Bonilla-Acosta v. Max Servs. Corp.

Bonilla-Acosta v Max Servs. Corp. 2026 NY Slip Op 05928 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Francis Bonilla-Acosta, et al., respondents, v Max Services Corp., et al., appellants, et al., defendant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-06353, (Index No. 717414/22) Betsy Barros, J.P. Lillian Wan Donna-Marie E. Golia Elena Goldberg Velazquez, JJ. Gallo Vitucci Klar LLP, New York, NY (Debra A. Boccardi [Adler], Ryan S. Ulrich, and C. Briggs Johnson of counsel), for appellants. Ikhilov & Associates (Erik Ikhilov and Beth S. Gereg, Smithtown, NY, of counsel), for respondents. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the defendants Max Services Corp. and Marco Miranda appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated May 8, 2025. The order, insofar as appealed from, denied those defendants' motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiffs commenced this action to recover damages for personal injuries that they allegedly sustained in a motor vehicle accident. The defendants Max Services Corp. and Marco Miranda (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In an order dated May 8, 2025, the Supreme Court, inter alia, denied the motion. The defendants appeal. The defendants failed to meet their prima facie burden of establishing that the plaintiffs 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, 355; Gaddy v Eyler, 79 NY2d 955, 956-957). With respect to the plaintiff Francis Bonilla-Acosta, the defendants did not submit competent medical evidence establishing, prima facie, that Bonilla-Acosta did not sustain a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Prado v Town/Village of Harrison, 244 AD3d 884, 886). Similarly, with respect to the plaintiff Dinaili Andujar-Martinez, the defendants did not submit competent medical evidence establishing, prima facie, that Andujar-Martinez did not sustain a serious injury to the cervical and lumbar regions of her spine, her left shoulder, or her left wrist under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see id.). Moreover, the defendants failed to establish, prima facie, that any injuries allegedly sustained by the plaintiffs were not caused by the accident. In support of their motion, the defendants submitted, among other things, reports of Richard A. Bandstra, a biomechanical expert, in which Bandstra opined, inter alia, that the accident did not generate sufficient force to cause the [*2]alleged injuries to Bonilla-Acosta's right shoulder, right knee, and the cervical and lumbar regions of his spine, or to Andujar-Martinez's left shoulder, left wrist, and the cervical and lumbar regions of her spine (see Osorio v Punjab Enter. Inc., 215 AD3d 494, 494; Holmes v Brini Tr. Inc., 123 AD3d 628, 628). However, Bandstra's opinions were based, in part, on his conclusions that, based upon his review of the plaintiffs' medical records, the alleged injuries to the cervical and lumbar regions of the plaintiffs' spines were due to degenerative conditions and not causally related to the accident. Thus, although Bandstra "demonstrated that, based on his skill, training, education, and experience as a biomechanical engineer, he was qualified to render an opinion as to whether the accident could have generated enough force to cause the plaintiff[s'] injuries" (Vasquez v Coastal Charter Serv. Corp., 240 AD3d 822, 823), he did not demonstrate that he was qualified to render a medical opinion as to causation (see Martinez v Quintana, 138 AD3d 791, 793). Moreover, Bandstra's conclusions were based, in part, on his rejection of the plaintiffs' deposition testimonies as to how their injuries occurred (see Cassano v Hagstrom, 5 NY2d 643, 646). Under these circumstances, Bandstra's expert reports were insufficient to establish, prima facie, that the plaintiffs' injuries were not causally related to the accident (cf. Osorio v Punjab Enter. Inc., 215 AD3d at 495; Holmes v Brini Tr. Inc., 123 AD3d at 628-629). The defendants failed to establish, prima facie, that the plaintiffs did not sustain a serious injury under the 90/180-day category of the version of Insurance Law § 5102(d) in effect at the time the plaintiffs commenced this action (see Rodriguez v McCullough, 184 AD3d 735, 735-736; Ji Hae Kim v Quintanilla, 175 AD3d 476, 476-477). The defendants' remaining contention is without merit. Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. BARROS, J.P., WAN, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court