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Pinales v. CSC Holdings9/30/2002
This opinion is uncorrected and will not be published in the Official Reports.
Insurance--No-Fault Automobile Insurance--Serious Injury
(*1)
Motion Seq: 001
Motion Date: 6/21/02
The following papers having been read on the motion: [numbered 1-7]
Defendant's Notice of Motion and supporting affirmation...........1
Affidavit of Livingston Grosvenor in support of motion.......... 2
Affirmation in opposition...... ............ 3 (*2)
Affidavit of Juan Pinales................ 4
Affirmation of Dr. Robert Diamond................5
Affirmation of Dr. Donald Goldman........ 6
Affidavit of Andres Romero.......... 7
Reply Affirmation. ......................... 8
Defendant's motion for summary judgment dismissing the complaint pursuant to CPLR 3212, on the issues of liability and no-fault threshold, is determined as follows:
This personal injury action arises out of an alleged automobile accident that occurred on April 12, 2000. Plaintiff, a passenger in a vehicle owned and operated by Andres Romero, alleges that the defendant's van struck the Romero vehicle in the rear while it was stopped at a light, causing plaintiff to sustain serious injuries to his neck, back and left index finger.
On the issue of liability, defendant offers the affidavit of Livingston Grosvenor, the driver of the allegedly offending vehicle that was identified by Andres Romero in his MV-104. Mr Grosvenor states that he was a CABLEVISON field technician who had been assigned a van bearing that plate number, but that he was not involved in any accidents on that date. Plaintiff responds with the affidavit of Mr. Romero confirming the (*3)plate number of the van that struck his vehicle in the rear and his signature on his MV-104. A question of fact as to whether or not it was defendant's vehicle that was involved in this accident is clearly presented. On the issue of liability, the motion is denied.
With respect to the no-fault threshold issue, defendant submits the affirmed "independent medical examination" reports of Dr. Angelito Tan, neurologist, dated June 19, 2001, and Dr. Ralph Hirschhorn, orthopedist, dated January 21, 2002. Both of these doctors essentially indicated that their examinations of the plaintiff were "normal," that plaintiff sustained nothing more than transitory strains and sprains, that plaintiff is fully recovered and that, in their opinion, plaintiff suffers from no current medically determinable limitation or disability that is causally related to this accident. These reports suffice to meet defendant's initial burden to make a prima facie showing that plaintiff did not suffer a "serious injury " within the meaning of the no-fault law. The burden thus shifts to the plaintiff to demonstrate the existence of a triable issue of fact on the threshold question. Gaddy v. Eyler, 79 NY2d 955.
Plaintiff, age 54 and unemployed on the date of accident due to a prior medical disability related to a hernia, submits his own affidavit in opposition to the motion. He states that he had no problems with his neck or left index finger prior to the accident, but since the accident, he has experienced pain in his neck and finger requiring physical (*4)therapy treatment for "several months." He states, "my inability to turn my head properly and lift objects continues. There are days I am in constant and continuous pain. I am restricted in almost all my physical activities and the majority of the time I am in pain." It is well settled that plaintiff's subjective complaints of pain and limitation, unaccomp
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