Orlando v. Gonzalez
Docket 2024-05545
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02662
- Docket
- 2024-05545
Appeal from an order granting defendants' motion for summary judgment dismissing a personal injury complaint on the ground the plaintiff did not sustain a serious injury under Insurance Law § 5102(d).
Summary
The Appellate Division affirmed the Supreme Court's order (after reargument) granting the defendants' motion for summary judgment dismissing the plaintiffs' personal injury complaint. The court held the defendants had shown, as a matter of law, that the injured plaintiff did not sustain a serious injury under Insurance Law § 5102(d) and that the plaintiffs failed to raise a triable issue of causation because their expert did not rebut defendants' evidence that the injuries were preexisting and degenerative. The court affirmed on the alternative ground of lack of causation, though it noted some triable issues as to certain injury categories before resolving causation against the plaintiffs.
Issues Decided
- Whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (permanent consequential limitation of use or significant limitation of use).
- Whether the plaintiffs raised a triable issue of fact in opposition to the defendants' prima facie showing.
- Whether the plaintiffs' evidence established a causal link between the accident and the alleged injuries given defendants' evidence of preexisting degenerative conditions.
Court's Reasoning
The court found the defendants met their prima facie burden showing the plaintiff did not suffer a qualifying serious injury under the Insurance Law categories cited. Although the plaintiffs raised a triable issue as to injuries to the neck and left shoulder under the significant limitation category, the court affirmed on the alternative ground that defendants' medical proof established the alleged injuries were preexisting and degenerative. The plaintiffs' expert failed to address or rebut defendants' experts' findings on degenerative causation, leaving no triable issue on causation.
Authorities Cited
- Insurance Law § 5102(d)
- Toure v Avis Rent A Car Sys.98 NY2d 345
- Gaddy v Eyler79 NY2d 955
- Perl v Meher18 NY3d 208
Parties
- Appellant
- Jeremy L. Orlando
- Appellant
- Plaintiff (wife suing derivatively)
- Respondent
- Jose A. Garcia Gonzalez
- Respondent
- Other defendants (unnamed)
- Judge
- Lara J. Genovesi, J.P.
- Judge
- Valerie Brathwaite Nelson
- Judge
- Deborah A. Dowling
- Judge
- Phillip Hom
Key Dates
- Index number
- 2021-01-01
- Supreme Court order denying motion (original)
- 2024-02-13
- Supreme Court order granting reargument and then granting motion
- 2024-04-10
- Appellate Division decision
- 2026-04-29
What You Should Do Next
- 1
Consult appellate counsel about further appeal
If the plaintiffs wish to continue, they should promptly consult appellate counsel about seeking leave to appeal to the New York Court of Appeals and assess timing and likelihood of success.
- 2
Review medical expert reports
Plaintiffs should have their medical expert prepare a focused report addressing the defendants' degenerative findings and causation if they plan any further proceedings.
- 3
Consider settlement options
Given an adverse summary judgment ruling, parties may evaluate settlement as an alternative to costly further appeals.
Frequently Asked Questions
- What did the court decide?
- The Appellate Division affirmed dismissal of the plaintiffs' personal injury claim because the defendants proved the plaintiff did not sustain a qualifying serious injury and the plaintiffs failed to show the accident caused the alleged conditions.
- Who is affected by this decision?
- The injured plaintiff, his derivative-plaintiff spouse, and the defendants in the motor vehicle accident case are directly affected; the plaintiffs lose at summary judgment and the dismissal stands.
- Why did the plaintiffs lose despite arguing neck and shoulder injuries?
- Although plaintiffs raised an issue about neck and shoulder limitations, their medical expert did not rebut defendants' experts who showed the conditions were preexisting degenerative problems, so there was no triable issue on causation.
- Can this decision be appealed further?
- Potentially, the plaintiffs could seek leave to appeal to the Court of Appeals, but that is a discretionary step and would require showing an important question of law or significant error.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Orlando v Gonzalez - 2026 NY Slip Op 02662 Orlando v Gonzalez 2026 NY Slip Op 02662 April 29, 2026 Appellate Division, Second Department Jeremy L. Orlando, et al., appellants, v Jose A. Garcia Gonzalez, et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2024-05545, (Index No. 614797/21) Lara J. Genovesi, J.P. Valerie Brathwaite Nelson Deborah A. Dowling Phillip Hom, JJ. Dell & Dean, PLLC (Horn Appellate Group, Brooklyn, NY [Scott T. Horn, Andrew J. Fisher, and Ross Friscia], of counsel), for appellants. Lewis Brisbois Bisgaard & Smith LLP, New York, NY (James M. Strauss of counsel), for respondents. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated April 10, 2024. The order, insofar as appealed from, upon reargument, in effect, vacated an order of the same court dated February 13, 2024, denying the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Jeremy L. Orlando did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and thereupon granted the motion. ORDERED that the order dated April 10, 2024, is affirmed insofar as appealed from, with costs. The plaintiff Jeremy L. Orlando (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries that the injured plaintiff allegedly sustained in a motor vehicle accident. The defendants moved for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated February 13, 2024, the Supreme Court denied the motion. Thereafter, the defendants moved for leave to reargue their prior motion. In an order dated April 10, 2024, the Supreme Court granted leave to reargue, and, upon reargument, in effect, vacated the February 13, 2024 order denying the defendants' prior motion, and thereupon, granted the defendants' prior motion. The Supreme Court determined, inter alia, that the defendants established, prima facie, that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under the permanent consequential limitation of use and significant limitation of use categories and that the plaintiffs failed to raise a triable issue of fact in opposition. The plaintiffs appeal. We affirm, albeit on different grounds. The defendants met their prima facie burden of demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident ( see Toure v Avis Rent A Car Sys. , 98 NY2d 345; Gaddy v Eyler , 79 NY2d 955, 956- 957). The defendants demonstrated, prima facie, that the injured plaintiff did not sustain a serious injury under permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) ( see Staff v Yshua , 59 AD3d 614). In opposition, the plaintiffs raised a triable issue of fact as to whether the injured plaintiff sustained serious injuries to the cervical region of his spine and to his left shoulder under the significant limitation of use category of Insurance Law § 5102(d) ( see Perl v Meher , 18 NY3d 208). Contrary to the Supreme Court's determination, the plaintiffs were not required to submit evidence of contemporaneous quantitative measurements to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury under the significant limitation of use category ( see id. at 217; De Castillo v Reado , 230 AD3d 565, 567). The defendants assert, as an alternative ground for affirmance ( see Parochial Bus Sys. v Board of Educ. of City of N.Y. , 60 NY2d 539, 545-546), that the plaintiffs failed to raise a triable issue of fact as to causation. The record demonstrates that the defendants' medical evidence established, prima facie, that the injured plaintiff's alleged injuries were pre-existing and degenerative in nature and not caused by the accident ( see Amirova v JND Trans, Inc. , 206 AD3d 601, 602; Gash v Miller , 177 AD3d 950; Gouvea v Lesende , 127 AD3d 811). In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, their expert failed to address the findings of the defendants' experts that the injured plaintiff's alleged injuries were degenerative in nature ( see Ramos v Jahar , 233 AD3d 999, 1000; Amirova v JND Trans, Inc. , 206 AD3d at 602; Mnatcakanova v Elliot , 174 AD3d 798, 800). The parties' remaining contentions need not be addressed in light of our determination. GENOVESI, J.P., BRATHWAITE NELSON, DOWLING and HOM, JJ., concur. ENTER: Darrell M. Joseph