Opinion
Index No. 15-602340 Mot. Seq. Nos. 002-MG003-MD 004-MD
09-19-2018
RHONDA GLASGOW, Plaintiff, v. JOSEPH P. LUISE and COMAIRCO EQUIPMENT, INC., Defendants.
Attorney for Plaintiff: JOSEPH T. MULLEN, JR. & ASSOCIATES. Attorney for Defendant: Luise RUSSO & TAMBASCO. Attorney for Defendant: Comairco FLEISCHNER & POTASH, LLP.
Unpublished Opinion
MOTION DATE 4-17-18 (003 & 004).
MOTION DATE 4-26-18 (002)
ADJ. DATE 8-30-18.
Attorney for Plaintiff: JOSEPH T. MULLEN, JR. & ASSOCIATES.
Attorney for Defendant: Luise RUSSO & TAMBASCO.
Attorney for Defendant: Comairco FLEISCHNER & POTASH, LLP.
PRESENT: Hon. WILLIAM G. FORD Justice Supreme Court.
HON. WILLIAM G. FORD J.S.C.
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers dated February 6, 2018, March 5, 2018, and March 7, 2018; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers dated April 12, 2018 and June 12, 2018; Replying Affidavits and supporting papers dated July 10, 2018 and August 29, 2018; Other; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that the following motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by plaintiff for summary judgment in her favor on the issue of liability is granted; and it is further
ORDERED that the motion by defendant Comairco Equipment, Inc. for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied; and it is further
ORDERED that the motion by defendant Joseph Luise for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) is denied.
This is an action to recover damages for injuries sustained by plaintiff when her vehicle was rear-ended by a vehicle owned and operated by defendant Joseph Luise. The accident allegedly occurred on January 14, 2015, at approximately 4:30 p.m., on the exit ramp of the southbound Robert Moses Parkway leading to the eastbound Sunrise Highway south service road, in the Town of Islip, New York. At the time of the accident, Luise was working in the course of his employment with defendant Comairco Equipment, Inc.
Plaintiff moves for summary judgment in her favor on the issue of liability on the ground that she was not negligent, and that the subject accident was solely the result of defendant Luise's failure to control the vehicle. In support, plaintiff submits, inter alia, the pleadings and the transcripts of the parties' deposition testimony.
At her deposition, plaintiff testified that prior to the accident, she had been traveling southbound on the Robert Moses Parkway. She testified that as her vehicle was stopped on a Robert Moses Parkway exit ramp for approximately five seconds, awaiting clearance to merge into the right lane of the eastbound Sunrise Highway south service road, it was struck in the rear by the Luise vehicle.
At his deposition, Luise testified that prior to the accident, his vehicle was stopped behind plaintiff s vehicle on a Robert Moses Parkway exit ramp. Luise testified that his vehicle struck plaintiffs vehicle in the rear, after it proceeded to enter the service road, but then stopped.
It is well settled that when a driver of a motor vehicle approaches another automobile from the rear, he or she is bound to maintain a safe rate of speed, to keep control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Gibson v Levine, 95 A.D.3d 1071,944 N.Y.S.2d 610 [2d Dept 2012]; Zweeres v Mated, 94 A.D.3d 1111,942 N.Y.S.2d 625 [2d Dept 2012]; Nsiah-Ababio v Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). Moreover, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability regarding the operator of the moving vehicle and imposes a duty of explanation on the operator of the moving vehicle to excuse the collision by providing a non-negligent explanation, such as a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement or some other reasonable excuse (see Fajardo v City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587 [2d Dept 2012]; Giangrasso v Callahan, 87 A.D.3d 521, 928 N.Y.S.2d 68 [2d Dept 2011]; Ortiz v Hub Truck Rental Corp., 82 A.D.3d 725, 918 N.Y.S.2d 156 [2d Dept 2011]; DeLouise v S.K.L Wholesale Beer Corp., 75 A.D.3d 489, 904 N.Y.S.2d 761 [2d Dept 2010]).
Here, plaintiff established her prima facie entitlement to summary judgment as she demonstrated that her vehicle was struck in the rear by the Luise vehicle (see Figueroa v MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]; Nikolic v City-Wide Sewer & Drain Serv. Corp., 150 A.D.3d 754, 53 N.Y.S.3d 684 [2d Dept 2017]). The burden then shifted to defendants to come forward with a non-negligent explanation for the accident.
In opposition, Luise submits only the affirmation of his attorney. The affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and thus, is insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Hubbard v County of Madison, 93 A.D.3d 939, 939 N.Y.S.2d 619 [3d Dept 2012]; Sanabria v Paduch, 61 A.D.3d 839, 876 N.Y.S.2d 874 [2d Dept 2009]; Prince v Accardo, 54 A.D.3d 837, 863 N.Y.S.2d 819 [2d Dept 2008]). Defendants failed to provide a nonnegligent explanation for the rear-end collision (see Bene v Dalessio, 135 A.D.3d 679, 22 N.Y.S.3d 237 [2d Dept 2016]; Brothers v Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept 2015]; Xian Hong Pan v Buglione, 101 A.D.3d 706, 955 N.Y.S.2d 375 [2d Dept 2012]). Accordingly, plaintiffs motion for summary judgment in her favor on the issue of liability is granted.
Defendant Comairco Equipment, Inc. ("Comairco Equipment") moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d). By the bill of particulars, plaintiff alleges that, as a result of the accident, she sustained various serious injuries and conditions, including bulging and herniated discs in the cervical, thoracic and lumbar regions, cervical, thoracic and lumbar radiculopathy, and labrum tears in both shoulders. Luise also moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in Insurance Law §5102 (d).
Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d990 [1992]; Akhtarv Santos, 57 A.D.3d593, 869N.Y.S.2d220 [2d Dept 2008]). The defendant may satisfy this burden by submitting the plaintiffs deposition testimony and the affirmed medical report of the defendant's own examining physician (see Moore v Edison, 25 A.D.3d 672,811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Boone v New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]).
Here, Comairco Equipment failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Reitz v Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173 [2d Dept 2010]). On December 21, 2015, approximately 11 months after the subject accident, an independent examining orthopedist, Dr. John Waller, examined plaintiff and performed certain orthopedic and neurological tests, including the straight leg raising test and the impingement test. Dr. Waller found that all the test results were negative or normal. Dr. Waller also performed range of motion testing on plaintiffs cervical and lumbar regions and shoulders, using a goniometer to measure her joint movement. Dr. Waller found that plaintiff exhibited the range of motion restrictions in her cervical region of 40 degrees of flexion (50 degrees normal) and 50 degrees of extension (60 degrees normal). Dr. Waller indicated that plaintiff also exhibited the range of motion restrictions in her shoulders: 150 degrees of flexion and abduction (180 degrees normal) and 70 degrees of external rotation (90 degrees normal) in the right shoulder and 80 degrees of external rotation (90 degrees normal) in the left shoulder (see Jean v New York City Tr. Auth., 85 A.D.3d 972, 925 N.Y.S.2d 657 [2d Dept 2011]; Reitz v Seagate Trucking, Inc., supra). Dr. Waller's report, therefore, is insufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Inasmuch as Comairco Equipment failed to meet its prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Thus, Comairco Equipment's motion for summary judgment dismissing the complaint is denied. Accordingly, Luise's motion for summary judgment dismissing the complaint on the issue of serious injury is denied, as moot.