Articles Posted in Suffolk County

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This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A source said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Spine Injury Lawyer said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff’s Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff’s cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was “5/5” in all extremities with normal tone; DTR’s that were “2 +” and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was “5/5.” His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Suffolk Spine Injury Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

Insurance Law § 5102 (d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 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.”
The Court said that, in order to recover under the “permanent loss of use” category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the “qualitative nature” of plaintiff’s limitations, with an objective basis, correlating plaintiff’s limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

It is for the Court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action”. Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants’ examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants’ examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants’ examining radiologist opined, based upon his review of plaintiff’s MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff’s deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff’s proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff’s treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant’s examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff’s claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants’ motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff’s alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff’s cross motion is denied as moot.
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This action is for personal injuries alleged to have occurred as a result of a motor vehicle accidentinvolving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Suffolk reporter said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the car accident.

A doctor said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A Lawyer said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a source said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court held that, New York’s No-Fault Insurance Law precludes recovery for any “noneconomic loss, except in the case of serious injury, or for basic economic loss” arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. The Legislature also intended that the issue of whether a plaintiff sustained a “serious injury” could be determined by the courts as a matter of law on a motion for summary judgment.

The Court cited the provisions of the Insurance Law § 5102(d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 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”.

To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the plaintiff’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. “Whether a limitation of use or function is ‘significant’ or ‘consequential’ relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part”. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the plaintiff.

The Court said that, a movant seeking summary judgment on the ground that a plaintiff’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. Once a movant meets this burden, the plaintiff must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

In the case at bar, the Court finds that defendant’s submissions were sufficient to establish that plaintiff did not sustain serious injury to her back, left hip or left wrist as a result of the accident. The burden, therefore, shifted to plaintiff to raise a triable issue of fact, and she failed to present competent medical evidence substantiating her claim that her spinal injuries caused a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. While under certain circumstances a herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), plaintiff failed to provide any objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. Furthermore, plaintiff did not provide any recent medical evidence in opposition to the instant application; instead, plaintiff merely provided unsworn reports and records from the physicians who examined and treated plaintiff in the months following the accident in February of 2002. Such submissions were insufficient to rebut defendant’s prima facie showing of no serious injury.

Accordingly, the Court held that the motion by defendant for summary judgment dismissing plaintiff’s complaint on the grounds that plaintiff has failed to sustain a “serious injury” as that term is defined by Insurance Law § 5102(d), is granted.
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This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff’s vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.

A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint on the grounds that the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a “serious injury” in the car accident. The plaintiff opposes the requested relief in an attorney’s affirmation arid submission of the plaintiff’s deposition but proffers no medical proof to substantiate the claim of a “serious physical injury”.The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.

The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.

Although the question of the existence of a “serious injury” is often left to the jury, where properly raised, the issue of whether a plaintiff is barred from recovery in a judicial forum for want of a “serious injury” is, in the first instance, for the Court’s determination. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide.
Section 5104 of the Insurance Law provides that an individual injured in an automobile accident may bring a negligence cause of action only upon a showing that the individual has incurred a “serious injury” within the meaning of the no-fault law. Insurance Law §5102(d) defines “serious injury” as a personal injury which results in death; dismemberment, significant disfigurement and fracture, loss of a fetus, 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 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.

A defendant can establish that a plaintiff’s personal injuries are not serious within the meaning of Insurance Law §5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff’s claim. With this established, the burden shifts to the plaintiff to come forward with admissible evidence to overcome the defendants’ submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. In this situation, the plaintiff must present objective medical evidence of the injury based upon a recent examination of the plaintiff. However, the plaintiff does not provide any medical documentation even though confronted by the defendants with three medical experts attesting to their examination of the plaintiff and their findings that plaintiff suffers from no significant limitation of use of a body function or system or permanent consequential limitation of movement or use of a body member.

Furthermore, the New York Court of Appeals has stated that a sufficiently described opinion by a doctor on the “qualitative nature of the plaintiff’s limitations based upon the normal function, purpose and use” of that body part is sufficient even without specific degrees of limitation or an arbitrary cutoff of degree. However, the Court of Appeals went on to state that a diagnosis of a bulging or herniated disc, by itself, does not constitute a serious physical injury and the plaintiff must provide objective evidence of the extent and degree of any alleged physical limitation resulting from the spinal injuries, the duration and causality to any limitation of motion.

Generally a soft tissue injury with cervical and low back sprain does not meet the threshold for serious spinal injury. These were the types of injuries which the legislature hoped would no longer burden the court system under the no-fault scheme. Neither are subjective complaints of transitory pain due to cervical and lumbar sprains sufficient. Here, in the case at bar, the defendants present the affirmation of the doctor who conducted a neurological medical examination and found no neurological disability and normal range of motion tests; an orthopedic medical evaluation of the plaintiff by the doctor who found no permanent or residual injuries and who found no limitations of movements on the tests conducted and set forth in his medical report; and an affirmed radiological medical examination by the radiologist who found normal spinal alignment and no injury causally related to the accident. The Court finds that the defendants have met their burden of proof by the reports and affirmations of the medical authorities submitted on this motion.

At that point, supported by objective testing, it was incumbent upon the plaintiff to produce competent medical testimony and evidence showing that she sustained a serious physical injury. Plaintiff has failed to so assemble any competent medical proof to refute the defendants’ medical findings of no serious injury. The plaintiff has failed to substantiate a permanent or serious physical injury with an objective test or finding. The proof adduced by the plaintiff relies upon unsupported conclusions by the plaintiff’s attorney in his affirmation and the plaintiff’s deposition testimony. Plaintiff’s conclusory statements of undifferentiated pain and discomfort and range of motion restrictions, standing alone, without objective testing results or degrees of limitation is fatal to her complaint. She fails to raise a factual issue requiring a denial of the defendants’ motion.

Here, in the case at bar, the Court is confronted with soft tissue injuries and subjective complaints of pain by the plaintiff in conclusory fashion only. The defendants detail the medical reports by the defendants’ doctors suggesting no restrictions of movement or range of motion or any other pathology to support an injury. Clearly, the failure to submit some medical authority to support the plaintiff’s subjective complaints of pain is fatal to her opposition to the defendants’ motion and supports summary disposition and dismissal of the action.

Accordingly, under the facts and circumstances as presented in this case and after reviewing the deposition of plaintiff and the defendant, all the medical exhibits submitted in support of the motion and none being offered in opposition thereto, the Court concludes that the plaintiff has failed, as a matter of law, to establish the threshold of sustaining a serious physical injury or any causal relationship with the motor vehicle accident occurring on January 27, 2003. A review of the medical submissions has failed to raise a triable issue of fact that the plaintiff sustained a serious physical injury and therefore, the defendants’ motion for summary judgment and dismissal of the plaintiff’s action pursuant to CPLR §3212 is hereby granted and the plaintiff’s action is dismissed.
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This action stems from personal injuries allegedly sustained by plaintiff as a result of a car accident with defendant which occurred on May 30, 2008, at approximately 7:35 a.m., at or near the intersection of Old Country Road and Sweet Hollow Road, Huntington, County of Suffolk, State of New York. The accident involved two vehicles, a 2005 Mitsubishi truck operated by plaintiff and owned by his employer,and a 2006 Chevrolet owned and operated by defendant.

Plaintiff contends that his vehicle was stopped for a red traffic signal at the aforementioned intersection and, when said traffic signal turned green for vehicles traveling eastbound through the intersection, plaintiff proceeded through said intersection. As plaintiff was driving through the intersection, defendant went through a red traffic light at the intersection and his vehicle collided with plaintiffs vehicle. As a result of the collision, plaintiff claims that he sustained serious injury.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him 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). Plaintiff opposes the motion.

The Court finds that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

Plaintiff’s reports are insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d). Failure to indicate which objective test was performed to measure the loss of range of motion is contrary to the requirements of Toure v. Avis Rent-a-Car Systems, supra. It renders the expert’s opinion as to any purported loss worthless and the Court can not consider such. See Toure v. Avis Rent-a-Car Systems, supra; Powell v. Alade, 31 A.D.3d 523, 818 N.Y.S.2d 600 (2d Dept. 2006). In Goluld v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567 (2d Dept. 2008), the Court held that a doctor’s affirmation, in a motion for summary judgment, was insufficient to show whether plaintiff sustained serious injury under permanent consequential limitation of use or significant limitation of use categories of no-fault automobile insurance provision, when, although the doctor set forth range of motion tests results based on a recent examination that revealed limitations in plaintiffs lumbar spine, plaintiff did not proffer competent medical evidence that showed similar range of motion limitations in the lumbar spine that were contemporaneous with the subject accident.

Furthermore, the physician’s conclusions that, “based upon the foregoing examinations, testing and treatment my diagnosis is that plaintiff suffers from: bulging discs at L2 through SI with thecal sac effacement and encroachment upon the neuroforamina; Traumatic left C5-6 cervical radiculopathy; Traumatic left L5-S1 radiculopathy and Traumatic myofascial pain syndrome as a result of the motor vehicle accident on May 30, 2008” are speculative in light of the fact that he failed to address or even acknowledge the fact that plaintiff had previously injured his lumbar spine in a prior car accident.

It is also noted that the unsworn report of another Queens physician presented by plaintiff does not constitute competent admissible evidence in opposition to this motion for summary judgment. In the absence of any opinion as to the causality of her findings, her report is not competent medical evidence sufficient to present an issue of fact. See Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d The reports of plaintiffs treating and examining physicians also failed to address the findings of defendant’s radiologist with respect to degeneration, and thus, failed to raise a triable issue of fact.

Additionally, plaintiffs subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. See Marshall v. Albano, 182 A.D.2d 614, 582 N. Y.S.2d 220 (2d Dept. 1992). Plaintiff has therefore failed to establish by competent medical proof that he sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.” See Insurance Law § 5102(d).

Finally, plaintiffs deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff went back to work shortly after the accident.
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This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the car accident and continues to be partially incapacitated from her employment to date.

A report said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the “serious injury” threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants’ request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the “limitation of use” and the “90/180 days” categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Suffolk Court said that it has long been established that the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. Therefore, the determination of whether or not a plaintiff has sustained a “serious injury” is to be made by the court in the first instance.

Insurance Law § 5102 (d) defines a “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 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.”

A defendant seeking summary judgment on the ground that a plaintiffs’ negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant’s own witnesses, “those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians.
Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for “serious injury” under New York’s No-Fault Insurance Law. However, if a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers.

Initially, the Court notes that the report submitted by defendants’ chiropractor, is inadmissible, inasmuch as it was not sworn to before a notary or other authorized official does not allow for a chiropractor to affirm the truth of his statement with the same force as an affidavit. Thus, defendants’ failure to submit the chiropractor’s report in admissible form requires that it be excluded from consideration.

However, defendants have established their prima facie burden that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The reports of defendants’ various experts state that plaintiff has full ranges of motion in her cervical and lumbar regions when compared with the normal ranges of motion for those areas. The reports also state that although plaintiff complains of minimal tenderness upon palpation over the cervical and lumbar spines, no muscle spasm is elicited when the cervical or lumbosacral musculature is palpated and that there is no tenderness upon palpation of the thoracic spine. The reports further state that the cervical and lumbar spines sprains that plaintiff sustained as a result of the subject accident have resolved and that plaintiff is capable of performing all of her daily living activities without restriction. Furthermore, reference to plaintiffs own deposition testimony sufficiently refuted the “limitation of use” categories of serious spinal injury and the “90/180 days” category under Insurance Law § 5102(d).

Therefore, the burden shifted to plaintiff to come forward with competent admissible medical evidence based on objective findings, sufficient to raise a triable issue of fact that she sustained a “serious injury”. A plaintiff alleging an injury within the limitation of use categories must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained. A sufficient description of the “qualitative nature” of plaintiffs limitations, with an objective basis, correlating plaintiff’s limitations to the normal function, purpose and use of the body part may also suffice. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

In opposition, plaintiff raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Plaintiff relies upon the affidavit of her treating chiropractor, which states that he initially began treating plaintiff on May 2, 2008 and continued to treat her until February 2010. Dr. Wright’s affidavit reveals that plaintiff had significant range of motion limitations in her cervical and thoracolumbosacral regions contemporaneous with the subject accident, and that those limitations still were present when he re-examined plaintiff on September 25, 2010. He opines that plaintiff’s range of motion limitations are permanent and are the direct result of the subject accident. The report further states that the spinal injuries plaintiff’s sustained as a result of the accident will “inhibit her ability to carry out her normal living activities of daily living, which involve prolonged sitting, standing, bending, walking, lifting or extreme physical exertion.”

Contrary to defendants’ contention, plaintiff adequately explained her gap in treatment. The doctor’s explanation for the gap in treatment essentially is that plaintiff reached her maximum medical improvement and any further treatment would have merely been palliative in nature. Furthermore, inasmuch as plaintiff established that at least some of her injuries meet the “No Fault” threshold, it is unnecessary to address whether her proof with respect to other injuries she allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment. Accordingly, defendants’ motion for summary judgment is denied.
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This action stems from personal injuries allegedly sustained by plaintiff as a result of a car accidentwith defendant which occurred on May 30, 2008, at approximately 7:35 a.m., at or near the intersection of Old Country Road and Sweet Hollow Road, Huntington, County of Suffolk, State of New York. The accident involved two vehicles, a 2005 Mitsubishi truck operated by plaintiff and owned by his employer,and a 2006 Chevrolet owned and operated by defendant.

Plaintiff contends that his vehicle was stopped for a red traffic signal at the aforementioned intersection and, when said traffic signal turned green for vehicles traveling eastbound through the intersection, plaintiff proceeded through said intersection. As plaintiff was driving through the intersection, defendant went through a red traffic light at the intersection and his vehicle collided with plaintiffs vehicle. As a result of the collision, plaintiff claims that he sustained serious injury.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him 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). Plaintiff opposes the motion.

The Court finds that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

Plaintiff’s reports are insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d). Failure to indicate which objective test was performed to measure the loss of range of motion is contrary to the requirements of Toure v. Avis Rent-a-Car Systems, supra. It renders the expert’s opinion as to any purported loss worthless and the Court can not consider such. See Toure v. Avis Rent-a-Car Systems, supra; Powell v. Alade, 31 A.D.3d 523, 818 N.Y.S.2d 600 (2d Dept. 2006). In Goluld v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567 (2d Dept. 2008), the Court held that a doctor’s affirmation, in a motion for summary judgment, was insufficient to show whether plaintiff sustained serious injury under permanent consequential limitation of use or significant limitation of use categories of no-fault automobile insurance provision, when, although the doctor set forth range of motion tests results based on a recent examination that revealed limitations in plaintiffs lumbar spine, plaintiff did not proffer competent medical evidence that showed similar range of motion limitations in the lumbar spine that were contemporaneous with the subject accident.

Furthermore, the physician’s conclusions that, “based upon the foregoing examinations, testing and treatment my diagnosis is that plaintiff suffers from: bulging discs at L2 through SI with thecal sac effacement and encroachment upon the neuroforamina; Traumatic left C5-6 cervical radiculopathy; Traumatic left L5-S1 radiculopathy and Traumatic myofascial pain syndrome as a result of the motor vehicle accident on May 30, 2008” are speculative in light of the fact that he failed to address or even acknowledge the fact that plaintiff had previously injured his lumbar spine in a prior car accident.

It is also noted that the unsworn report of another physician presented by plaintiff does not constitute competent admissible evidence in opposition to this motion for summary judgment. In the absence of any opinion as to the causality of her findings, her report is not competent medical evidence sufficient to present an issue of fact. See Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d The reports of plaintiffs treating and examining physicians also failed to address the findings of defendant’s radiologist with respect to degeneration, and thus, failed to raise a triable issue of fact.

Additionally, plaintiffs subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. See Marshall v. Albano, 182 A.D.2d 614, 582 N. Y.S.2d 220 (2d Dept. 1992). Plaintiff has therefore failed to establish by competent medical proof that he sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.” See Insurance Law § 5102(d).

Finally, plaintiffs deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff went back to work shortly after the accident.
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This action is for personal injuries alleged to have occurred as a result of a motor vehicle accident involving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Personal Injury Lawyer said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the accident.

A Lawyer said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Suffolk Personal Injury Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A source said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the car accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a doctor said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court held that, New York’s No-Fault Insurance Law precludes recovery for any “noneconomic loss, except in the case of serious injury, or for basic economic loss” arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. The Legislature also intended that the issue of whether a plaintiff sustained a “serious injury” could be determined by the courts as a matter of law on a motion for summary judgment.

The Court cited the provisions of the Insurance Law § 5102(d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 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”.

To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the plaintiff’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. “Whether a limitation of use or function is ‘significant’ or ‘consequential’ relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part”. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the plaintiff.

The Court said that, a movant seeking summary judgment on the ground that a plaintiff’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. Once a movant meets this burden, the plaintiff must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

In the case at bar, the Court finds that defendant’s submissions were sufficient to establish that plaintiff did not sustain serious injury to her back, left hip or left wrist as a result of the accident. The burden, therefore, shifted to plaintiff to raise a triable issue of fact, and she failed to present competent medical evidence substantiating her claim that her spinal injuries caused a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. While under certain circumstances a herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), plaintiff failed to provide any objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. Furthermore, plaintiff did not provide any recent medical evidence in opposition to the instant application; instead, plaintiff merely provided unsworn reports and records from the physicians who examined and treated plaintiff in the months following the accident in February of 2002. Such submissions were insufficient to rebut defendant’s prima facie showing of no serious injury.

Accordingly, the Court held that the motion by defendant for summary judgment dismissing plaintiff’s complaint on the grounds that plaintiff has failed to sustain a “serious injury” as that term is defined by Insurance Law § 5102(d), is granted.
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This is a case where the court ruled that the motion by plaintiff for summary judgment on the issue of liability or fault but not as to serious injury is granted. However, the cross motion by defendant for summary judgment dismissing the complaint on the grounds that plaintiff has failed to sustain a “serious injury” within the meaning of Ins. Law §5102 is denied.

This is an action arising out of a hit in the rear car accident that occurred on May 15, 2003, on Glen Cove Road at or near Pound Hollow Road, Nassau County. Plaintiff was struck in the rear by defendant’s vehicle while stopped for a red traffic light. There is no claim that plaintiff had made any short or sudden stop or turn. Plaintiff’s examination before trial testimony states that plaintiff’s vehicle was stopped for a red traffic light. As the light turned to green but before he began his forward motion, plaintiff’s vehicle was struck in the rear by a vehicle driven by the individual defendant and owned by the corporate defendants. Defendant testified that at the time of the car accident, plaintiffs vehicle was stopped, his view was unobstructed and there was nothing that prevented him from coming to stop before hitting plaintiffs vehicle. Although defendant posits that plaintiff testified that the traffic light had turned to green as the impact occurred, it is clear that his foot was still on the brake and that he had not begun to move.

According to the Suffolk court, there is no competent evidence to dispute plaintiff’s evidence that defendant’s vehicle struck the plaintiffs vehicle in the rear. The submission in support of the motion by plaintiff has established entitlement to judgement thus shifting the burden to defendant to rebut the motion by submitting proof in evidentiary form showing the existence of triable issues of fact. Here the defendant has failed to establish the existence of triable issues of fact on the issue of liability or fault and the Court finds no material fact issues requiring a trial with respect to the issue of fault.

The court ruled that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle.

The following vehicle was under a duty to maintain a safe distance between his vehicle and the vehicle ahead. Vehicle and Traffic Law § 1129 [a].Leal v. Wolff, 224 AD2d 392 (2d Dept. 2005). In opposition defendant relies solely on the EBT testimony of the parties. The affirmation of defendant’s attorney, which fails to rely on any personal knowledge, is lacking in evidentiary value. The Court has not considered the police accident report attached to the moving papers of plaintiff because it is hearsay and inadmissible unless a hearsay exception applies. Based on the foregoing, the motion by plaintiff for summary judgment on the issue of liability and fault, except for the issue of serious injury is granted.

The Court held that within the context of the defendant’s burden, when presented with claims which include shoulder injury or bulging or herniated discs, defendant through medical experts must demonstrate that such conditions are not causally related to the subject car accident or that they do not constitute a “serious injury”.

In the Bill of Particulars plaintiff alleges having sustained: right shoulder injury with impingement, disc bulges, radiculopathy, spasms, straightening of the spinal curvature and related sequelae.

In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that plaintiff did not suffer a serious injury under any of the four categories cited.

Based on the foregoing the Court finds that defendants have failed to meet their burden of making out a prima facie showing that plaintiff did not suffer a “serious injury” under the Insurance Law. Insurance Law § 5102(d).

Where the defendant fails to meet the initial burden of establishing prima facie entitlement to judgment as a matter of law, the court need not consider whether the opposition papers are sufficient to raise a factual issue.
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In this case, the Court ruled that Section 12.0 of Ordinance No. 40 of the Town of Hempstead entitled “Operation of Tow Cars” is valid and constitutional.

The plaintiffs are in the tow car business and are licensed tow car operators in the Town of Hempstead in Nassau. The Plaintiff is seeking to declare certain sections of Ordinance No. 40 of the Town of Hempstead entitled ‘Operation of Tow Cars’ unconstitutional and void and to enjoin any action and enforcement thereunder.

The plaintiffs agreed that there is a necessity for regulation of the tow car industry. They contend, however, that section 12.0 is prohibitory, not regulatory, and therefore unconstitutional.

Section 12.0 states:

‘Sec. 12.0 It shall be unlawful for any person to drive along any street or bridge in the Town of Hempstead and solicit towing work. Solicitation of towing work by the Suffolk operator or other occupant of a tow car while parked on any street or bridge is also prohibited. A tow car operator shall not proceed to the scene of a disabled motor vehicle without having been requested or notified to do so by the owner or his authorized representative or the Police. Responding to a call, merely upon notification from gas station attendants, taxicab drivers [13 Misc.2d 1056] or other unauthorized persons shall be considered in violation of this provision.’

The court held that Section 12.0 does not prohibit as did the ordinance in the Grant and Good Humor cases. Whereas the use of public streets was prohibited in those invalid ordinances, under section 12.0 tow cars may still travel the public streets for towing purposes. In fact, they are authorized to tow when ‘requested or notified to do so by the owner or his authorized representative or the police’; and under section 12.1 tow car owners and operators are required to service a disabled car when requested by the owner of the disabled car who is able and willing to pay the required towing fee. What is prohibited is ‘solicitation of towing work’ by the operator or occupant of a tow car while on the public street at the scene of a motorcycle accident, and going to the scene of an accident for the purpose of solicitation at the scene of the car accident. Other solicitations by tow car operators are not prohibited.

The mere fact that tow car operators may from time to time have been of assistance to injured persons by their ability at times to get to the scene of an accident first may warrant them some praise, but that does not permit the conclusion that the ordinance is therefore invalid. Such acts are gratuitous and not obligatory. The primary responsibility in such matters rests on the county, the town and the police.

In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all solicitation of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to property protect himself, the racing to the scene of an accident by tow car operators to first solicit and garner the towing contract with the resultant interference with the rights of other motorists and traffic in general, and the interference with the proper police investigation and other necessary police work at the scene of the accident.

Accordingly, so long as there are motor vehicle accidents the number of towing jobs available will keep pace with the number of these accidents. The towing business will not be diminished or interfered with by this ordinance. What is diminished or interfered with by this ordinance is dangerous ‘chasing’ to the scene of an accident, unwarranted ‘avalanche’ solicitation of emotionally upset, confused or dazed operators involved in accidents, and interference with proper investigation and other work by the police at the scene of the accident.

Furthermore, the Court stated that the fact that a better ordinance may have been drafted is also not a sufficient objection. Constitutionality does not require perfection.
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This case was brought about by a car accident involving a Pontiac automobile which crashed into the living room of the house of the plaintiff-decedent after being pursued by members of the Suffolk County Police Department. The vehicle was owned by defendant-corporation, which rented the car to defendant-lessee, who alleged that defendant-perpetrator took possession of the subject vehicle without her knowledge or consent.

Defendant-corporation sought the dismissal of the complaint and alleged that it is the owner of the subject vehicle, as well as a company in the business of renting automobiles and is therefore insulated from liability by operation of the “Graves Amendment” as codified at 42 USCA §30106 and which is a part of the Federal Transportation Equity Act. Hence, all claims asserted against defendant-corporation must be dismissed as a matter of law.

Defendant-corporation’s Senior Loss Control Administrator stated that in December of 2006, it was the owner of the 2006 Pontiac automobile bearing the license plate CWJ197. He further states that on December 20, 2006, said vehicle was rented to defendant-lessee. The two affidavits authored by defendant-lessee revealed that she was not the owner of the 2006 Pontiac automobile but rather rented same on December 20, 2006 from defendant-corporation and that defendant-perpetrator operated the subject automobile without her knowledge, permission or consent.

The Federal Transportation Equity Act of 2005 and particularly that section referred to as the Graves Amendment as embodied in 49 USCA §30106 provided the following, in relevant part:

(a) In general – An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if-

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

Having been determined to be a constitutional exercise in congressional power, the Graves Amendment is applicable to all actions commenced on or after August 10,2005 and has been held to preempt vicarious liability from being imposed upon commercial renters and lessors of automobiles.

In the instant matter, having reviewed the record, the Court held that defendant-corporation is entitled to the protection afforded by the statute. Even assuming that the rental agreement is in contravention of CPLR §4544 and therefore unavailable for use by defendant-corporation as competent evidence of ownership of the vehicle, defendant-corporation has demonstrated the applicability of the Graves Amendment to the extant circumstances.

Through the production of the affidavit of its Senior Loss Control Administrator, defendant-corporation in Westchester has demonstrated both that it was the owner of the vehicle in issue and that it was in fact an entity in the business of renting and or leasing motor vehicles (42 USCA §30106). Moreover, there is no evidence that defendant-corporation was negligent with respect to their maintenance of the subject vehicle or that it rented the automobile to defendant-perpetrator, the unauthorized operator of the vehicle on the day of the accident. In her affidavit, defendant-lessee clearly and unequivocally states that she was the individual who rented the car from defendant-corporation.

Based upon the foregoing, the court granted defendant-corporation’s motion pursuant to CPLR §3212 seeking an order granting summary judgment dismissing the plaintiffs complaint together with any and all cross-claims asserted against it.
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