Summary
In Lazzari v. Qualcon Construction, LLC, 162 A.D.3d 440, 78 N.Y.S.3d 126 (1st Dep't 2018), the First Department addressed whether an injured plaintiff had satisfied a serious injury threshold.
Summary of this case from Travelers Indem. Co. v. United States Fire Ins. Co.Opinion
6795 Index 305450/11
06-07-2018
Paul LAZZARI, Plaintiff–Respondent, v. QUALCON CONSTRUCTION, LLC, et al., Defendants–Appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants. Law Offices of Michelle S. Russo, P.C., Port Washington (Michelle S. Russo of counsel), for respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants.
Law Offices of Michelle S. Russo, P.C., Port Washington (Michelle S. Russo of counsel), for respondent.
Manzanet–Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about May 16, 2017, which denied defendants' motion for summary judgment dismissing the complaint alleging that plaintiff sustained serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiff alleges he sustained serious injuries to his lumbar spine as the result of an accident in which his vehicle struck the bucket of a parked excavator/backhoe that was protruding into the roadway. The excavator was leased to defendant Qualcon, who was performing work for defendant Consolidated Edison.
Initially, we agree with defendants that the serious injury threshold applies because the action is between "covered persons" ( Insurance Law §§ 5104[a], 5102[j] ). Defendants' excavator does not fall under the "self-propelled caterpillar or crawler-type equipment while being operated on the contract site" exclusion to the term "motor vehicle" ( Vehicle and Traffic Law § 311[2] ). While it is a "self-propelled caterpillar or crawler-type equipment" (see Masotto v. City of New York, 38 Misc.3d 1226[A] n. 5, 969 N.Y.S.2d 804 [Sup. Ct., Kings County 2013] ), it was being operated on a "public highway," adjacent to and encroaching into the road on which plaintiff was driving (see Vehicle and Traffic Law §§ 125, 134 ). In addition, the accident arose out of the "use or operation" of the excavator, as the excavator was the "instrumentality" that produced plaintiff's injuries (see Cividanes v. City of New York, 95 A.D.3d 1, 940 N.Y.S.2d 619 [1st Dept. 2012], affd 20 N.Y.3d 925, 957 N.Y.S.2d 685, 981 N.E.2d 281 [2012] ; Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 644 N.Y.S.2d 133, 666 N.E.2d 1046 [1996] ). The fact that it was not being operated and was unattended at the time of the accident does not preclude application of the statute, as it was only temporarily parked during ongoing construction work (see Trentini v. Metropolitan Prop. & Cas. Ins. Co., 2 A.D.3d 957, 767 N.Y.S.2d 686 [3d Dept. 2003], lv dismissed 2 N.Y.3d 823, 782 N.Y.S.2d 240, 815 N.E.2d 1105 [2004] ; cf. Wooster v. Soriano, 167 A.D.2d 233, 561 N.Y.S.2d 731 [1st Dept. 1990] ).
With respect to the seriousness of plaintiff's injuries, the court properly found that defendants met their prima facie burden of demonstrating that plaintiff did not suffer a serious injury to his lumbar spine causally related to the accident. Defendants submitted the affirmed reports of a neurosurgeon and radiologist who both opined that the MRI and other radiological studies revealed existence of severe chronic degenerative disease and absence of a traumatic injury (see Cruz v. Martinez, 106 A.D.3d 482, 482, 965 N.Y.S.2d 94 [1st Dept. 2013] ; Graves v. L & N Car Serv., 87 A.D.3d 878, 879, 931 N.Y.S.2d 550 [1st Dept. 2011] ). Defendants also relied on plaintiff's testimony and medical records admitting his long-term history of degenerative lumbar spine conditions (see Westerband v. Buitraso, 146 A.D.3d 486, 44 N.Y.S.3d 435 [1st Dept. 2017] ).
In opposition, plaintiff raised triable issues of fact sufficient to defeat summary judgment through the affirmation of his neurosurgeon. Contrary to defendants' contention, a certificate of conformity (see CPLR 2309[c] ) was not required since the physician is licensed to practice in New York and signed the affirmation in New York. The neurosurgeon acknowledged plaintiff's documented history of lower back problems, and explained that the accident aggravated plaintiff's preexisting conditions, causing new post-accident symptoms of bilateral weakness, urinary dysfunction and spinal instability that were not previously present and required emergency surgery. He concluded that the accident caused "significant deterioration." His findings, based on his review of the pre- and post-accident medical records, and his treatment of plaintiff, adequately ruled out the prior degenerative changes as the cause of the injuries (see Matos v. Urena, 128 A.D.3d 435, 435–436, 10 N.Y.S.3d 6 [1st Dept. 2015] ). The neurosurgeon raised an issue of fact as to the existence of an injury involving "significant" limitation of use, which required surgical intervention (see Perdomo v. City of New York, 129 A.D.3d 585, 12 N.Y.S.3d 60 [1st Dept. 2015] ; Thomas v. NYLL Mgt. Ltd., 110 A.D.3d 613, 614, 973 N.Y.S.2d 625 [1st Dept. 2013] ). Plaintiff addressed his cessation of treatment after the surgery, and his neurosurgeon provided a qualitative assessment of plaintiff's continuing limitations in use of his lumbar spine during his recent examination of plaintiff (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).
The neurosurgeon's certification that plaintiff was disabled and unable to work for more than 90 days following the accident raised an issue of fact as to existence of a 90/180–day injury (see Coley v. DeLarosa, 105 A.D.3d 527, 529, 964 N.Y.S.2d 25 [1st Dept. 2013] ; Fuentes v. Sanchez, 91 A.D.3d 418, 420, 936 N.Y.S.2d 151 [1st Dept. 2012] ).