Opinion
Index No. 602659/2019 Cal. No. 201902405MV Mot. Seq. 002MD 003 MG
10-02-2020
PAUL CIANI, Plaintiff, v. NICOLE R. BOTTA, Defendant.
MILLER, MONTIEL & STRANO, P.C. Attorney for Plaintiff SCAHILL LAW GROUP, P.C. Attorney for Defendant
Unpublished Opinion
MOTION DATE 4/14/20 (002), 7/21/20(003)
ADJ. DATE 7/21/20
MILLER, MONTIEL & STRANO, P.C. Attorney for Plaintiff
SCAHILL LAW GROUP, P.C. Attorney for Defendant
SHORT FORM ORDER
MARTHA L. LUFT, J.
Upon the following papers read on this motion and cross motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated March 6, 2020; Notice of Cross Motion and supporting papers by plaintiff, dated June 4, 2020; Answering Affidavits and supporting papers by defendant dated July 9, 2020 and by plaintiff, dated June 6, 2020; Replying Affidavits and supporting papers __; Other __; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant Nicole Botta seeking summary judgment dismissing the complaint is denied; and it is further
ORDERED that the cross motion by plaintiff Paul Ciani seeking summary judgment in his favor on the issue of negligence and striking defendant's first, second and fifth affirmative defenses is granted.
Plaintiff Paul Ciani commenced this action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident that occurred on the westbound Northern State Parkway, near Exit 39, in the Town of Huntington on April 18, 2018. It is alleged that the accident occurred when the vehicle owned and operated by defendant Nicole Botta struck the rear of the vehicle owned and operated by plaintiff while it was stopped in traffic in the right lane of travel of the Northern State Parkway. By his bill of particulars, plaintiff alleges, among other things, that he sustained various personal injuries as a result of the subject collision, including disc herniations at level L2-L3, aggravation of pre-exiting lumbar spine conditions, and cervical and lumbar radiculopathy.
Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident do not meet the serious injury threshold requirement of Insurance Law § 5102 (d). In support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Dr. Edward Toriello and Dr. Jonathan Luchs. At defendant's request, Dr. Toriello conducted an independent orthopedic examination of plaintiff on September 23, 2019. Also at defendant's request, Dr. Luchs performed an independent radiological review of the magnetic resonance images taken of plaintiff s lumbar spine on March 10, 2017 and June 1, 2018. Plaintiff opposes the motion on the grounds that defendant failed to meet her prima facie burden, and that the evidence submitted in opposition demonstrates that he sustained injuries in the "limitations of use" and the "90/180" categories of the Insurance Law due to the subject accident. In opposition to the motion, plaintiff submits the sworn medical report of Dr. Mark Sterling and uncertified copies of plaintiff s medical records concerning the injuries at issue.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [2d Dept 1988]; Nolan v Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [2d Dept], <#*64N.Y.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law § 5102 (d) defines a "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."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys,, supra; Gaddy v Eyler, 79 N.Y.2d 955 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]) A defendant may also establish entitlement to summary judgment using the plaintiff s deposition testimony and medical reports and records prepared by the plaintiffs own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra).
Here, defendant, by submitting competent medical evidence and plaintiffs deposition transcript, has established a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Al-Khilewi v Turman, 82 A.D.3d 1021, 919 N.Y.S.2d 361 [2d Dept 2011 ]). Defendant's examining orthopedist, Dr. Toriello, states in his report that an examination of plaintiff revealed he has full range of motion in his spine, that there was no evidence of tenderness, atrophy or muscle spasm upon palpation of the paraspinal muscles, and that the straight leg raising test was negative. Dr. Toriello states that plaintiff has a normal toe and heel gait, and that there were no sensory or motor deficits in plaintiffs upper and lower extremities. Dr. Toriello opines that the strains and sprains to plaintiffs spine that were superimposed upon pre-existing degenerative disc disease have resolved, and that plaintiffs pre-existing spinal condition was not exacerbated by the subject accident. He states that plaintiffs spinal examination was normal, and that there is no objective evidence of cervical or lumbar radiculopathy. Dr. Toriello further states that plaintiff does not have any objective evidence of a continued orthopedic disability, that he currently is working and may continue to do so without any restrictions, that he is capable of performing all of his activities of daily living without restrictions, and that he does not require any additional orthopedic treatment.
Additionally, defendant's examining radiologist, Dr. Luchs, states in his medical report that a review of plaintiff s MRI films of lumbar spine taken one year before and two months after the subject accident reveals that plaintiff suffers from advanced multilevel lumbar degenerative disc disease and facet arthropathy throughout his lumbar spine. Dr. Luchs states these changes are chronic, longstanding, degenerative, and predate his alleged injuries. Dr. Luchs further states that there are no findings on the MRI study that are causally related to the subject accident.
Furthermore, reference to plaintiffs own deposition testimony sufficiently refutes the allegations that he sustained injuries within the limitations of use and the 90/180 categories of the Insurance Law (see Strenk v Rodas, 111 A.D.3d 920, 976 N.Y.S.2d 151 [2d Dept 2013]; Marin v Ieni, 108 A.D.3d 656, 969 N.Y.S.2d 165 [2d Dept 2013]; Bucci v Kempinski, 273 A.D.2d 333, 709 N.Y.S.2d 595 [2d Dept 2000]). Plaintiff testified at an examination before trial that following the accident he missed occasional days from his work as a private investigator, and that, although he has modified his working schedule from six to seven days a week to four days a week and has not been able to work his usual hours of 60 to 70 hours per week since the accident, he has never been directed by a medical professional to do so. He testified that he stopped attending physical therapy around July 2019, because he did not believe that he was getting better, and that he currently has an appointment scheduled with his primary care physician in approximately three months. Plaintiff further testified that he previously has received physical therapy and treatment for low back and neck pain because he has arthritis.
Thus, defendant shifted the burden to plaintiff to come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important. . .), 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" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
In opposition to the motion, plaintiff submitted competent medical evidence raising a triable issue of fact as to whether he sustained serious injuries to his spine under the limitations of uses categories of the Insurance Law (see Garafano v Alvarado, 112 A.D.3d 783, 977 N.Y.S.2d 316 [2d Dept 2013]: David v Caceres, 96 A.D.3d 990, 947 N.Y.S.2d 990 [2d Dept 2012]; Williams v Fava Cab Corp,, 90 A.D.3d 912, 935 N.Y.S.2d 90 [2d Dept 2011]; Compass v GAE Transp., Inc., 79 A.D.3d 1091, 914 N.Y.S.2d 255 [2d Dept 2010]). Dr. Sterling, plaintiffs treating physician, states in his report, based upon his contemporaneous and recent examinations of plaintiff and his review of the MRI examinations of plaintiffs lumbar spine, that plaintiffs injuries were permanent, and that the range of motion deficits were significant (see Bykova v Sisters Trans, Inc., 99 A.D.3d 654, 952 N.Y.S.2d 95 [2d Dept 2012]; Kanard v Setter, 87 A.D.3d 714, 928 N.Y.S.2d 782 [2d Dept 2011]; Dixon v Fuller, 79 A.D.3d 1094, 913 N.Y.S.2d 776 [2d Dept 2010]). Dr. Sterling further states that the injuries plaintiff sustained to his spine and the related range of motion limitations are causally related to the subject accident (see Harris v Boudart 70 A.D.3d 643, 893 N.Y.S.2d 631 [2d Dept 2010]). Additionally, Dr. Sterling states that following the subject accident plaintiff began to exhibit radicular symptoms, the onset of poor balance with ambulation, difficulty walking, difficulty lifting and sensation deficits of the lower extremities, along with increased neck and back pain, which he had not experienced during his prior treatment, and that plaintiffs prognosis is poor. Consequently, Dr. Sterling's report is sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury to his spine within the limitations of uses categories of the Insurance Law as a result of the subject accident (see Young Chool Yoi v Rut Dong Wang, 88 A.D.3d 991, 931 N.Y.S.2d 373 [2d Dept 2011]; Gussack v McCoy, 72 A.D.3d 644, 897 N.Y.S.2d 513 [2d Dept 2010]).
Moreover, where a defendant in an action seeking damages for a serious injury presents evidence that a plaintiffs alleged pain and injuries are related to a pre-existing condition, the plaintiff must come forward with medical evidence addressing the defense of lack of causation (Pommells v Perez, 4 N.Y.3d 566 580 797 N.Y.S.2d 380 [2005]; see Ciordia v Luchian, 54 A.D.3d 708, 864 N.Y.S.2d 74 [2d Dept 2008]: Luciano v Luchsinger, 46 A.D.3d 634, 847 N.Y.S.2d 622 [2d Dept 2007]; Giraldo v Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124 [2d Dept 2005]). Dr. Sterling states that he previously treated plaintiff tor back pain with radicular symptoms, but without lower extremity weakness on March 7, 2017. Dr. Sterling explains that he reviewed plaintiffs MRI report for his lumbar spine taken on March 10, 2017, which revealed multilevel lumbar degenerative disc and facet disease, and disc herniations, that plaintiff received physical therapy and treatment for his symptoms until June 8, 2017, that plaintiffs range of motion in lumbar spine was greatly improved when his treatment ceased, and that he was capable of performing all of his daily living activities without restriction. Furthermore, Dr. Sterling explains that plaintiff has sustained an aggravation of the multilevel degenerative disc disease of the lumbar spine with significant progression of his pre-motor vehicle accident condition, and that these limitations and worsening lumbar spinal condition are causally related to the subject accident.
Inasmuch as the affirmed medical reports of plaintiff s expert conflicts with those of defendants' experts who concluded that the injuries plaintiff sustained to his spine as a result of the subject accident were resolved, triable issues of fact have been raised, precluding the granting of judgment as a matter of law "Where conflicting medical evidence is offered on the issue of whether a plaintiffs injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury" (Noble v Ackerman 252 A.D.2d 392, 395, 675 N.Y.S.2d 86 [1st Dept 1998]; see Johnson v Garcia, 82 A.D.3d 561, 919 N.Y.S.2d 13 [1st Dept 2011]; LaMasa v Bachman, 56 A.D.3d 340, 869 N.Y.S. 17 [1st Dept 2008]; Ocasio v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Reynolds v Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 [4th Dept 1996]). Furthermore, "where [a] plaintiff establishes that at least some to his injuries meet the 'no-fault' threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendant's motion for summary judgment" (Linton v Nawaz, 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239 [2010]; see Rubin v SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 [1st Dept 2010]). Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.
Plaintiff cross-moves for summary judgment in his favor on the issue of negligence, arguing that defendant is the sole proximate cause of the subject accident, because his stopped vehicle was struck in the rear by defendant's vehicle. Plaintiff also argues that the first, second and fifth affirmative defenses of defendant's should be stricken as such defenses are without merit. In support of the motion, plaintiff submits copies of the pleadings, and the parties' deposition transcript. Defendant opposes the motion on the grounds that there are triable issues of fact as to the subject accident's occurrence.
It is well settled that a driver approaching a vehicle from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; see also Nsiah-Ababio v Hunter, 73 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Tutrani v County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 [2008]; Pollard v Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 942 N.Y.S.2d 360 [2d Dept 2012]; Cortes v Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 410 [2d Dept 2011]; Ramirez v Konstanzer, 61 A.D.3d 837, 837 N.Y.S.2d 381 [2d Dept 2009]). A non-negligent explanation for the collision, such as mechanical failure, a sudden stop of the vehicle ahead, or an unavoidable skidding on wet payment is sufficient to overcome the inference of negligence and preclude an award of summary judgment (see Ramos v TC Paratransit, 96 A.D.3d 924, 946 N.Y.S.2d 644 [2d Dept 2012]; Fajardo v City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587 [2d Dept 2012]; Davidoff v Mullokandov, 74 A.D.3d 862, 903 N.Y.S.2d 107 [2d Dept 2010]).
Based upon the adduced evidence, plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the sole proximate cause of the subject accident was defendant's violation of the Vehicle and Traffic Law (see Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Motta v Gomez, 161 A.D.3d 725, [2d Dept 2018]; O'Rourke v Carucci, 117 A.D.3d 1015, 986 N.Y.S.2d 521 [2d Dept 2014]; see also Rodriguez v City of New York, 181 A.D.3d 802, 118 N.Y.S.3d 433 [2d Dept 2020];). Plaintiff testified at an examination before trial that he was traveling westbound in the right lane of the Northern State Parkway, that traffic was heavy, that he brought his vehicle to a gradual stop due to traffic condition, and that his vehicle was stopped for approximately four or five seconds when it was struck in the rear by the vehicle operated by defendant. Plaintiff further testified that he was looking straight ahead, that he did not observe defendant's vehicle prior to the subject accident's occurrence, and that prior to the impact he did not hear any tires screeching or horns blowing. A driver approaching a vehicle from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Brooks v High St. Professional Bldg., Inc., 34 A.D.3d 1265, 825 N.Y.S.2d 330 [4th Dept 2006]). Further, vehicle stops that are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she has a duty to maintain a safe distance between his or her vehicle and the car ahead (Shamah v Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]; see Vehicle and Traffic Law § 1129[a]). Therefore, plaintiff has shifted the burden to defendant to come forward with a nonnegligent explanation to raise a triable issue of fact warranting a trial on the merits (see Emil Norsk & Son, Inc. v L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 [2d Dept 2006]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
In opposition to plaintiffs prima facie showing, defendant failed to provide a non-negligent explanation for the collision (see (see Yong Dong Liu v Lowe, 173 AD3 946, 102 N.Y.S.3d 713 [2d Dept 2019]- DeLa Cruz v Ock Wee Leong, 16 A.D.3d 199, 791 N.Y.S.2d 102 [1st Dept 2005]; Agramonte v City of New York, 288 A.D.2d 75, 732 N.Y.S.2d 414 [Is t Dept 2001]). Defendant's simple offer of her attorney's affirmation is insufficient to defeat plaintiffs motion for partial summary judgment (see Lazarre v Gragston, 164 A.D.3d 574, 81 N.Y.S.3d 541 [2d Dept 2018]; 1375 Equities Corp. v Buildgreen Solutions, LLC, 120 A.D.3d 783, 992 N.Y.S.2d 288 [2d Dept 2014]; Schickler v Cary, 59 A.D.3d 700, 874 N.Y.S.2d 233 [2d Dept 2009]). Moreover, defendant testified at an examination before trial that the traffic on the Northern State Parkway was stop-and-go, that she was traveling westbound in the right lane prior to the accident's occurrence, and that she believes she observed plaintiffs vehicle prior to striking the rear of plaintiff s vehicle, although she does not recall when she saw the vehicle for the first time. She testified that at the time of the accident she was looking straight ahead, that he "must have stopped his vehicle, but she did not see him stop and stepped on the gas," striking his vehicle in the rear. Defendant further testified that she pressed hard on her brakes in an attempt to avoid the accident, but was unable to do so. As a result, defendant has failed to produce any evidence that she was faced with an emergency situation not of her own making at the time of the accident's occurrence (see Mughal v Rajput, 106 A.D.3d 886, 965 N.Y.S.2d 545 [2d Dept 2013]; Muyev Libert, 282 A.D.2d 661, 723 N.Y.S.2d 510 [2d Dept 2001]). Accordingly, plaintiffs motion for summary judgment in her favor on the issue of negligence and striking defendant's first, second and fifth affirmative defenses is granted.