Legal Document: Sowka Barcacel v. Freitas Marcos

On January 19, 2021 a AFFIDAVIT OR AFFIRMATION IN SUPPORT (Motion #001) - AND WORD COUNT CERTIFICATION was filed involving a dispute between Sowka Barcacel, and Freitas Marcos, for Torts - Motor Vehicle in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/07/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------------------x Index: 701269/2021E

SOWKA BARCACEL,

Plaintiff, AFFIRMATION
-against- IN SUPPORT

FREITAS MARCOS,

Defendant. File No: 1086133

-------------------------------------------------------------------------x

HELEN VECCHIONE, ESQ., an attorney at law duly admitted to practice before the Courts

of the State of New York, and of counsel for the firm of BAKER, McEVOY & MOSKOVITS,

P.C., attorneys for Defendant, affirms the truth of the following statements pursuant to CPLR 2105,

upon information and belief based upon the papers maintained in our office.

1. I make this affirmation in support of Defendant’s Motion for an Order, pursuant to

CPLR section 3212, granting summary judgment in favor of Defendant and dismissing the

Complaint of the Plaintiff, or any part thereof, pursuant to Insurance Law section 5104(a), in that

Plaintiff did not sustain a serious injury as defined under Insurance Law 5102(d).

Facts and Procedural Background

2. Plaintiff commenced this action to recover damages for personal injuries, which she

alleges were sustained in an automobile accident on July 27, 2020, on Astoria Boulevard in the

county of Queens, city and state of New York. Plaintiff alleges she sustained “serious injuries” as

that term is defined in Insurance Law, section 5102. See Summons and Complaint, attached hereto

as Ex. “A”. In the Verified Bill of Particulars, attached hereto as Ex. “B”, Plaintiff alleges soft

tissue injuries to her cervical and lumbar spine and a left wrist fibrocartilage tear with tenosynovitis.

3. Issue was joined by Defendant on or about March 1, 2021. In the Defendant’s

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Answer, Defendant denied the material allegations of the Complaint and 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 to 5108, which provides that there is no right to recovery and no basis for an action if Plaintiff

has not sustained a serious injury as that term is defined in the statute. Copies of the Defendant’s

Answer and Demand for a Bill of Particulars are annexed hereto as Ex. “C”.

4. Plaintiff has submitted to a physical examination by Defendants’ doctor and the

affirmed medical report is annexed hereto. In addition, Plaintiff’s deposition was held, and a copy of

the transcript is annexed hereto as Ex. “D”. The Note of Issue has not been filed. Thus, this Motion

is timely pursuant to CPLR Section 3212(e).

Motion for Summary Judgment on Threshold

5. Defendant now move for summary judgment on the ground that Plaintiff did not

sustain a serious injury. Based on Plaintiff’s Bill of Particulars, the relevant categories in this action

are Insurance Law, section 5102 (d):

“…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
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 90 days during the 180 days immediately
following the occurrence of the injury or impairment.”

6. In support of this motion, Defendant submits the affirmations of Dr. WILLIAM

WALSH, M.D. and Dr. SCOTT SPRINGER, D.O., D.A.B.R. and the deposition testimony given by

Plaintiff on December 14, 2021.

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7. Dr. WILLIAM WALSH M.D., a Board Certified Orthopedic Surgeon examined

Plaintiff on November 19, 2021.

8. Dr. SCOTT SPRINGER, D.O., D.A.B.R., a Board Certified Radiologist examined

Plaintiff’s MRI films of the cervical spine, lumbar spine, and left wrist on February 4, 2022.

9. Plaintiff’s deposition, annexed hereto as Ex. “D”, establishes that at the time of the

accident, Plaintiff was operating an Acura ILX. (31:17-25) Plaintiff testified to her vehicle being

impacted in the rear. (Ex. “D”, 60:7-25) Plaintiff admitted to wearing her seatbelt at the time of the

accident. (Ex. “D”, 34:18-19) Plaintiff further admitted the impact did not cause the airbags within

her vehicle to deploy. (Ex. “D”, 32:16-18) Plaintiff denied medical attention at the scene of the

accident. (Ex. “D”, 58:19-25)

10. Plaintiff drove home following the incident and packed her bags for a vacation. (Ex.

“D”, 64:23-66:7) The next day, Plaintiff traveled to Maine. (Ex. “D”, 66:11-17) After returning

from vacation, Plaintiff presented for physical therapy and chiropractic care. (Ex. “D”, 69:6-25,

73:15-22) Plaintiff continued physical therapy and chiropractic care for three months. (Ex. “D”,

75:7-12) Plaintiff also received lumbar injections. (Ex. “D”, 76:20-22) At the time of her

deposition, Plaintiff had no future medical appointments for her alleged injuries. (Ex. “D”, 88:9-13)

Thus, Plaintiff has admitted to a cessation in treatment.

11. At the time of the accident, Plaintiff was attending courses to be a licensed funeral

director and working at Sinatra Funeral Home. (Ex. “D”, 28:4-11) Plaintiff did not miss any time

from school or her residency as a result of the alleged injuries. (Ex. “D”, 28:15-22) Plaintiff testified

to being limited in lifting bodies for approximately six weeks following the date of accident. (Ex.

“D”, 29:16-25) At the time of her deposition, Plaintiff was employed full time as a funeral director.

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(Ex. “D”, 24:6-20) Plaintiff testified to her occupation being physically demanding. (Ex. “D”, 25:3-

9) Plaintiff also testified to being able to perform the same house chores following the accident that

she performed prior to the incident. (Ex. “D”, 90:16-91:12) Plaintiff was limited in performing her

chores for one month as a result of her alleged injuries. (Ex. “D”, 92:3-8) Since the date of accident,

Plaintiff has traveled to Panama and the Dominical Republic. (Ex. “D”, 93:13-21) Plaintiff had no

difficulty attending a wedding, sight-seeing, visiting historical places, traveling to the beach, and

taking boat rides on her vacations. (Ex. “D”, 93:18-94:9)

12. Dr. William Walsh, M.D., Board Certified Orthopedic Surgeon who examined

Plaintiff concluded Plaintiff was able to work without limitation. Dr. Walsh opined his examination

revealed no evidence of orthopedic disability, permanency or residuals. (Ex. “E”)

13. Dr. Nipper noted Plaintiff was a 45 year old female, standing 5 feet, 5 inches tall, and

weighing 150 pounds. Plaintiff ambulated with a normal gait. Dr. Walsh’s examination of Plaintiff’s

cervical and lumbar spine revealed no muscle spasm or tenderness to palpation. Range of motion

testing performed with the use of a goniometer revealed completely full, normal ranges of motion at

all levels. Straight leg raises were negative to 80 degrees bilaterally (80 degrees being normal). The

following orthopedic tests were negative: Distraction, Compression, Jackson’s, Soto Hall, Fabere,

Ely’s, Kemp’s, and Lasegue’s. (Ex. “E”)

14. Dr. Walsh’s examination of Plaintiff’s left wrist revealed completely full, normal

ranges of motion. There was no heat, swelling, effusion, erythema or crepitus. The following

orthopedic test were negative: Tinel’s, Phalen’s, and Finkeltein. A copy of Dr. Walsh’s affirmation is

annexed hereto as Ex. “E”.

15. Dr. Scott A. Springer, D.O., D.A.B.R., a Board Certified Radiologist reviewed

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Plaintiff’s MRI films of the cervical spine, lumbar spine, and left wrist, dated August 30, 2020,

performed approximately one month, three days after the subject accident. Dr. Springer concluded

the films revealed no posttraumatic changes causally related to the date of accident. (Ex. “F”)

16. Dr. Springer’s review of Plaintiff’s left wrist MRI film revealed a tear of the

triangular fibrocartilage, which Dr. Springer opined if related to a recent trauma would be associated

with underlying bone marrow edema and soft tissue swelling, which were not seen on the study. (Ex.

“F”)

17. Dr. Springer’s review of the cervical and lumbar spine MRI films revealed disc bulges

at L4-S1 and C5-C6, which Dr. Springer opined were degenerative in origin with no traumatic basis.

Dr. Springer also noted degenerative changes with anterior osteophytes at C4-C7 and disc

desiccation and space height loss at C5-6 and L4-5, which Dr. Springer opined could not have

developed in the one month, three day interval between the date of accident and examination. Copies

of Dr. Springer’s affirmations are annexed hereto as Ex. “F”.

The Court Must, In the First Instance, Determine if There is an Issue of Fact
and Weed Out Frivolous Claims

18. The purpose of the No-fault law (Insurance Law, sections 5102, et seq.) is to

guarantee first party benefits for basic economic loss and to prevent litigation where serious injury

has not been sustained. There is an intentional trade-off in the statute: in return for prompt

payments for medical bills and lost income, as provided by the statute, there is a restriction on

personal injury lawsuits that do not exceed such basic economic loss. Only plaintiffs who can

establish a “serious injury” as defined by 5102(d), can maintain a lawsuit and it is incumbent upon

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

19. As stated by the Court of Appeals, in Licari v. Elliot, 57 NY2d 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." Licari, supra, at 572.
"...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 AD2d 957 (3d Dept. 1997).

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

frivolous claims. That no-fault abuse “abounds” has been repeatedly recognized by the Court of

Appeals. In 2005, Chief Justice Judith Kaye noted “[F]rom 1992 to 2000, reports of No-Fault fraud

rose more than 1,700% and constituted 75% of all automobile fraud reports received by the

Insurance Department in 2000.” She also stressed the importance of identifying and dismissing

claims that do not meet the statutory requirements from those that should proceed to trial, stating:

“there is…abuse of the No-Fault law in failing to separate “serious injury”
cases, which may proceed in court, from the mountains of other auto accident
claims, which may not…. [and]failure to grant summary judgment when were the
evidence justifies dismissal, burdens court dockets and impedes the resolution of
legitimate claims.[emphasis added]” Pommells v. Perez, 4 NY3d 566 (2005).

21. The Court’s concern has not changed. In the recent case of Perl v. Meher, 18 NY3d

208 (2011), the Court of Appeals stated:

“No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of
all fraud reports received by the Insurance Department (Annual Report to the
Governor and the Legislature of the State of New York on the Operations of the
Insurance Frauds Prevention Act at 23). "Serious injury" claims are still a source of

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significant abuse, and it is still true, as it was in 2005, that many courts, including
ours, approach claims that soft-tissue injuries are "serious" with a "well-deserved
skepticism" (Pommells, 4 NY3d at 571).”

22. It is important to note that it is not the number of motions that should concern the

Court, but rather the number of non-meritorious motor-vehicle lawsuits in the courthouse. Cases

lacking sound medical evidence of that minor accidents caused “serious injury”, are a greater burden

on the court system and its resources, not to mention the county’s jury pool. This is a case which we

believe the evidence indicates does not involve “serious injury”, and which more closely resembles

the “mountain of…other claims…” lacking merit under this legislative scheme.1

23. Based on the medical evidence submitted by defendants, coupled with plaintiff’s own

testimony, defendants submit that plaintiff’s allegations of injury were not caused in this accident,

that no trauma was sustained, and the alleged injuries do not rise to the level of impairment sufficient

to qualify under any category of the statute. Specifically, defendants’ showing includes objective

evidence establishing an “absence of trauma” (See, Kester v. Sendoya, 123 AD3d 418 (1st Dept.

2014), including radiological evidence confirming that no traumatic injury was sustained, which

negates a claim of any caused serious injury under the statute, and is sufficient to meet defendants’

burden on this motion. See Ikeda v. Hussain, 81 AD3d 496 (1st Dept. 2011); Johnson v. Singh, 82

1 Interestingly, there is a gross disparity between the amount of fraud upstate versus that reported in the New York City
metropolitan area. The Insurance Research Counsel has reported that 44% of downstate claimants visit four or more
health care providers, as compared to 14% upstate. No-fault fraud also translates into higher insurance costs, with the
Property Casualty Insurers Association reporting that the no-fault portion of coverage in the Bronx is $754, versus a
statewide average of $202. It has been estimated that no-fault fraud instances increased from 10,117 to 13, 433 in the
three year period from 2006 to 2009, and in New York City, approximately 22% of claims contained fraud in 2010, with
another 14% having overbilling or excessive utilization of medical services. The claim buildup upstate was reported at
4%. See Wall Street Journal, January 4, 2011, “Insurance Study Sees Fraud is Widespread in New York City” and
Insurance Journal, January 6, 2011, “Study Says No-Fault Fraud a Major Problem in New York City.”

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AD3d 565 (1st Dept. 2011); Arroyo v. Morris, 85 AD3d 679 (1st Dept. 2011); Valentin v. Pomilla,

59 AD3d 184 (1st Dept. 2009).

24. By eliminating the accident as a cause of the conditions alleged, defendants eliminate

all categories of the statute. See Perl, supra; Toure v. Avis Rent A Car, 98 NY2d 345, 746 NYS2d

865 (2002); Linton v. Gonzales, 110 AD3d 534 (1st Dept. 2013); Rickert, supra; Batista v. Porro,

110 AD3d 609 (1st Dept. 2013); Kreimerman v. Stunis, 74 AD3d 753 (2nd Dept. 2010); Lall v. Ali,

101 AD3d 439 (1st Dept. 2012); Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009).

25. In addition, defendants’ doctors’ reported normal findings on a myriad of objective

tests, with no functional disability. This evidence clearly defeats any claim of significant injury, or

other category of the statute. See Toure v. Avis Rent A Car, 98 NY2d 345, (2002); Grasso v.

Angerami, 79 NY2d 813 (1991); Madera v. Gressey, 84 AD3d 460 (1st Dept. 2011); Sayas v.

Merrick Transport, 23 AD3d 367 (2nd Dept. 2005); Farozes v. Kamran, 22AD3d 458 (2nd Dept.

2005); Verette v. Zia, 44 AD3d 747 (2nd Dept. 2007).

26. In this regard, defendants note that positive MRI findings are not sufficient to

establish threshold, absent proof of causation and the extent of any resulting limitations which satisfy

the statute. In light of the affirmations submitted by defendants’ doctors, it is clear that defendants

have made a prima facie showing that plaintiff’s allegations of injury were either not caused in this

accident, and have not resulted in impairments which would qualify as serious injury in this accident,

such that the action should be dismissed, unless plaintiff can present competent medical evidence

sufficient to demonstrate an issue of fact. See Toure v. Avis Rent A Car, supra, 98 NY2d 345

(2002); Vilomar v. Castillo, 73 AD3d 758 (2nd Dept. 2010); Ortiz v. Ianina Taxi, 73 AD3d 721 (2nd

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Dept. 2010); Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009); DeJesus v. Paulino, 61 AD3d 605

(1st Dept. 2009).

27. Further, the mere presence of tears, bulges, and surgical treatment are not sufficient,

by themselves, to establish threshold, even if causation were established; those conditions, even if

caused by the accident, do not raise an issue of fact in the absence of proof of resulting limitations.

See Farmer v. Ventake, supra, 117 AD3d 562; McLoud v. Reyes, 82 AD3d 848 (2nd Dept. 2011);

Dembele v. Cambisaca, 59 AD3d 352 (1st Dept. 2009); Soho v. Konate, 85 AD3d 522 (1st Dept.

2011). In this regard, where a successful surgery resolved the injury allegation, with no permanent

residual loss of use or limitation, there is no basis for a claim of "permanent" serious injury under the

statute. Fortune v. Sacks and Sacks, 272 AD2d 277 (1st Dept. 2000); Becker v. Coiro, 634 NYS2d

770 (2nd Dept. 1995).

28. Since the medical proofs plainly establish that plaintiff did not sustain a complete loss

of use of a body organ or member, he also cannot satisfy that category of the statute. See Oberly v.

Bangs Ambulance, Inc., 96 NY2d 295 (2001); Vaughn v. Baez, 305 AD2d 101 (2d Dept. 2003).

29. By finding no current limitations, and also normal results on a variety of objective

clinical tests, Defendant’s doctors also ruled out any basis for a permanent consequential limitation.

See Mickelson v. Padang, 237 AD2d 495 (2nd Dept. 1997).

30. Defendant’s proof ruled out the 90/180 day category of the statute. Putting aside, for

the moment, that this category requires proof that there was a causally related, medically determined

injury, which we do not believe plaintiff can establish, the category requires proof that Plaintiff was

medically prevented from performing “substantially all” of her usual and customary activities for the

requisite period. See Travis v. Batchi, 18 NY3d 208, (2011); Nesci v. Romanelli, 74 AD3d 765 (2nd

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Dept. 2010); Kreimerman v. Stunis, 74 AD3d 753 (2nd Dept. 2010); Camacho v. Dwelle, 54 AD3d

706 (2nd Dept. 2008); Hamilton v. Rouse, 46 AD3d 514 (2nd Dept. 2007). However, plaintiff testified

to missing less than two weeks of work as a health care provider following the accident. (Ex. “D”,

42:24-43:3) Clearly, plaintiff does not meet the 90/180 category of the statute.

31. Defendant submits that, based on all of the above, the burden should shift to Plaintiff

to come forward with an offer of competent proofs demonstrating real issues of fact as to the alleged

injuries being both causally related to the accident, as well as showing impairments which could

satisfying the definitions in Ins. Law Section 5102(d). If plaintiff fails to present such proofs, the

Motion should be granted and plaintiff’s action dismissed in its entirety or any category which

plaintiff fails to meet.

W H E R E F O R E, Counsel for Defendant respectfully requests that the Motion be

granted, and Plaintiff’s Complaint be dismissed in its entirety, or in part thereof, as Plaintiff did not

sustain a serious injury as defined in Ins. Law Section 5102(d). together with such other and further

relief as this Court may deem just and proper.

Dated: March 3, 2022

___________________________________
HELEN VECCHIONE, ESQ.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------------------x Index: 701269/2021E

SOWKA BARCACEL,

Plaintiff, WORD COUNT
-against- CERTIFICATION

FREITAS MARCOS,

Defendant. File No: 1086133

-------------------------------------------------------------------------x

Pursuant to Rule 202.8-b of the Uniform Civil Rules for the Supreme Court and County Court:

I, Helen Vecchione, of counsel for Defendant, hereby certify that I prepared the foregoing
Affirmation in Support on behalf of my client, and that the word count for this affirmation is
2899. This application therefore complies with rule 202.8-b.

I certify that I prepared this document in Microsoft Word 2013 and that this is the word count
generated by Microsoft Word for this document.

Dated: March 3, 2022

___________________________________
Helen Vecchione, Esq.

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