On March 09, 2018 a
Order
was filed
involving a dispute between
Juan Batista Jr.,
and
Francisco Pimentel,
for Torts - Motor Vehicle
in the District Court of Queens County.
Preview
rE. NST TED Tr ~ INDEX NO. 703661/2018
OU OU 06
NYSCEF BOC. NO. 40 RECEIVED NYSCEF: 06/11/2021
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE DARRELL L. GAVRIN IA PART 27
Justice
JUAN BATISTA JR., Index No. 703661/18
Plaintiff, Motion
Date February 2, 2021
- against-
FRANCISCO PIMENTEL,
Motion
Cal. No FILED
6/11/2021
Defendant. Motion COUNTY CLERK
Seq. No. QUEENS COUNTY
The following papers read on this motion by defendant for an order granting summary judgment
on the basis of plaintiff’s failure to satisfy the “serious injury” requirement of Insurance Law
§ 5102(d).
Papers
Numbered
Notice of Motion - Affirmation - Exhibit 1
Affirmation in Opposition - Exhibits. see 2
Upon the foregoing papers, it is ordered that the motion is determined as follows:
This is an action for personal injuries sustained by plaintiff-driver in a motor vehicle
accident that occurred on September 9, 2017, on the Van Wyck Expressway, County of Queens,
City and State of New York. Plaintiff was 19 years old (d.o.b. August 24, 1998) at the time of
his accident.
Defendant seeks summary judgment dismissing plaintiff's complaint on the ground that
plaintiff did not sustain a “serious injury,” pursuant to Insurance Law § 5102(d). On a motion
for summary judgment, a defendant must establish entitlement to dismissal as a matter of law by
demonstrating that the plaintiff's alleged injuries were either not “serious,” through proof that
none of the statutory categories are fulfilled, or that the plaintiffs injuries were not causally
related to the accident at issue (see Baez v Rahamatali, 6 NY3d 868 [2d Dept 2006]). With this
established, the burden shifts to the plaintiff to come forward with evidence to overcome the
defendant’s submission by demonstrating a triable issue of fact as to whether a “serious injury”
was sustained within the meaning of the Insurance Law (see Gaddy v Eyler, 79 NY2d 955
[1992]; Damas v Valdes, 84 AD3d 87 [2d dept 2011]).
1 of 2
————“
5-5
INDEX NO. 703661/2018
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/11/2021
In the case at bar, conflicting affidavits establish that an issue exists as to whether
plaintiff's injury to his right shoulder, resulting in surgery, was causally related to the subject
accident as well as the nature and extent of that injury. With regard to the affirmed medical
reports of defendant’s physicians finding that the injury has been resolved and that there are no
post-traumatic changes causally related to the accident, the court finds that the affirmed medical
reports submitted on behalf of plaintiff, stating facts to the contrary, raise a triable issue of fact
(see Gouvea v Lesenda,127 AD3d 811 [2d Dept 2015]; Khaimov v Armanious, 85 AD3d 978
[2d Dept 2011}).
Moreover, there is an issue of fact with respect to the 90/180 category of Insurance Law
§ 5102(d). Plaintiff testified at his deposition on November 14, 2019 that he quit his job after
the accident and remained at home for six to eight months because he was in substantial pain.
Plaintiff avers in his sworn affidavit that four years after the accident, he continues to
experience pain in his right shoulder and has difficulty performing simple daily tasks.
Accordingly, the motion for summary judgment on the issue of threshold, is denied.
FILED
6/11/2021
Dated: June 8, 2021
Rd . GAVRIN, J.S.C. OUNTY CLERK
QUEENS COUNTY
Bs
2 of 2
Document Filed Date
June 11, 2021
Case Filing Date
March 09, 2018
Category
Torts - Motor Vehicle
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rE. NST TED Tr ~ INDEX NO. 703661/2018 OU OU 06 NYSCEF BOC. NO. 40 RECEIVED NYSCEF: 06/11/2021 NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE DARRELL L. GAVRIN IA PART 27 Justice JUAN BATISTA JR., Index No. 703661/18 Plaintiff, Motion Date February 2, 2021 - against- FRANCISCO PIMENTEL, Motion Cal. No FILED 6/11/2021 Defendant. Motion COUNTY CLERK Seq. No. QUEENS COUNTY The following papers read on this motion by defendant for an order granting summary judgment on the basis of plaintiff’s failure to satisfy the “serious injury” requirement of Insurance Law § 5102(d). Papers Numbered Notice of Motion - Affirmation - Exhibit 1 Affirmation in Opposition - Exhibits. see 2 Upon the foregoing papers, it is ordered that the motion is determined as follows: This is an action for personal injuries sustained by plaintiff-driver in a motor vehicle accident that occurred on September 9, 2017, on the Van Wyck Expressway, County of Queens, City and State of New York. Plaintiff was 19 years old (d.o.b. August 24, 1998) at the time of his accident. Defendant seeks summary judgment dismissing plaintiff's complaint on the ground that plaintiff did not sustain a “serious injury,” pursuant to Insurance Law § 5102(d). On a motion for summary judgment, a defendant must establish entitlement to dismissal as a matter of law by demonstrating that the plaintiff's alleged injuries were either not “serious,” through proof that none of the statutory categories are fulfilled, or that the plaintiffs injuries were not causally related to the accident at issue (see Baez v Rahamatali, 6 NY3d 868 [2d Dept 2006]). With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant’s submission by demonstrating a triable issue of fact as to whether a “serious injury” was sustained within the meaning of the Insurance Law (see Gaddy v Eyler, 79 NY2d 955 [1992]; Damas v Valdes, 84 AD3d 87 [2d dept 2011]). 1 of 2 ————“ 5-5 INDEX NO. 703661/2018 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/11/2021 In the case at bar, conflicting affidavits establish that an issue exists as to whether plaintiff's injury to his right shoulder, resulting in surgery, was causally related to the subject accident as well as the nature and extent of that injury. With regard to the affirmed medical reports of defendant’s physicians finding that the injury has been resolved and that there are no post-traumatic changes causally related to the accident, the court finds that the affirmed medical reports submitted on behalf of plaintiff, stating facts to the contrary, raise a triable issue of fact (see Gouvea v Lesenda,127 AD3d 811 [2d Dept 2015]; Khaimov v Armanious, 85 AD3d 978 [2d Dept 2011}). Moreover, there is an issue of fact with respect to the 90/180 category of Insurance Law § 5102(d). Plaintiff testified at his deposition on November 14, 2019 that he quit his job after the accident and remained at home for six to eight months because he was in substantial pain. Plaintiff avers in his sworn affidavit that four years after the accident, he continues to experience pain in his right shoulder and has difficulty performing simple daily tasks. Accordingly, the motion for summary judgment on the issue of threshold, is denied. FILED 6/11/2021 Dated: June 8, 2021 Rd . GAVRIN, J.S.C. OUNTY CLERK QUEENS COUNTY Bs 2 of 2