*1 ‐ cv Quintero UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, th day October, two thousand sixteen. PRESENT: DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges BRIAN M. COGAN,

District Judge ^[*] ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x ALVIN PERALTA,

Plaintiff Appellee cv LUIS E. QUINTERO, DANIEL J. GONSALVES,

Defendants Appellants ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

*2 FOR PLAINTIFF ‐ APPELLEE: MICHAEL H. ZHU, Brian J. Isaac, Pollack,

Pollack, Isaac & De Cicco, LLP, New York, New York. DEFENDANTS APPELLANTS: JOHN M. DOWNING, JR., Downing & Peck,

P.C., New York, New York. Appeal from United States District Court Southern District (Maas, M.J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED judgment district court AFFIRMED

Defendants appellants Luis E. Quintero and Daniel J. Gonsalves ʺ ) appeal from judgment district in favor plaintiff appellee Alvin entered December 28, 2015. By memorandum decision and order entered May 20, 2014, following four day trial, found liable injuries sustained awarded $410,000 in damages. By amended memorandum decision order entered January 2015, adhered its prior decision. The award was later reduced based on post submissions $392,548.66 final amount entered December 2015. assume parties familiarity underlying facts, procedural history, issues on appeal.

On appeal, defendants argue that the district court erred in finding them liable for the car and serious injury within the meaning of the No Fault Insurance Law, N.Y. Ins. Law 5101 et seq. Following trial, we review district court ʹ s findings of fact clear error conclusions of law de novo . Diesel Props S.R.L. Greystone Bus. Credit II LLC F.3d 42, (2d Cir. 2011). ʺ Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, the reviewing court must give due regard to the court ʹ s opportunity to judge the witnesses ʹ credibility. ʺ Fed. R. Civ. P. 52(a)(6). With these principles mind, we see no basis disturbing the district court ʹ s decision.

First, with respect to liability, the district found failed to yield stop sign crashed into the driven by Peralta, who had the right of way. These findings were supported testimony of police officer who responded to scene reported to s vehicle consistent version of events. decision not credit version of incident ‐‐ no collision fact occurred ‐‐ not clear error. Krist Kolombos Rest. Inc. F.3d (2d Cir. 2012) It within province of as trier fact decide whose testimony should be credited . are appeal after issued amended memorandum decision order on January it entered final December 2015. Pursuant Federal Rule Appellate Procedure 4(a)(4)(B)(i), notice appeal became effective upon entry final judgment. Fed. R. App. P. 4(a)(4)(B)(i). *4 allowed to second guess the ʹ s credibility assessments. ʺ (citations omitted)).

Second, the ʹ s assessment of the extent of Peralta ʹ s injuries was also supported by the evidence. Under ʹ s No Fault Insurance Law, a plaintiff must demonstrate that he has suffered a ʺ serious injury ʺ recover non ‐ economic losses. N.Y. Ins. Law § 5104(a). The definition of ʺ serious injury includes permanent consequential limitation of use of body organ or member. ʺ N.Y. Ins. Law 5102(d). A plaintiff can prove his physical limitation through [a]n expert ʹ s qualitative assessment of plaintiff ʹ s condition provided that the evaluation has an objective basis compares the plaintiff ʹ s limitations the normal function, purpose use the affected body organ, member, function system. ʺ Toure Avis Rent A Car Sys., Inc. N.Y.2d (2002) (emphasis omitted) (citing Dufel Green N.Y.2d (1995)).

The ʹ s conclusion that Peralta suffered from permanent loss range motion his spine as result car collision was supported record. Specifically, s expert, Dr. Rafiy, testified that Peralta ʹ s MRI taken April shortly accident, revealed foraminal stenosis L4 L5 vertebrae. Dr. Rafiy opined that spinal was cause pain, injury permanent causally related accident. adopted Dr. Rafiy findings agreed conclusion *5 caused injury. To extent presented contrary medical expert testimony, rejected it. Because account evidence is plausible light record viewed entirety, it is clearly erroneous. Anderson City Bessemer City U.S. (1985). have considered all additional arguments find

them be without merit. For reasons stated herein, AFFIRMED THE COURT:

Catherine O Hagan Wolfe, Clerk

[*] Judge Brian M. Cogan, United States District Court Eastern District York, sitting designation.

[1] parties consented jurisdiction over all proceedings before United States Magistrate Judge Frank Maas. U.S.C. 636(c).

[2] Defendants filed notice appeal June issued first memorandum decision order. Defendants did file an amended second notice