Preview
FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------------------x Index: 701269/2021E
SOWKA BARCACEL,
Plaintiff, STATEMENT OF
-against- UNDISPUTED FACTS
FREITAS MARCOS,
Defendant. File No: 1086133
-------------------------------------------------------------------------x
1. This is a negligence action, in which plaintiff seeks damages allegedly sustained in an
automobile accident on July 27, 2020, on Astoria Boulevard in the county of Queens, city and state
of New York. (Summons and Complaint, Ex. A).
2. Pursuant to the Bill of Particulars, Plaintiff alleges she sustained soft tissue injuries to
her cervical and lumbar spine and a wrist fibrocartilage tear with tenosynovitis. (Bill of Particulars,
Ex. B).
3. In the Defendant’s 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. (Answer and the Demand for a Bill of Particulars, Ex. C).
4. 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
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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)
5. 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.
6. 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.
(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)
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7. Dr. William Walsh, M.D., Board Certified Orthopedic Surgeon who examined
Plaintiff concluded Plaintiff was able to work without limitation. (Ex. “E”, Pg. 5) Dr. Walsh
opined his examination revealed no evidence of orthopedic disability, permanency or residuals. (Ex.
“E”, Pg. 5)
8. Dr. Nipper noted Plaintiff was a 45 year old female, standing 5 feet, 5 inches tall, and
weighing 150 pounds. (Ex. “E”, Pg. 3) Plaintiff ambulated with a normal gait. (Ex. “E”, Pg. 3) Dr.
Walsh’s examination of Plaintiff’s cervical and lumbar spine revealed no muscle spasm or
tenderness to palpation. (Ex. “E”, Pg. 3-4) Range of motion testing performed with the use of a
goniometer revealed completely full, normal ranges of motion at all levels. (Ex. “E”, Pg. 4) Straight
leg raises were negative to 80 degrees bilaterally (80 degrees being normal). (Ex. “E”, Pg. 4) The
following orthopedic tests were negative: Distraction, Compression, Jackson’s, Soto Hall, Fabere,
Ely’s, Kemp’s, and Lasegue’s. (Ex. “E”, Pg. 4)
9. Dr. Walsh’s examination of Plaintiff’s left wrist revealed completely full, normal
ranges of motion. (Ex. “E”, Pg. 4) There was no heat, swelling, effusion, erythema or crepitus. (Ex.
“E”, Pg. 4) The following orthopedic test were negative: Tinel’s, Phalen’s, and Finkeltein. (Ex.
“E”, Pg. 5) A copy of Dr. Walsh’s affirmation is annexed hereto as Ex. “E”.
10. Dr. Scott A. Springer, D.O., D.A.B.R., a Board Certified Radiologist reviewed
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. (Ex. “F”) Dr. Springer
concluded the films revealed no posttraumatic changes causally related to the date of accident. (Ex.
“F”)
11. Dr. Springer’s review of Plaintiff’s left wrist MRI film revealed a tear of the
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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”, Pg. 8)
12. 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.
(Ex. “F”, Pg. 3-6) 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.
(Ex. “F”, Pg. 3-6) Copies of Dr. Springer’s affirmations are annexed hereto as Ex. “F”.
13. The above medical proofs and Plaintiff’s testimony establish Plaintiff cannot meet
each serious injury threshold requirement mandated by Insurance Law Sections 5104(a) and 5102(d).
14. Defendants respectfully request that this Court find there are no issues of fact as
Plaintiff fails to meet the “serious injury” categories alleged within the meaning of Insurance Law §
5104(a) and 5102 (d), as set forth in Defendants’ Statement of Material Facts and Affirmation in
Support and therefore, grant Defendants’ Motion for summary judgment and dismiss Plaintiff’s
Complaint in its entirety, or any part thereof.
Dated: March 3, 2022
______________________________
By: Helen Vecchione, Esq.
hvecchione@atrms.com
Of Counsel to
BAKER, McEVOY,
& MOSKOVITS, P.C.
Attorneys for Defendants
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Preview
FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------------x Index: 701269/2021E SOWKA BARCACEL, Plaintiff, STATEMENT OF -against- UNDISPUTED FACTS FREITAS MARCOS, Defendant. File No: 1086133 -------------------------------------------------------------------------x 1. This is a negligence action, in which plaintiff seeks damages allegedly sustained in an automobile accident on July 27, 2020, on Astoria Boulevard in the county of Queens, city and state of New York. (Summons and Complaint, Ex. A). 2. Pursuant to the Bill of Particulars, Plaintiff alleges she sustained soft tissue injuries to her cervical and lumbar spine and a wrist fibrocartilage tear with tenosynovitis. (Bill of Particulars, Ex. B). 3. In the Defendant’s 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. (Answer and the Demand for a Bill of Particulars, Ex. C). 4. 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 15 1 of 4 FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/07/2022 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) 5. 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. 6. 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. (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) 16 2 of 4 FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/07/2022 7. Dr. William Walsh, M.D., Board Certified Orthopedic Surgeon who examined Plaintiff concluded Plaintiff was able to work without limitation. (Ex. “E”, Pg. 5) Dr. Walsh opined his examination revealed no evidence of orthopedic disability, permanency or residuals. (Ex. “E”, Pg. 5) 8. Dr. Nipper noted Plaintiff was a 45 year old female, standing 5 feet, 5 inches tall, and weighing 150 pounds. (Ex. “E”, Pg. 3) Plaintiff ambulated with a normal gait. (Ex. “E”, Pg. 3) Dr. Walsh’s examination of Plaintiff’s cervical and lumbar spine revealed no muscle spasm or tenderness to palpation. (Ex. “E”, Pg. 3-4) Range of motion testing performed with the use of a goniometer revealed completely full, normal ranges of motion at all levels. (Ex. “E”, Pg. 4) Straight leg raises were negative to 80 degrees bilaterally (80 degrees being normal). (Ex. “E”, Pg. 4) The following orthopedic tests were negative: Distraction, Compression, Jackson’s, Soto Hall, Fabere, Ely’s, Kemp’s, and Lasegue’s. (Ex. “E”, Pg. 4) 9. Dr. Walsh’s examination of Plaintiff’s left wrist revealed completely full, normal ranges of motion. (Ex. “E”, Pg. 4) There was no heat, swelling, effusion, erythema or crepitus. (Ex. “E”, Pg. 4) The following orthopedic test were negative: Tinel’s, Phalen’s, and Finkeltein. (Ex. “E”, Pg. 5) A copy of Dr. Walsh’s affirmation is annexed hereto as Ex. “E”. 10. Dr. Scott A. Springer, D.O., D.A.B.R., a Board Certified Radiologist reviewed 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. (Ex. “F”) Dr. Springer concluded the films revealed no posttraumatic changes causally related to the date of accident. (Ex. “F”) 11. Dr. Springer’s review of Plaintiff’s left wrist MRI film revealed a tear of the 17 3 of 4 FILED: QUEENS COUNTY CLERK 03/07/2022 05:13 PM INDEX NO. 701269/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/07/2022 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”, Pg. 8) 12. 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. (Ex. “F”, Pg. 3-6) 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. (Ex. “F”, Pg. 3-6) Copies of Dr. Springer’s affirmations are annexed hereto as Ex. “F”. 13. The above medical proofs and Plaintiff’s testimony establish Plaintiff cannot meet each serious injury threshold requirement mandated by Insurance Law Sections 5104(a) and 5102(d). 14. Defendants respectfully request that this Court find there are no issues of fact as Plaintiff fails to meet the “serious injury” categories alleged within the meaning of Insurance Law § 5104(a) and 5102 (d), as set forth in Defendants’ Statement of Material Facts and Affirmation in Support and therefore, grant Defendants’ Motion for summary judgment and dismiss Plaintiff’s Complaint in its entirety, or any part thereof. Dated: March 3, 2022 ______________________________ By: Helen Vecchione, Esq. hvecchione@atrms.com Of Counsel to BAKER, McEVOY, & MOSKOVITS, P.C. Attorneys for Defendants 18 4 of 4