Collado v Chiarello 2024 NY Slip Op 31537(U) April 30, 2024 Supreme Court, Kings County Docket Number: Index No. 526311/2019 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 04/30/2024 02:26 PM INDEX NO. 526311/2019 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 04/30/2024
At anIAS Term, Partj2 of theSuprente Court of the State ofNew York, held in: and for the County of Kings, at the Cout1house, at Civic Center, Brooklyn, New York, on the 30th day of April 2024 HONORABLEFRANCOIS A RIVERA . --------------------------. ------- .--- .------ .-. --- .. -- .----- . ---X CAROLINA COLLADO DECISION & ORDER Plaintiff, lndexNo.: 526311/2019
- against -
JAMES CHIARELLO, METRO PROVISIONS CORP. HENRY MHARVARD AND :HENRY R. ROBINSON
Defendants. ---i----------------. ·--------------------------. ---------------- .--X Recitation in accordance with CPLR 2219 ( a) of the papers considered on notice of motionfiledon May 27, 2022, under motion sequence number eight, by defendants James Chiarello and Metro Provisions Corp. (hereinafter the movants) for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint on the basis that C:arolirta Collado (hereinafter the vlainti ff) did not suffer a serious injury as defined in Insurance Law§ 5102 (d). The1notion is opposed.
-Notice of motion .,Affirmation in support Exhibits A-J -Statement ofmaterial fads -Affirmation in opposition Exhibits A-K ,..Counter Statement of material facts -Affirmation in reply
BACKGROUND
On December 3, 2019, plaintiffcommenced the instant action (action number one) for damages for person injtiries su$tained in a.motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk~s office (KCCO). ·
. On January 27, 2020, defendants James Chiarello and :Metro Provisiqns Corp. joined issue by interposing and filing a joirit answer with cross claims with the 1'C,CCQ.
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On January 27, 2020, defendants Henry M. Harvard arid Henry R Robinson joined issue by interposing and filing ajoint answer with cross claiins with the KCCO.
On February 11, 2020, defendants James Chiarello and MetroProvisions Corp. interposed and filed a joint reply to the cross claim asserted by defendants Henry M. Harvard and Henry R. Robinson with the KCCO.
On February 21; 2020,. defendants Henry M. Harvard and Henry R. Robinson interposed and filed ajoint reply to the cross claim asserted qy defendants James Chiarello and Metro Provisions Corp; with the KCC0. On April 8,2022, plaintiff filed a note of issue.
a On January 21, 2021, Henry M. Harvard commenced separate action for · damages for person-injuries sustained in the same a motor vehicle accident (action nu111bertw6) by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).
On April I, 202 L, defendants James Chiarello and Metro Provisions Corp. interposed and filed a joint answer to the complaintofHenry: M. Harvard in action number two with the KCCO. By order dated May 27, 2021,. action number one and action nmnber two wf::rejoined for discovery 1md trial.
LAW AND APPLICATION
.According to the verified cmnpliant in action nulllber one,.Carolina Collado was. injured on Augusts, 2019. On thatdate she was a seated passenger in a vehicle operated byHenry M. Harvard and owned by Henry R. Robinson bearing South Carolina State registration number MHN797.. On that date, Henry M Harvard was driving on Ashford Street at or nearits intersection with Linderi Boulevard in the County of Kings, State of New Yorkwhen his vehicle collided with a motor vehicle operated by James Chiarello and owned by Metro Provisions Corp. beatingNewYork St~teregistrationnurnber FFM8328 (hereinafter the subject acciclent). The subject accident was caused by Henry M. Harvard and J anies Chiarello's. negligent operation of their respective vehicles. The subject accident caused the plaintiff to sustain serious physical ·injury.
Carlina Collado' s verified complaint and verified bill of particulars ailege that due to·the subject accident she sustained post-concussion headache syndrome, injury to the left shoulder, and injury to the cervical, thoracic; and. lumbar :spine.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320, 3 25 Page2 of4
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[1986]). The burden is upon the moving part): tomake aprima facie showing that heor she is entitled to summary judgment as a matter oflaw by presenting evidence in admissible form demonstrating the absence of material facts (Giuffridav Citibank Corp., 100 NY2d 72, 81 [2003]). .
A failure·to makethat showing requires the·denial ofthe·summary judgntent motion, regardless of the adequacy of the· opposing papers (Ayotte v Gervasio, 81 NY2d 1062; 1063 [1993]). If aprima facie showirtghasbeenmade,the burden shifts to the opposing party to produce evidentiary proof sufficientto establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). ·
''A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (Poon v Nisanov, 162 AD3d 806 [2d Dept2018], quoting CPLR 32]2 [b];). "The ·moving party's submissions must show that there is no defense to the cause of action or that the cause of action or defense has no merit" (Poon v Nisanov, 162 AD3d 804, 806 [2d Dept 20181, quoting CPLR 3212 [b]) . .
Insurance Law § 5102 (d) defines serious injury as ''a ,personal injury which a results in death; dismemberment; significant disfigurement; fracture; loss of a fetus; pennanentJoss of use of a body organ, member, function or system; pennanent consequential limitation of use of a body organ or 1rtetnber; significant limitation of use of a body function or system; or a medically determined hi.jury or ilnpairment 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 :im1rtediately following the occurrence ofthe injury or impairment'' (InsuranceLaw § 51:02 [d]).
"A defendant can establish that the plaintiffs 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 conclmie that no objective medical finding$ supportthe plaintiff$ claim'' (Nunez v Teel, 162AD3d 1058, 1059 [2d Dept 2018], quoting Grossman v Wt:ight, 268 AD2d 79; 83-84 [2d Dept 2000]). "With this established, the burden shifts to the plaintiff to cmne forward with evidence to overcome the defendant's submissions by demonstrating a triable issue nf fact that a serious injury was sustained within the meaning ofthe Insurance Law (Grossman; 268 AD2d at 84). . . .
"The plaintiffin such a situation must present objective evidence of the injury" (id.}.
Iri support of the 1u oti qn the movants submitted,. ainon,g other things~. the affirmed reports of Dr. Victor Sasson, an orthopedic surgeon, Dr.
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Collado v Chiarello 2024 NY Slip Op 31537(U) April 30, 2024 Supreme Court, Kings County Docket Number: Index No. 526311/2019 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 04/30/2024 02:26 PM INDEX NO. 526311/2019 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 04/30/2024
At anIAS Term, Partj2 of theSuprente Court of the State ofNew York, held in: and for the County of Kings, at the Cout1house, at Civic Center, Brooklyn, New York, on the 30th day of April 2024 HONORABLEFRANCOIS A RIVERA . --------------------------. ------- .--- .------ .-. --- .. -- .----- . ---X CAROLINA COLLADO DECISION & ORDER Plaintiff, lndexNo.: 526311/2019
- against -
JAMES CHIARELLO, METRO PROVISIONS CORP. HENRY MHARVARD AND :HENRY R. ROBINSON
Defendants. ---i----------------. ·--------------------------. ---------------- .--X Recitation in accordance with CPLR 2219 ( a) of the papers considered on notice of motionfiledon May 27, 2022, under motion sequence number eight, by defendants James Chiarello and Metro Provisions Corp. (hereinafter the movants) for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint on the basis that C:arolirta Collado (hereinafter the vlainti ff) did not suffer a serious injury as defined in Insurance Law§ 5102 (d). The1notion is opposed.
-Notice of motion .,Affirmation in support Exhibits A-J -Statement ofmaterial fads -Affirmation in opposition Exhibits A-K ,..Counter Statement of material facts -Affirmation in reply
BACKGROUND
On December 3, 2019, plaintiffcommenced the instant action (action number one) for damages for person injtiries su$tained in a.motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk~s office (KCCO). ·
. On January 27, 2020, defendants James Chiarello and :Metro Provisiqns Corp. joined issue by interposing and filing a joirit answer with cross claims with the 1'C,CCQ.
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On January 27, 2020, defendants Henry M. Harvard arid Henry R Robinson joined issue by interposing and filing ajoint answer with cross claiins with the KCCO.
On February 11, 2020, defendants James Chiarello and MetroProvisions Corp. interposed and filed a joint reply to the cross claim asserted by defendants Henry M. Harvard and Henry R. Robinson with the KCCO.
On February 21; 2020,. defendants Henry M. Harvard and Henry R. Robinson interposed and filed ajoint reply to the cross claim asserted qy defendants James Chiarello and Metro Provisions Corp; with the KCC0. On April 8,2022, plaintiff filed a note of issue.
a On January 21, 2021, Henry M. Harvard commenced separate action for · damages for person-injuries sustained in the same a motor vehicle accident (action nu111bertw6) by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).
On April I, 202 L, defendants James Chiarello and Metro Provisions Corp. interposed and filed a joint answer to the complaintofHenry: M. Harvard in action number two with the KCCO. By order dated May 27, 2021,. action number one and action nmnber two wf::rejoined for discovery 1md trial.
LAW AND APPLICATION
.According to the verified cmnpliant in action nulllber one,.Carolina Collado was. injured on Augusts, 2019. On thatdate she was a seated passenger in a vehicle operated byHenry M. Harvard and owned by Henry R. Robinson bearing South Carolina State registration number MHN797.. On that date, Henry M Harvard was driving on Ashford Street at or nearits intersection with Linderi Boulevard in the County of Kings, State of New Yorkwhen his vehicle collided with a motor vehicle operated by James Chiarello and owned by Metro Provisions Corp. beatingNewYork St~teregistrationnurnber FFM8328 (hereinafter the subject acciclent). The subject accident was caused by Henry M. Harvard and J anies Chiarello's. negligent operation of their respective vehicles. The subject accident caused the plaintiff to sustain serious physical ·injury.
Carlina Collado' s verified complaint and verified bill of particulars ailege that due to·the subject accident she sustained post-concussion headache syndrome, injury to the left shoulder, and injury to the cervical, thoracic; and. lumbar :spine.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320, 3 25 Page2 of4
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[1986]). The burden is upon the moving part): tomake aprima facie showing that heor she is entitled to summary judgment as a matter oflaw by presenting evidence in admissible form demonstrating the absence of material facts (Giuffridav Citibank Corp., 100 NY2d 72, 81 [2003]). .
A failure·to makethat showing requires the·denial ofthe·summary judgntent motion, regardless of the adequacy of the· opposing papers (Ayotte v Gervasio, 81 NY2d 1062; 1063 [1993]). If aprima facie showirtghasbeenmade,the burden shifts to the opposing party to produce evidentiary proof sufficientto establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). ·
''A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (Poon v Nisanov, 162 AD3d 806 [2d Dept2018], quoting CPLR 32]2 [b];). "The ·moving party's submissions must show that there is no defense to the cause of action or that the cause of action or defense has no merit" (Poon v Nisanov, 162 AD3d 804, 806 [2d Dept 20181, quoting CPLR 3212 [b]) . .
Insurance Law § 5102 (d) defines serious injury as ''a ,personal injury which a results in death; dismemberment; significant disfigurement; fracture; loss of a fetus; pennanentJoss of use of a body organ, member, function or system; pennanent consequential limitation of use of a body organ or 1rtetnber; significant limitation of use of a body function or system; or a medically determined hi.jury or ilnpairment 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 :im1rtediately following the occurrence ofthe injury or impairment'' (InsuranceLaw § 51:02 [d]).
"A defendant can establish that the plaintiffs 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 conclmie that no objective medical finding$ supportthe plaintiff$ claim'' (Nunez v Teel, 162AD3d 1058, 1059 [2d Dept 2018], quoting Grossman v Wt:ight, 268 AD2d 79; 83-84 [2d Dept 2000]). "With this established, the burden shifts to the plaintiff to cmne forward with evidence to overcome the defendant's submissions by demonstrating a triable issue nf fact that a serious injury was sustained within the meaning ofthe Insurance Law (Grossman; 268 AD2d at 84). . . .
"The plaintiffin such a situation must present objective evidence of the injury" (id.}.
Iri support of the 1u oti qn the movants submitted,. ainon,g other things~. the affirmed reports of Dr. Victor Sasson, an orthopedic surgeon, Dr. Marshall Keilson, a 11e:urologist, and Dr. Jonathan S. Luchs, a radiologist. On February 8, 2021, Dr. Sasson conducted an independent medical exa1nirtati oh of the plaintiff and offered an opinion regarding Page 3 of 4
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plaintiff's injuries. Amongthe range ofmotion testingDr. S'asson performed was a straight leg raise test. He indicated that the test was negative bilaterally. Dr. Sasson did not compare his findings to what is normal in the straight leg raise test (see Shirman v Lawal, 69 AD3d 838, 839 [2d Dept2010], citing Walker vP:ubUcAdrn'r ofSuffolk County, 60 AD3d 757, 757 [2d Dept 2007]).
Dr. Sasson also stated that plaintiffs· comp laints of headaches, dizziness, and post- concussion headache syndrome as mentioned in the bill of particulars were beyond the scope of this examination and should be referred to the appropti ate specialty. Dr. Keilson didnotaddress plaintiffs claim of post-concussion headache syndrome, nor plaintiff's alleged injury to the It::ft shoulder. Nor did he examine the plaintiff's thoracic spine.
In sum, the affirmed reports ofthe physicians submitted by the movants did not address all areas of claimed injuries clearly set forth in the plaintiffs bill ofparticulars nor did they compare their findings to what is norinal (see· Hye Shin Hwang v Hee Jin Lbn,184 AD3d 812, 812-13 [2dDept2020]. -
For all the foregoing reasons; the movants failed to meet their prhna facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of In_suranceLaw § 5102 ( d) as a result of the subject accident (see Pupko v Hassan, 149 AD3d 988, 989 [2d Dept 2017], citing Tou,re v Avis Rent A Car Sys., 98 NY2d 345 [2002]; see Gaddy v Eyler, 79 NY2d 955, 956~957 [19921). -
Inasmuch as the movants have failed to meet their prima facie burden, "it is unnecessary to determine-whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact" (Espinal v Shortis, 164 AD3d 1217, 1218 [2d Dept20l8], citing Winegrad v New York Univ. Med. Ctr,, 64 NY2d 851, 853 [1985]).
CONCLUSION
The motion by defendant$ James Chiarello and Metro :Provisions Corp. for an order pursuant to CPLR 3212 granting summary judg;ment in their favor and dismissing the verified on the basis that Carolina Collado did not suffer a seriou$ injury as definedin Insurance Law § 5102 (d) is denied.
The foregoing constitutes the decision.and order of this Court.
ENTER:
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