Opinion
Index No. 30586/2017E
01-28-2022
CARMEN FIGUEROA, Plaintiffs, v. METROPOLITAN TRANSPORTATION AUTHORITY, et. al., Defendants,
Unpublished Opinion
Present: HON. MITCHELL J. DANZIGER, Judge
DECISION/ORDER
Mitchell J. Danziger, Judge
Recitation as Required by CPLR §2219(a): The following papers were read on this Motion for Summary Judgment: Papers Numbered
Notice of Motion, Affirmation in Support, Statement of Material Facts and Exhibits...............1
Affirmation in Opposition to Motion, Memorandum of Law in Opposition, Response to Statement of Material Facts and Exhibits............................................................... 2
Motion by defendants, Metropolitan Transportation Authority ("MTA"), MTA Bus Company ("MTA Bus"), New York City Transit Authority ("NYCTA"), MABSTOA, and Raynell Cody ("Cody") (collectively "defendants"), for an order pursuant to CPLR §3211 and §3212 dismissing plaintiffs complaint and all cross-claims against defendants, is resolved as follows:
This action stems from an incident that occurred on September 22, 2016 at approximately 8:28 PM. Plaintiff was operating her vehicle in front of 845 White Plains Road, near the intersection of Story Avenue in the Bronx, when she alleges an MTA bus owned by defendants and operated by defendant, Cody, struck her vehicle causing personal injuries and property damage. (PL NOC).
As a result of this incident, plaintiff alleges she sustained injuries to her right knee, right hand, lumbar spine, and cervical spine. In addition, plaintiff claims that if these injuries were pre-existing, these conditions were exacerbated and aggravated by the subject incident. (PI. BP).
Defendants submit that they are entitled to summary judgment on liability because the plaintiff cannot prove that the negligence of the defendants caused her injury and plaintiff cannot prove that her injuries rise to the level of a "serious injury" pursuant to Insurance Law §5102(d).
According to the defendants, "where the facts proven show that there are several possible causes of an injury, one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other," plaintiff cannot recover as he has failed to prove the negligence of the defendant caused the injury. (Pippo v. City of New York, 43 A.D.3d 303 [1st Dept. 2007]). The defendants further argue that where a plaintiffs version of events is proven impossible by an interpretation of the physical evidence, it must be overlooked by the court as a matter of law.
In support of the above, defendants submit the affidavit of their accident reconstructionist, Anthony D. Cornetto, III. Mr. Cornetto opines that "it cannot be determined if the accident was caused by the actions of Ms. Figueroa, or the action of Mr. Cody, or a combination of both of their actions." Further, Mr. Cornetto found that "there is insufficient evidence to determine whether: 1) Ms. Figueroa failed to slow the Dodge in sufficient time to avoid contact with the Bus after seeing the Bus pull out of the bus stop, 2) Mr. Cody pulled out of the bus stop without providing sufficient time and distance between the bus and the Dodge to complete the maneuver, 3) or some combination of the two." Mr. Cornetto confirms there was contact between the bus and plaintiffs Dodge.
Plaintiff contends that there are triable issues of fact that preclude summary judgment on the issue of liability. Per the testimony of the plaintiff, the bus pulled out of the bus stop without signaling and moved into plaintiffs lane of traffic striking her vehicle. According to defendant driver, Cody, he had to merge the bus left into the moving lane to exit the bus stop. He looked in the mirror and he saw the plaintiffs van towards the rear of the bus in the moving lane. When he saw the van, it was so close he stopped the bus again. As he inched up, the car seemed to inch up with him. After he was notified of the accident, he looked at the damage to the vehicles and observed that his rear bumper was hanging off and observed damage on the van at the passenger side headlight and to the quarter-panel of the front right wheel.
With regard to plaintiffs injuries, the defendants contend that plaintiffs injuries were not incurred as the result of this incident. To support this contention, defendants submit the affidavit of biomechanical engineer, Michael L. Woodhouse, Ph.D., who opines that "based on the impact severity sustained by the Dodge, and considering plaintiffs individual body segment anthropometries, the calculated forces and accelerations sustained about her involved anatomical segments were not sufficient to exceed non-injurious thresholds." Further, Mr. Woodhouse found "plaintiffs alleged injuries, most importantly, her alleged cervical and lumbar spine injuries along with her 12/6/2016 right knee arthroscopy, synovectomy, chondroplasty, loose body removal with right knee derangement, synovitis, adhesions, loose bodies, and chondromalacia are not consistent with the anatomical forces, torques and accelerations sustained as a result of the September 22, 2016 MVA."
Plaintiff argues that "in seeking summary judgment on threshold, the defendant must submit competent medical evidence." Dean v. Coffee-Dean, 144 A.D.3d 1080 (2nd Dept. 2016). Defendants only submit the affidavit of their biomechanical engineer to opine as to the cause of plaintiffs injuries. Further, plaintiff submits that Mr. Woodhouse never examined the plaintiff, never inspected the vehicles involved, did not explain how he came to his calculations with regard to the forces involved, and never addresses any specific aspect of the plaintiffs medical records. Mr. Woodhouse does not address plaintiffs prior accident of June of 2011 and how that affects plaintiffs susceptibility to neck and back injuries and as a result, Mr. Woodhouse's opinion is based on conjecture, speculation, and surmise. Lastly, plaintiff offers plaintiffs doctors' reports and affirmations which indicate that plaintiffs injuries were caused by the accident.
Specifically, in Alexandre Grigorian, D.O.'s physician's affirmation, he indicates that on October 5, 2016, he found limited range of motion in plaintiffs cervical, thoracic, and lumbar spine, her left wrist, and right knee. Dr. Girgorian gave plaintiff a preliminary diagnosis of cervical spine sprain, r/o cervical radiculopathy, thoracic sprain, lumbar sprain, r/o lumbar radiculopathy, internal derangement of her right knee, internal derangement of her left wrist, dislocation of her right thumb, and exacerbation of her chronic lower back pain. He prescribed plaintiff therapy involving multiple modalities. Plaintiff was referred for a CT Scan of her cervical spine, lumbar spine, and right knee. Thereafter, Dr Grigorian re-examined plaintiff on November 16, 2016, December 21, 2016, and September 13, 2021, wherein Dr. Grigorian found limitations in plaintiffs range of motion in her spine and knee. Plaintiff underwent therapy for six months wherein Dr. Grigorian determined that further therapy would only be palliative in nature. Dr. Grigorian opines that the injuries to plaintiffs cervical spine and right knee are causally related to this incident and he finds no evidence of longstanding degenerative disease in plaintiffs cervical spine and right knee, nor evidence of any prior injuries to the same. Dr. Grigorian addresses the injuries plaintiff sustained in her prior trip and fall and prior car accident. Dr. Grigorian indicates that plaintiffs cervical spine injury and right knee injury was not as a result of either of plaintiff s prior accidents.
Barbara Steele, M.D., orthopedist, first examined plaintiff on December 1, 2016, wherein plaintiff complained of severe pain, swelling, numbness, tingling, weakness, clicking, buckling, and stiffness in the right knee. Dr. Steele found plaintiffs range of motion of her right knee was limited 10 degrees and she had decreased muscle strength of 4/5 for flexion and extension, pain upon patellar compression, moderate effusion, and pain upon palpitation in her right knee. Based upon her findings, Dr. Steele concluded that plaintiff needed surgery in her right knee. Plaintiff underwent arthroscopic surgery on plaintiffs right knee on December 6, 2016. Surgery revealed a right knee adhesion in the suprapatellar region, synovitis/inflammation in the anterior aspect of the knee coursing laterally and medially, post-traumatic chondromalacia, grade 2 stable lesion in the lateral tibial plateau with linear fissures centrally, a grade 2-3 lesion in the medial femoral condyle with deep linear fissures and unstable chondral flaps inferiorly, a grade 2 lesion in the medial tibial plateau with linear fissures posteriorly, a grade 2-3 lesion in the patella with deep linear fissures and unstable chondral flaps at the ridge, hypertrophy of the retro patellar fat pad with fibrosis and scar tissue formation, and loose body within the join with a size of 0.6 cm x 0.3 cm. Dr. Steele attributes the injuries to plaintiffs right knee to the accident of September 22, 2016. Per Dr. Steele, the surgery on December 6, 2016, as well as Dr. Steele's review of the intraoperative photography, did not reveal degenerative disease in the right knee, nor evidence of any prior traumatic or arthritic injury in the right knee.
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [ 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party. (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact. (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). Once movant has met his initial burden on a motion for summary judgment, the burden shifts to the opponent who must then produce sufficient evidence to establish the existence of a triable issue of fact. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). It is well settled that issue finding, not issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 A.D.2d 258 [1st Dept. 1999]). When the existence of an issue of fact is even fairly debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [I960]). Moreover, "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict."(Asabor v Archdiocese of New York, 102 A.D.3d 524, 527 [1st Dept 2013]).
As the defendants' own expert confirms contact between the vehicles, and indicates that defendant driver, Cody may be at fault or partially at fault, the Court finds that the defendants have failed to meet their burden of entitlement to summary judgment on liability as a matter of law. Further, defendants fail to meet their burden with respect to threshold as they failed to set forth competent medical evidence that plaintiff did not sustain a serious injury. Notwithstanding, plaintiff raises a question of fact as to whether she sustained a serious injury pursuant to Ins. Law §5102 as a result of this incident through the affirmations of her doctors, Dr. Grigorian and Dr. Steele. As plaintiffs doctors measured contemporaneous and continuing injuries, opined that these injuries were sustained in plaintiffs September 22, 2016 accident, indicated that plaintiff did not have a prior injury in her cervical spine or knee, and indicated that there was no evidence of degeneration in her cervical spine and right knee, this evidence was sufficient to defeat defendants' motion for summary judgment. (Sanchez v. Oxcin, 157 A.D.3d 561 [1st Dept. 2018], Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345 [2002]).
Accordingly, defendants' motion is denied. Plaintiff is directed to serve a copy of this order, with Notice of Entry on the parties within 30 days.
The above constitutes the decision and order of the Court.