Opinion
Index No. 2019-52015
09-28-2021
SUWAUNY S. WESTNEY, Plaintiff, v. ELISA J. CAMPANALE, AURELIO P. CAMPANALE and MARY JO GUTTA, Defendants.
Unpublished Opinion
DECISION AND ORDER
HAYES, M.G., Acting Supreme Court Justice
The Court read and considered the following documents upon this motion:
PAPERS NUMBERED
Notice of Motion...................... 1
Statement........................ 2
Affirmation ...................... 3
Exhibits......................... 4
Memorandum of Law................ 5
Notice of Motion...................... 6
Affirmation...................... 7
Exhibits........................ . 8
Affirmation in Opposition............. 9
Exhibits......................... 10
Affirmation in Opposition............. 11
Exhibits......................... 12
Affirmation in Reply.................. 13
Affirmation in Reply.................. 14
This is an action for personal injuries allegedly sustained by plaintiff Suwauny S. Westney ("Westney") following a motor vehicle accident, which occurred on July 15, 2017 at approximately 11:56 a.m. at the intersection of North Street and Ellis Drive located in the City of White Plains, County of Westchester, State of New York.
Defendant Mary Jo Gutta ("Gutta") moves for an order, pursuant to CPLR 3212, granting her summary judgment on the issue of liability and dismissing plaintiff's complaint. Alternatively, Gutta seeks an order, pursuant to CPLR 3212 and Insurance Law §5102(d), dismissing the plaintiff's complaint as she did not sustain a "serious injury" as a result of the accident.
Defendants Aurelio P. Campanale and Elisa J. Campanale ("Campanale") move for an order, pursuant to CPLR 3212, dismissing plaintiff's complaint and any/all cross-claims on the issue of liability.
Alternatively, defendants Campanale also seek relief under Insurance Law §§5102(d) and 5104(a), alleging that plaintiff has not sustained a "serious injury".
The Court will first address the defendants' motions seeking summary judgment based upon the alleged lack of liability.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The movants must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 32 0 [1986]). Once the movants set forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]) .
The Gutta Motion for Summary Judgment on the Issue of Liability
In support of her motion for summary judgment, defendant Gutta submits the deposition testimonies of the parties.
Plaintiff testified that her vehicle was moving at approximately 2 0 to 2 5 miles per hour at the time of the accident (see Deposition of Westney at p 58 lines 16-18). The rear of her vehicle was struck by the front of another vehicle at the time of the accident (see Deposition of Westney at p 59 lines 12-22). Westney characterized the impact as "heavy" and stated that the vehicle jerked as a result of the impact (see Deposition of Westney at p 60 lines 7-25). . Plaintiff states that she immediately stopped after the accident (see Deposition of Westney at p 61 lines 10-13). Plaintiff inspected the vehicle she was driving and identified the damage to her vehicle as an imprint in the bumper (see Deposition of Westney at p 63-64 lines 19-25, 2). Plaintiff was asked if she was sure that the black Acura, driven and owned by the Campanale defendants, actually made contact with the rear of the red minivan she was driving, to which she responded that she was sure that contact occurred (see Deposition of Westney at p 76 lines 5-11). Plaintiff maintains that there was only one impact to her vehicle and that it was from the black Acura (see Deposition of Westney at p 77 lines 13-16). Plaintiff recalls the driver of the Acura asking her why did she stop for no reason, to which she replied that she did not stop (see Deposition of Westney at p 80 lines 12-22) .
Elisa J. Campanale testified that as she drove on North Street behind the red minivan, it suddenly stopped after the Ellis Drive intersection (see Deposition of E. Campanale at p 14 lines 12-23). Campanale testified that she did not see anything preventing the minivan from proceeding forward (see Deposition of E. Campanale at p 15 lines 5-8). Applying medium pressure to her brakes, Campanale was able to stop three to four feet from the rear of the minivan (see Deposition of E. Campanale at p 15-16 lines 15-25, 2). After stopping, the Campanale vehicle was impacted from the rear by the Lincoln Navigator operated by co-defendant Gutta (see Deposition of E. Campanale at p 16 lines 3-10). After the impact, Campanale stated that her vehicle had not moved forward and was still approximately three to four feet behind the red minivan driven by the plaintiff (see Deposition of E. Campanale at p 17 lines 9-17). Campanale testified that after the impact the red minivan was driving away when a police officer who was responding to another accident across the street, stopped her to get a report (see Deposition of E. Campanale at p 19 lines 5-15). Campanale was asked if at any time did the front of her Acura touch the red minivan, to which she replied "No" (see Deposition of E. Campanale at p 26 lines 7-9). Additionally, Campanale stated that there was only one impact, the impact from the rear of her vehicle (see Deposition of E. Campanale at p 32-33 lines 23-25, 2).
Gutta testified that the vehicle in front of her, the Campanale Acura, stopped short and the impact was immediate (see Deposition of Gutta at p 13-14 lines 15-25, 2-14). The Acura stopping was a surprise to Gutta who classified the impact as "heavy" (see Deposition of Gutta at p 16 lines 2-9). Gutta stated that she only heard one impact, the one occurring between her vehicle and the Acura (see Deposition of Gutta at p 24 lines 13-16). Gutta did not see whether there was impact between the Acura and the red minivan (see Deposition of Gutta at p 24 lines 17-20) .
It is well established that the court's role in determining summary judgment motions is issue finding, not issue determination (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (see Stone v. Goodson, 8 N.Y.2d 8 [I960]). It is not the court's function on a motion for summary judgment to assess credibility (see Brown v. Kass, 91 A.D.3d 894 [2nd Dept 2 012]). Summary judgment is inappropriate where triable issues of fact or credibility are raised (id.) .
Here, issues of fact and credibility are raised by deposition testimonies. Plaintiff states that the vehicle she was driving was struck by the black Acura owned and driven by the Campanale defendants. Defendant Elisa J. Campanale states that her vehicle maintained a three to four foot separation from the red minivan, notwithstanding the impact by the Gutta vehicle. Gutta testified that she did not see whether there was an impact between the Campanale vehicle and the plaintiff. It remains unclear to the Court whether this was a chain reaction accident wherein the Gutta vehicle struck and propelled the Campanale Acura into the plaintiff's vehicle or whether there was no impact between the Campanale vehicle and the plaintiff's vehicle.
Gutta's Motion for Summary Judgment, Insurance Law §5102(d)
In support of her motion, defendant Gutta offers the report of Dr. Louis Nunez, a Board Certified Orthopedic Surgeon, Dr. Marc J. Katzman, a Neuroradiologist, and the plaintiff's deposition testimony.
Dr. Nunez examined the plaintiff on January 18, 2021. After examination, Dr. Nunez diagnosed plaintiff with a myofascial strain of the cervical spine which has resolved, myofascial strain of the lumbar spine which had resolved, contusion of the left shoulder with prior evidence of impingement which has resolved. Dr. Nunez states that the plaintiff had reduced range of motion of the cervical and lumbar spine. It is his opinion that the reductions were objective measurements of the subjective efforts on the part of the plaintiff and could not be considered objective findings. The left shoulder revealed normal ranges of motion. Dr. Nunez contends that there is no evidence of permanency. Prognosis is excellent and plaintiff is working full time, at full duty and there is no disability.
Dr. Katzman performed an independent radiological interpretation of the x-ray of plaintiff's cervical spine and left shoulder performed on July 5, 2017, the MRI of the cervical spine of July 9, 2017 and the MRI of the left shoulder performed on September 5, 2017.
Dr. Katzman states that the "x-ray study of the cervical spine performed on 07/05/2017 reveals no evidence of acute cervical vertebral fracture or traumatic subluxation. There is evidence of mild pre-existing chronic multilevel degenerative disc disease of the cervical spine..."
According to Dr. Katzman, the x-ray study of the left shoulder performed on July 5,2017 reveals no evidence of acute fracture of dislocation injury.
The doctor stated that the MRI of the cervical spine performed on July 9, 2017 reveals "chronic multilevel degenerative disc disease of the cervical spine without evidence of recent post-traumatic injury. The disc bulges at C2-3 and C6-7 and the disc-osteophyte complexes at C4-5 and C5-6 are all by definition degenerative and non-traumatic...The disc herniation at C3-4 appears chronic, degenerative, and pre-existing...All aforementioned degenerative changes of the cervical spine are clearly chronic, pre-existing, and unrelated to the accident on 07/05/2017. There is no recent-appearing traumatic disc herniation, extrusion, or annular tear. There is no evidence of recent post-traumatic injury to the cervical spine on the basis of this MRI exam."
Dr. Katzman also stated the "MRI of the left shoulder performed on 09/05/2017 reveals no evidence of recent posttraumatic injury to the left shoulder joint. Rather, there is mild chronic degeneration of the rotator cuff in the setting of chronic internal impingement... internal derangements of the left shoulder appear chronic, degenerative, and pre-existing particularly due to the conspicuous absence of posttraumatic joint effusion, hemarthrosis, capsular edema, bone bruise, or muscle sprain. There is no evidence of recent post-traumatic injury to the left shoulder on the basis of this MRI exam."
Plaintiff testified that following the accident, she was cleared to return to work after two weeks. She went back to work at Willie's Car Service, the company where she was working at the time of the accident (see Deposition of Plaintiff at p 41 lines 5-11).
Defendant Gutta has established her prima facie entitlement to judgment as a matter of law by submitting the reports of Dr. Nunez and Dr. Katzman, as well as plaintiff's deposition testimony which establish that she has not sustained a "serious injury" pursuant to Insurance Law §5102(d) (see Pommells v. Perez, 4 N.Y.3d 566 [2005]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gash v. Miller, 177 A.D.3d 950 [2nd Dept 2019]; Mnatcakanova v. Elliot, 174 A.D.3d 798 [2nd Dept 2019]; Santiago v. Riccelli Enters., Inc., 173 A.D.3d 1237 [2nd Dept 2019],- Haber v. Ullah, 69 A.D.3d 796 [2nd Dept 2010] / Kearse v. New York City Tr. Auth., 16 A.D.3d 45 [2nd Dept 2005]).
Defendants Campanale Motion for Summary Judgment
Initially, defendants Campanale state that "[d]efendnat GUTTA filed a summary judgment motion on both liability and threshold dated May 4, 2021. Having read the papers submitted by Nick Migliaccio from the Law Office of Thomas K. Moore, I hereby adopt and submit his papers on threshold as CAMPANALE'S submission. With regards to liability, I adopt Mr. Migliaccio's submission as CAMPANALE'S submission, but with a different argument."
The Court will first address the liability aspect of Campanale's motion prior to addressing the alleged lack of "serious injury".
Campanale maintains that the deposition testimony of the parties establishes that the Campanale vehicle was. lawfully brought to a stop behind the Westney vehicle and was subsequently propelled into that vehicle due to the negligence of co-defendant Gutta.
The deposition testimony of Elisa J. Campanale entirely belies this version of events. Defendant Elisa J. Campanale maintains that she was able to stop three to four feet from the rear of the minivan (see Deposition of E. Campanale at p 15-16 lines 15-25, 2). She then was struck from behind by co-defendant Gutta. After the impact, Elisa J. Campanale stated that her vehicle had not moved forward and.was still approximately three to four feet behind the red minivan driven by the plaintiff (see Deposition of E. Campanale at p 17 lines 9-17) . Accordingly, it is unclear to this Court what deposition testimony the moving defendants Campanale are relying on which establishes that the Campanale vehicle was propelled into the plaintiff's vehicle.
Additionally, the Campanale defendants attempt to rely upon the statements contained in. the police accident report, which is annexed as Exhibit "H" to their motion papers.
The use of a statement recorded in a police accident report involves two levels of hearsay, each of which must fit within a hearsay exception to render the statement contained within the report admissible (see Yassin v Blackman, 188 A.D.3d 62 [2nd Dept 2020]). At the first level of hearsay, the report itself must be admissible (id.). At the second level of hearsay, assuming a properly certified police accident report, the statement recorded within the police accident report by the police officer must satisfy a hearsay exception (id.) .
The report annexed as Exhibit "H" is not in admissible form as annexed to the moving papers as it is not certified (id.). Accordingly, this Court cannot consider the police report or the statements therein as it is not in admissible form.
Here, issues of fact and credibility are raised by deposition testimonies of defendant Elisa J. Campanale and plaintiff. Specifically, issues of fact remain as to whether there was contact between the Campanale vehicle and the plaintiff's vehicle.
The second branch of the defendants Campanale's motion seeks summary judgment on the issue of "serious injury", as defined by Insurance Law §5102(d). Based upon the Campanale defendants' adoption of the submissions of co-defendant Gutta, namely the reports of Dr. Nunez and Dr. Katzman, as well as plaintiff's deposition testimony concerning the lack of "serious injury", defendants have established their prima facie entitlement to judgment as a matter of law as to this branch of their motion.
Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]), plaintiff must show that genuine triable issues of material fact exist in order to defeat defendants' motions (id.).
Plaintiff's Opposition
In opposition to the motion, plaintiff submits the report of Dr. Gabriel L. Dassa, a Board Certified Orthopedic Surgeon.
Plaintiff's opposition papers fail to raise a triable issue of fact. Dr. Dassa fails to address the findings of Dr. Katzman that the alleged injuries to the plaintiff's spine and shoulder were degenerative in nature and therefore conclusions as to causation are insufficient to raise an issue of fact (see Gash v. Miller, 177 A.D.3d 950 [2nd Dept 2019]). Additionally, Dr. Dassa does not address the conclusions of Dr. Nunez that the range of motion restrictions in plaintiff's spine were objective measurements of the subjective efforts on the part of the plaintiff. In the absence of an explanation by the plaintiff through admissible evidence in the form of an expert report or otherwise as to the significance of the pre-existing conditions and degenerative findings, it would be speculative to surmise that the accident of July 5, 2017 was the cause of the plaintiff's injuries (see Lagois v. Public Adm'r of Suffolk County, 303 A.D.2d 644 [2nd Dept 2003]). As such, plaintiff has failed to offer any admissible objective medical evidence of serious injury contemporaneous with the motor vehicle accident (see Garcia v. Solbes, 41 A.D.3d 426 [2nd Dept 2007]; Quagliarello v. Paladino, 40 A.D.3d 836 [2nd Dept 2007]) .
Additionally, plaintiff does not submit any competent medical evidence that the injuries that she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Knox v. Lennihan, 65 A.D.3d 615 [2nd Dept 2009]). Therefore, it is
ORDERED, that defendants' motions for summary judgment as to the issue of "serious injury" pursuant to Insurance Law §5102(d) are granted in their entirety and plaintiff's complaint and all cross-claims are dismissed, it is further
ORDERED, that while the branch of defendant Gutta's motion for summary judgment on the issue of liability would have been denied in the absence of a finding of lack of "serious injury", that branch of the motion is rendered moot by such finding, it is further
ORDERED, that while the branch of defendants Campanale's motion for summary judgment on the issue of liability would have been denied, absent a finding of lack of "serious injury", that determination is rendered moot by such finding.
This constitutes the Decision and Order of the court.