Motion-Secondary: Jesus A Meran-Familia v. Carlos A Dikson

On December 21, 2020 a Motion-Secondary was filed involving a dispute between Jesus A Meran-Familia, and Carlos A Dikson, for Torts - Motor Vehicle in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 09/13/2022 11:41 PM INDEX NO. 35510/2020E
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/13/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------------------------------------------------------------------X INDEX NO.: 35510/2020E
JESUS A. MERAN-FAMILIA,

Plaintiff,
AFFIRMATION
- against - IN SUPPORT

CARLOS A. DIKSON,

Defendant. FILE NO. 1022930
------------------------------------------------------------------------X

CAROL S. DIBARI, an attorney duly admitted to practice law in the Courts of the State

of New York, affirms the following to be true, upon information and belief, under the penalty of

perjury pursuant to CPLR 2106:

1. I am associated with BAKER, McEVOY & MOSKOVITS, attorneys for

defendant, CARLOS A. DIKSON, and as such am fully familiar with the facts and

circumstances of this action based upon the contents of the file maintained by this office.

2. This Affirmation is respectfully submitted in support of defendant’s motion,

which seeks relief in the form of an Order, granting summary judgment and dismissing the

Complaint of plaintiff, JESUS A. MERAN-FAMILIA, in as much as plaintiff fails to meet the

serious injury threshold requirement mandated by Insurance Law Section 5102(d); and granting

such other further relief as the Court deems just and proper.

3. This is an action to recover damages for personal injuries allegedly sustained by

plaintiff as a result of an accident, which occurred on March 7, 2018 on University Avenue at or

near its intersection with West 180th Street, in the County of Bronx, City and State of New York.

4. Plaintiff commenced this action by service of the Summons and Complaint, and

issue was joined by service of an Answer on behalf of defendant. Copies of plaintiff’s Summons

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and Complaint and defendant’s Answer are annexed as “EXHIBIT A” and “EXHIBIT B,”

respectively. The Answer interposed by the defendant raised various affirmative defenses,

including the Court’s lack of jurisdiction over the subject matter of this action, pursuant to

Article 51 of the New York Comprehensive Motor Vehicle Insurance Reparations Act, Sections

5101 through 5108. Specifically, Section 5104(a) states that a plaintiff has no right of recovery

his non-economic loss, except in the case of a serious injury pursuant to Section 5102(d).

5. Plaintiff has not yet filed a Note of Issue in the instant case. Therefore, the instant

motion is timely pursuant to CPLR 3212(a).

INJURIES ALLEGED IN PLAINTIFF’S BILL OF PARTICULARS

6. Plaintiff alleges in his Verified Bill of Particulars, annexed hereto as “EXHIBIT

C,” that the following pertinent physical injuries were sustained:

• Left shoulder labrum tear
• Left shoulder sprain/strain
• Disc herniation at C3-4, C6-7
• Disc bulges at C3-4, C4-5, C5-6, C6-7
• Cervical sprain/strain

7. Categories one through five of the statute are not applicable to any of the injuries

alleged by plaintiff. Only categories three and six through nine of the Insurance Law could

possibly be claimed to be applicable to the injuries alleged, i.e. fracture, permanent loss of use,

permanent limitation, significant limitation, and 90/180 curtailment of activities.

8. Plaintiff claims that his injuries are “serious” as contemplated by the New York

State Insurance Law. A careful review of plaintiff’s injuries, in light of the statutory

requirements and applicable law, however, indicates that plaintiff’s personal injury action does

not meet the statutory threshold requirement of “serious injury.”

9. Plaintiff’s Bill of Particulars simply offers a boilerplate statement that the above-

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mentioned injuries satisfy the requirements of Insurance Law. See Exhibit C, paragraph 20. Such

statement is conclusory and non-evidentiary in nature, and plaintiff’s assertion is merely tailored

to meet the statute’s threshold requirement. Case law demands that plaintiff’s self-serving

statements be corroborated with some evidence or documentary verification.

DEFENDANT’S EXAMINING DOCTORS FOUND
NO EVIDENCE OF “SERIOUS INJURY”

10. Based on the affirmed medical reports of defendant’s examining doctors,

discussed below, as well as plaintiff’s own verified pleadings, defendant submits that plaintiff’s

allegations of injury are unsubstantiated and do not meet the statutory threshold requirements of

“serious injury.”

The Affirmed Report of Dr. Pierce J. Ferriter

11. Defendant requested that an orthopedist examine this plaintiff. Dr. Pierce J.

Ferriter performed the examination on March 17, 2022. Dr. Ferriter is authorized to practice

medicine in the State of New York, is not a party to this action, and subscribes to and affirms the

contentions of his report under the penalties of perjury. Dr. Ferriter’s affirmed examination

report is annexed hereto as “EXHIBIT D.”

12. Dr. Ferriter noted that plaintiff complained of pain in his neck and left shoulder.

Dr. Ferriter noted that did not report any information regarding his employment or conservative

treatment.

13. Dr. Ferriter performed range of motion tests on plaintiff’s cervical spine and left

shoulder, which revealed full range of motion. All objective, orthopedic tests performed on

plaintiff’s cervical spine and left shoulder also yielded negative results.

14. After examining the plaintiff, Dr. Ferriter concluded that all of plaintiff’s alleged

injuries had resolved and rendered the following assessment: “The examinee presents with a

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normal orthopedic examination on all objective testing . . . The examinee is capable of

functional use of the examined body parts for normal activities of daily living as well as usual

daily activities. There is no disability or permanency from the MVA of 3/7/2018.” (Emphasis

added.)

The Affirmed Report of Dr. Darren Fitzpatrick

15. Defendant also requested that a radiologist examine plaintiff’s MRI films. Dr.

Darren Fitzpatrick is authorized to practice medicine in the State of New York, is not a party to

this action, and subscribes to and affirms the contentions of his reports under the penalties of

perjury. Dr. Fitzpatrick’s affirmed reports are annexed hereto as “EXHIBIT E.”

16. Upon review of plaintiff’s left shoulder MRI, dated May 22, 2018, Dr. Fitzpatrick

found that the rotator cuff, biceps tendon, glenohumeral joint, and labroligamentous complex

were all intact. Dr. Fitzpatrick noted severe acromioclavicular arthrosis, which is degenerative

with no traumatic basis. Dr. Fitzpatrick found no evidence of traumatic injury to the left

shoulder.

17. Upon review of plaintiff’s cervical spine MRI, dated April 17, 2018, Dr.

Fitzpatrick observed multilevel cervical degenerative disc disease, which can manifest as loss of

disc signal, disc thinning, and ultimately disc herniation. Dr. Fitzpatrick concluded that the

findings on the MRI were withing the spectrum of degenerative disc disease and not causally

related to acute traumatic injury to the cervical spine.

18. After reviewing plaintiff’s MRI films, Dr. Fitzpatrick concluded that there was no

causal connection between the accident and the findings on the MRI examinations. Plaintiff’s

alleged injuries are degenerative in nature and not a result of the injuries plaintiffs allegedly

sustained in the instant accident.

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Affirmed Doctors’ Reports Are Sufficient to Meet Defendant’s Burden

19. Dr. Ferriter’s and Dr. Fitzpatrick’s reports are sufficient to meet defendant’s

burden. Defendant’s examining physicians’ findings of no functional disability or objective

verification of subjective complaints based on a variety of objective clinical tests defeat any

claim of significant injury, or any other category of the statute. See Toure v. Avis Rent A Car, 98

N.Y.2d 345 (2002); Grasso v. Angerami, 79 N.Y.2d 813 (1991); Madera v. Gressey, 84 A.D.3d

460 (1st Dep’t 2011); Verette v. Zia, 44 A.D.3d 747 (2d Dep’t 2007); Sayas v. Merrick

Transport, 23 A.D.3d 367 (2d Dep’t 2005); Farozes v. Kamran, 22 A.D.3d 458 (2d Dep’t 2005);

see also Mickelson v. Padang, 237 A.D.2d 495 (2d Dep’t 1997); Attanasio v. Lashley, 223

A.D.2d 614 (2d Dep’t1996).

20. Based on the above, plaintiff’s Complaint should be dismissed since the evidence

produced shows that plaintiff has not sustained a serious injury. In light of the affirmed medical

reports of Dr. Ferriter and Dr. Fitzpatrick, it is clear that plaintiff did not sustain a permanent loss

and/or permanent or significant limitation of the use of a body organ, member, function or

system. Furthermore, Dr. Fitzpatrick’s findings sever the causal connection between the accident

and plaintiff’s alleged injuries, thus rendering the 90/180 category inapplicable. Accordingly,

defendant has produced objective medical evidence in admissible form to demonstrate that

plaintiff has not suffered a serious injury Insurance Law 5102(d)(6), (7) and (8).

PLAINTIFF’S RELEVANT TESTIMONY

21. Plaintiff submitted to deposition on January 24, 2022. A copy of plaintiff’s

deposition transcript is annexed hereto as “EXHIBIT F.” Plaintiff testified at his deposition that

he was confined to his bed for two (2) weeks and to him home for 3-4 months after the accident

and that he missed six (6) months of work. See Exhibit F, pp. 95. These time periods are

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irrelevant, as defendants’ radiologist’s report, discussed above, indicates that plaintiff’s alleged

injuries are not causally related to the accident, thus rendering the 90/180 category inapplicable.

22. Plaintiff testified that he was in his parked vehicle at the time of the accident, the

result of which he allegedly sustained injuries to his left arm, neck, and back. See pp. 36, 38-39,

49, 54. Plaintiff testified that he was taken by ambulance from the scene of the accident to St.

Barnabas Hospital, where he made complaints about his left arm, neck, and back and was

discharged with just pain medication. See pp. 55-57. Plaintiff testified that he next sought

medical treatment with his primary doctor three (3) days later, when he complained of neck and

left arm pain. See pp. 58, 61. Plaintiff testified that he also sought medical treatment at CitiMed

about 15-20 days after the accident, where he again complained of pain his neck and left arm and

underwent treatment for just 3-4 months. See pp. 63-64, 66. Plaintiff testified that he last

underwent treatment in 2021 and that he has no future appointments scheduled. See pp. 92-93.

23. Based on this testimony, it is apparent that plaintiff was neither confined for a

significant duration after the accident nor were his activities significantly curtailed. Plaintiff’s

own testimony indicates that his injuries do not meet the serious injury threshold mandated by

the statute.

THE COURT MUST DISMISS PLAINTIFF’S CLAIM WHERE
DEFENDANT HAS MET THE BURDEN OF PROOF

24. Given the above evidence, submitted in admissible form, defendant has met his

burden of proof on the motion and has shown that plaintiff’s injuries cannot meet any definition

of “serious injury” under the statute. Only those plaintiffs who can establish a “serious injury” as

defined by 5102(d), can maintain a lawsuit, and it is incumbent upon the judiciary, in the first

instance, to scrutinize the medical evidence and to bar claims which do not qualify. See Report of

the Joint Legislative Committee on Insurance Rates Regulation and Recodification of the

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Insurance Law, N.Y. Legis. Doc. 1973, No. 18.

25. As stated by the Court of Appeals in Licari v. Elliot, 57 N.Y.2d 230 (1982):

[T]acit in this legislative enactment is that any injury not falling within the new
definition of serious injury is minor and a trial by jury is not permitted under
the no-fault system.

...Thus, we believe the Legislature intended that the court should decide the
threshold question of whether the evidence would warrant a jury finding that the
injury falls within the class of injuries that, under no-fault, should be excluded
from judicial remedy if it can be said, as a matter of law, that plaintiff suffered
no serious injury. See also Armstrong v. Wolfe, 133 A.D.2d 957 (3d Dep’t 1997)
(emphasis added).

26. The no-fault law was designed to prevent fraud and clogging of the court system

with frivolous claims. In this case, the evidence shows plaintiff’s claims cannot meet any

definition of “serious injury” for tort recovery. Dr. Ferriter found no evidence of any

“permanent” injury or disability as to plaintiff’s cervical spine or left shoulder. Dr. Fitzpatrick

found no causal connection between plaintiff’s alleged injuries and the accident. Plaintiff himself

testified that he was never confined/curtailed post-accident for a significant duration, nor

curtailed from “substantially all” activities for the minimum of 90 out of the first 180 days post-

accident.

27. Furthermore, plaintiff has already been appropriately compensated by the receipt

of statutory first party, no-fault benefits and should not be permitted to proceed with this action.

The burden now shifts to plaintiff to come forward with evidence in admissible form to make a

contrary showing. Failure to do so warrants summary judgment and dismissal of his Complaint.

CONCLUSION

28. After reviewing the defendant’s physicians’ affirmed reports, as well as pertinent

admissions and pleadings, it is clear that there is no evidence to support plaintiff’s allegations.

Therefore, there is no issue of fact as to serious injury for a jury to resolve.

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29. It is exactly this kind of claim, which the legislature sought to prevent from

proceeding with litigation, especially where plaintiff’s allegations of a “serious injury” are

uncorroborated by any medical evidence or physician’s directive. Where there is no such

evidence to corroborate plaintiff’s claims, it is within the Court’s discretion to disregard

plaintiff’s self-serving testimony. In this case, plaintiff merely complains of soft tissue injuries,

the sort which typically resolve within a few months and which give rise to the kind of claim the

legislature sought to exclude by enacting the Insurance Law provisions.

30. Defendant therefore requests that this Court find that there is no issues of fact as

to the existence of a “serious injury” within the meaning of Insurance Law 5102(d) and grant

defendant’s motion for summary judgment and dismiss plaintiff’s Complaint in its entirety.

31. No prior application has been made for the relief requested.

WHEREFORE, the defendant respectfully requests that the Court grant summary

judgment in favor of defendant and dismiss plaintiff’s Complaint in its entirety for failure to

meet the serious injury threshold; and grant any other and further relief the Court deems just and

proper.

Dated: Brooklyn, New York
September 13, 2022
Yours, etc.,
BAKER, McEVOY & MOSKOVITS

______________________________
By: Carol S. DiBari
Attorneys for Defendant
CARLOS A. DIKSON
One Metrotech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------------------------------------------------------------------X INDEX NO.: 35510/2020E
JESUS A. MERAN-FAMILIA,

Plaintiff,
WORD COUNT
- against - CERTIFICATION

CARLOS A. DIKSON,

Defendant. FILE NO. 1022930
------------------------------------------------------------------------X

CAROL S. DIBARI, an attorney duly admitted to practice law before the Courts of the

State of New York, hereby certifies that the word count of this affirmation complies with the

word limits of 22 N.Y.C.R.R. 202.8-b(1). According to the word processing system used to

prepare this affirmation, the total word count for all printed text exclusive of the material omitted

under 22 N.Y.C.R.R. 202.8-b(b) is 2,198 words.

Dated: Brooklyn, New York
September 13, 2022
Yours, etc.,
BAKER, McEVOY & MOSKOVITS

_____________________________
By: Carol S. DiBari
Attorneys for Defendant
CARLOS A. DIKSON
One Metrotech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230

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Index No.: 35510/2020E

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_______________________________________________________

JESUS A. MERAN-FAMILIA,

PLAINTIFF,

CARLOS A. DIKSON,

DEFENDANT.
_______________________________________________________

BAKER, McEVOY & MOSKOVITS
Attorneys for Defendant(s)
One Metrotech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230
_______________________________________________________
_______________________________________________________

NOTICE OF MOTION, AFFIRMATION IN SUPPORT,
STATEMENT OF MATERIAL FACTS &
WORD COUNT CERTIFICATION
_______________________________________________________
_______________________________________________________

To:

Attorney(s) for:
_______________________________________________________
Service of a copy of the within

is hereby admitted.
Dated,
..........................................................................................................

Attorney(s) for
_______________________________________________________

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Case Info

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Document Filed Date

September 13, 2022

Case Filing Date

December 21, 2020

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