Motion-Secondary: Victor Didly v. Faubert Couamin

On October 01, 2018 a Motion-Secondary was filed involving a dispute between Victor Didly, and Faubert Couamin, for Torts - Motor Vehicle in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/22/2020 05:19 PM INDEX NO. 519652/2018
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY KINGS
---------------------------------------------------------------------X INDEX NO.: 519652/18E

VICTOR DIDLY,

Plaintiff,

- against - AFFIRMATION
IN SUPPORT

FAUBERT COUAMIN, FILE NO. 1026438

Defendant.
---------------------- ------------------X

C O U N S E L O R:

SUMMER TINNIE, an attorney duly admitted to practice law before the Courts of the

State of New York, affirms the following to be true under the penalties of perjury pursuant to

CPLR § 2106:

1. I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C.,

attorneys for defendant FAUBERT COUAMIN, and as such am fully familiar with the facts and

circumstances of this action as set forth based upon the contents of the file maintained in this

office.

2. I respectfully make this Affirmation, upon information and belief, in support of

the instant Motion, which seeks relief in the form of an Order, granting summary judgment in

favor of defendant FAUBERT COUAMIN, and dismissing the Complaint of plaintiff, in as

much as plaintiff, fails to meet the serious injury threshold requirement mandated by Insurance

Law § 5102 (d); and granting such other and further relief as this Court may deem just and

proper.

3. This action arises out of a motor vehicle accident that allegedly occurred on

22"d
March 31, 2018, on East Street, at or near itsintersection with Firth Avenue, in the County

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of Bronx, City and State of New York. This action was commeñced by service upon defendants

of the Summons and Complaint, annexed hereto as EXHIBIT "A", on or about October 11,

injuries"
2018. In this action, plaintiff alleges that her injuries resulted in "serious as that term is

defined in Insurance Law § 5102.

4. In the Verified 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 requires that there is no right to

recovery and no basis for an action ifplaintiff has not sustained a serious injury as that term is

defined in the statute. A copy of defendant's herein Verified Answer is annexed hereto as

EXHIBIT "B". To date the Note of Issue has not been filed.

5. In the Verified Bill of Particulars annexed hereto as EXHIBIT "C", plaintiff

alleges various injuries, including and claims that these injuries are serious injuries under the

applicable categories of the statute:

• Soft tissue injuries to plaintiff's cervical spine and lumbar spine, and
• Right Knee; joint effusion, medal plica and infrapatellar bursitis.
deep

MOTION FOR SUMMARY JUDGMENT ON THRESHOLD

6. Defendants now move for summary judgment on the ground that plaintiff did not

sustain a serious injury. Based on plaintiff's Verified 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

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material acts, which constitute such person's usual and customary daily
activities for not less than 90 days during the 180 days immediately
impairment."
following the occurrence of the injury or

Plaintiff's Injuries Do Not Meet The Threshold Requirement

defendants'
7. Based on the affirmed medical reports of examining doctors,

discussed below, as well as plaintiff s own verified pleadings and testimony, defendants submit

that the allegations of injury are unsubstantiated and cannot meet the statutory threshold

requirements of "serious injury", under any of the applicable categories.

defendants'
8. Based on the affirmed medical reports of examining doctors,

discussed below, as well as plaintiff's own verified pleadings and testimony, defendants submit

that the allegations of injury are unsubstantiated and cannot meet the statutory threshold

requirements of "serious injury", under any of the applicable categories.

9. Defendants requested Dr. Scott Springer, D.0, an independent medical examiner

for defendants, to perform a radiological evaluation on the MRI films of plaintiff's cervical spine

and lumbar spine. Dr. Springer 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 in his reports under the

penalties of perjury. Dr. Springer's affirmed examination reports are annexed hereto as

EXHIBIT "D".

10. Dr. Springer found plaintiff's MRI to his cervical spine to reveal disc desiccation,

C2-C3, C3-C4 and C4-C5. No fracture or subluxation. No posttraumatic changes causally

related to the March 31, 2018, incident.

11. Dr. Springer found plaintiff's MRI to his lumbar spine to show no evidence of

fracture, subluxation or disc herniation. No posttraumatic changes causally related to the March

31, 2018, incident.

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12. Defendants requested Dr. Michael Setton, D.0, an independent medical examiner

for defendants, to perform a radiological evaluation on the MRI film of plaintiff's right knee. Dr.

Setton 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 in his reports under the penalties of perjury. Dr.

Setton's affirmed examination report are annexed hereto as EXHIBIT "E".

13. Dr. Setton found plaintiff's MRI to right knee to show no evidence of osseous or

soft tissue injury, which may have resulted from the accident two to three weeks, prior.

Furthermore, there is no abnormality of the para-articular soft tissues to suggest any type of

recent traumatic injury to the right knee.

14. Defendants requested Dr. Dana Mannor, an independent medical examiner for

defendants, to perform an orthopedic examination on plaintiff. Dr. Mannor 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 in her report under the penalties of perjury. Dr. Mannor's affirmed

examination report is annexed hereto as EXHIBIT "E".

5'7"
15. Plaintiff presented to Dr. Mannor as a 32 year-old male at and 128 pounds.

Examination of plaintiff's cervical spine revealed the following range of motion (as measured

with a goniometer), flexion to 50 degrees, extension to 60 degrees, right and left lateral flexion to

45 degrees and right and left rotation to 80 degrees. The Spurling test was negative.

Examination of plaintiff's lumbar spine revealed the following range of motion (as measured

with a goniometer), flexion to 90 degrees, extension to 25 degrees and right and left lateral

bending to 25 degrees. The Straight leg raise test was negative. Examination of plaintiff's

bilateral knee revealed the following range of motion (as measured with a goniometer), flexion

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to 150 degrees and extension to 0 degrees. The following tests were allnegative: Lachman,

Patella tracking, McMurray, Anterior drawer, Posterior drawer and Compression.

16. Dr. Mannor's impression found plaintiff's alleged injuries to his cervical

spine/strain, lumbar spine sprain/strain and right knee sprain/strain to be resolved. Plaintiff

presents with a normal orthopedic examination on all objective testing. The orthopedic

examination is objectively normal and indicates no findings, which would result in orthopedic

limitations in use of the body parts examined. Plaintiff is capable of functional use of the

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

including work duties.

PLAINTIFF'S EBT TESTIMONY

17. Plaintiff's deposition, attached as EXHIBIT "F", he stated an ambulance was

called to the scene of the accident and he was taken to Northwell Hospital. See Page 26, lines

24-25, Page 27, line 2, Page 28, lines, 11-12. He stated no x-rays were conducted to any of

plaintiff's body parts and he was not prescribed any medication for his alleged injuries sustained

in the subject accident. See Page 29, lines 18-21. Thereafter, plaintiff stated he underwent

physical therapy for approximately three months, setting forth a cessation in treatment. See Page

31, lines 4-8, Page 32, lines 12-16.

18. As per plaintiff's Verified Bill of Particulars plaintiff was confined to his bed and

home for two days post the date of accident. In addition, plaintiff testified he was confined to

his home for approximately two days post the date of accident. See Page 32, lines 3-7.

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THE COURT MUST. IN THE FIRST INSTANCE, DETERMINE IF

THERE IS AN ISSUE OF FACT AND WEED OUT FRIVOLOUS CLAIMS

19. 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

injury"
plaintiffs who can establish a "serious as defined by Insurance Law § 5102(d), can

maintain a lawsuit and itis incumbent upon the judiciary, in the first instance, to scrutinize the

medical evidence and to bar claims, which do not qualify. Se_e, Report, of the Joint Legislative

Committee on Insurance Rates Regulation and Recodification of the Insurance Law, N.Y. Legis.

Doc. 1973, No. 18.

20. 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 jury is not
syste_m."
pennitted under the 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).

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

with frivolous claims. That Court of Appeals has recognized that no-fault abuse "abounds". 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 allautomobile fraud reports received by the Insurance

2000."
Department in She also stressed the importance of identifying and dismissing claims that

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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 mountains of other auto
accident claims, which may not.... [and]failure to grant summary
judgment when where the evidence justifies dismissal, burdens court
dockets and impedes the resolution of legitimate claims."[emphasis added]
Pommells v. Perez, 4 NY3d 566 (2005).

22. 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
injury"
Operations of the Insurance Frauds Prevention Act at 23). "Serious
claims are stilla source of significant abuse, and itis stilltrue, as it was in

2005, that many courts, including ours, approach claims that soft-tissue
"serious" skepticism"
injuries are with a "well-deserved (Pommells, 4
571)."
NY3d at

23. It isimportant to note that itis 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 a minor accident that caused a "serious injury", are a great

burden on the court system and its resources, not to mention the county's jury pool. This is a

case in which the evidence does not indicate a "serious injury", and which more closely

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

I there isa gross between the amount of fraud upstateversus thatreported inthe New York
Interestingly, disparity
City metropolitan area. The Insurance Research Counsel has reported that44% ofdownstate claimants visitfour or
more health care providers,as compared to 14% upstate. No-fault fraud also translatesintohigher insurance costs,
with the Property Casualty Insurers Association reporting that theno-fault portion ofcoverage inthe QUEENS is
$754, versus a statewide average of $202. Ithas been estimated that no-faultfraud instances increased from 10,117
to 13, 433 inthe three yearperiod from 2006 to2009, and inNew York City, approximately 22% of claims
contained fraud in 2010, with another 14% having overbillingor excessive utilizationof medical services. The claim

buildup upstate was reported at 4%. See Wall StreetJournal, January 4, 2011, "Insurance Study Sees Fraud is
City"
Widespread in New York and Insurance Journal, January 6,2011, "Study Says No-Fault Fraud a Major
City."
Problem in New York

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24. Based on the medical evidence submitted 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/or the alleged injuries do not rise to the level of impairment

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

trauma"
includes objective evidence establishing an "absence of (See, Kester v. Sendoya, 123

(1st
AD3d 418 Dept. 2014), including radiological evidence confirming that no traumatic injury

was sustained, which negates a claim of any causally related serious injury under the statute, and

defendants' (1st
is sufficient to meet burden on this motion. See Ikeda v. Hussain, 81 AD3d 496

(IS'
Dept. 2011); Johnson v. Parisien, 82 AD3d 565 Dept. 2011); Arroyo v. Morris, 85 AD3d

(Ist (ISt
679 Dept. 2011); Valentin v. Pomilla, 59 AD3d 184 Dept. 2009) .

25. 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,

(1st
746 NYS2d 865 (2002); Linton v. Gonzales, 110 AD3d 534 Dept. 2013); Rickert, supra ;

(1st (2nd
Batista v. Porro, 110 AD3d 609 Dept. 2013); Kreimerman v. Stunis, 74 AD3d 753

(1st (1st
2010); Lall v. Ali, 101 AD3d 439 Dept. 2012); Valentin v. Pomilla, 59 AD3d 184 Dept.

2009).

defendants'
26. In addition, doctors reported near normal findings on a myriad of

objective tests, with near full ranges of motion and 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.

(1st (2nd
Gressey, 84 AD3d 460 Dept. 2011); Sayas v. Merrick Transport, 23 AD3d 367 Dept.

(2nd (2nd
2005); Farozes v. Kamran, 22AD3d 458 Dept. 2005); Verette v. Zia, 44 AD3d 747

Dept. 2007).

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defendants'
27. In light of the affirmations submitted by doctor, itis clear that

defendants have made a prima facie showing that plaintiff's allegations of injury were either not

caused in this accident, and/or 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

(2nd
Car, supra, 98 NY2d 345 (2002); Vilomar v. Castillo, 73 AD3d 758 Dept. 2010); Ortiz v.

(2nd (ISt
Ianina Taxi, 73 AD3d 721 Dept. 2010); Valentin v. Pomilla, 59 AD3d 184 Dept. 2009);

(1st
Delesus v. Paulino, 61 AD3d 605 Dept. 2009).

28. Further, the mere presence of tears, bulges, and/or 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

(1st
848 (2nd Dept. 2011); Dembele v. 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 use or limitation, there is no basis for a claim of

"permanent" (ISt
serious injury under the statute. Fortune v. Sacks and Sacks, 272 AD2d 277

(2nd
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, he/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

defendants'
clinical tests, doctors also ruled out any basis for a permanent consequential

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limitation. See Mickelson v. Padang, 237 AD2d 495 (2 Dept. 1997); Attanasio v. Lashley, 223

AD2d 614 (2 Dept. 1996).

defendants'
30. Lastly, 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, this category requires proof that plaintiff was medically prevented

all"
from performing "substantially of his usual and customary activities for the requisite period.

31. Defendants submit that, based on the above, the burden should shift to plaintiff to

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

alleged injuries being both causally related to the accident, as well as showing impairmeñts

which could satisfying at least one definition in Insurance Law § 5102(d). If plaintiff fails to

present such proofs, defeñdãñts respectfully request that this Court find that there are no issues of

injury"
fact as plaintiff fails to meet a "serious within the meaning of Insurance Law § 5102 (d)

defendants'
and therefore grant Motion for summary judgmeñt and dismiss plaintiff's Complaint

in its entirety.

32. No prior application for the relief sought herein has been made.

WHEREFORE, for allthe reasons aforesaid, itis respectfully requested that this court

issue an Order granting the relief requested and such other and further relief as to this Court may
deem just and proper.

Dated: Brooklyn, New York

January 22, 2020

Yours, etc.,
R, cEV , SSEY

: S ER TINNIE
Attorneys for
8th
1 Metrotech Center, FlOOr,

Brooklyn, New York 11201

(212) 497-1685

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TO: SACCO & FILLAS, LLP.,
Attorneys for Plaintif
31-10 Newtown Avenue,

Astoria, NY 11102

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Document Filed Date

January 22, 2020

Case Filing Date

October 01, 2018

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