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With respect to the 90/180 claim

The action for damages stems from personal injuries allegedly sustained by plaintiffs as a result of a pedestrian knockdown/automobile accident with defendants which at Albany Avenue, Amityville, County of Suffolk, State of New York. At the time of the accident, plaintiff Mariano Lopez was a pedestrian and defendant Ronnell Davis (“Davis”) was the operator of a 2009 Dodge Charger that was owned by rental a company, defendant ELRAC. Defendant Davis’ girlfriend had rented the vehicle from defendant ELRAC.

A Suffolk Lawyer said that, plaintiff alleged that at the time of the accident, he was a school security guard, and was struck by the front of defendants’ automobile when it was in the driveway in front of the school where he was working. It is alleged that defendants’ vehicle entered the school driveway to drop off a child and was unable to back out of said one-way driveway due to a school bus pulling behind it. Plaintiff contend that, when defendants’ vehicle was moving forward after being blocked by the school bus, it struck him in the area of his right knee, causing him to fall onto the hood of defendants’ vehicle. Defendant Davis argues that his vehicle never struck plaintiff and that the only contact between plaintiff and defendants’ vehicle was when plaintiff placed his hands on said vehicle to prevent defendant Davis from moving the vehicle any further.

As a result of the collision, plaintiff claims that he sustained the following injuries: Lumbar radiculopathy; Cervical radiculopathy; MRI of the lumbosacral spine reveals subligamentous posterior disc herniations at L4/L5 and at L5/S1 impinging on the anterior aspect of the spinal canal and on the neural foramina bilaterally; Right hip sprain; Right knee medial meniscus tear; Surgical recommendation for right knee arthroscopy; Lumbar spine lumbago;Lumbar spine HNP; EMG/NCV testing to the lower extremities revealed right S1 radiculopathy; MRI of the right knee revealed: synovial effusion knee joint, lateral patellar tilt and lateral patellar subluxation with patellofemoral chondromalacia spurring and narrowing lateral patellofemoral joint compartment, medial femorotibial joint compartment narrowing with chondromalacia, strain medical collateral ligament and motion artifact noted. Knee Chondromalacia; Knee internal derangement; Right joint effusion.

Plaintiff commenced this action by service of a Summons and Verified Complaint Plaintiff served a Supplemental Summons with Amended Verified Complaint. Defendants move, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d); and move for an order dismissing the action as against defendant ELRAC, Inc. (“ELRAC”) pursuant to the Graves Amendment, as there is no vicarious liability for leasing or rental car companies under New York City Vehicle and Traffic Law § 388. Plaintiff opposes the motion.

The issues in this case are whether plaintiff sustained serious injury as a result of the accident and whether the action against defendant ELRAC should be dismissed on the ground that there is no vicarious liability for leasing or rental car companies.

The Court said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.”
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. Conversely, even where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

Plaintiff claim that, as a consequence of the above described automobile accident with defendants, he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

1) permanent loss of a body organ, member, function or system; (Category 6)
2) a permanent consequential limitation of use of a body organ or member; (Category 7)
3) a significant limitation of use of a body function or system; (Category 8)
4) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.(Category 9).

The Court held that, for a permanent loss of a body organ, member, function or system to qualify as a “serious injury” within the meaning of No-Fault Law, the loss must be total. To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute.

Finally, to prevail under the “medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature which would have caused the alleged limitations on the plaintiff’s daily activities. A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.

With these guidelines in mind, the Court will now turn to the merits of defendants’ motion. In support of their motion, defendants submit the pleadings, plaintiffs’ Verified Bill of Particulars and Supplemental Verified Bill of Particulars, the transcript of plaintiff Mariano Lopez’s Examination Before Trial (“EBT”) testimony, the transcript of plaintiff Himilice Lopez’s EBT testimony, the transcript of defendant Davis’ EBT testimony, the transcript of non-party witness Kim Hargwood’s EBT testimony, the affirmed report of Leon Sultan, M.D., who performed an independent orthopedic examination of plaintiff on June 2, 2011, the rental car agreement entered into by defendant’s girl friend, the Police Accident Report and the Affidavit of a risk manager for defendant ELRAC.

Dr. Leon Sultan, a board certified orthopedist, he examined plaintiff Mariano Lopez and performed quantified and comparative range of motion tests on his cervical spine, thoracolumbar spine, right hip and right knee. The range of motion testing was conducted by way of a goniometer and the results of the tests indicated no deviations from normal. Dr. Sultan’s diagnosis was today’s orthopedic examination does not confirm any ongoing causally related orthopedic or neurological impairment in regard to the occurrence of the accident.
Defendants argue that plaintiffs’ Bill of Particulars, alleges that plaintiff suffered a medial meniscus tear, but the Supplemental Bill of Particulars only alleges chondromalacia.

Defendants contend that plaintiff had a right knee MRI which found no proof of any tears, but contained the diagnosis of chondromalacia and joint effusion. Defendants further argue that plaintiff has not had any diagnostic testing which found any meniscus tear. Defendants submit that, on the date of the accident, plaintiff went to the Emergency Room at New Island Hospital, had x-rays done of the femur and was found to have mild degenerative disease in his right hip.

With respect to plaintiff’s 90/180 claim, defendants rely on plaintiff’s testimony at his EBT, which indicated that, as a result of the subject accident, he missed one day of work and that he was not confined to bed or home for more than three days. Defendants submit that the subject accident occurred on a Friday and that plaintiff only missed work on the following Monday. When plaintiff returned to work, he returned to his usual duties as a security guard at the school. Defendants argue that reduction in relations and inability to play baseball does not give rise to satisfaction of the requirement to be unable to engage in material acts which constituted his usual and customary daily activities for more than 90 (sic) during the 180 days immediately following the occurrence.

With respect to defendants’ “Graves Argument,” defendants submit that conceding for the purposes of this motion that defendant ELRAC, was the actual vehicle owner as alleged in the complaint, the plaintiff’s Complaint as against defendant, ELRAC, Inc., must be dismissed as against it. Under the Transportation Equity Act of 2005, 49 U.S.C. section 30106, there can be no vicarious liability as against defendant, ELRAC, Inc., a non-actively negligent owner of the rented/leased vehicle over which it had no control at the time of the accident. There is no liability upon a leasing/rental company vehicle owner for the alleged negligent acts of a renter/lessee.

Based upon this evidence, the Court finds that defendants have established a prima facie case that plaintiff did not sustain serious personal injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifts to plaintiffs to come forward with evidence to overcome defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.

To support their burden, plaintiff argue that “the concomitant effects of all Plaintiff’s aforementioned spine injuries and it sequel will be permanent in nature, and that the aforementioned spine injuries were caused, aggravated, exacerbated and/or precipitated by the aforementioned accident, together with their natural flowing sequelae, are permanent and progressive in nature, and/or effects.”

Plaintiff submits the report of Dr. Richard Rizzuti, of All County Open MRI & Diagnostic Radiology, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff’s lumbosacral spine. Plaintiff also submits the report of Dr. Robert Diamond, of Stand-Up MRI of Carle Place, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff’s right knee. With respect to the MRI of the right knee, the impression was, synovial effusion knee joint.

As previously stated, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Therefore, the unsworn medical narrative reports of Richard Parker, M.D., of South Nassau Orthopedic Surgery & Sports Medicine, P.C., are not sufficient to defeat defendants’ instant motion.

However, the medical narrative reports of Richard Parker, M.D., of South Nassau Orthopedic Surgery & Sports Medicine, P.C., were affirmed. Dr. Parker’s report indicates that plaintiff was seen that date in follow-up for spinal injuries sustained as a result of a work related accident. The range of motion tests performed on plaintiff’s lumbar spine indicated deviations from normal. Examination of plaintiff’s right knee revealed “patient has pain and tenderness over the medial joint line.”

The affirmed medical narrative report of Walter E. Mendoza, D.C., indicates that plaintiff first presented to his office on March 12, 2010 and returned for re-examinations seven separate times between April 26, 2010 and August 10, 2011. At all of the visits, quantified and computerized range of motion tests performed on plaintiff Mariano Lopez’s lumbosacral spine indicated deviations from normal. Additionally, at all of the visits, tests performed on plaintiff Mariano Lopez’s right knee revealed pain. Dr. Mendoza concluded his reports stating, the patient remains partially disabled he can no longer perform all duties, including lifting, bending, climbing or kneeling. It is therefore, my opinion to a reasonable degree of chiropractic certainty that a prognosis for a full and complete recovery is most certainly poor. The patient will be left with a permanent partial disability.

, plaintiff submit that, in his EBT testimony, plaintiff stated that his employment duties have become more difficult due to his inability to standing without feeling pain to his right knee. Additionally, plaintiff testified that, prior to the subject accident, he would regularly play baseball with his grandchildren, but since the date of accident, and solely as a result of said accident, he has been totally unable to play baseball. Plaintiff added that he cannot stand, walk up/down stairs and walk for long periods of time without feeling pain due to the injuries he sustained in the subject car accident.

In view of the foregoing, the Court held that plaintiff failed to address defendants’ arguments with respect to dismissal of the action against defendant ELRAC based upon the Graves Amendment.

Accordingly, the portion of defendants’ motion for an order dismissing the action as against defendant ELRAC, Inc. pursuant to the Graves Amendment as there is no vicarious liability for leasing or rental car companies under New York Vehicle and Traffic Law § 388 is hereby granted.

However, with respect to plaintiffs’ claims of “serious injury” under the categories of permanent loss of a body organ, member, function or system; (Category 6), a permanent consequential limitation of use of a body organ or member (Category 7), a significant limitation of use of a body function or system (Category 8) and a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment (Category 9), the Court concludes that the acceptable evidentiary documentation presented by plaintiffs clearly raise genuine issues of fact as to spinal injuries causally related to the subject car accident. Consequently, the portion of defendants’ motion for summary judgment and dismissing plaintiffs’ Verified Complaint is hereby denied.

A person who is now partially disabled due to an accident cause by the party at fault is painful. Suffolk Personal Injury Attorney will stand by you. Suffolk Injury Attorney and Suffolk Spinal Injury Attorneys at Stephen Bilkis and Associates will represent your case and make sure that you will be properly compensated for the injuries you have suffered.

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