Opinion
2321/03
Decided on March 28, 2005.
Defendants Ari Fischbein ("Ari") and Jessica Fischbein ("Jessica") move for an Order pursuant to CPLR § 3212 granting summary judgment to the defendants and dismissing the complaint of plaintiffs Moshe Brosh ("Moshe") and Florence Brosh ("Florence") and all related cross claims and counterclaims on the grounds that: (1) plaintiff cannot establish liability against the movant; and (2) plaintiff has not sustained a serious injury within the meaning of New York State Insurance Law § 5102(d). In a separate motion, defendants Sunita Torres ("Sunita") and Robert Torres ("Robert") cross-move for summary judgment dismissing plaintiff's complaint on the grounds that plaintiff sustained no serious injury as defined in Section 5102(d) of the Insurance Law, and for such other and further relief as is just. Defendants Sunita and Robert adopt the factual and legal arguments and basis set forth in the papers of co-defendants Ari and Jessica.
Plaintiff Moshe Brosh commenced the underlying action for personal injuries allegedly sustained as the result of a four vehicle accident which occurred on January 27, 2000 on the Nassau Expressway. Defendant Robert Torres alleges that a vehicle (driver unknown) hit his vehicle causing him to go across the three lane highway. The Torres vehicle then hit plaintiff Brosh's vehicle causing plaintiff's vehicle to spin and roll over three times. Defendant Jessica Fischbein saw plaintiff's flipping/rolling vehicle and sped up to try to avoid the collision. Plaintiff's vehicle rolled over the Fischbein vehicle. Plaintiff Florence Brosh's claim is for loss of services.
Summary Judgment
Defendants Ari and Jessica move for summary judgment to dismiss plaintiffs' complaint and all related cross claims and counterclaims on the grounds that plaintiffs can not establish liability against them. The Fischbein defendants argue that the Torres vehicle hit plaintiff's vehicle and plaintiff hit their vehicle which establishes that they were not liable for plaintiff Moshe's injuries. Plaintiff maintains that Jessica Fischbein was negligent.
A motion for summary judgment will be granted if, upon all papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (see, CPLR § 3212(b); Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Zuckerman v. City of New York, 49 NY2d 557). Upon a showing by the movant of his or her entitlement to judgment, the party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact or tender an acceptable excuse for the failure to do so (see, Garnham Han Real Estate Brokers v. Oppenheimer, 148 AD2d 493; Sillman v. Twentieth Century-Fox Film Corp., supra). Absent from the record is any evidence indicating that Jessica Fischbein's vehicle came into contact with plaintiff Moshe's vehicle before plaintiff's vehicle rolled over the Fischbein vehicle. Plaintiff Moshe doesn't even mention in his deposition that his car came into contact with the Fischbein vehicle. Fischbein says that she looked up and saw the jeep flipping towards her so she accelerated or "floored" it to try to avoid the collision.
"Automobile accident cases do not generally lend themselves to disposition under summary judgment rules as the question of negligence is essentially one of fact". (See, CPLR § 3212; Andre v. Pomeroy, 35 NY2d 361). However, a case based in negligence should be summarily decided if there is a absence of genuine issues of fact to determine. The papers submitted in opposition to the Fischbein defendants' motion for summary judgement fail to demonstrate the existence of any issues of fact as to the liability of those defendants (see, Rotuba Extruders v. Ceppos, 46 NY2d 223). Plaintiff contends that defendant Jessica was negligent by, inter alia, "flooring it" to allegedly avoid hitting plaintiff's vehicle or that her failure to stop caused her to hit plaintiff's vehicle. Mere speculation that a party may have failed to take some unspecified measures to avoid the accident or the actions the party took may have in some way contributed to the occurrence of the accident is insufficient to defeat a motion for summary judgment ( Salazar Ospina, 253 Ad2d 550; Bavaro v. Martel, 197 AD2d 813, Zuckerman v. City of New York, supra). Defendant Jessica Fischbein's defense that she was driving and plaintiff's vehicle suddenly rolled over her even as she tried to avoid the collision indicated that there was nothing that she could have done to avoid the collision and it presents prima facie evidence of her defense. (See, Stinehour v. Kortright, 157 AD2d 536). "Liability cannot be predicated upon the failure of a driver, not otherwise negligent, to avert a collision with a vehicle careening across a highway directly into [his/her] path" ( Boyes v. DeLellis, 210 AD2d 931). A review of the record reveals that the Fishbein defendants prima facie established a defense to plaintiffs' action. Based upon the record which shows that it was the Torres vehicle that hit the plaintiff's vehicle thereby causing plaintiff's vehicle to hit the Fischbein vehicle, the Court finds that plaintiff has failed to establish that a triable issue of fact exists as to defendant Jessica Fischbein's negligence in causing the collision between plaintiff Brosh's vehicle and the Fischbein vehicle. Accordingly, that portion of the Fischbein defendants' motion for summary judgment on liability is granted and plaintiff's claim as to defendants Ari Fischbein and Jessica Fischbein is hereby dismissed
Serious Injury
Plaintiff Moshe alleges in his bill of particulars that he suffered injuries including but not limited to: C4-C7 disc herniations with ventral CSF impression including C4-C5, C5-C6 extension of the spinal cord, C2-C3 disc bulge, C3-C4 disc bulge, restricted range of motion cervical spine, L2-L3 through L5-S1 posterior disc herniation with forminal narrowing, L2-L3 and L3-L4 ventral thecal sac compression, L4-L5 central canal stenosis, restricted range of motion lumbar spine and impingement syndrome right shoulder. The bill of particulars also states that plaintiff was confined to his bed for ten days after the accident and confined to his home for three months after the accident. Plaintiff is self employed and claims that he missed ten days from work.
Under New York State Insurance Law § 5104 an injured plaintiff may recover damages for personal injuries sustained in a motor vehicle accident only if he or she has sustained a "serious injury" defined as one of the conditions identified under Insurance Law § 5102 (d). In order to weed out frivolous claims and limit recovery to significant injuries objective medical proof of a plaintiff's injury in admissible form is necessary to satisfy the serious injury threshold (see, Dufel v. Green, 84 NY2d 230; Toure v. Avis Rent-A-Car Systems, Inc., 98 NY2d 345). However, the defendant/movant on a summary judgment motion must first establish a prima facie case that plaintiff did not suffer a serious injury before plaintiff has any obligation to demonstrate that he/she did sustain a "serious injury" (see, Cosovic v. Term Leasing, Inc., 234 AD2d 79). In order to meet this prima facie showing, defendant's medical experts must set forth the objective tests he or she performed to support findings that the plaintiff suffered no ongoing disability (see Franchini v. Palkmieri, 307 AD2d 1056, aff'd 1 NY3d 536; Mosheyev v. Pilevsky, 3 AD3d 523).
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 and eighty days immediately following the occurrence of the injury or impairment."
In support of the motion, defendants proffer the affirmed medical reports of Drs. Mervyn Lloyd, M.D., neurologist Paul Schmidt, M.D., and radiologist Steven L. Mendolsohn, M.D. The reports of Dr. Lloyd and Dr. Schmidt are based upon the independent medical examinations of plaintiff Moshe conducted on March 9, 2004 and March 19, 2004, respectively. Dr. Lloyd, an orthopedic surgeon, indicates in his report that the cervical sprain and lumbar sprain are resolved with no objective evidence of cervical or lumbar radiculopathy. He also found that the right shoulder sprain was resolved. Dr. Lloyd stated that "the abnormalities reported on the lumbar spine MRI are preexisting, since multiple disc levels are involved and a single accident like this could not cause damage to so many discs." He also states that the narrowing of the L5-S1 disc space, as evidenced on the x-ray that was taken the day of the injury, "is typical of chronic degenerative disc condition. Dr. Lloyd points out that the initial notes regarding the injuries sustained by plaintiff Moshe indicate that it was plaintiff's right shoulder but plaintiff now complains of pain in is his left shoulder. Thus, Dr. Lloyd noted he is unable to make the casual relationship between plaintiff's left shoulder complaints and the accident.
Dr. Schmidt found no focal neurological deficit.
Dr. Mendolsohn, a radiologist, reviewed the MRI film based on studies performed on November 14, 2000 (lumbar spine) and February 14, 2000 (cervical spine). Dr. Mendolsohn opines that the MRI film revealed no evidence of a lumbar or cervical disc herniation nor any trauma related abnormality. Dr. Mendolsohn concluded that plaintiff Moshe had mild multilevel age related lumbar and cervical degenerative changes. As to the study performed on February 17, 2000 of plaintiff's lumbar spine, Dr. Mendolsohn found "very mild age related degenerative changes, L5-S level.
Defendants have met their initial burden of proof, the burden now shifts to plaintiff to establish either a prima facie case that he suffered a serious injury or that there are triable issues of fact as to whether plaintiff did so ( Jackson v. United Parcel Serv., 204 AD2d 605; Bryan v. Brancato, 213 AD2d 577). Thus, plaintiff must submit quantitative objective findings in addition to medical opinions as to the significance of her injuries (see, Grossman v. Wright, 268 AD2d 79).
To support a claim of permanent loss of use, plaintiff is required to make a showing that in addition to an injury being permanent, there is a loss of use of a particular body organ, member, function or system (see, Oberly v. Bangs Ambulance, Inc., 96 NY2d 295). For plaintiff to establish that he suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration (see, Oberly v. Bangs Ambulance, Inc., supra; Grossman v. Wright, supra; Beckett v. Conte, 176 AD2d 774; Booker v. Miller, 258 AD2d 783). Resolving the issue of whether a serious injury was sustained 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 involved (see, Toure v. Avis Rent-a-Car Sys., Inc., 98 NY2d 345). In the alternative, plaintiff must prove that he sustained a medically determined injury or impairment which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for 90 out of the 180 days immediately following the accident (see, Gaddy v. Eyler, 79 NY2d 955).
Plaintiff Moshe Brosh proffers the affirmed report of physiatrist Joseph Gregorace, D.O. and affirmed records from chiropractor Gail E. Bialostok, DC, as well as other unsworn reports. Dr. Gregorace examined the plaintiff twice less than a month after the accident and lastly, on October 7, 2004. In his report dated October 7, 2004, Dr. Gregorace concluded that plaintiff Moshe had "sustained a significant limitation to his neck and back along with the surrounding ligaments and muscles" and that the permanent injuries were causally related to the accident of January 27, 2000.
As an initial matter, the Court finds that plaintiff has failed to prove a serious injury as defined in the 90/180 day curtailment category. The record is void of any evidence that "substantially all" of plaintiff Moshe's usual and customary daily activities were curtailed for 90 out of 180 days immediately following the accident ( Gaddy v. Eyler, id.). Plaintiff missed ten days from work. Moreover, plaintiff failed to sufficiently describe how his activities, when disabled, compared with the "normal" activities he engaged in before the accident (see, Raitport v. Traveler's Companies, 209 AD2d 363).
Based upon the record, and to the extent that Dr. Gregorace now quantifies plaintiff Moshe's restriction of range of motion in the cervical and lumbar spines which is contrary to the reports of defendants' experts, plaintiffs have raised a triable issue of fact as to whether plaintiff Moshe suffered a serious injury as defined under Insurance Law § 5102(d).
Accordingly, the motion of defendants Ari Fischbein and Jessica Fischbein for summary judgment as to their liability in causing the accident is granted. That portion of the Fischbein defendants' motion for summary judgement based on the grounds that plaintiff has not sustained a serious injury as well as the cross-motion of defendants Sunita Torres and Robert Torres for relief set forth on the same grounds is hereby denied based on the foregoing.
This is the decision and order of the court.
"Automobile accident cases do not generally lend themselves to disposition under summary judgment rules as the question of negligence is essentially one of fact" (See CPLR § 3212; Andre v. Pomeroy, 35 NY2d 361). However, a case based in negligence should be summarily decided if there is a absence of genuine issues of fact to determine.
Upon this Court's review of the deposition testimony of both plaintiff and defendant it is evident that there are no genuine issues of fact to resolve. Even upon viewing the evidence in the light most favorable to the plaintiff it is clear that plaintiff failed to yield the right of way to defendant as he was legally proceeding through the intersection. (See, Rieman et al v. Smith, 302 AD2d 510; Russo v. Scibetti 298 AD2d 514; Pryor v. Reichart, 265 AD2d 470). Defendant had the right of way and could therefore believe that plaintiff would heed the traffic laws which required her to yield. ( Pryor v. Reichart, supra; Cenoski v. Lee, 266 AD2d 424). Plaintiff's deposition testimony is insufficient to establish triable issues of fact, to establish defendant's negligence and to defeat defendant's showing of entitlement to judgment. ( Pfaffenbach v. White Plains Express Corp., 17 NY2d 132).
Accordingly, defendant's motion for summary judgment on liability is granted and the complaint is dismissed. Hence, defendant's alternate request for an order granting summary judgment on the grounds that plaintiff did not sustain a serious injury is moot and will not be addressed by the court.
It is well settled that summary judgment is a "drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" of fact ( see Andre v. Pomeroy, 35 NY3d 361, 364; Millerton Agway Co-op., Inc. v. Briarcliff Farms, Inc., 17 NY2d 57, 61). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact, and must do so by tendering evidentiary proof in admissible form (CPLR 3212[b]; Winegrad v. New York University Medical Center, 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562; Republic Nat. Bank of New York v. Zito, 280 AD2d 657, 657-658).
Accordingly, the motion of defendants and the cross-motion of defendants are granted and the complaint is dismissed on the grounds that plaintiff has not established that she has sustained a serious injury under Insurance Law § 5102 (d).
To prove a serious injury in the 90/180 day curtailment category there must be proof that "substantially all" of the plaintiff's usual activities were curtailed as a result of the accident. Plaintiff failed to describe how her activities, when disabled, compared with the "normal" activities she engaged in before the accident (see Raitport v. Traveler's Companies, 209 AD2d 363).