Opinion
Index 033183/2018
05-07-2019
JUSTIN B. SUNDIAL, Plaintiff, v. PAULINE A. LEONARD AND JOSEPH G. LEONARD, Defendants.
Unpublished Opinion
DECISION & ORDER
Sherri L. Eisenpress, Judge
The following papers, numbered 1 through 8, were considered in connection with Plaintiff's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment in favor of Plaintiff on the issue of liability and as to the no-fault "serious injury" threshold, and for such other and further relief as this Court deems just and proper:
PAPERS NUMBERED
NOTICE OF MOTION/AFFIRMATION IN SUPPORT/AFFIDAVIT OF JUSTIN B. SUNDIAL/AFFIRMATION OF MARK A. GURLAND, M.D./EXHIBITS "A-E" 1-4
AFFIRMATION IN OPPOSITION/MEMORANDUM OF LAW/AFFIDAVIT OF PAULINE A. LEONARD/EXHIBITS "A-B" 5-7
AFFIRMATION IN REPLY 8
Upon a careful and detailed review of the foregoing papers, the Court now rules as follows:
This action was commenced by Plaintiff on June 5, 2018, with the filing of the Summons and Complaint through the NYSCEF system. Issue was joined with the filing of Defendants'Answers through the NYSCEF system on July 11, 2018. This personal injury action arises from an accident which occurred on April 13, 2018, at the intersection of Cosgrove Avenue and East Railroad Avenue, in the Village of West Haverstraw, County of Rockland, when there was contact between Plaintiff's bicycle and a vehicle operated by Pauline Leonard and owned by Joseph Leonard. On or about October 19, 2018, Defendants moved for an Order precluding Plaintiff at the time of trial for failure to provide a Verified Bill of Particulars and respond to discovery demands. On November 15, 2018, Plaintiff moved for summary judgment as to liability and the "serious injury" threshold, which motion was adjourned on consent of the parties to March 1, 2019. On January 15, 2019, this Court issued an Order requiring Plaintiff to provide a Verified Bill of Particulars and to respond to Defendant's discovery demands no later than February 1, 2019.
Plaintiff moves for summary judgment as to liability based upon his affidavit and the police accident report. He avers that on April 13, 2018, he was a bicyclist struck by a vehicle being driven by defendant Pauline Leonard, who struck him as he was crossing Cosgrove Avenue at its intersection with East Railroad Avenue, in West Haverstraw, New York. Plaintiff asserts that he was struck when entirely within a designated crosswalk at an intersection which had a stop sign for traffic on Cosgrove Avenue; that before crossing he made sure no cars were driving in or near the intersection; that the road was free and clear from traffic; that he was approximately half way across the lane of travel nearest to him when the impact occurred; and that he did not have time to react in order to avoid the impact. Plaintiff also relies on the "Accident Description/Officer's notes" contained in the police report which states: "Driver of vehicle #1 was attempting to make a right turn from Cosgrove Ave onto East Railroad Ave and struck a bicyclist who was in the crosswalk attempting to cross the intersection," followed by the name and address of "witness 1."
Plaintiff asserts that Defendants are liable as a matter of law for their violation of Vehicle and Traffic Law Sec. 1146, Sec. 1111, Sec. 1112, Sec. 1151 and Sec. 1163, and that any comparative negligence on his part is not a barto the award of summary judgment. With respect to the no-fault "serious injury" threshold, Plaintiff submits the affirmation of Mark A Gurland, M.D., who states that he is a board certified orthopedic surgeon that first examined plaintiff on May 24, 2018. Dr. Gurland states that he reviewed the patient's chart and diagnostic films/studies and that it is his opinion that plaintiff sustained a fracture to his right scaphoid as a result of the subject accident.
In opposition to the summary judgment motion, Defendants assert that the motion must be denied in its entirety because it is premature and because based upon the affidavit of Defendant Pauline A. Leonard, there are triable issues of fact as to Defendants' liability. Ms. Leonard avers that at the time of the accident, her vehicle was lawfully stopped in her proper lane of travel before entering the subject intersection. She further contends that while at a complete stop at the stop sign, and before entering the cross-walk, the bicyclist rode his bicycle into the front of her stopped vehicle. As such, Defendants contend that there are triable issues of fact as to whether Plaintiff's conduct constitutes the sole superseding and/or intervening proximate cause of the accident. Defendants additionally argue that Plaintiff's reliance on the police report must be rejected because it constitutes inadmissible hearsay. Lastly, with respect to the "serious injury" issue, Defendant's assert that they have not received authorizations to obtain medical records, nor have they had the opportunity to have Plaintiff examined by a defense expert, and as such, the movant is solely in possession of the facts necessary to oppose the within motion.
The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003).
However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). On a motion for summary judgment, evidence is to be viewed in the light most favorable to the party opposing the motion, giving them the benefit of every favorable inference, and the Court should not pass of issues of credibility. Torres v. Jeremias, 283 A.D.2d 484, 724 N.Y.S.2d 461 (2d Dept. 2001); Cortale v. Educational Testing Services, 251 A.D.2d 1998, 674 N.Y.S.2d 753, 756 (2d Dept. 1998).
Plaintiff demonstrated a prima facie entitlement to summary judgment as to liability based upon his affidavit. However, in opposition thereto, Defendant Pauline Leonard's Affidavit raises triable issues of fact as to whether Plaintiff's actions were the sole proximate cause of the subject occurrence. While the recent case of Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 (2018), holds that a plaintiff need not demonstrate the absence of his own comparative negligence to obtain summary judgment on the issue of liability, in the instant matter, if the jury credits Defendant Pauline Leonard's version of the accident, i.e. that she was stopped at the time of the accident when struck by Plaintiff's bicycle, a jury could find that Defendant was not negligent at all. Additionally, while it is true that a party's admission contained in a police report would render it admissible, in the instant matter, the police officer's description does not specifically attribute the statement to Defendant Leonard. In fact, it is unclear who the source of the accident description is, including whether the source of the information is the eye-witness, whose information is immediately listed after the description. As such, Plaintiff has failed to establish the admissibility of that portion of the police accident report.
With respect to that portion of the motion which is for summary judgment on the "serious injury" threshold, CPLR Sec. 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears the facts supporting the position of the opposing party exist but cannot be stated. Here, Plaintiff does not provide his medical records but rather an expert affidavit of a physician who reviewed said records. Defendants had not been provided authorizations to obtain said medical records at the time the motion was brought. Based upon the foregoing, it appears that discovery might lead to relevant evidence or facts essential to justify opposition to the motion that are exclusively with the knowledge and control of Plaintiff, including his medical records. See Buto v. Town of Smithtown, 121 A.D.3d 829, 994 N.Y.S.2d 366 (2d Dept. 2014).
Accordingly, it is hereby
ORDERED that Plaintiff's Notice of Motion for Summary Judgment on the issue of liability and "serious injury" (Motion #2) is DENIED in its entirety; and it is further
ORDERED that counsel for the parties shall appear for a compliance conference on July 15, 2019 at 9:45 a.m.
The foregoing constitutes the Decision and Order of this Court on Motion # 2.