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FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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X
SARAH M. LANZA, Index No. 523020/2020
Plaintiff,
-against-
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION,
Defendants.
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MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
LAW OFFICE OF KEVIN J. PHILBIN
Attorneys for Defendants
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION CORP.
One Whitehall Street – 13th Floor
New York, New York 10004-2109
Phone: (212) 248-9100
File No.: 18-018329
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PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendants SANTO
MERCEDES BAEZ and GUMA CONSTRUCTION CORP. in support of their motion for an
Order pursuant to Civil Practice Law and Rules (“CPLR”) §3212 and Article 51 of the New York
Insurance Law, granting summary judgment to defendants, and dismissing plaintiff’s Verified
Complaint on the grounds that plaintiff’s alleged injuries do not meet the “serious injury” threshold
as set forth in §5102(d) of the New York Insurance Law; and for such other and further relief as
this Court deems just and proper.
STATEMENT OF FACTS
This is an action to recover damages for alleged injuries claimed to have been sustained by
plaintiff, SARAH M. LANZA, as a result of a motor vehicle accident on March 11, 2020, at or
near the intersection of 10th Street and Driggs Avenue in Brooklyn, New York.
The facts are set forth MORE fully at length in the accompanying Affirmation of Arlene
E. Lewis, Esq., dated August 19, 2022 (“Lewis Affirmation”) and are incorporated herein by
reference.
ARGUMENT
POINT I
THE EVIDENCE DEMONSTRATES THAT PLAINTIFF
DID NOT SUFFER A “SERIOUS INJURY” AS DEFINED
IN AND REQUIRED BY ARTICLE 51 OF THE NEW
YORK STATE INSURANCE LAW.
Section 5104(a) of the New York Insurance Law limits the right to recover in cases
involving motor vehicle accidents to those involving a “serious injury”. The purpose of this statute
is to “correct certain infirmities recognized to exist under the common-law tort system of
compensating automobile accident claimants” and to “keep minor personal injury cases out of
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court.” Licari. A “serious injury” is defined in section 5102(d) of the New York Insurance Law,
as follows:
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
member; 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
constitutes such persons usual and customary daily activities for
not less than 90 days during the 180 days immediately following
the occurrence of the injury or impairment.
According to plaintiff’s verified bill of particulars, plaintiff claims she sustained serious
injuries that satisfy the following “catch all” categories of §5102(d) of the New York Insurance
Law: “permanent consequential limitation of use of a body organ or member”; “significant
limitation of use of a body function or a system”; and, “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 persons usual and customary daily
activities for not less than 90 days during the 180 days immediately following the occurrence of
the injury or impairment.”
As set forth in detail in the Lewis Affirmation, plaintiff’s claimed injuries include
orthopedic injuries to her left knee, lumbar spine, left shoulder, left hip, cervical spine; and brain
injury. Plaintiff does not allege death, dismemberment, significant disfigurement, a fracture, or
loss of a fetus- the more specific categories of serious injury. Id. She also does not allege
“permanent loss of use of a body organ, member, function, or system.” New York Insurance Law
§5102(d).
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Notwithstanding plaintiff’s allegations, plaintiff has failed to satisfy the requirements of
§5102(d) of the New York Insurance Law, as evidenced by her various medical records, and the
reports of defendants’ experts in this case. See the Lewis Affirmation at ¶¶ 21-23 and 34-74.
A. Plaintiff has not Established that She Suffered “Permanent Consequential Limitation
of Use of a Body Organ or Member” or “Significant Limitation of Use of a Body
Function or System” as a result of the accident.
Courts have held that to establish an injury within the permanent consequential limitation
of use of a body organ or member and the significant limitation of use of a body function or a
system categories of §5102(d) of the New York Insurance Law, in addition to demonstrating the
permanence of the alleged injury (i.e., the continued presence of the injury, without improvement,
beginning on the date of the accident), the medical evidence submitted by plaintiff, “must contain
objective, quantitative evidence with respect to diminished range of motion or a qualitative
assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the
affected body organ, member, function or system.” Toure v Avis Rent a Car Sys., 98 NY2d 345
[2002]: (Insurance Law § 5102 (Consol., Lexis Advance through 2022 released Chapters 1-500)).
Further, both the permanent consequential limitation of use of a body organ or a member,
and the significant limitation of use of a body function or system categories of the New York
Insurance Law, require that any such alleged limitation must also be “significant” limitation of
use, rather than “slight.” Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001] ; Licari v Elliott,
57 NY2d 230 [1982].
Plaintiff has not made a showing of any injury that satisfies either of these two categories
of §5102(d) of the New York Insurance Law. As explained by defendant’s experts, the injuries
allegedly sustained by plaintiff herein include her subjective claims of pain and limitation, as well
as degenerative and pre-existing injuries and conditions, rather than any permanent, significant,
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and not slight injuries allegedly resulting from the subject accident. Oberly v Bangs Ambulance
Inc., 96 NY2d 295 [2001] . See the Lewis Affirmation at ¶¶33-61.
Furthermore, plaintiff’s claimed orthopedic injuries to her left shoulder, lumbar spine,
cervical spine, left hip, and left knee, lack the requisite proof that the alleged injuries are
permanent, significant, and not slight, and are therefore insufficient to establish that the alleged
injuries constitute either a permanent consequential limitation of use or a significant limitation of
use. Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001]. See Lewis Affirmation at ¶¶33-61.
In Pommells v. Perez, the Court explained that to satisfy the permanent consequential
limitation of use or significant limitation of use categories plaintiff must provide proof in the form
of objective, quantitative medical evidence that the alleged accident-related injuries resulted in
significant physical limitations. Pommells v Perez, 4 NY3d 566 [2005] . As discussed at length in
each of the defense doctors’ reports, plaintiff has not provided any such objective, quantitative
evidence of her alleged accident-related injuries. Lewis Affirmation at ¶¶33-61.
The defense orthopedic surgeon’s and neurologist’s examinations revealed normal ranges
of motion and resolved soft tissue injuries. Lewis Affirmation at ¶¶ 33-43 and 57-61. Moreover,
the defense orthopedic surgeon opined that the post-incident knee and shoulder surgeries were not
causally related to the subject incident. Lewis Affirmation at ¶43.
While plaintiff complained subjectively of pain and limitations and movement, there is no
objective evidence of the alleged accident- related injuries alleged by plaintiff and her verified bill
of particulars. It is well- established that subjective pain, absent objective, quantitative evidence,
is insufficient to establish serious injury for purposes of the New York Insurance Law. Oberly v
Bangs Ambulance Inc., 96 NY2d 295 [2001] ; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]
.
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Plaintiff’s claimed TBI was also found to lack merit based not only on the findings in post-
incident radiological imaging of plaintiff’s brain compared to pre-accident radiological imaging
and studies of her brain reviewed by the defense neuroradiologist and neuropsychologist, but also
based on neuropsychological testing performed by the defense neuroradiologist – Dr.
DeBenedetto. Lewis Affirmation at ¶¶ 50-56.
Moreover, the defense biomechanist’s review of plaintiff’s medical records, other evidence
and materials revealed that the subject motor vehicle incident “did not create the required injury
mechanisms” to establish a causal link between the subject incident and any of plaintiff’s claimed
injuries. See the copy of Jacqueline M. Lewis Devine, Ph.D.’s Affidavit and report annexed to the
Lewis Affirmation as Exhibit I.
Therefore, not only has plaintiff failed to establish the permanence of her alleged injuries,
defense independent medical examinations confirm the absence of the requisite objective evidence
of injury to support plaintiff’s claims. As such, plaintiff has not established that she suffered either
a permanent consequential limitation of use of a body organ or member, or a significant limitation
of use of a body function or a system as a result of the accident. New York Insurance Law
§5102(d). (Emphasis supplied.) Plaintiff has merely made subjective complaints of pain and
limitations and movement which are not proven in the results of her examination by the defense
medical experts. Thus, plaintiff simply cannot, demonstrate a permanent consequential limitation
of use of a body organ or member, or a significant limitation of use of a body function or system
to satisfy the requirements of §§5104(a) and 5102(d) of the New York Insurance Law.
Further, any argument by plaintiff that the defense neuropsychologist’s findings on
examination establish any deficit purportedly attributable to the subject incident, must be rejected.
According to Dr. DeBenedetto, plaintiff’s results are “atypical or clinically inconsistent” and
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“cannot be accepted as a reflection of her true level of ability.” See the Lewis Affirmation at ¶55.
These assertions are supported by the defense neuroradiologist, Dr. Katzman, who had the benefit
of pre-incident imaging and studies of plaintiff’s brain, and concluded after reviewing and
comparing the records, that there was “no evidence of recent traumatic injury to the brain” and “no
interval changes from the prior MRI exam”. See the Lewis Affirmation at ¶¶44-45.
Consequently, plaintiff would be hard pressed to demonstrate, a causally related impact on
her brain, or any impact, considering the absence of changes between the pre-accident and post-
accident MRIs. Moreover, even if there were any changes, they would arguably not be attributable
to the subject incident based on the defense biomechanist’s review and opinion that the incident
did not create the mechanisms required not only for the alleged brain injury, but any of the injuries
plaintiff claims resulted from the incident. See the Lewis Affirmation at ¶¶63-73.
B. Plaintiff has not established that she suffered a medically determined injury or
impairment of a non- permanent nature which prevented her from performing
substantially all of the material acts which constitute her usual and customary daily
activities for not less than 90 days during the 180 days immediately following the
accident.
To establish a serious injury in the 90/180 category of §5102(d) of the New York Insurance
Law, plaintiffs are required to present objective evidence of a medically determined injury or
impairment of a non-permanent nature. Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]. This
category of the New York Insurance Law requires that plaintiff was prevented from performing
his or her usual activities to a great extent and not slightly. Id. Where, for example, a plaintiff is
found to be able to perform her usual activities from most of the days after the incident, courts
have found that he or she has not satisfied the requirements of this category of the New York
Insurance Law. Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002].
It is clear from plaintiff’s medical records, deposition testimony, and the defense experts
reports which are described in detail in the Lewis Affirmation, that here, plaintiff has failed to
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demonstrate that she sustained a medically determined injury or impairment of a nonpermanent
nature, which satisfies the final category of New York Insurance Law Section 5102(d). Plaintiff’s
own deposition testimony and medical records belie her claims of having been affected in this
manner.
Plaintiff testified that she was working as a housekeeper at a hotel at the time of the accident
and returned to work until the hotel closed. This work involved lifting and moving and cleaning
which plaintiff performed upon her return until the hotel closed permanently. Thereafter, plaintiff
merely claims, but has not established that she was told by any medical professional that she could
not continue to work. Moreover, she has not established that her employer determined that she was
unable to work. Lewis Affirmation at ¶¶29-31.
Courts have held that a doctor’s assertion in this regard, i.e., that a plaintiff was advised to
take off from work, does not satisfy the requirements set forth in New York State Insurance Law
§5102 for the requisite proof of incapacity during ninety of the one hundred eighty days following
the accident. Rubin v SMS Taxi Corp., 71 AD3d 548 [1st Dept 2010] . Plaintiff’s claims of inability
to work must be substantiated by both a physician and her employer -- as to the existence of a
medically determined injury which caused the alleged limitation of her activities. Id.
Here, plaintiff’s own statements and behavior after the accident, such as refusing medical
attention immediately after the accident. The reports of the Board-Certified defense orthopedic
surgeon, neurologist, neuropsychologist, and radiologist demonstrate further that plaintiff cannot
prove an inability to perform her usual and customary daily activities during ninety out of the first
one hundred eighty days after the accident.
In fact, plaintiff has failed to establish the presence of such claimed injuries at the time
MRIs of plaintiff’s left shoulder, left hip, lumbar spine, cervical spine, left knee, and brain were
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performed during the 60 days following the subject accident. As such, the evidence presented by
way of plaintiff’s medical records, as explained by the defense medical experts, demonstrates that
tests and examinations of plaintiff within about 60 days following the accident and thereafter,
revealed the absence of any traumatic injury.
Here the record is devoid of such support from plaintiff’s employer as to an inability to
work. Instead, as plaintiff testified, she returned to work for one morning shift, took 5 days off,
and then stopped working when her employer closed its business. Furthermore, when she was
deposed plaintiff testified that she is able and has been able to bathe, feed and dress herself since
the accident occurred. Plaintiff has clearly not demonstrated that she was not able to perform
substantially all of the material acts which constitute her usual and customary daily activities or
any inability during the ninety days during the first one hundred eighty days after his alleged injury
or impairment. New York Insurance Law §5102(d) (Emphasis supplied.). Instead, plaintiff’s
testimony revealed that there was very little that she could not do after the accident.
Where, as in the instant case, a plaintiff fails to provide any “competent medical evidence”
demonstrating he or she was not able to perform “substantially all of his or her usual customary
daily activities for not less than 90 days out of the 1st 180 days subsequent to the subject accident,”
Courts have held that the plaintiff did not sustain a “serious injury” under §5102(d) of the New
York Insurance Law. Shaji v City of New Rochelle, 66 AD3d 760 [2d Dept 2009]. Thus, plaintiff
also has not demonstrated that she suffered a “serious injury” under the “medically determined
injury or impairment of a non- permanent nature” which prevented her from “performing
substantially all of the material acts which constituted his customary daily activities, for not less
than ninety days during the one hundred eighty days immediately following” the accident category
of § 5102(d) of the New York Insurance Law.
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POINT II
PLAINTIFF’S ALLEGED LEFT SHOULDER, LEFT HIP,
LUMBAR SPINE, CERVICAL SPINE, LEFT KNEE, AND
BRAIN INJURIES ARE ATTRIBUTABLE TO
DEGENERATIVE AND/OR PRE-EXISTING
CONDITIONS, AND ARE THEREFORE, NOT
CAUSALLY RELATED TO THE SUBJECT MOTOR
VEHICLE ACCIDENT.
Where, as in the instant case, a plaintiff that is shown to exist prior to the accident, the New
York Court of Appeals has haled that the “serious injury” threshold has not been met. Knoll v
Seafood Express, 5 NY3d 817 [2005]. In Knoll, the Court of Appeals held that because the
plaintiff’s claimed motor-vehicle accident-related injury pre-dated the accident, plaintiff failed to
submit medical proof sufficient to rebut defendants’ submissions and to show he suffered a serious
injury that is causally related to the accident. Id.
Similarly, here, as set forth in the Lewis Affirmation, medical records produced by plaintiff
demonstrate pre-existing and/or degenerative conditions that are thus not causally related to the
subject accident. As explained in Dr. Katzman’s reports after his review of plaintiff’s MRIs and
other radiological testing and accompanying reports of said test performed with respect to
plaintiff’s left knee, left shoulder, lumbar spine, cervical spine, and brain, said testing revealed
chronic, degenerative, and not post-traumatic, pre-existing conditions. The defense neurologist
also discussed plaintiff’s prior accident and surgery and opined that her injuries pre-existed the
subject incident. Lewis Affirmation ¶ 58.
The operative report of plaintiff’s orthopedic surgeon, Kenneth McCulloch, M.D., with
respect to the post-accident left shoulder arthroscopic surgery on August 6, 2020 indicated that
there was “significant hypertrophic morbid synovitis” and “[c]opious bursitis was identified and
removed”. (Lewis Affirmation at Exhibit L, page 2). Additionally, in the operative report of
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Kenneth McCulloch, M.D. concerning plaintiff November 12, 2020 left knee surgery, Dr.
McCulloch indicated “[s]ignificant hypertrophic morbid synovitis” was also found. (Lewis
Affirmation at Exhibit M, page 1).
Therefore, plaintiff has failed to demonstrate the existence of a causally related “serious
injury” that would entitle her to recover damages in this case.
CONCLUSION
Contrary to the allegations contained in plaintiff’s Verified Complaint, and Verified Bill
of Particulars, plaintiff has not established a prima facie case that she sustained a “serious injury”
as that term is defined in Article 51 of the New York State Insurance Law. Thus, as a matter of
law, plaintiff has not satisfied the “serious injury” threshold. It is respectfully submitted that
plaintiff’s Verified Complaint should therefore be dismissed.
WHEREFORE, defendants respectfully request that the Court issue an Order Pursuant to
CPLR §3212 and Article 51 of the New York Insurance Law granting summary judgment to
defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION with respect to damages,
and dismissing plaintiff’s Verified Complaint on the grounds that plaintiff’s alleged injuries do not
meet the “serious injury” threshold as set forth in § 5102(d) of the New York Insurance Law; and,
for such other and further relief as this Court deems just and proper.
Dated: New York, New York
August 19, 2022
LAW OFFICE OF KEVIN J. PHILBIN
Attorneys for Defendants
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION CORP.
One Whitehall Street – 13th Floor
New York, New York 10004-2109
Phone: (212) 248-9100
File No.: 18-018329
By: ____________________________
ARLENE E. LEWIS
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Re: Sarah Lanza v. Santo Mercedes Baez and Guma Construction
Index # 523020/2020
CERTIFICATE OF COMPLIANCE
ARLENE E. LEWIS, an attorney duly admitted to practice in the courts of the State of
New York, hereby certifies, pursuant to 22 NYCRR §202.8-b, that the total word count in this
Memorandum of Law, exclusive of the caption and signature block, is 3,010.
Dated: New York, New York
August 19, 2022
___________________
ARLENE E. LEWIS
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Preview
FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------- X SARAH M. LANZA, Index No. 523020/2020 Plaintiff, -against- SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, Defendants. -------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT LAW OFFICE OF KEVIN J. PHILBIN Attorneys for Defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. One Whitehall Street – 13th Floor New York, New York 10004-2109 Phone: (212) 248-9100 File No.: 18-018329 1 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 PRELIMINARY STATEMENT This Memorandum of Law is respectfully submitted on behalf of defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. in support of their motion for an Order pursuant to Civil Practice Law and Rules (“CPLR”) §3212 and Article 51 of the New York Insurance Law, granting summary judgment to defendants, and dismissing plaintiff’s Verified Complaint on the grounds that plaintiff’s alleged injuries do not meet the “serious injury” threshold as set forth in §5102(d) of the New York Insurance Law; and for such other and further relief as this Court deems just and proper. STATEMENT OF FACTS This is an action to recover damages for alleged injuries claimed to have been sustained by plaintiff, SARAH M. LANZA, as a result of a motor vehicle accident on March 11, 2020, at or near the intersection of 10th Street and Driggs Avenue in Brooklyn, New York. The facts are set forth MORE fully at length in the accompanying Affirmation of Arlene E. Lewis, Esq., dated August 19, 2022 (“Lewis Affirmation”) and are incorporated herein by reference. ARGUMENT POINT I THE EVIDENCE DEMONSTRATES THAT PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” AS DEFINED IN AND REQUIRED BY ARTICLE 51 OF THE NEW YORK STATE INSURANCE LAW. Section 5104(a) of the New York Insurance Law limits the right to recover in cases involving motor vehicle accidents to those involving a “serious injury”. The purpose of this statute is to “correct certain infirmities recognized to exist under the common-law tort system of compensating automobile accident claimants” and to “keep minor personal injury cases out of 2 2 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 court.” Licari. A “serious injury” is defined in section 5102(d) of the New York Insurance Law, as follows: 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 member; 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 constitutes such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. According to plaintiff’s verified bill of particulars, plaintiff claims she sustained serious injuries that satisfy the following “catch all” categories of §5102(d) of the New York Insurance Law: “permanent consequential limitation of use of a body organ or member”; “significant limitation of use of a body function or a system”; and, “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 persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.” As set forth in detail in the Lewis Affirmation, plaintiff’s claimed injuries include orthopedic injuries to her left knee, lumbar spine, left shoulder, left hip, cervical spine; and brain injury. Plaintiff does not allege death, dismemberment, significant disfigurement, a fracture, or loss of a fetus- the more specific categories of serious injury. Id. She also does not allege “permanent loss of use of a body organ, member, function, or system.” New York Insurance Law §5102(d). 3 3 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 Notwithstanding plaintiff’s allegations, plaintiff has failed to satisfy the requirements of §5102(d) of the New York Insurance Law, as evidenced by her various medical records, and the reports of defendants’ experts in this case. See the Lewis Affirmation at ¶¶ 21-23 and 34-74. A. Plaintiff has not Established that She Suffered “Permanent Consequential Limitation of Use of a Body Organ or Member” or “Significant Limitation of Use of a Body Function or System” as a result of the accident. Courts have held that to establish an injury within the permanent consequential limitation of use of a body organ or member and the significant limitation of use of a body function or a system categories of §5102(d) of the New York Insurance Law, in addition to demonstrating the permanence of the alleged injury (i.e., the continued presence of the injury, without improvement, beginning on the date of the accident), the medical evidence submitted by plaintiff, “must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.” Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]: (Insurance Law § 5102 (Consol., Lexis Advance through 2022 released Chapters 1-500)). Further, both the permanent consequential limitation of use of a body organ or a member, and the significant limitation of use of a body function or system categories of the New York Insurance Law, require that any such alleged limitation must also be “significant” limitation of use, rather than “slight.” Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001] ; Licari v Elliott, 57 NY2d 230 [1982]. Plaintiff has not made a showing of any injury that satisfies either of these two categories of §5102(d) of the New York Insurance Law. As explained by defendant’s experts, the injuries allegedly sustained by plaintiff herein include her subjective claims of pain and limitation, as well as degenerative and pre-existing injuries and conditions, rather than any permanent, significant, 4 4 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 and not slight injuries allegedly resulting from the subject accident. Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001] . See the Lewis Affirmation at ¶¶33-61. Furthermore, plaintiff’s claimed orthopedic injuries to her left shoulder, lumbar spine, cervical spine, left hip, and left knee, lack the requisite proof that the alleged injuries are permanent, significant, and not slight, and are therefore insufficient to establish that the alleged injuries constitute either a permanent consequential limitation of use or a significant limitation of use. Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001]. See Lewis Affirmation at ¶¶33-61. In Pommells v. Perez, the Court explained that to satisfy the permanent consequential limitation of use or significant limitation of use categories plaintiff must provide proof in the form of objective, quantitative medical evidence that the alleged accident-related injuries resulted in significant physical limitations. Pommells v Perez, 4 NY3d 566 [2005] . As discussed at length in each of the defense doctors’ reports, plaintiff has not provided any such objective, quantitative evidence of her alleged accident-related injuries. Lewis Affirmation at ¶¶33-61. The defense orthopedic surgeon’s and neurologist’s examinations revealed normal ranges of motion and resolved soft tissue injuries. Lewis Affirmation at ¶¶ 33-43 and 57-61. Moreover, the defense orthopedic surgeon opined that the post-incident knee and shoulder surgeries were not causally related to the subject incident. Lewis Affirmation at ¶43. While plaintiff complained subjectively of pain and limitations and movement, there is no objective evidence of the alleged accident- related injuries alleged by plaintiff and her verified bill of particulars. It is well- established that subjective pain, absent objective, quantitative evidence, is insufficient to establish serious injury for purposes of the New York Insurance Law. Oberly v Bangs Ambulance Inc., 96 NY2d 295 [2001] ; Grossman v Wright, 268 AD2d 79 [2d Dept 2000] . 5 5 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 Plaintiff’s claimed TBI was also found to lack merit based not only on the findings in post- incident radiological imaging of plaintiff’s brain compared to pre-accident radiological imaging and studies of her brain reviewed by the defense neuroradiologist and neuropsychologist, but also based on neuropsychological testing performed by the defense neuroradiologist – Dr. DeBenedetto. Lewis Affirmation at ¶¶ 50-56. Moreover, the defense biomechanist’s review of plaintiff’s medical records, other evidence and materials revealed that the subject motor vehicle incident “did not create the required injury mechanisms” to establish a causal link between the subject incident and any of plaintiff’s claimed injuries. See the copy of Jacqueline M. Lewis Devine, Ph.D.’s Affidavit and report annexed to the Lewis Affirmation as Exhibit I. Therefore, not only has plaintiff failed to establish the permanence of her alleged injuries, defense independent medical examinations confirm the absence of the requisite objective evidence of injury to support plaintiff’s claims. As such, plaintiff has not established that she suffered either a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or a system as a result of the accident. New York Insurance Law §5102(d). (Emphasis supplied.) Plaintiff has merely made subjective complaints of pain and limitations and movement which are not proven in the results of her examination by the defense medical experts. Thus, plaintiff simply cannot, demonstrate a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system to satisfy the requirements of §§5104(a) and 5102(d) of the New York Insurance Law. Further, any argument by plaintiff that the defense neuropsychologist’s findings on examination establish any deficit purportedly attributable to the subject incident, must be rejected. According to Dr. DeBenedetto, plaintiff’s results are “atypical or clinically inconsistent” and 6 6 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 “cannot be accepted as a reflection of her true level of ability.” See the Lewis Affirmation at ¶55. These assertions are supported by the defense neuroradiologist, Dr. Katzman, who had the benefit of pre-incident imaging and studies of plaintiff’s brain, and concluded after reviewing and comparing the records, that there was “no evidence of recent traumatic injury to the brain” and “no interval changes from the prior MRI exam”. See the Lewis Affirmation at ¶¶44-45. Consequently, plaintiff would be hard pressed to demonstrate, a causally related impact on her brain, or any impact, considering the absence of changes between the pre-accident and post- accident MRIs. Moreover, even if there were any changes, they would arguably not be attributable to the subject incident based on the defense biomechanist’s review and opinion that the incident did not create the mechanisms required not only for the alleged brain injury, but any of the injuries plaintiff claims resulted from the incident. See the Lewis Affirmation at ¶¶63-73. B. Plaintiff has not established that she suffered a medically determined injury or impairment of a non- permanent nature which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. To establish a serious injury in the 90/180 category of §5102(d) of the New York Insurance Law, plaintiffs are required to present objective evidence of a medically determined injury or impairment of a non-permanent nature. Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]. This category of the New York Insurance Law requires that plaintiff was prevented from performing his or her usual activities to a great extent and not slightly. Id. Where, for example, a plaintiff is found to be able to perform her usual activities from most of the days after the incident, courts have found that he or she has not satisfied the requirements of this category of the New York Insurance Law. Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]. It is clear from plaintiff’s medical records, deposition testimony, and the defense experts reports which are described in detail in the Lewis Affirmation, that here, plaintiff has failed to 7 7 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 demonstrate that she sustained a medically determined injury or impairment of a nonpermanent nature, which satisfies the final category of New York Insurance Law Section 5102(d). Plaintiff’s own deposition testimony and medical records belie her claims of having been affected in this manner. Plaintiff testified that she was working as a housekeeper at a hotel at the time of the accident and returned to work until the hotel closed. This work involved lifting and moving and cleaning which plaintiff performed upon her return until the hotel closed permanently. Thereafter, plaintiff merely claims, but has not established that she was told by any medical professional that she could not continue to work. Moreover, she has not established that her employer determined that she was unable to work. Lewis Affirmation at ¶¶29-31. Courts have held that a doctor’s assertion in this regard, i.e., that a plaintiff was advised to take off from work, does not satisfy the requirements set forth in New York State Insurance Law §5102 for the requisite proof of incapacity during ninety of the one hundred eighty days following the accident. Rubin v SMS Taxi Corp., 71 AD3d 548 [1st Dept 2010] . Plaintiff’s claims of inability to work must be substantiated by both a physician and her employer -- as to the existence of a medically determined injury which caused the alleged limitation of her activities. Id. Here, plaintiff’s own statements and behavior after the accident, such as refusing medical attention immediately after the accident. The reports of the Board-Certified defense orthopedic surgeon, neurologist, neuropsychologist, and radiologist demonstrate further that plaintiff cannot prove an inability to perform her usual and customary daily activities during ninety out of the first one hundred eighty days after the accident. In fact, plaintiff has failed to establish the presence of such claimed injuries at the time MRIs of plaintiff’s left shoulder, left hip, lumbar spine, cervical spine, left knee, and brain were 8 8 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 performed during the 60 days following the subject accident. As such, the evidence presented by way of plaintiff’s medical records, as explained by the defense medical experts, demonstrates that tests and examinations of plaintiff within about 60 days following the accident and thereafter, revealed the absence of any traumatic injury. Here the record is devoid of such support from plaintiff’s employer as to an inability to work. Instead, as plaintiff testified, she returned to work for one morning shift, took 5 days off, and then stopped working when her employer closed its business. Furthermore, when she was deposed plaintiff testified that she is able and has been able to bathe, feed and dress herself since the accident occurred. Plaintiff has clearly not demonstrated that she was not able to perform substantially all of the material acts which constitute her usual and customary daily activities or any inability during the ninety days during the first one hundred eighty days after his alleged injury or impairment. New York Insurance Law §5102(d) (Emphasis supplied.). Instead, plaintiff’s testimony revealed that there was very little that she could not do after the accident. Where, as in the instant case, a plaintiff fails to provide any “competent medical evidence” demonstrating he or she was not able to perform “substantially all of his or her usual customary daily activities for not less than 90 days out of the 1st 180 days subsequent to the subject accident,” Courts have held that the plaintiff did not sustain a “serious injury” under §5102(d) of the New York Insurance Law. Shaji v City of New Rochelle, 66 AD3d 760 [2d Dept 2009]. Thus, plaintiff also has not demonstrated that she suffered a “serious injury” under the “medically determined injury or impairment of a non- permanent nature” which prevented her from “performing substantially all of the material acts which constituted his customary daily activities, for not less than ninety days during the one hundred eighty days immediately following” the accident category of § 5102(d) of the New York Insurance Law. 9 9 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 POINT II PLAINTIFF’S ALLEGED LEFT SHOULDER, LEFT HIP, LUMBAR SPINE, CERVICAL SPINE, LEFT KNEE, AND BRAIN INJURIES ARE ATTRIBUTABLE TO DEGENERATIVE AND/OR PRE-EXISTING CONDITIONS, AND ARE THEREFORE, NOT CAUSALLY RELATED TO THE SUBJECT MOTOR VEHICLE ACCIDENT. Where, as in the instant case, a plaintiff that is shown to exist prior to the accident, the New York Court of Appeals has haled that the “serious injury” threshold has not been met. Knoll v Seafood Express, 5 NY3d 817 [2005]. In Knoll, the Court of Appeals held that because the plaintiff’s claimed motor-vehicle accident-related injury pre-dated the accident, plaintiff failed to submit medical proof sufficient to rebut defendants’ submissions and to show he suffered a serious injury that is causally related to the accident. Id. Similarly, here, as set forth in the Lewis Affirmation, medical records produced by plaintiff demonstrate pre-existing and/or degenerative conditions that are thus not causally related to the subject accident. As explained in Dr. Katzman’s reports after his review of plaintiff’s MRIs and other radiological testing and accompanying reports of said test performed with respect to plaintiff’s left knee, left shoulder, lumbar spine, cervical spine, and brain, said testing revealed chronic, degenerative, and not post-traumatic, pre-existing conditions. The defense neurologist also discussed plaintiff’s prior accident and surgery and opined that her injuries pre-existed the subject incident. Lewis Affirmation ¶ 58. The operative report of plaintiff’s orthopedic surgeon, Kenneth McCulloch, M.D., with respect to the post-accident left shoulder arthroscopic surgery on August 6, 2020 indicated that there was “significant hypertrophic morbid synovitis” and “[c]opious bursitis was identified and removed”. (Lewis Affirmation at Exhibit L, page 2). Additionally, in the operative report of 10 10 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 Kenneth McCulloch, M.D. concerning plaintiff November 12, 2020 left knee surgery, Dr. McCulloch indicated “[s]ignificant hypertrophic morbid synovitis” was also found. (Lewis Affirmation at Exhibit M, page 1). Therefore, plaintiff has failed to demonstrate the existence of a causally related “serious injury” that would entitle her to recover damages in this case. CONCLUSION Contrary to the allegations contained in plaintiff’s Verified Complaint, and Verified Bill of Particulars, plaintiff has not established a prima facie case that she sustained a “serious injury” as that term is defined in Article 51 of the New York State Insurance Law. Thus, as a matter of law, plaintiff has not satisfied the “serious injury” threshold. It is respectfully submitted that plaintiff’s Verified Complaint should therefore be dismissed. WHEREFORE, defendants respectfully request that the Court issue an Order Pursuant to CPLR §3212 and Article 51 of the New York Insurance Law granting summary judgment to defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION with respect to damages, and dismissing plaintiff’s Verified Complaint on the grounds that plaintiff’s alleged injuries do not meet the “serious injury” threshold as set forth in § 5102(d) of the New York Insurance Law; and, for such other and further relief as this Court deems just and proper. Dated: New York, New York August 19, 2022 LAW OFFICE OF KEVIN J. PHILBIN Attorneys for Defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. One Whitehall Street – 13th Floor New York, New York 10004-2109 Phone: (212) 248-9100 File No.: 18-018329 By: ____________________________ ARLENE E. LEWIS 11 11 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 Re: Sarah Lanza v. Santo Mercedes Baez and Guma Construction Index # 523020/2020 CERTIFICATE OF COMPLIANCE ARLENE E. LEWIS, an attorney duly admitted to practice in the courts of the State of New York, hereby certifies, pursuant to 22 NYCRR §202.8-b, that the total word count in this Memorandum of Law, exclusive of the caption and signature block, is 3,010. Dated: New York, New York August 19, 2022 ___________________ ARLENE E. LEWIS 12 12 of 13 FILED: KINGS COUNTY CLERK 08/19/2022 11:53 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/19/2022 13 13 of 13