Opinion
No. 02 CV 2297 (SJ).
June 16, 2004
DANIEL P. BUTTAFUOCO ASSOCIATES, Woodbury, New York, By: Shawn M. Aflano, Esq., Attorney for Plaintiffs.
BIVONA COHEN, New York, New York, By: Harold J. Derschowitz, Attorney for Defendants.
MEMORANDUM AND ORDER
Plaintiffs Ronald Keller ("R. Keller") and Kathleen Keller (collectively, "Plaintiffs") bring this action against Defendants David M. Gleeson ("D. Gleeson") and F.D. Wilson Trucking Co., Inc. (collectively, "Defendants") alleging that R. Keller sustained serious injuries from an automobile accident that occurred on March 7, 2001. Currently before this Court are Plaintiffs' and Defendants' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, Plaintiffs' motion is GRANTED and Defendants' motion is DENIED.
DISCUSSION
I. Summary Judgment Standard
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the movant to establish the absence of any genuine issue of material fact.Celotex Corp., 477 U.S. at 323; see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Once the movant has made a properly supported motion for summary judgment, the burden shifts to the nonmoving party to present "significantly probative" supporting evidence showing that there is a material factual issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322; see also Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 469 (2d Cir. 1999).
II. Defendants' Motion for Summary Judgment
New York's Comprehensive Motor Vehicle Insurance Reparations Act ("the Act" or "no-fault law"), which all parties acknowledge governs the current claim, instructs that there is "no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss." N.Y. Ins. Law § 5104 (McKinney 2000); see also Yanez v. New York, 29 F. Supp. 2d 100, 112-13 (E.D.N.Y. 1998) (citing Licar v. Elliot, 57 N.Y.2d 230, 236 (N.Y. 1982)). Plaintiff's right of action is thus contingent upon his ability to meet the statutory definition of "serious injury" as set forth in the Act.
Section 5102(d) of the Act 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 constitutes 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.
Whether a plaintiff has established a prima facie case of serious injury is a threshold issue to be determined by the court. See Shao v. Paszynsky, No. 97-3815, 2000 WL 307372, at *4 (E.D.N.Y. Jan. 31, 2000); Licari, 57 N.Y.2d at 236. While a motion for summary judgment must be supported by evidence adequate to disprove the existence of a serious injury, it then becomes Plaintiff's burden to present evidence in admissible form "establish[ing] the existence of facts upon which an inference of a serious injury within the meaning of . . . the Insurance Law could be based." Fergus v. Temmons, 435 N.Y.S.2d 828, 829 (App.Div., 4th Dep't 1981).
"Furthermore, proof of serious injury must consist of `competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the accident.'" Murphy v. Arrington, 744 N.Y.S. 2d 255, (App.Div., 3d Dep't 2002) (quoting Blanchard v. Wilcox, 725 N.Y.S.2d 433, 435 (App.Div., 3d Dep't 2001).
In addition, a plaintiff claiming to suffer a "serious injury" resulting from an accident must provide evidence that the accident in question is the proximate cause of the injury complained of. See e.g., Cacaccio v. Martin, 652 N.Y.S.2d 74, 75 (N.Y.App.Div., 2d Dep't 1997) (defendant's motion for summary judgment was granted where plaintiff was involved in several accidents in addition to the accident in question, and plaintiff's submissions did not show that the instant accident was the proximate cause of the claimed injury).
Defendants contend that R. Keller did not suffer from a serious injury within the meaning of 5012(d). Taking the evidence in the most favorable to Plaintiffs, a genuine issue of material fact exist regarding whether limitations to R. Keller's cervical spine, lumbar spine, neck, and back constitute serious injuries within the meaning of section 5102(d). Based on a review of MRI reports and personal examinations, Dr. Ali Guy, R. Keller's treating physician, found (1) significant limitation of range of motion to the cervical and lumbar spine; (2) multiple disc bulges/protrusions at C3-C4, C4-C5, C6-C7; (3) that R. Keller's neck was diffusely tender with severe spasm and a range of motion at one-half lateral flexion; that R. Keller's back was diffusely tender with moderate tenderness with and a range of motion at one-half normal extension. Thus, Dr. Guy opined that R. Keller sustained a permanent partial disability causally related to the accident that occurred on March 7, 2001.
The Court rejects Defendants' medical experts affidavits minimizing the seriousness of R. Keller's injuries. Although not specious, the medical experts' affidavits simply demonstrate that a conflict exists between their opinions and the opinion of Dr. Guy, which constitutes an additional reason why summary judgment should be denied.
III. Plaintiff's Cross Motion for Summary Judgment
Plaintiffs argue that they are entitled to summary judgment on the issue of liability. While Plaintiffs note that summary judgment does not generally lend itself to negligence actions, they argue that summary judgment is appropriate in automobile negligence cases involving rear-end collisions. Plaintiffs maintain that D. Gleeson negligently and recklessly rear-ended their vehicle as R. Keller was paying the toll at the Verrazano Bridge. Plaintiffs point out that D. Gleeson admitted in his deposition testimony and to the police officer at the scene that he did not see their vehicle prior to striking it.
Defendants counter that the accident report prepared by the police officer must be ignored because it constitutes hearsay. Defendants aver that genuine issues of material fact exist regarding whether R. Keller paid the toll within a reasonable time period and whether the lack of visibility of Plaintiffs' car caused D. Gleeson to presume that R. Keller had already paid the toll. The Court disagrees.
Although Defendants correctly point out that the police officer's accident report constitutes hearsay, D. Gleeson's deposition testimony clearly shows his awareness that Plaintiffs' vehicle was in front of him prior to the accident. New York Vehicle and Traffic Law § 1129(a) states that all drivers are required to maintain a reasonably safe distance from the vehicle being followed and to be aware of traffic conditions. See Young v. New York, 113 A.D.2d 833, 834 (2d Dep't. 1985) ("when a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with another vehicle"). D. Gleeson was required to maintain a safe distance from Plaintiffs' vehicle regardless of the length of time it took R. Keller to pay or reach the toll. Thus, Plaintiffs' motion for summary judgment is granted.
CONCLUSION
For the reason stated herein, Defendants' motion for summary judgment is DENIED and Plaintiffs' cross motion for summary judgment is GRANTED. The parties are directed to appear before this Court for a pre-trial conference on July 15, 2004 at 9:30 a.m.
SO ORDERED.