| Rubin v SMS Taxi Corp. |
| 2010 NY Slip Op 02414 [71 AD3d 548] |
| March 23, 2010 |
| Appellate Division, First Department |
| Judd Rubin, Appellant, v SMS Taxi Corp. et al.,Respondents, et al., Defendants. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered February 11,2008, that to the extent appealed from, granted the motion by defendants SMS Taxi and Lachhebfor summary judgment dismissing the complaint for failure to demonstrate serious injury, exceptwith respect to the claim for significant disfigurement, unanimously affirmed without costs.Order, same court (Paul Wooten, J.), entered December 23, 2008, that denied plaintiff's motionfor clarification or reconsideration, unanimously reversed, on the law, without costs, the motiongranted and the prior order clarified so as to state that once a jury determines plaintiff has metthe threshold for serious injury, the jury may award damages for all of plaintiff's injuries causallyrelated to the accident, even those not meeting the serious injury threshold.
As the motion court found, defendants met their initial burden of producing evidentiaryproof in admissible form sufficient to show that plaintiff's neck and back injuries did not meetany serious injury thresholds. Plaintiff's medical submissions were devoid of information tosubstantiate his 90/180-day claim. The plaintiff also failed to raise an issue of fact as to any othercategory from Insurance Law § 5102 because he did not show: (1) what medical tests wereperformed, (2) the objective nature of the tests, (3) what the normal range of motion should beand (4) the significance of plaintiff's limitations. Plaintiff thus failed to raise an issue of fact as tothe claims for permanent loss, permanent consequential limitation and significant limitation ofuse of a body part, system or function (see Marsh v City of New York, 61 AD3d 552[2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]). Further, plaintiff's unswornaffirmation is insufficient to explain his cessation of treatment (see Pommells v Perez, 4NY3d 566, 574 [2005]).
Plaintiff also failed to offer the requisite competent medical proof of incapacity during 90 ofthe first 180 days following the accident (see Moses v Gelco Corp., 63 AD3d 548[2009]); Dr. Valderrama's assertion that he advised plaintiff to take off from work until at leastJuly 10 after [*2]the June 16 accident does not satisfy thisrequirement. Plaintiff's claimed inability to perform his job was also not supported bydocumentation from his employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]).
However, the motion court found that plaintiff did meet the serious injury threshold on hisclaim for significant disfigurement of a body part in that the scar on his face "is permanent,discolored and no treatment can improve it." This portion of the motion court's ruling is not anissue on appeal. At issue on the motion for clarification or reconsideration is whether or notplaintiff can still present to the jury the injuries the court found did not meet the "serious injury"threshold within the meaning of Insurance Law § 5102 (d). "[O]nce a prima facie case ofserious injury has been established and the trier of fact determines that a serious injury has beensustained, plaintiff is entitled to recover for all injuries incurred as a result of the accident"(Obdulio v Fabian, 33 AD3d 418, 419 [1st Dept 2006]; see also Prieston vMassaro, 107 AD2d 742 [2d Dept 1985]; Marte v New York City Tr. Auth., 59AD3d 398, 399 [2d Dept 2009]). Consequently, plaintiff is entitled to present his claim involvingfacial scarring to meet the threshold for serious injury under Insurance Law § 5102 (d)(significant disfigurement). Once a jury determines that plaintiff has met the threshold forserious injury, the jury may award damages for all of plaintiff's injuries causally related to theaccident, even those not meeting the serious injury threshold. Whether plaintiff's back and neckinjuries were causally related to the accident are questions of fact for the jury to resolve.
The legislative intent of New York's No-Fault Law was to "significantly reduce the numberof automobile personal injury accident cases litigated in the courts" (Licari v Elliott, 57NY2d 230, 236 [1982]), and to "weed out frivolous claims and limit recovery to significantinjuries" (Dufel v Green, 84 NY2d 795, 798 [1995]). Accordingly, once an alleged claimmeets at least one of the serious injury thresholds, the statute's gatekeeping function, to reducecaseloads by limiting what the courts adjudicate, is satisfied. As the case is already in the gate,so to speak, judicial economy is no longer a reason to preclude plaintiff from presenting to thejury all injuries causally related to the accident. This comports with the general principle that aplaintiff is entitled to recover damages that justly and fairly compensates him or her forall injuries proximately caused by the accident.
The court denied the motion for reconsideration or clarification of the initial order, butbecause it did address the merits in adhering to the initial determination, the subsequent order isappealable (see Nawi v Dixon, 59 AD3d 363, 364 [2009]). Concur—Mazzarelli,J.P., Saxe, Moskowitz, Renwick and Richter, JJ. [Prior Case History: 2008 NY Slip Op30417(U).]