14‐2251‐cv Peralta v. Quintero

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of October, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

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ALVIN PERALTA, Plaintiff‐Appellee,

v. 14‐2251‐cv

LUIS E. QUINTERO, DANIEL J. GONSALVES, Defendants‐Appellants.

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* Judge Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation.

FOR PLAINTIFF‐APPELLEE: MICHAEL H. ZHU, Brian J. Isaac, Pollack, Pollack, Isaac & De Cicco, LLP, New York, New York.

FOR DEFENDANTS‐APPELLANTS: JOHN M. DOWNING, JR., Downing & Peck, P.C., New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Maas, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendants‐appellants Luis E. Quintero and Daniel J. Gonsalves

(ʺdefendantsʺ) appeal from a judgment of the district court in favor of plaintiff‐appellee

Alvin Peralta entered December 28, 2015.1 By memorandum decision and order entered

May 20, 2014, following a four‐day bench trial, the district court found defendants liable

for injuries sustained in a car accident and awarded Peralta $410,000 in damages. By

amended memorandum decision and order entered January 26, 2015, the district court

adhered to its prior decision. The damage award was later reduced based on post‐trial

submissions to $392,548.66 and final judgment in that amount was entered December

28, 2015. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.2

1 The parties consented to jurisdiction over all proceedings before United States Magistrate Judge Frank Maas. See

(c). 2 Defendants filed a notice of appeal on June 12, 2014, after the district court issued its first memorandum decision and order. Defendants did not file an amended or second notice

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On appeal, defendants argue that the district court erred in finding them

liable for the car accident and a ʺserious injuryʺ within the meaning of the New York

No‐Fault Insurance Law,

et seq. Following a bench trial, we review

a district courtʹs findings of fact for clear error and conclusions of law de novo. Diesel

Props S.R.L. v. Greystone Bus. Credit II LLC,

, 51‐52 (2d Cir. 2011). ʺFindings of

fact, whether based on oral or other evidence, must not be set aside unless clearly

erroneous, and the reviewing court must give due regard to the trial courtʹs opportunity

to judge the witnessesʹ credibility.ʺ Fed. R. Civ. P. 52(a)(6). With these principles in

mind, we see no basis for disturbing the district courtʹs decision.

First, with respect to liability, the district court found that defendants

failed to yield at a stop sign and crashed into the car driven by Peralta, who had the

right of way. These findings were supported by the testimony of the police officer who

responded to the scene and reported damage to Peraltaʹs vehicle consistent with

Peraltaʹs version of events. The district courtʹs decision not to credit defendantsʹ version

of the incident ‐‐ that no collision in fact occurred ‐‐ was not clear error. See Krist v.

Kolombos Rest. Inc.,

(2d Cir. 2012) (ʺIt is within the province of the district

court as the trier of fact to decide whose testimony should be credited . . . . We are not

of appeal after the district court issued its amended memorandum decision and order on January 26, 2015, or after it entered final judgment on December 28, 2015. Pursuant to Federal Rule of Appellate Procedure 4(a)(4)(B)(i), the notice of appeal became effective upon the entry of final judgment. Fed. R. App. P. 4(a)(4)(B)(i).

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allowed to second‐guess the bench‐trial courtʹs credibility assessments.ʺ (citations

omitted)).

Second, the district courtʹs assessment of the extent of Peraltaʹs injuries

was also supported by the evidence. Under New Yorkʹs No‐Fault Insurance Law, a

plaintiff must demonstrate that he has suffered a ʺserious injuryʺ to recover for non‐

economic losses.

(a). The definition of ʺserious injuryʺ includes a

ʺpermanent consequential limitation of use of a body organ or member.ʺ

(d). A plaintiff can prove his physical limitation through ʺ[a]n expertʹs qualitative

assessment of a plaintiffʹs condition . . . provided that the evaluation has an objective

basis and compares the plaintiffʹs limitations to the normal function, purpose and use of

the affected body organ, member, function or system.ʺ Toure v. Avis Rent A Car Sys.,

Inc.,

, 350‐51 (2002) (emphasis omitted) (citing Dufel v. Green,

(1995)).

The district courtʹs conclusion that Peralta suffered from permanent loss

of range of motion in his spine as a result of the car collision was supported by the

record. Specifically, Peraltaʹs expert, Dr. Rafiy, testified that Peraltaʹs MRI taken on

April 22, 2010, shortly after the accident, revealed foraminal stenosis at the L4‐L5

vertebrae. Dr. Rafiy opined that the spinal damage was the cause of Peraltaʹs pain, and

that the injury was permanent and causally related to the car accident. The district

court adopted Dr. Rafiyʹs findings and agreed with the conclusion that the accident

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caused Peraltaʹs injury. To the extent defendants presented contrary medical expert

testimony, the district court rejected it. Because the district courtʹs account of the

evidence is ʺplausible in light of the record viewed in its entirety,ʺ it is not clearly

erroneous. See Anderson v. City of Bessemer City,

, 573‐74 (1985).

We have considered all of defendantsʹ additional arguments and find

them to be without merit. For the reasons stated herein, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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