Gonzalez v. Hassan

1

2022 NY Slip Op 30124(U)

ARIEL GONZALEZ, MADELINE GONZALEZ Plaintiff, v. AHMED HASSAN, BONNDERA INC., Defendant.

Motion Seq. No. 001 002

Index No. 159104/2017

Supreme Court, New York County

January 18, 2022

Unpublished Opinion

MOTION DATE: 10/14/2021, 11/04/2021

DECISION + ORDER ON MOTION

HON LISA HEADLEY, JUSTICE.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 34, 41 42, 44, 49, 56, 57, 58, 59, 62, 63, 64, 65, 66, 67, 68, 69 70, 71, 72, 73, 74, 75 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 43, 50, 51, 52, 53, 54, 55, 60, 61 were read on this motion to/for JUDGMENT - SUMMARY.

This is a negligence action, in which plaintiffs Ariel Gonzalez (Mr. Gonzalez or plaintiff) and Madeline Gonzalez (Ms. Gonzalez) seek damages allegedly sustained as a result of a motor vehicle accident that occurred on March 9, 2017, on Zerega Avenue near the intersection of Lyvere Street in the Bronx. Mr. Gonzalez, the driver of the vehicle, alleges that he was traveling straight on Zerega Avenue when defendant Ahmed Hassan (Mr. Hassan) suddenly reversed into the intersection from Lyvere Street, causing the rear of his vehicle to come into contact with the driver's side of plaintiff s vehicle. Ms. Gonzalez is Mr. Gonzalez' sister and was a passenger in his vehicle at the time of the accident. Mr. Gonzalez alleges that, as a result of the collision, he sustained numerous serious and severe injuries. Mr. Gonzalez was transported by ambulance to Jacobi Medical Center for treatment, where he complained of injuries to his neck, back and left shoulder.

Motion sequence nos. 001 and 002 are consolidated for disposition. In motion sequence no. 001, defendants Mr. Hassan and Bonndera, Inc., the owner of the vehicle operated by Mr. Hassan, move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint on the ground that Mr. Gonzalez cannot meet the serious injury threshold requirement as mandated by Insurance Law §§ 5104 (a) and 5102 (d).

In motion sequence no. 002, Mr. Gonzalez moves, pursuant to CPLR § 3212, for summary judgment dismissing the counterclaim as against him on the ground that he did not breach any duty owed to Ms. Gonzalez, and therefore was not a proximate cause of the accident.

Both plaintiffs cross-move, pursuant to CPLR § 3212, for an order granting them summary judgment as against defendants.

For the reasons set forth below, defendants' motion for summary judgment is denied. Mr. Gonzalez's motion for summary judgment is also denied. The cross motion is granted to the limited extent of granting Ms. Gonzalez's motion for summary judgment on liability only, as an innocent backseat passenger, but is otherwise denied.

DISCUSSION

'"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993] [citation omitted]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). The burden is a heavy one: the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor (Sherman v New York State Thruway Auth., 27 N.Y.3d 1019, 1021 [2016]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 N.Y.2d 982 [1993]).

The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 A.D.3d 224, 226 [1^st Dept 2006]). The court is required to examine the evidence in a light most favorable to the party opposing the motion (Martin v Briggs, 235 A.D.2d 192, 196 [1^st Dept 1997]). Summary judgment is drastic remedy that may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]), and "should not be granted where there is any doubt as to the existence of a triable issue" of fact (American Home Assur. Co. v Amerford Intl. Corp., 200 A.D.2d 472, 473 [1^st Dept 1994]; accordBirnbaum v Hyman, 43 A.D.3d 374, 375 [1^st Dept 2007]).

Serious Injury (Motion Sequence No. 001)

Mr. Gonzalez alleges he sustained "serious injuries," as that term is defined in Insurance Law § 5102 (d) (see complaint, [NYSCEF Doc No. 1], ¶ 23). In the Verified Bill of Particulars (NYSCEF Doc No. 23), Mr. Gonzalez alleges soft tissue injuries to the cervical spine, lumbar spine, left shoulder, left knee, and right knee, requiring a right knee arthroscopic surgery. Mr. Gonzalez claims that these allegations constitute serious injuries under the applicable categories of the statute.

'"Under New York's No-Fault Law, an injured party's right to bring a personal injury action for noneconomic losses ... arising out of an automobile accident is limited to those instances where such individual has sustained a serious injury'" (Mesitiv Martin, 190 A.D.3d 1145, 1146 [3d Dept 2021 [citation omitted]; see Insurance Law § 5102 [d]). Under Insurance Law § 5102 (d), a serious injury includes, as is relevant here:

"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 90 days during the 180 days immediately following the occurrence of the injury or impairment."

"Whether a limitation of use or function is 'significant' or 'consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree of qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 N.Y.2d 795, 798 [1995] [citations omitted]; accord Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 353 [2002]).

On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (see Antepara v Garcia, 194 A.D.3d 513, 513 [1^st Dept 2021]; Cohen v Bayer, 167 A.D.3d 1397, 1398 [3d Dept 2018]). If this threshold burden is met, the plaintiff must come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (Toure, 98 N.Y.2d at 350-352; see Cortezv Bray, 192 A.D.3d 451, 451 [1^st Dept 2021]). Specifically, a plaintiff must show proof of (1) contemporaneous treatment - quantitative or qualitative - establishing that the plaintiffs injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiffs symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).

In support of their motion for summary judgment, defendants submit the affirmed medical reports of Eric L. Cantos, M.D., a board certified radiologist (NYSCEF Doc No. 26), and Barbra Freeman, M.D., a board-certified orthopedist (NYSCEF Doc No. 27), as well as the transcript of Mr. Gonzalez's deposition testimony given on January 24, 2019 (NYSCEF Doc No. 25).

Mr. Gonzalez's deposition establishes that, at the time of the accident, he was operating a motor vehicle (pi dep at 14). Mr. Gonzalez testified to being involved in an intersection accident (id). Mr. Gonzalez admitted to wearing his seatbelt at the time of impact (id. at 39). He further admitted that the impact did not cause airbags within his vehicle to deploy (indicating that this was not a high impact collision (id. at 39). Mr. Gonzalez was transported to Jacobi Medical Center following the incident (id. at 47). Mr. Gonzalez was discharged from the hospital with a prescription for pain medication (id. at 47). One day later, he presented for physical therapy (id. at 51). Mr. Gonzalez continued physical therapy for approximately five months (id. at 52). Mr. Gonzalez also underwent an arthroscopic right knee surgery and received cervical and lumbar injections (id. at 56, 59). Mr. Gonzalez last presented for his alleged injuries in November 2018 (id. at 61).

On August 24, 2020, Dr. Cantos reviewed plaintiffs MRI films of the cervical spine, lumbar spine, right knee, left knee, and left shoulder.

First, Dr. Cantos reviewed plaintiffs MRI film of the right knee, dated April 14, 2017, approximately five weeks after the date of the accident. Dr. Cantos noted no soft tissue hematoma or swelling. Dr. Cantos concluded that the film revealed no evidence of fracture or acute meniscal tear that could be attributed to the accident. Dr. Cantos found that there were degenerative changes, unrelated to the accident, along with discoid lateral meniscus. Dr. Cantos opined that the findings suggested a pre-existing condition.

Dr Cantos also reviewed plaintiffs MRI film of the left knee, dated April 13, 2017, approximately five weeks after the date of the accident. Dr. Cantos noted no soft tissue hematoma or swelling. Dr. Cantos concluded...