Opinion
813 CA 20-00314
02-05-2021
Zennat Ahmed HABIR, Plaintiff-Respondent-Appellant, v. Karrie WILCZAK, Defendant-Appellant-Respondent and Amanda Mango, Defendant-Respondent.
LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. VANDETTE PENBERTHY LLP, BUFFALO (VINCENT T. PARLATO OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
VANDETTE PENBERTHY LLP, BUFFALO (VINCENT T. PARLATO OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its entirety and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she allegedly sustained when a vehicle driven by Karrie Wilczak (defendant) made a left-hand turn into the path of plaintiff's oncoming vehicle, causing a collision. Plaintiff moved for partial summary judgment on the issue of defendants’ liability, and Supreme Court granted the motion with respect to defendant's negligence and denied the motion with respect to whether plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d). Defendant now appeals, and plaintiff cross-appeals.
Addressing first defendant's appeal, we conclude that the court erred in granting that part of plaintiff's motion with respect to defendant's negligence, and we therefore modify the order by denying the motion in its entirety. Plaintiff contends that defendant failed to yield the right-of-way to plaintiff's vehicle in violation of Vehicle and Traffic Law § 1141 and that defendant was thus negligent as a matter of law. However, it is only the unexcused violation of a provision in the Vehicle and Traffic Law that constitutes negligence per se (see Long v. Niagara Frontier Transp. Auth. , 81 A.D.3d 1391, 1392, 917 N.Y.S.2d 463 [4th Dept. 2011] ; see also Brown v. State of New York [appeal No. 2], 144 A.D.3d 1535, 1538, 41 N.Y.S.3d 628 [4th Dept. 2016], affd 31 N.Y.3d 514, 80 N.Y.S.3d 665, 105 N.E.3d 1246 [2018] ; Gardner v. Chester , 151 A.D.3d 1894, 1896, 58 N.Y.S.3d 793 [4th Dept. 2017] ; accord NY PJI 3d 2:26, Comment). We conclude that plaintiff failed to meet her initial burden on her motion inasmuch as her submissions raised an issue of fact whether defendant's violation of section 1141 should be excused based on evidence that plaintiff may have been driving her vehicle on the street between 2:00 a.m. and 2:30 a.m. without her headlights illuminated (see Luck v. Tellier , 222 A.D.2d 783, 784-785, 634 N.Y.S.2d 814 [3d Dept. 1995] ; see also Moore v. DL Peterson Trust , 172 A.D.3d 1058, 1059-1060, 101 N.Y.S.3d 194 [2d Dept. 2019] ). The reasonableness of defendant's excuse is for a factfinder to determine (see Baker v. Joyal , 4 A.D.3d 596, 597, 771 N.Y.S.2d 269 [3d Dept. 2004], lv denied 2 N.Y.3d 706, 781 N.Y.S.2d 287, 814 N.E.2d 459 [2004] ; see also Feeley v. St. Lawrence Univ. , 13 A.D.3d 782, 783, 788 N.Y.S.2d 179 [3d Dept. 2004] ; Tomaselli v. Goldstein , 104 A.D.2d 872, 873, 480 N.Y.S.2d 382 [2d Dept. 1984] ).
Addressing plaintiff's cross appeal, we conclude that the court properly determined that plaintiff is not entitled to summary judgment on the issue of serious injury. Plaintiff alleges injuries to her neck and shoulders and relies on the significant limitation of use and 90/180-day categories of serious injury. " ‘[W]hether a limitation of use ... is "significant" ... relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part’ " ( Toure v. Avis Rent A Car Sys., Inc. , 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002], rearg denied 98 N.Y.2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002] ). In support of her motion, plaintiff submitted no evidence of a quantitative or qualitative assessment with respect to the neck injury (see Maurer v. Colton [appeal No. 3], 180 A.D.3d 1371, 1373, 119 N.Y.S.3d 644 [4th Dept. 2020] ; see generally Toure , 98 N.Y.2d at 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ). She also failed to submit any objective evidence of an injury to her neck. Plaintiff relies on a March 2017 cervical spine MRI showing bulging in two discs, but proof of a bulging disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury (see Pommells v. Perez , 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Carpenter v. Steadman , 149 A.D.3d 1599, 1600, 53 N.Y.S.3d 784 [4th Dept. 2017] ; Downie v. McDonough , 117 A.D.3d 1401, 1402-1403, 984 N.Y.S.2d 710 [4th Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5366461 [2014] ). With respect to the shoulder injury, the medical records submitted by plaintiff fail to compare plaintiff's range of motion in her shoulders to what would be considered normal (see Houston v. Geerlings , 83 A.D.3d 1448, 1449-1450, 920 N.Y.S.2d 537 [4th Dept. 2011] ; cf. Hedgecock v. Pedro , 93 A.D.3d 1250, 1252, 940 N.Y.S.2d 432 [4th Dept. 2012] ).
Moreover, even if plaintiff's submissions showed objective evidence of an injury to her neck and shoulders, plaintiff failed to meet her burden of establishing that the injuries to her neck and shoulders were significant as opposed to a minor, mild, or slight limitation of use (see Monette v. Trummer [appeal No. 2], 96 A.D.3d 1547, 1548, 946 N.Y.S.2d 748 [4th Dept. 2012] ; see generally Licari v. Elliott , 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ). Plaintiff's submissions showed that her neck pain had resolved six or seven months after the accident and that she had regained full range of motion in her shoulders 12 months after the accident (see generally Downie , 117 A.D.3d at 1403, 984 N.Y.S.2d 710 ; Partlow v. Meehan , 155 A.D.2d 647, 647-648, 548 N.Y.S.2d 239 [2d Dept. 1989] ). In addition, plaintiff did not miss any work and was still able to perform most of her daily activities. For the same reason, plaintiff's evidence was insufficient to show that she "has been curtailed from performing [her] usual activities to a great extent rather than some slight curtailment" ( Licari , 57 N.Y.2d at 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 ; see Gaddy v. Eyler , 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ) as is required to establish a serious injury under the 90/180-day category (see Carpenter , 149 A.D.3d at 1599-1600, 53 N.Y.S.3d 784 ; Ehlers v. Byrnes , 147 A.D.3d 1465, 1466, 47 N.Y.S.3d 191 [4th Dept. 2017] ).
Inasmuch as plaintiff failed to meet her initial burden on the motion, there is no need to consider defendant's submissions in opposition (see Savilo v. Denner , 170 A.D.3d 1570, 1570-1572, 96 N.Y.S.3d 420 [4th Dept. 2019] ; see generally Gawron v. Town of Cheektowaga , 125 A.D.3d 1467, 1468, 4 N.Y.S.3d 789 [4th Dept. 2015] ; Summers v. Spada , 109 A.D.3d 1192, 1193, 971 N.Y.S.2d 773 [4th Dept. 2013] ). In any event, defendant raised a triable issue of fact by submitting an affirmation of a radiologist who opined that there was no objective evidence of a serious injury and no showing of any significant injuries (see generally Blake v. Cadet , 175 A.D.3d 1199, 1199-1200, 109 N.Y.S.3d 266 [1st Dept. 2019] ; Smith v. Hamasaki , 173 A.D.3d 1816, 1817, 104 N.Y.S.3d 817 [4th Dept. 2019] ; Carpenter , 149 A.D.3d at 1600, 53 N.Y.S.3d 784 ).