In opposition, plaintiffs failed to raise an issue of fact with respect to the permanent consequential limitation of use and 90/180–day categories (see Griffo v. Colby, 118 A.D.3d 1421, 1422, 988 N.Y.S.2d 763 [4th Dept. 2014]; Yoonessi v. Givens, 39 A.D.3d 1164, 1166, 836 N.Y.S.2d 388 [4th Dept. 2007] ), and we therefore modify the order accordingly.

2We conclude, however, that, although defendant also met his initial burden on the motion with respect to the significant limitation of use category of Insurance Law § 5102(d), plaintiffs raised an issue of fact by submitting the affirmation of their medical expert (see LoGrasso v. City of Tonawanda, 87 A.D.3d 1390, 1391, 930 N.Y.S.2d 129 [4th Dept. 2011] ). Specifically, after reviewing plaintiff's medical records and imaging studies, plaintiffs' expert opined that plaintiff sustained a superior labral anterior and posterior tear to her right shoulder that required surgery and was causally related to the accident.

 

 

Latus v. Ishtarq

Supreme Court, Appellate Division, First Department, New York.March 1, 2018159 A.D.3d 43371 N.Y.S.3d 672018 N.Y. Slip Op. 01417

 

Defendants met their initial burden by submitting both the affirmed report of an orthopedic surgeon and plaintiff's own hospital and medical records, and deposition testimony. Defendant's orthopedist found full range of motion and normal tests, and opined that plaintiff's injuries had resolved (see Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept. 2013] ). Defendants' expert was not required to review plaintiff's medical records before forming her opinion (see Mena v. White City Car & Limo Inc., 117 A.D.3d 441, 441, 985 N.Y.S.2d 234 [1st Dept. 2014] ). Plaintiff's medical records demonstrated prima facie that plaintiff ceased treatment five months after the accident, after his doctor found that he had full range of motion and that his diagnosed conditions had resolved, and that plaintiff had preexisting conditions that may have contributed to his conditions, including corrected spina bifida and osteoarthritis. Defendants thus shifted the burden to plaintiff to explain his cessation of treatment and to address why his preexisting conditions were not the cause of his current reported symptoms (see Pommells v. Perez, 4 N.Y.3d 566, 574–575, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).

In opposition, plaintiff submitted his own affidavit and the affirmation of his orthopedist. The scrivener's error concerning the date of the accident was minor and did not warrant rejecting *434 plaintiff's submissions entirely. Nevertheless, when reviewed on the merits, plaintiff's evidence was insufficient to raise an issue of fact. Plaintiff's physician provided only a conclusory opinion that plaintiff's injuries were caused by the accident, without addressing the preexisting conditions documented in his own MRI, or explaining why plaintiff's current reported symptoms were not related to the preexisting conditions (see Nakamura v. Montalvo, 137 A.D.3d 695, 696, 29 N.Y.S.3d 285 [1st Dept. 2016]; Farmer v. Ventkate Inc., 117 A.D.3d 562, 562, 986 N.Y.S.2d 98 [1st Dept. 2014] ). Further, plaintiff's claim that he ceased treatment after no-fault benefits were discontinued is unpersuasive since he acknowledged that he had private insurance through his union (see Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 547, 33 N.Y.S.3d 260 [1st Dept. 2016]; Merrick v. Lopez–Garcia, 100 A.D.3d 456, 457, 954 N.Y.S.2d 25 [1st Dept. 2012] ). Further, his prompt return to work as a stage manager, and cessation of treatment five months after the accident, were consistent with his own doctor's conclusion that his “hip strain” had resolved, and demonstrate that the injuries were minor in nature (see Frias, 107 A.D.3d at 590, 967 N.Y.S.2d 382).

 

Rivas v. Hill

Supreme Court, Appellate Division, Second Department, New York.June 13, 2018162 A.D.3d 80979 N.Y.S.3d 2252018 N.Y. Slip Op. 04367

 

The defendants failed to meet their respective prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical and lumbar regions of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). Two of the defendants' experts found significant limitations in the range of motion of the cervical and lumbar regions of the plaintiff's spine and failed to adequately explain and substantiate their beliefs that the limitations were *811 self-imposed (see Miller v. Ebrahim, 134 A.D.3d 915, 916, 20 N.Y.S.3d 538; Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757; Miller v. Bratsilova, 118 A.D.3d 761, 987 N.Y.S.2d 444; India v. O'Connor, 97 A.D.3d 796, 948 N.Y.S.2d 678; cf. Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182). Further, the defendants' evidentiary submissions demonstrated the existence of a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were caused by the accident (see Straussberg v. Marghub, 108 A.D.3d 694, 968 N.Y.S.2d 898; Kearney v. Garrett, 92 A.D.3d 725, 726, 938 N.Y.S.2d 349).

 

Lazzari v. Qualcon Construction, LLC

Supreme Court, Appellate Division, First Department, New York.June 7, 2018162 A.D.3d 44078 N.Y.S.3d 1262018 N.Y. Slip Op. 04082

 

Vehicles, persons or occurrences within restrictions

Accident between vehicle and bucket of excavator that was protruding into roadway was between “covered persons,” as required for accident to meet serious injury threshold of no-fault law; although excavator was self-propelled caterpillar or crawler-type equipment, it was being operated on public highway, adjacent to and encroaching into road on which motorist was driving, accident arose out of use or operation of excavator, as it was the instrumentality that produced motorist's injuries, and although it was not being operated and was unattended at time of accident, it was only temporarily parked during ongoing construction work. N.Y. Vehicle and Traffic Law §§ 125, 134, 311(2); N.Y. Insurance Law §§ 5102(j), 5104(a).

 

Pucci v. Trabulsy

Supreme Court, Appellate Division, Second Department, New York.May 23, 2018161 A.D.3d 111777 N.Y.S.3d 6942018 N.Y. Slip Op. 03720

 

The defendant presented the testimony of a board-certified orthopedic surgeon, who testified that he measured Vincent Pucci's range of motion at a recent examination, and that the range of motion of Vincent Pucci's cervical spine was normal. The surgeon further stated that Vincent Pucci's lumbar range of motion was better than normal. The defendant also submitted the testimony of a radiologist, who had testified, after reviewing Vincent Pucci's MRI films, that the injuries to the cervical and lumbar regions of Vincent Pucci's spine were caused by age-related degeneration, and not by a traumatic event such as the accident.

The jury unanimously found that none of the plaintiffs sustained a serious injury under either the permanent *1119 consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). A judgment dated September 25, 2015, upon the jury verdict, is in favor of the defendant and against the plaintiffs dismissing the complaint. The plaintiffs appeal.

We reject the defendant's contention that this appeal should be dismissed on the ground that the plaintiffs submitted an inadequate appendix, as we find the appendix to be adequate (see generally Bousson v. Bousson, 136 A.D.3d 954, 954–955, 25 N.Y.S.3d 607).

123The plaintiffs' contention that the verdict was contrary to the weight of the evidence is without merit. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d 587, 588, 915 N.Y.S.2d 631; see generally Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163; Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). “Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert” (Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d at 588, 915 N.Y.S.2d 631; see Frenchman v. Westchester Med. Ctr., 77 A.D.3d 618, 619, 909 N.Y.S.2d 107).

Here, the jury's finding that none of the plaintiffs sustained a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) was supported by a fair interpretation of the evidence (see e.g. Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180; see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

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