Motion-Secondary: Jose V. Fernandez v. Jorge Luis Rivera

On October 03, 2018 a Motion-Secondary was filed involving a dispute between Jose V. Fernandez, and Jorge Luis Rivera, for Torts - Motor Vehicle in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 06/12/2020 03:11 PM INDEX NO. 519845/2018
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SUPREME COURT OF THE STATE OF NEW YORK Index: 519845/18
COUNTY OF KINGS
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JOSE V. FERNANDEZ,

Plaintiff, AFFIRMATION
-against- IN SUPPORT

JORGE LUIS RIVERA,

Defendant. File No: 103076 1

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

of the State of New York, and an associate at the firm of BAKER, McEVOY, MOSKOVITS, &

LEVEN, P.C., attorneys for Defendant, JORGE LUIS RIVERA 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 ofthe Plaintiff, pursuant to Insurance Law section 5104(a), inthat 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 he

alleges were sustained in an automobile accident on June 15, 2018, on Livonia Avenue near its

intersection with Snediker Avenue in the county of Kings, city and state of New York. Plaintiff

injuries"
alleges he sustained "serious as that term is defined in Insurance Law, section 5102. See

Summons and Complaint, attached hereto as Ex. "A". In plaintiff's Verified Bill of Particulars,

annexed hereto as Ex. "B", Plaintiff alleges soft tissue injuries to the lumbar spine, tendinitis and

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bursitis in the left shoulder; right ankle and right knee joint fluid with synovitis, and sacro-iliaitis.

Plaintiff claims these allegations constitute serious injuries under the applicable categories of the

statute.

3. Issue was joined by Defendant herein on or about November 16, 2018. In the

Defendant's Answer, Defendant denied the material allegations ofthe Complaint and raised various

affirmative defenses, including the Court's lack ofjurisdiction over the subject matter ofthis 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 Defendant's doctor, and the

affirmed medical reports are annexed hereto. In addition, Plaintiff's deposition was held and a copy

ofthe deposition transcript is annexed hereto as Ex. "D". The Note of Issue has notbeen filed.Thus

this motion is timely.

Motion for Summary Judgment on Threshold

5. Defendant now moves 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 allof the

material acts, which constitute such person's usual and customary daily
activities for not less than 90 days during the 180 days immediately

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impairment"
following the occurrence of the injury or

In support of this motion, Defendant submits the affirmations of Dr. DANA A. MANNOR, M.D.,

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

September 16, 2019.

6. Dr. DANA A. MANNOR, M.D., a Board Certified Orthopedic Surgeon examined

Plaintiff on October 23, 2019.

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

Plaintiff's MRI studies of the lumbar spine, right knee, and right ankle on March 4, 2020.

8. Plaintiff's deposition testimony, annexed hereto as Ex. "D", establishes that at the

time of this accident, Plaintiff was operating a 2013 Toyota Camry. (21:2-11) Plaintiff testified to

first becoming aware of the accident when he felt an impact to the left side of his vehicle. (Ex. "D",

36:20-25) Plaintiff admitted to wearing a seatbelt at the time of the accident. (Ex. "D", 83:11-13)

Plaintiff further admitted the impact did not cause the airbags to deploy (thus, indicating this was not

a high impact collision). (Ex. "D", 83:17-18)

9. Plaintiff denied medical attention at the scene of the accident. (Ex. "D", 49:2-9)

Rather, plaintiff drove his vehicle from the scene of the accident. (Ex. "D", 53:2-4) Later that day,

Plaintiff presented to Brookdale Hospital. (Ex. "D", 60:6-10) Plaintiff was discharged from the

hospital with instructions to take over the counter pain medication. (Ex. "D", 65:11-25)

10. Thereafter, Plaintiff presented for physical therapy. (Ex. "D", 66:2-15) Plaintiff

continued physical therapy for approximately four months. (Ex. "D", 71:3-10) Plaintiff received one

himbar injection and underwent a lumbar surgery in January 2019. (Ex. "D", 73:1 -74:15) Plaintiff

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last treated for his alleged injuries one week following surgery, and Plaintiff testified to having no

future medical appointments for his alleged injuries. (Ex. "D", 71:14-18, 75:9-21, 76:9) Thus,

Plaintiff has admitted to a cessation in treatment.

11. At the time ofthe Plaintiff was employed as a livery driver. (Ex. 15:7-
accident, "D",

24) Plaintiff testified to missing two weeks of work as a result of his alleged injuries. (Ex. "D",

77:17-25, 78:3) At the time of his deposition, Plaintiff was stillemployed as a taxi and Uber driver.

(Ex. "D", 15:7-24) Thus, Plaintiff has admitted an ability to perform normal activities of daily

living. Plaintiff also admitted he only feltpain in his low back when liftingheavy objects. (Ex. "D",

76:10-16) Plaintiff further admitted he no longer felt any pain in his right ankle, right knee, right

or neck as a result of the accident. (Ex. 76:10 - Plaintiff testified to
shoulder, "D", 77:6) being

confined to his home for five days following the subject accident and confined to his bed for one day.

(Ex. 78:20 -
"D", 79:6)

12. Dr. Dana A. Mannor, M.D., a Board Certified Orthopedic Surgeon who examined

Plaintiff concluded Plaintiff presented for a normal orthopedic examination. Dr. Mannor opined

Plaintiff is capable of performing activities of daily living as he was doing before the accident. Dr.

Mannor found no evidence of an orthopedic disability, permanency or residuals. (Ex. "E")

13. Dr. Mannor noted Plaintiff was a 54 year old female, standing 5 feet, 6 inches tall,

weighing 170 pounds. Plaintiff ambulated with a normal gait and appeared in no acute distress. With

the use of a goniometer, Dr. Mannor conducted range of motion testing, noting completely full,

normal ranges of motion in the cervical and lumbar spine at all levels. Dr. Mannor noted no muscle

spasm and no complaints of tenderness upon palpation. The following orthopedic tests were

negative: Spurling's Straight motor strength (5/5 in all muscle and heel-toe-
test, leg raise, groups),

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walk. (Ex. "E")

14. Upon examination of Plaintiff's leftshoulder, Dr. Mannor noted there was no heat,

swelling, effusion, erythema, atrophy or deformity. Range of motion testing performed with the use

of a goniometer, revealed completely full, normal ranges of motion. The following orthopedic tests

were negative: Neer's, Drop-arm test, Hawkins, Apprehension test, O'Brien's test,Cross-Adduction

test. Upon examination of Plaintiff's right knee and right ankle, Dr. Mannor found no heat, swelling,

effusion, erythema, atrophy or deformity. Range of motion testing revealed completely full, normal

ranges of motion, and a plethora of orthopedic tests were negative. A copy of Dr. Mannor's

affirmation is annexed hereto as Ex. "E".

15. Dr. Scott A. Springer, a Board Certified Radiologist reviewed Plaintiff's MRI films of

the lumbar spine, right knee, and right ankle, each performed within the first 90/180 days following

the accident. Dr. Springer's review of Plaintiff's lumbar spine MRI film, dated July 27, 2018,

revealed probable hemangioma in the T12, L2, L3 and L4 levels, which Dr. Springer opined was

non-traumatic. Dr. Springer also noted disc bulges from L2 to S 1. Dr. Springer opined disc bulging

has no traumatic basis and is degenerative in origin, related to ligamentous laxity and weakening of

the outer ligamentous fibers. Dr. Springer opined Plaintiff's himbar MRI film revealed no

posttraumatic changes casually related to the subject accident. Dr. Springer also reviewed Plaintiff's

lumbar spine MRI film, dated December 21, 2018, opining that the findings were previously seen on

the July 27, 2018 MRI film. (Ex. "F")

16. Dr. Springer's review of Plaintiff's right knee MRI film, dated July 19, 2018, revealed

no posttraumatic changes causally related to the date of accident. There was no fracture, dislocation

or internal derangement ofthe knee. Dr. Springer's review of Plaintiff's right ankle MRI film, dated

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July 19, 2018 revealed joint effusion, which Dr. opined was a nonspecific transient process that

would resolve without sequelae. Dr. Springer noted a chronic spur, which could not have developed

in the time interval between the incident and the examination and mild pes planus, which Dr.

Springer opined is not related to trauma. Dr. Springer also noted tendinosis, which Dr. Springer

opined was a chronic finding related to repetitive motion. 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 ofFact

and Weed Out Frivolous Claims

17. 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

injury"
establish a "serious as defined by 5102(d), can maintain a lawsuit and itis incumbent upon

the judiciary, in the firstinstance, 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.

18. 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 trialby iury isnot oermitted under the
system."
no-fault 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 itcan be said. as a matter of law. that olaintiff suffered no serious
injury. See also Armstrong v. Wolfe, 133 AD2d 957 (3d Dept. 1997).

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

"abounds"
frivolous claims. That no-fault abuse 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

2000."
Insurance Department in 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:

injury"
"there is...abuse of the No-Fault law in failing to separate "serious

cases, which may proceed in court, from the =enntains 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
added]"
legitimate claims.[emphasis Pommells v. Perez, 4 NY3d 566 (2005).

20. 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 stillabounds 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
injury"
Insurance Frauds Prevention Act at 23). "Serious claims are stilla source of

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

21. It isimportant to note that it isnot 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 ofthat minor accidents caused "serious injury", are a greater burden

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

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

claims..." scheme.1
the "mountain of...other lacking merit under this legislative

22. 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 minor

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

defendants'
sufficient to qualify under any category of the statute. Specifically, showing includes

trauma" (1st
objective evidence establishing an "absence of (See, Kester v. Sendoya, 123 AD3d 418

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

(1st (1st
Singh, 82 AD3d 565 Dept. 2011); Arroyo v. Morris, 85 AD3d 679 Dept. 2011); Valentin v.

(1st
Pomilla, 59 AD3d 184 Dept. 2009).

23. By eliminating the accident as a cause ofthe conditions alleged, defendants eliminate

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

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

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

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

1 Interestingly,
there isa grossdisparitybetween the amount offraud upstate versusthat reported in the
New York City
metropolitan area. The Insurance Research Counsel has reported that44% of downstate claimants visitfour ormore
health care providers,as compared to 14% upstate. No-fault fraud also translates
intohigher insurance costs,with the

Property Casualty InsurersAssociation reporting that theno-faultportion of coverage in theBronx is$754, versus a
statewide average of $202. Ithas been estimated thatno-fault fraudinstances increased from 10,117 to 13, 433 in the
three yearperiod from 2006 to2009, and inNew York City,approximately 22% of claims contained fraudin 2010, with
another 14% having overbillingor excessive utilization
of medical services.The claim buildup upstate was reported at
City"
4%. See Wall Street Journal,January 4, 2011, "Insurance Study Sees Fraud isWidespread in New York and
City."
Insurance Journal, January 6, 2011, "Study Says No-Fault Fraud a Major Problem in New York

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24. PlaintitT's course of treatment also belied a claim of serious injury, as it shows a

cessation in treatment. Accordingly, plaintiff is obligated to furnishthe court with an explanation for

the lack oftreatment. See Pommells v. Perez, 4 NY3d 566 (2005); Diaz v. Chaudhry, 91 AD3d 590

(2nd (2nd
(2nd Dept. 2012); Torres v.Posy, 92 AD3d 676 Dept. 2012); Hall v.Hecht, 92 AD3d 721

Dept. 2012).

defendants' doctors'
25. In addition, 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.

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

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

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

26. In this regard, defendant notes 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 defendant's doctors, itis clear that defendant

has 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 inthis 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

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

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

(1st
Dept. 2009).

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27. Further, the mere presence of tears, bulges are not sufficient, by themselves, to

establish threshold, even if causation were established; those conditions, even ifcaused 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.

(1st
Cambisaca, 59 AD3d 352 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

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

(1st (2nd
Fortune v. Sacks and Sacks, 272 AD2d 277 Dept. 2000); Becker v. Coiro, 634 NYS2d 770

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, she 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.

(2nd
See Mickelson v.Padang, 237 AD2d 495 Dept. 1997); Atlanasio v.Lashley, 223 AD2d 614 (2d

Dept. 1996).

30. Defendant's proof ruled out the 90/180 day category of the statute as this category

defendants'
requires proof that there was a causally related, medically determined injury, which

radiologist has determined is not present. Nor does the record reveal that Plaintiff was medically

all"
prevented from performing "substantially of her usual and customary activities for the requisite

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

(2nd (2nd
2010); Kreimerman v. Stunis, 74 AD3d 753 Dept. 2010); Camacho v. Dwelle, 54 AD3d 706

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(2nd
Dept. 2008); Hamilton v.Rouse, 46 AD3d 5 14 Dept. 2007). Plaintiff testified to missing only

two weeks of work following the accident. Plaintiff further testified he was confined to his home for

five days as a result of the accident.

31. Defendants submit that, based on allofthe 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 at least one definition in Ins. Law 5 102(d). If Plaintiff fails to present such proofs, the

Motion should be granted and Plaintiff's action dismissed.

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

granted, and Plaintiff's Complaint be disniissed as Plaintity did not sustain a serious injury, together

with such other and further relief as this Court may deem just and proper.

Dated: Brooklyn, New York
June 8, 2020

HELEN E. VECCHIONE, ESQ.

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Case Info

Judge

Lawrence S Track Judge’s New Case

Case No.

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Document Filed Date

June 12, 2020

Case Filing Date

October 03, 2018

County

Parties

IRWIN, JOSHUA BRIAN Attorney for the Plaintiff
Jorge Luis Rivera Defendant
Jose V. Fernandez Plaintiff
LEVEN, ADRIANNE JOY Attorney for the Defendant
MCEVOY, JOHN PHILIP Attorney for the Defendant
MOSKOVITS, RONIT Z Attorney for the Defendant
KELECHI ACHOLONU Attorney
VICTORIA HOVSEPYAN Attorneys for Plaintiffs
HELEN VECCHIONE Attorneys for Defendants
ANTHONY LATRACE Attorneys for Plaintiffs
AARONDA WATSON Attorneys for Defendants

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