Opinion
Index No. 610332/2019 Mot. Seq. Nos. 005 MD 006 MD
11-16-2021
VALERIE REYES, Plaintiff, v. NAIN REYES-ECHEVERRIA and DEBBY TORRES, Defendants.
CARNER & DEVITA, PC Attorney for Plaintiff GENTILE & TAMBASCO Attorney for Defendant Reyes-Echeverria RUSSO & GOULD LLP Attorney for Defendant Torres
Unpublished Opinion
MOTION DATE 9/2/21
ADJ. DATE 10/14/21
CARNER & DEVITA, PC Attorney for Plaintiff
GENTILE & TAMBASCO Attorney for Defendant Reyes-Echeverria
RUSSO & GOULD LLP Attorney for Defendant Torres
HON. JOSEPH A. SANTORELLI JUSTICE
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motions/Order to Show Cause and supporting papers by defendant Torres, dated August 12,2021; by defendant Reyes- Echeverria, dated August 23,2021; Notice of Cross-Motion and supporting papers _; Answering Affidavits and supporting papers by defendant Reyes-Echeverria, dated August 23,2021; by plaintiff, dated September 28,2021 and September 28,2021; Replying Affidavits and supporting papers by defendant Torres, dated October 10, 2021; by defendant Reyes-Echeverria, dated October 13,2021; Other _; it is
ORDER ED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that this motion by defendant Debby Torres for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross claims against her is denied; and it is further
ORDERED that the motion by defendant Nain Reyes-Echeverria for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law S 5102(d) is denied.
This is an action to recover damages for personal injuries sustained by plaintiff, when the vehicle in which she was a passenger collided with a vehicle owned and operated by defendant Nain Reyes-Echeverria. The accident allegedly occurred on September 10, 2017, at approximately 7:20 p.m., on Wicks Road, at or near the intersection of Bluejay Drive, in Brentwood, New York. At the time of the accident, plaintiff was a passenger in the vehicle owned and operated by defendant Debby Torres.
The Court notes that in its order issued on August 10, 2021, it misidentified the owners and operators of the respective vehicles.
Defendant Torres now moves for summary judgment dismissing the complaint and all cross claims against her on the ground that the accident was solely the result of defendant Reyes-Echeverria's failure to control his vehicle by making an illegal V-turn. She also seeks summary judgment on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law S 5102 (d). In support, Torres submits, inter alia, the pleadings, the transcripts of the parties' testimony, and an affirmed report of Dr. Noah Finkel.
At her deposition, plaintiff testified that she was a front-seat passenger in the vehicle operated by her mother, defendant Torres. Prior to the accident, plaintiff had been traveling on the left lane of the southbound Wicks Road. When she first saw the Reyes vehicle coming from Bluejay Drive, it was approximately 100 feet away from the Torres vehicle. Plaintiff testified that the Reyes-Echeverria vehicle traveled through her lane, made a V-turn, and stopped in front of the Torres vehicle. Plaintiff testified that although Torres slowed down her vehicle, she was not able to avoid the accident. The front of the Torres vehicle came into contact with the rear driver's side of the Reyes-Echeverria vehicle. Plaintiff testified that when the impact occurred, the Reyes-Echeverria vehicle was facing east.
At her deposition, Torres testified that she had been traveling southbound on Wicks Road. When she first saw the Reyes vehicle, it came from a side street on her left, made a V-turn, and stopped in front of her. Torres testified that although she applied her brakes hard, she was not able to avoid the accident. She testified that the front of her vehicle came into contact with the rear driverss side of the Reyes-Echeverria vehicle.
At his deposition, Reyes-Echeverria testified that after he left a gas station located on Wicks Road, one block north of Bluejay Drive, he had traveled about a half block on the left lane of the southbound Wicks Road at approximately 20 to 25 miles per hour. He testified that as he was about to get into the left turn lane, the rear left side of his vehicle was struck by the front of the Torres vehicle, which had been traveling behind his vehicle. Reyes-Echeverria testified that the accident happened before he arrived the intersection with Bluejay Drive, and that when the impact occurred, his vehicle was facing south.
Here Reyes-Echeverria's deposition testimony conflicts with plaintiffs and Torres' deposition testimony as to the happening of the accident (see Pyke v Bachan, 123 A.D.3d 994,999 N.Y.S.2d 508 [2d Dept 20141- Viggiano v Camara, 250 A.D.2d 836, 673 N.Y.S.2d 714 [2d Dept 1998]). Plaintiff and Torres testified that the accident happened after the Reyes-Echeverria vehicle drove out of Bluejay Drive and made an illegal U-turn at the intersection of Wicks Road and Bluejay Drive. Reyes-Echeverria, however, testified that while traveling on Wicks Road his vehicle was struck in the rear by the Torres vehicle, and that the accident happened before the intersection of Bluejay Drive. Under these circumstances, there are questions of fact as to how and where the accident happened, whether Reyes-Echeverria was making an illegal U-turn at the time of the accident, and whether the alleged negligence of Reyes-Echeverria was a proximate cause of the injuries to plaintiff. Thus, Torres has failed to sustain the initial burden of demonstrating that she was not negligent. Accordingly, the branch of her motion for summary judgment on the issue of liability is denied.
As to the remaining branch of Torres' motion, a defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law S 5102 (d) (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Gonzalez v Krumholz, 192A.D.3d 1086,141 N.Y.S.3d715 [2dDept 2021]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendants own examining physician (see Ocasio v New York City Tr. Auth., 134 A.D.3d 789, 20 N.Y.S.3d655 [2dDept2015]; Pamphile v Bastien,61 A.D.3d 659,877N.Y.S.2d 137 [2d Dept 2009]).
Here, Torres failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) (see McGee v Bronne,, 188 A.D.3d 1033, 132 N.Y.S.3d 692 [2d Dept 2020]; Singleton v F&R Royal, Inc., 166 A.D.3d 837, 88 N.Y.S.3d 81 [2d Dept 2018]). On October 1,2020, approximately three years after the subject accident, defendant Torres' examining orthopedis,, Dr. Noah Finkel, examined plaintiff and performed certain orthopedic and neurological tests. Dr. Finkel found that all the test results were negative or normal. Dr. Finkel also performed range of motion testing on plaintiffs cervical and lumbar regions and shoulders, using a goniometer to measure her joint movement. Dr. Finkel found that plaintiff had significant range of motion restrictions in her cervical region: 30 degrees of flexion (normal 60 degrees), 20 degrees of extension (normal 35 degrees), and 70 degrees of right rotation and 30 degrees of left rotation (normal 80 degrees). He also found that plaintiff had significant range of motion restrictions in her lumbar region: 40 degrees of flexion (normal 60 degrees), 25 degrees of extension (normal 35 degrees), and 25 degrees of right lateral flexion and 30 degrees of left lateral flexion (normal 35 degrees) (see Reddick v Hickey, 197 A.D.3d 581, 2021 NY Slip Op 04674 [2d Dept 2021]; Singleton v F&R Royal, Inc., supra). It is noted that although Dr. Finkel indicated that the range-of-motion limitations in plaintiffs cervical and lumbar regions were self-imposed, he failed to explain or to substantiate, with objective medical evidence, the basis for that conclusion (see Mercado v Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757 [2d Dept 2015]; Uvaydo v v Peart, 99 A.D.3d 891, 951 N.Y.S.2d 912 [2d Dept 2012]; Iannello v Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654 [2d Dept 2010]). In view of the foregoing, Dr. Finkelss report is insufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102(d).
Inasmuch as Torres failed to meet her prima facie burden, it is unnecessary to consider whether -the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Blau v Benodin, 190 A.D.3d 922, 140 N.Y.S.3d 576 [2d Dept 2021]; Giangrasso v Callahan, 87 A.D.3d 521, 928 N.Y.S.2d 68 [2d Dept 2011]). Accordingly, the branch of defendant Torres' motion for summary judgment dismissing the complaint on the ground that plaintiffs injuries failed to meet the serious injury threshold of Insurance Law S 5102 (d) is denied.
Defendant Reyes-Echeverria moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law S 5102 (d). In support of his motion, Reyes-Echeverria submits, inter alia, the pleadings and the affirmation of his attorney, which attempts to adopt and incorporate by reference the portion of the arguments and exhibits relating to the issue of serious injury submitted in the motion by defendant Torres. Since the branch of defendant Torres' motion for summary judgment on the issue of serious injury is denied, as discussed above, the motion by defendant Reyes-Echeverria for summary judgment on the issue of serious injury is denied, as moot.