COUNTY OF NEW
YORK
-------------------------------------X
BRADLEY
AVILES, FRANCISCO AVILES,
guardian,
RAMONITA AVILES AND
RAMONITA
AVILES, individually, Index
No.:108349/97
Plaintiffs,
-
against –
CHEN GOO
QIANCY and POON HOK ON,
Defendants.
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CHEN GOO
QIANCY and POON HOK ON, Third-Party
Index
No.:591899/97
Third-Party Plaintiffs,
-
against –
PACO AVILES,
Third-Party Defendant.
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MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS/THIRD-PARTY PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Stanley M.
Kein, Esq.
Klein
& Moroknek, Esqs.
Attorneys
for Plaintiffs
250
West 57th Street
New
York, NY 10107
(212)
581-1340
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
SHOULD BE DENIED AS THERE ARE MATERIAL QUESTIONS OF FACT TO BE CONSIDERED BY
THE JURY.
A motion for summary judgment will be
denied if the cause of action is established sufficiently to require the court,
as a matter of law, to direct judgment against the moving party. C.P.L.R. § 3212(b).
The fundamental question with respect to a
motion for summary judgment is whether the pleadings, affidavits, and exhibits
in support of the motion are sufficient to overcome the opposing papers and to
justify a finding, as a matter of law, either that there is no defense to the
claim of the defendant in this action and that the relief sought by the
plaintiff is without merit. Phillips v. Joseph Kantor & Co., 31
N.Y.2d 307, 338 N.Y.S.2d 882 (1972).
Defendant’s motion for summary judgment should be denied where the
plaintiff’s claims state a legally sufficient cause of action. Edwards
v. Citibank, N.A., 100 Misc.2d 59, 418 N.Y.S.2d 269 (1979), aff’d, 74 A.D.2d 553, 425 N.Y.S.2d 327
(1st Dept), appeal dismissed, 51
N.Y.2d 875, 433 N.Y.S.2d 1020 (1980).
See also, 5 Am.Jur. Trials, 105, Summary Judgment
Practice Section 13. Summary
judgment is appropriate where the controlling facts set forth in the affidavits
of both parties are undisputed, and those ultimate facts would not be changed
by further development of other issues.
New York Tel. Co. v. Telesystems
Corp., 27 A.D.2d 866, 277 N.Y.S.2d 481 (3rd Dept 1967). This is not the fact in the matter presently
before the court.
If the court can determine that there are
no issues of fact, except the issue as to damages, that will not bar the
granting of summary judgment. Novick v. Sun Oil Co., 103 A.D.2d 800,
477 N.Y.S.2d 678 (2nd Dept 1984). If the
only issue remains as to damages, the court may direct an assessment to
determine the correct amount to be ordered.
Miami National Bank v. Berlanti
Construction Co., 24 A.D.2d 632, 626 N.Y.S.2d 634 (2nd Dept 1965).
A motion for summary judgment shall be
supported by an affidavit, copy of the pleadings and by other available
proof. C.P.L.R. § 3212(b). Mere conclusions or unsubstantiated allegations are insufficient
and the allegations of a complaint may not be accepted as proof of the facts
alleged therein. Gnozzo v. Marine Trust Co., 258 A.D. 298, 17 N.Y.S.2d 168 (1939), aff’d, 284 N.Y. 617, 29 N.E.2d 933. The allegations in defendant’s pleadings are
similarly not sufficient for granting defendant’s motion for summary judgment
and that is why plaintiff herein has filed an appropriate affidavit.
shall be granted if, upon all of the
papers and proofs submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law and directing
judgment in favor of any party.
C.P.L.R. § 3212(b). The motion for summary judgment is then analogous to a motion for a directed verdict during trial. The issue before the court is whether, on the evidence presented, the fact-finder may find one way or the other.
In Ugarriza
v. Schmieder, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979), the court stated:
Summary judgment has been termed a
drastic measure, however, since it deprives a party of his day in court and
will normally have res judicata
effects. Thus, it may be granted
without a trial only if no genuine triable issue of fact is presented.
In
Silman v. 20th Century Fox Film Corp.,
3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), the court also stated:
The function of summary judgment is
issue finding that issue determination.
It appears, therefore, that in a summary judgment application, the court decides whether or not issues of fact exist and not a determination of issues of fact.
When, in a matter such as that presently pending before the court, the motion seeks summary judgment to dismiss a cause of action, then the affidavits must show that the cause of action has no defense or merit. C.P.L.R. § 3212(b). Such is not the fact pattern in this matter.
Initially, the question becomes one of the objective criteria. The plaintiffs have produced medical evidence with respect to the reports supplied by Dr. Jerry Brown, M.D., Dr. Kenneth Morrissey, M.D., and Jersey City Imaging Center. These reports were submitted as exhibits to plaintiffs’ motion and are summarized as follows:
Ramonita Aviles sustained the following injuries:
Cerebral concussion; post-concussion syndrome with headaches; contusion of scalp; cervical sprain; sublingual hematoma, left middle finger; lumbosacral sprain.
All of the above injuries involved the surrounding muscles, tendons, ligaments and soft tissue in or around the area of said injury with the result of severe pain, tenderness, headaches and marked restriction of motion.
Upon information and belief, all of the foregoing injuries are permanent except those of a superficial nature.
Bradley Aviles sustained the following injuries:
Cerebral concussion; post-concussion syndrome; cervical sprain; bilaterial contusion/sprain of the knees.
All of the above injuries involved the surrounding muscles, tendons, ligaments and soft tissue in or around the area of said injury with the result of severe pain, tenderness, headaches and marked restriction of motion.
Upon information and belief, all of the foregoing injuries are permanent except those of a superficial nature.
Francisco Aviles sustained the following injuries:
Cerebral concussion; post-concussion syndrome; cervical sprain; lumbosacral sprain; right knee sprain.
Osteoarthritis can be expected from the foregoing injuries.
All of the above injuries involved the surrounding muscles, tendons, ligaments and soft tissue in or around the area of said injury with the result of severe pain, tenderness, headaches and marked restriction of motion.
Upon information and belief, all of the foregoing injuries are permanent except those of a superficial nature.
In addition, plaintiff Ramonita Aviles underwent an X-ray examination at Jersey City Imaging Center, which found that in both the cervical spine and lumbosacral spine there were suggestion of muscular spasm. The doctors further concluded that there was a causal relationship between the diagnosis and the subject accident and that the injuries would be of a permanent nature. Doctors base their findings on their physical examinations.
In reading the reports of the doctors, it is clear that the plaintiffs suffered severe permanent injury, which will cause a major impact on their lives. Coupled with plaintiffs’ complaints, this evidence clearly meets the objective credible medical standard required.
In seeking summary judgment on the issue of whether the serious injury threshold has been satisfied, the burden is initially on a defendant to establish as a matter of law that the plaintiff did not suffer a “serious injury” as that term if defined in Insurance Law § 5102 Ins. (d) (see Cody v. Parker, 263 A.D.2d 866, 867). Here, plaintiffs allege injuries qualifying within three of the serious injury threshold categories: “permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; [or] significant limitation of use of a body function or system” (Insurance Law § 5102 Ins. (d); see Lanuto v. Constantine, 192 A.D.2d 989, 990, lv denied, 82 N.Y.2d 654). To establish a permanent loss, it is not necessary to prove a total loss of the affected function or system, but some degree of permanency and causation must be demonstrated (see Booker v. Miller, 258 A.D.2d 783, 784). To establish a consequential limitation, there must be a showing of more than “a mild, minor or slight limitation of use” (King v. Johnston, 211 A.D.2d 907). Similarly, to establish a significant limitation, there must be proof of something more than a minor limitation of use (see Delaney v. Lewis, 256 A.D.2d 895, 897).
If a defendant has met the burden of alleging that the plaintiff’s injuries do not rise to the level of serious injury, it is incumbent upon the plaintiff to raise a triable issue of fact by submitting competent and admissible medical evidence based on objective medical findings and diagnostic tests which support a claim of serious injury (see Cody v. Parker, supra, at 870). The expert must provide a basis for his or her conclusion by quantifying the loss or limitation, or otherwise demonstrating that it is meaningful (see Fountain v. Sullivan, 261 A.D.2d 795, 797). Plaintiffs have met that burden in the present matter. See Bill of Particulars and medical reports.
Permanent pain, even of an intermittent nature, may form the basis of a “serious injury” (see Mooney v. Ovitt, 100 A.D.2d 702, 703). Here, plaintiffs attested to continued intermittent pain, which curtailed most of their physical activities.
Plaintiffs assert that triable issues of fact exist as to whether they sustained a “serious injury.” In her affidavit, plaintiff describes the significant limitations she experiences in her activities as the result of pain associated with the accident. The reports from her treating physicians support a finding of permanent disability and loss of use and function causally related to the accident.
Although neither physician’s affidavit is comprehensive, their opinions were not based exclusively on subjective complaints without a diagnosis having a medical foundation (see Rath v. Shafer, 267 A.D.2d 565, 699 N.Y.S.2d 512; compare, Gaddy v. Eyler, 167 A.D.2d 67, 72, aff’d, 79 N.Y.2d 955). Plaintiff’s physicians indicated their reliance on the presence of spasms which were objectively ascertained and quantified (see Larrabee v. State of New York, 216 A.D.2d 772; Lynch v. Adirondack Transit Lines, 169 A.D.2d 904). Therefore, genuine questions of material fact exist for a jury to resolve on the “serious injury” issue (see Tompkins v. Burtnick, 236 A.D.2d 708).
CONCLUSION
Based upon the foregoing, it is clear that plaintiffs’ objective credible medical evidence, as well as subjective complaints, clearly meet the statutory standard and make this matter one where the threshold has been met. Defendants’ motion should be denied.
Dated: Yours etc.,
KLEIN & MORONKNEK, ESQS.
Attorneys for Plaintiffs
250 West 57th Street
New York, NY 10107
(212) 581-1340