Motion-Secondary: Lorenzo Gabriel v. Noel Paul

On October 01, 2018 a Motion-Secondary was filed involving a dispute between Lorenzo Gabriel, and Noel Paul, for Torts - Motor Vehicle in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 10/22/2020 09:39 AM INDEX NO. 519700/2018
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/22/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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LORENZO GABRIEL, AFFIRMATION IN SUPPORT

Plaintiff,
Index No.: 519700/2018
- against -

NOEL PAUL,

Defendant(s).
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I, Katie A. Walsh, Esq., an attorney duly licensed to practice law before the

Courts of the State of New York, affirm the following under penalties of perjury based

upon a review of the file and upon information and belief:

1. I am associated with the law firm of JAMES G. BILELLO & ASSOCIATES, the

attorneys for defendant NOEL PAUL, and as such I am familiar with the facts and

circumstances of this matter. The source of my knowledge is the files and records

maintained by this office.

2. This Affirmation is respectfully submitted in support of defendant NOEL

PAUL’s motion for summary judgment based on New York State Insurance Law

§5102(d), otherwise known as the “threshold law”.

3. A person injured in an automobile accident must have sustained a

“serious injury” in order to maintain a lawsuit. If this “threshold” isnot met, the suit

must be dismissed. Plaintiff LORENZO GABRIEL sustained no injury that rises to this

level. Therefore, this matter must be dismissed.

4. The following exhibits are attached:

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Exhibit A: Plaintiff GABRIEL’s Summons and Complaint
Exhibit B: Defendant NOEL’s Answer
Exhibit C: Plaintiff’s Verified Bill of Particulars
Exhibit D: Plaintiff’s Deposition Transcript with Execution Letter
Exhibit E: Dr. Bernard’s Medical Report
Exhibit F: Dr. Kashyap’s Independent Medical Examination Report
Exhibit G: Order with Notice of Entry dated February 13, 2020
Exhibit H: Order dated October 14, 2020

5. Plaintiff commenced this lawsuit to recover for injuries allegedly

sustained as the result of a motor vehicle accident on October 27, 2016. The Summons

and Complaint is attached as Exhibit A. Issue was joined via service of defendant NOEL

PAUL’s Answer, which is attached as Exhibit B.

6. Plaintiff’s prior counsel made a motion to be relieved at counsel and that

motion was granted. The plaintiff is now pro se. The Order granting plaintiff’s prior

counsel’s motion is attached as Exhibit G.

7. To date, the plaintiff pro se has not filed a Note of Issue. Therefore, the

instant application is timely.

8. Defendant previously moved for the relief requested in this motion. The

original motion was adjourned several times to allow the pro se plaintiff to submit

opposition. The motion was then scheduled for a virtual appearance at 3:40 on October

14, 2020. Due to a scheduling/communication error, our office inadvertently did not

attend the virtual appearance. It appears that the skype link for the appearance may

have been forwarded to the handling attorney, who was out on leave at the time of the

appearance, and not to the attorney handing his files resulting in our office being

unaware of the appearance. Due to defendant counsel’s inadvertent non-appearance,

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the matter was marked off. Defendant now submits the subject motion asking that this

instant action be dismissed for plaintiff’s failure to meet the serious injury threshold.

9. Pursuant to Insurance Law §5104(a), in order to recover for injuries

sustained as a result of an automobile accident, a plaintiff must have sustained a

"serious injury". If this threshold is not met, the action must be dismissed. Thus, a

plaintiff who has sustained injuries of a mild, minor or slight nature has not sustained a

serious injury as defined by the Insurance Law.

10. Summary judgment is the proper procedure for determining whether a

plaintiff has met the threshold requirement of “serious injury” as defined in Insurance

Law §5102(d). Licari v. Elliott, 57 NY2d 230, 57 NYS2d 570 (1982).

11. Insurance Law §5102(d) defines serious injury 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 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.

12. In the case at bar, the Bill of Particulars alleges, inter alia, the following

injuries: left knee thickening of proximal fibers compatible with grade ½ MCL tear; disc

herniations at C5-C6 and C4-C5; disc bulge at C3-C4; and left hip labral tear. The Bill of

Particulars is annexed as Exhibit C.

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13. In his Bill of Particulars, plaintiff claims that his injuries fall within the

categories of §5102(d). See Exhibit C.

14. Plaintiff LORENZO GABRIEL was deposed on June 11, 2019 and a copy of

his deposition transcript is annexed as Exhibit D[1]. Plaintiff testified to the following:

• He was involved in a motor vehicle accident on October 27, 2016. (pp. 13,
24).
• After the accident, he was able to stand without assistance. (p. 40).
• He went home from the scene of the accident. He went to Mount Sinai
Jewish Hospital later that night, where he complained of pain in his left side,
back, and neck. He underwent an x-ray of his left side, and was discharged
within two hours of his arrival. (pp. 42-45).
• He was referred to DHD Medical by his attorney, where he complained of
pain in his left leg, left side, neck and back. He was treated with massage,
resistance training, stretches, and cold and hot compress packs three times a
week, for approximately 5 months. He stopped treating at DHD Medical in
February or March of 2017 because his injuries were feeling better. The
physical therapy doctor performed range of motion testing, and told him that
he was recovering well. (pp. 46-51, 54).
• He underwent an MRI of his left side. (p. 52).
• He has not been treated for the injuries alleged as a result of this accident
since March 2017. (p. 48).
• At the time of his deposition, he did not have any future medical
appointments scheduled in relation to this accident. (p. 61).
• No doctor ever told him that he was partially or fully disabled. (p. 55).
• No doctor ever told him that he was unable to work. (p. 55).

[1]
The plaintiff’s
deposition
transcript was
forwarded to hispriorcounselfor executionon July5, 2019.Proof ofservice
substantiating same is annexed as part of Exhibit D. To date, neither an executed transcript nor a correction sheet has been returned
to your affirmant’s office. Thus, the transcript is deemed signed pursuant to CPLR §3116(a).

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• He did not undergo surgery or receive injections for the injuries alleged as a
result of this accident. (p. 55).
• At the time of his deposition, he testified that he felt completely healed from
his injuries. He did not feel that there were any permanent effects from his
injuries. (pp. 61-62).
• At the time of the accident, he was employed as an apprentice drywall taper
by Local 1974 Drywall Tapers Union. (p. 9).
• As a result of this accident, he testified that he cannot move his leg as far
back as he used to. (p. 62).
• As a result of this accident, he testified that he has difficulty bending and
crouching. (p. 62).
• He testified that he was confined to his home for one day following this
accident. (p. 63).
• He was not confined to his bed for any period of time following this accident.
(p. 63).
• Since the accident, he has traveled to Grenada, Miami, and gone on a cruise.
(pp. 20-21).

15. Notably, while plaintiff testified that he was out of work for five months,

a medical report by Dr. Yolande Bernarde from DHD Medical dated January 23, 2017

indicates that he was ready to return to work on January 24, 2017, two months and

twenty-eight days after the accident. Furthermore, Dr. Bernarde found the plaintiff had

nearly full ranges of motion less than 90 days after the accident. Dr. Bernarde’s medical

report is attached as Exhibit E. It must also be pointed out that, as no doctor told

plaintiff he was unable to work as a result of the accident, according to his own EBT

testimony, (see Exhibit D, page 55), any time he was out of work was nothing more than

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a self-imposed restriction and should not meet the 90/180 standard as the plaintiff’s

own testimony establishes the time out was not medically indicated.

16. On July 16, 2019, Dr. Satish Kashyap, M.D., a board certified orthopedic

surgeon, performed an independent medical examination of the plaintiff. Dr. Kashyap’s

affirmed report with Curriculum Vitae is attached as Exhibit F. Dr. Kashyap performed

objective testing including range of motion testing. Range of motion was measured with

a goniometer in accordance with AMA guidelines. Upon physical examination, Dr.

Kashyap found that plaintiff exhibited full range of motion in his cervical spine, lumbar

spine, right hip, left hip, right knee, and left knee. All other objective tests were

negative. After examining plaintiff and reviewing pertinent medical records, Dr. Kashyap

concluded that plaintiff’s cervical spine, left hip, and left knee sprains and strains were

all resolved. Furthermore, Dr. Kashyap found that the plaintiff had no orthopedic

disability. See Exhibit F.

17. The question of whether the plaintiff sustained a serious injury within the

meaning of Section 5102(d) of the No-Fault Law is one of law that is can and should be

disposed of by summary judgment. (Toure v Avis Rent a Car Systems, 98 NY2d 345

[2002]. The Court of Appeals, in Licari v. Elliott held, “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.” (57 NY2d 230 [1982]). It is clear that plaintiff in the

instant case has failed to satisfy the “serious injury” threshold requirement. Therefore,

plaintiff’s action must be dismissed.

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18. The allegations of serious injury made in the Bill of Particulars do not

have evidentiary support. Based on all of the testimony, documentary and medical

evidence, it is apparent that the plaintiff has not sustained a “serious injury” within the

meaning of the insurance law.

19. As the defendant NOEL PAUL has shown that plaintiff LORENZO GABRIEL

failed to prove a prima facie case of serious injury, it is respectfully requested that this

action be dismissed in its entirety.

WHEREFORE, it is respectfully requested that defendant NOEL PAUL’s motion be

granted in its entirety, that plaintiff LORENZO GABRIEL’s complaint be dismissed in its

entirety with prejudice, and for such other and further relief as the Court deems just

and proper.

Dated: Hicksville, New York
October 22, 2020

________________________________
By: Katie A. Walsh, Esq.
Attorneys for Defendant
Noel Paul
100 Duffy Avenue, Suite 500
Hicksville, NY 11801
516-861-1795
Our File No: 18K2653

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Case Info

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Document Filed Date

October 22, 2020

Case Filing Date

October 01, 2018

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