Opinion
Index No. 008958/2018 Motions Nos. 2 3
01-11-2023
KRISTEN M. ZIMMER, Plaintiff, v. ROBIN J. THOMAS, CORA A. ALSANTE, as Deputy Public Administrator of the ESTATE HOWARD DAVIS a/k/a HOWARD DAVIS, SR., and HVH CONSTRUCTION CORP. Defendants.
Unpublished Opinion
DECISION AND ORDER
HON JOSEPH E. LAMENDOLA, JSC
This action stems from two motor vehicle accidents, the first occurred on September 21, 2016, on Route 81 South, in the Town of Salina, Onondaga County. Defendant Thomas is alleged to have negligently operated a 2010 Volkswagen Jetta and struck the Plaintiffs vehicle in the rear, causing a collision and resulting in serious physical injury as defined by Insurance Law §5102(d).
The second motor vehicle accident occurred on September 28, 2016, at the intersection of Erie Boulevard East and North Townsend Street, in the City of Syracuse, Onondaga County, when Howard Davis Sr., permissively operating a 1994 Mercedes sedan registered to Defendant HVH construction, is alleged to have run a red light, striking the vehicle in which the Plaintiff was a passenger, causing a collision and resulting in serious physical injury as defined by Insurance Law §5102(d).
Presently before the Court are two motions. Plaintiff moves for partial summary judgment on the issue of "liability" as well as the striking of Defendant Thomas' first affirmative defense (alleging Plaintiffs failure to utilize a seat belt) and Defendants Howard Davis, Sr. (Robin J. Thomas, Cora A. Alsante, as Deputy Public Administrator of the Estate of Howard L. Davis) and HVH Construction Corporation's (hereinafter "Davis and HVH") third, sixth, and eleventh affirmative defenses (alleging Plaintiffs culpable conduct, assumption of risk, and failure to utilize a seat belt). Defendants Davis and HVH opposes partial summary judgment arguing that Plaintiff has failed to meet her prima facie burden of establishing that any purported negligence on behalf of Howard Davis, Sr. (now deceased), was a proximate cause of Plaintiffs injuries. As a point of clarification, in the Fourth Department a finding of "liability" includes the issue of "serious injury" (see Bush v Kovacevic, 140 A.D.3d 1651, 1652 [4th Dept 2016]; Ruzycki v Baker, 301 A.D.2d 48, 51 [4th Dept 2002]). Here, plaintiff is not seeking any affirmative relief on her serious injury claims and therefore, by using the phrase "liability," plaintiff is only seeking summary judgment on the issue of negligence.
Defendants do not dispute fault in the instant motion, rather Defendants argue that Plaintiff in failing to make a prima facie showing of proximate cause and/or serious injury as defined in the No-Fault Insurance Law provisions is not entitled to partial summary judgment on the issue of negligence. Defendants Davis and HVH further cross-move for summary judgment, arguing that Plaintiff did not suffer a serious injury and/or any injuries suffered were not the proximate cause of the September 28, 2016 motor vehicle accident. Plaintiff opposes Defendants' motion, alleging that there exist material issues of fact as to the issues of serious injury as well as proximate cause. In support of her motion, Plaintiff submitted, inter alia, the pleadings, bills of particular, deposition testimony of Plaintiff, Christopher Zimmer, and Defendant Thomas, and a Statement of Undisputed Material Facts. Significantly, Defendants Davis and HVH admit all of Plaintiffs Statement of Facts, and Defendant Thomas does not oppose Plaintiffs motion on the issue of negligence (NYSCEF Doc. No. 69). The unopposed Statement of Undisputed Material Facts, supported by references to deposition testimony, establishes that on September 21, 2016, Defendant Thomas fell asleep at the wheel and struck the rear of Plaintiffs vehicle, and that on September 28, 2016, Howard Davis Sr., while driving Defendant HVH's vehicle, ran a red light, striking Mr. Zimmer's vehicle in which Plaintiff was the passenger. It is also undisputed that in both instances the Plaintiff was wearing her seat belt. Plaintiff has therefore satisfied her burden of a prima facie showing of entitlement to summary judgment on the single issue of the negligence of Defendants in their respective collisions, as well as the striking of the affirmative defenses referenced above.
The burden then shifted to Defendants Davis and HVH to establish the existence of questions of fact to be resolved by the finder of fact. Defendants argue that partial summary judgment on the issue of negligence should be denied as Plaintiff has failed to "even address" the issues of proximate cause and serious injury in her moving papers. Negligence, as a cause of action, in the context of a motor vehicle accident, requires evidence that a breach of duty owed occurred, that the breach was a proximate cause of the injuries alleged, and that a statutorily defined serious injury occurred. While those elements are required to establish a cause of action sounding in negligence, the partial summary judgment sought herein on the issue of negligence merely references the first element - that of a breach of a duty owed to the Plaintiff or, more simply put, fault. It is, in fact, the first question asked of a jury to resolve during deliberations, i.e. "Was the Defendant negligent?" The second question posed to the jury then addresses proximate cause by asking, in essence, "Was the Defendant's negligence a substantial factor in bringing about injury to Plaintiff?" As the Plaintiff herein "established that defendants were] at fault for the[ir respective] accidents], and [Defendants having] failed to raise a triable issue of fact, Plaintiff[ is] thus entitled to partial summary judgment on the issue of negligence..." Ruzycki v. Baker, 301 A.D.2d 48, 52 [4th Dept., 2002], Plaintiff met her initial burden, defendants failed to oppose with respect to the discrete issue of negligence (fault), and therefore failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 563 [1980]). Plaintiffs motion for partial summary judgment must therefore be granted.
Defendant Thomas, "takes no position as to the Plaintiffs entitlement to summary judgment against them on the issue of negligence nor to Plaintiff's motion to strike Defendant Thomas' First Affirmative Defense." Defendant Thomas further asserts that causation and serious physical injury are questions of fact to be decided by the jury. (NYSCEF #69)
Also pending before the Court is Defendants' motion for summary judgment pursuant to CPLR 3212, which seeks dismissal of the complaint on the grounds that the evidence established a lack of proximate cause and/or serious injury. A defendant establishes entitlement to summary judgment by submitting competent medical evidence that plaintiffs injuries are not causally related to the accident or there is not objective medical evidence of a serious injury as defined in the Insurance Law. In support of said motion, Defendants provided, inter alia, the report of Dr. Mikesell, Dr. Molinari, and Dr. Cohen.
In an effort to weed out frivolous claims and limit recovery of losses for non-economic claims in motor vehicle accidents, New York State Insurance Law requires showing of serious injury. §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.
Plaintiffs complaint, as amplified by her supplemental bill of particulars, alleges the following serious injuries: disc bulge and herniation at L5-S1 resulting in L5-S1 microlumbar discectomy; lumbosacral strain; sciatica; superior endplate fracture at LI; low back pain; thoracic spine pain; neck pain; cervicalgia; whiplash; concussion, post-concussion syndrome; post concussion symptoms; chronic post traumatic headache; TBI; headaches; double vision; vision changes; cognitive changes; flashing light in vision; dizziness; balance disorder; nausea; memory loss and difficulty with recall; PTSD; sleep disturbance; left knee pain; chronic pain; and a cerebral spinal fluid leak. Plaintiff argues that these injuries constituted serious injuries as: (1) significant consequential limitation of use of a body function or system; and/or (2) a medically determined injury or impairment which prevented her from performing substantially all of the material acts which constituted her customary activities for no less than 90/180 days following the accident. The injuries alleged fall into two basic categories: back injuries and brain injuries.
With respect to Plaintiffs back injuries, Defendants submitted the report of IME examiner Dr. Robert Molinari. After a review of Plaintiffs pleadings, deposition, and medical records as well as Dr. Molinari's physical examination of the Plaintiff conducted on February 8, 2022, Dr. Molinari concluded that following the 9/21/16 accident:
Plaintiff "most likely experienced an exacerbation of her preexisting lumbar disc herniation at L5-S1 ...[which] again were exacerbated a week later during her second motor vehicle accident on 9/28/2016. It is my opinion that claimant clearly has preexisting degenerative pathology at L5-S1 prior to both motor vehicle accidents... It remains my opinion that the [Plaintiffs] second motor vehicle accident on 9/28/2016 was not the proximate cause of her central lumbar disc herniation and left leg pain, .[and her] continued back pain, continued S1 radicular symptoms, and in my opinion [Plaintiff] has mild disability related to her L5-S1 degenerative lumbar condition. (NYSEF Doc. No. 93, pg. 5)
With respect to the brain injuries, Defendant proffered the affirmations of board-certified rheumatologist Dr. Cohen and forensic neuropsychologist Dr. Mikesell. Dr. Cohen concluded that upon a review of Plaintiffs deposition, pleadings, and medical records, Plaintiffs symptoms prior to the 9/21 and 9/28/16 accidents "are indistinguishable from the symptoms about which she complained subsequent..." to said accidents; and that further Plaintiffs pseudotumor cerebri condition was not exacerbated by either accident.
Dr. Mikesell performed a neuropsychological examination of plaintiff and also reviewed her medical records, et al. After doing so, he concluded that plaintiffs current symptom complaints of sustained PCS (post-concussive symptoms) are not reasonably supported. In his view,
"while is it possible that Ms. Zimmer have experienced a mild concussion immediately after the 9/28/16 injury (and noting, yet again, that she was not diagnosed wit a concussion by numerous providers at that time of the accident, but well after the accident), that protracted recovery and the nature of her expressed symptoms this far from the date of the accident is highly atypical and noncredible. Even when mild deficits in some areas of cognitive functioning are reported in cases of mTBI soon after a concussion injury, these problems in neuropsychological functioning resolve quickly...Most of the results of the performance and symptom validity testing by Ms. Zimmer from this examination were classified as failed or suspect. Thus, there are significant questions regarding the authenticity of her claimed cognitive deficits. Given that her reported symptoms are highly atypical so long after the 9/28/16 accident and the
fact that she showed convincing evidence of symptom exaggeration and feigned cognitive deficits, it cannot be reasonably concluded that her claimed injuries are objectively supported. NYSCEF #94, pg. 12
Dr. Mikesell additionally noted that Plaintiffs voluminous medical records established "that pseudotumor cerebri and associated symptoms of severe headaches and balance problems were chronic and persistent prior to the 9/28/16" the symptoms of which are "clinically similar or indistinguishable from some concussion related symptoms." Further, the records contemporaneous with the accident appeared to have ruled out concussion symptoms.
With the submission of the expert opinions of Drs. Cohen, Mikesell, and Molanari, Defendants met their burden of establishing their entitlement to summary judgment, having made a prima facie showing that Plaintiff did not suffer a serious injury as defined by Insurance Law or that, in the alternative, any such injury was not proximately caused by the September 28, 2016 motor vehicle accident. The burden therefore shifted to the Plaintiff to establish by competent medical evidence that a material issue of fact exists. In support of her argument, Plaintiff provided the IME report of orthopedic surgeon Dr. Steven Hausmann. Dr. Hausmann examined the Plaintiff at the request of Defendant Thomas. After his physical examination of the Plaintiff and a review of her bill of particulars, deposition, and medical records, Dr. Hausmnn concluded that:
[Plaintiff] had a lumbosacral strain due to the first motor vehicle accident...and the records indicate that she did develop left lower extremity radicular symptoms after the second accident...Given the fact that her radicular symptomology seemed to arise after the second accident, it would be my opinion that this would be evidence that the second accident caused the disc herniation and radicular syndrome, resulting in the surgery...[afterthe lumbar laminectomy] ...any disc
herniation would result in a permanent structural alteration of the spine, and this would result in permanency...
Defendants object to the Court's consideration of Dr. Hausmann's expert opinion, arguing that it lacks the qualifier that his opinions are offered "with a reasonable degree of medical certainty." However, Defendants concede that such formulaic wording need not be utilized, but rather "a degree of reasonable certainty must be established by what is likely or probable, something more than possible." (NYSEF #113, Attorney Affirmation, pg. 4, paragraph 11). Defendants make much of Dr. Hausmann setting forth his opinion using the words, "it would be my opinion" or "my opinion that it is likely" or words to that effect. However, Defendants own IME physician, Dr. Molinari, upon whom they submit the Court should rely, sets forth his opinion as: "It is my opinion that the claimant most likely...it is my opinion...it is also my opinion...it remains my opinion..." all of which lack the qualifier of "with a reasonable degree of medical certainty. It is notable that both physicians were setting forth their professional (expert) opinions in IME reports. Given the specialized nature of an IME report, prepared specifically for litigation, the Court finds the language utilized by both Dr. Hausmann and Dr. Molinari to be sufficient to establish that the opinions being expressed therein is held with reasonable certainty and not a "guess or speculation," and both reports shall be considered in the present summary judgment motion.
Dr. Hausmann's opinion stands in stark contrast to that of Dr. Molinari. "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment". Savilo v Denner, 170 A.D.3d 1570, 1571 [4th Dept2019]. Viewing the evidence in the light most favorable to the Plaintiff, Dr. Hausmann's report and expert opinion create a clear and substantial question of fact as to both proximate cause and serious injury, setting forth explicitly that Plaintiffs L5-S1 disc herniation was caused by the 9/28/16 accident and necessitated surgery on 10/31/2016, and which surgery constitutes a permanent structural alteration of the spine. Dr. Hausmann additionally made objective findings of range of motion deficits and left leg weakness, further demonstrating objective evidence of proximate cause and significant limitations of use. Even Dr. Molinari noted that Plaintiff "has continued back pain and continued S1 radicular symptoms." Additionally, Plaintiffs surgeon Dr. Haher's records establish that following her surgery, Plaintiff was removed from work/100% disabled from work as a result of the surgery from October 21, 2016 through April 13, 2017.
In view of the foregoing, plaintiff has raised material questions of fact regarding back injury as it relates to the significant limitation category of serious injury (see Walk-Reinard, 197 A.D.3d at 889; Murgia v Smith, 190 A.D.3d 1233, 1236-1238 [3d Dept 2021] as well as the 90/180 category, (see Rodriguez v First Student, Inc., 163 A.D.3d 1425, 1427 [4th Dept 2018] ["Plaintiff also raised triable issues of fact with respect to the 90/180-day category by submitting objective evidence of a medically determined injury or impairment of a non-permanent nature together with competent evidence that plaintiffs activities were curtailed to a great extent during the relevant time period"]).
It should be noted that if a plaintiff ultimately establishes a serious injury for one body part, she is entitled to recover damages for all injuries causally related to the accident, even those that do not meet the serious injury threshold (see Maurer v Cotton, 180 A.D.3d 1371, 1374 [4th Dept 2020]). As a result, the Court need not address the remaining allegations including, but not limited to, the brain injuries at this juncture.
In view of the foregoing, it is hereby
ORDERED, that Plaintiff's motion for partial summary judgment on the issue of negligence (fault only) on the part of all Defendants is GRANTED, and it is further
ORDERED, that Plaintiff's motion to strike Defendant Thomas' first affirmative defense is GRANTED, and it is further
ORDERED, that Plaintiff's motion to strike Defendants Howard Davis, Sr. (Robin J. Thomas, Cora A. Alsante, as Deputy Public Administrator of the Estate of Howard L. Davis) and HVH Construction Corporation's third, sixth, and eleventh affirmative defenses is GRANTED, and it is further
ORDERED, that Defendants Howard Davis, Sr. (Robin J. Thomas, Cora A. Alsante, as Deputy Public Administrator of the Estate of Howard L. Davis) and HVH Construction Corporation's motion for summary judgment is DENIED.
papers considered:
1) Notice of Motion, filed on August 17, 2022 (NYSCEF #52).
2) Attorney Affirmation in support, with annexed exhibits, filed on August 17, 2022 (NYSCEF #53-63).
3) Statement of Material Facts, filed on August 17, 2022 (NYSCEF #64)
4) Attorney Affirmation in Opposition o/b/o Defendant Thomas, filed on October 13, 2022 (NYSCEF #69).
5) Notice of Cross-Motion, filed on October 13, 2022 (NYSCEF #88).
6) Attorney Affirmation in Opposition to Plaintiffs Motion/Support of Cross-Motion o/b/o Defendants Davis & HVH, with annexed exhibits, filed on October 13, 2022 (NYSCEF #89-101).
7) Statement of Material Facts, filed on October 13, 2022 (NYSCEF #102).
8) Response to Plaintiffs Statement of Material Facts, filed on October 13, 2022 (NYSCEF #103).
9) Affirmation of Dr. Cohen, with annexed exhibit, filed on October 13, 2022 (NYSCEF #104-105).
10) Affirmation in Opposition to Cross-Motion/Further Support of Plaintiffs Motion, with annexed exhibits, filed on October 18, 2022 (NYSCEF #106-109).
11) Amended Attorney Affirmation in Support of Cross-Motion/Further Opposition to Plaintiffs Motion, with annexed exhibit, filed on October 19, 2022 (NYSCEF #113-114).