Opinion
Index No. 706125/2020 Motion Cal. No. 11 Motion Sequence No. 1
01-26-2022
DEWANIE MANGAR, Plaintiff, v. TRAYSHAWN SHATIEG KEARNEY and LEVEITE ALLEN, Defendants.
Unpublished Opinion
Motion Date: January 19, 2022
HON. CHEREÉ A. BUGGS, JSC
The following efile papers numbered EF 18 -42 submitted and considered on this motion by plaintiff DEWANIE MANGAR (hereinafter referred to as "Plaintiff") seeking an Order pursuant to Civil Practice Law and Rules ("CPLR") 3212 granting her summary judgment against the defendants TRAYSHAWN SHATIEG KEARNEY and LEVEITE ALLEN (collectively referred to as "Defendants") finding the Plaintiff is free from comparative fault and finding there are no material issues of fact regarding liability and whether Plaintiff satisfies the NY Insurance Law requirement set forth in §§ 5102 and 5104, pursuant to CPLR 3211 dismissing the Defendants' first and third affirmative defenses together with such other and further relief as this Court deems just and proper.
Papers Numbered
Notice of Motion -Affidavits-Exhibits ..................... EF 18-32 and 35-36
Aff. In Opp.- Exhibits ............................................... EF 33-34 and 37-41
Reply ......................................................................... EF 42
This negligence action arises out of a motor vehicle collision that occurred on December 2, 2018 at or near the intersection of Farmers Boulevard and 120th Avenue in the County of Queens and State of New York. Plaintiff claims she was struck by Defendants as she was traversing 120thAvenue and Defendants were completing a left turn on to 120th Avenue.
Papers
Plaintiff contacted Chambers via email on January 5, 2022. Plaintiff represented that they erroneously failed to file the memorandum of law and statements of material facts in support of the motion despite reference to the documents in the affirmation of support. That, Defendants submitted opposition indicating the same. The Plaintiff sought permission to file the supporting papers, to give Defendants the opportunity to file a second set of opposition papers and for Plaintiff to file a reply. Defendants objected to the request. Ultimately, the undersigned granted the request. The proper papers have been filed and this Court will consider EF 18-42 in its decision.
DISCUSSION
Liability
"Where there are no material and triable issues of fact, the motion for summary judgment should be granted....[t]he party making the motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issue of fact and the party must do so by tender of evidentiary proof in admissible form." (See Dougherty v Kinard, 215 A.D.2d 521 [2d Dept 1995]; see also Friends of Animals, Inc. v Assoc. Fur Mfrs., 46 N.Y.2d 1065 [1979].) "To be entitled to partial summary judgment a plaintiff does not bear the ... burden of establishing... the absence of his or her comparative fault." (See Rodriguez v City of New York, 31 N.Y.3d 312, 324-325 [2018]; Wray v Galella, 172 A.D.3d 1446 [2d Dept 2019]).
Plaintiff alleges the following: she left work and was walking to the bus stop prior to the accident. That, when she arrived at the corner of the street near the accident site she looked at the traffic light and the white pedestrian sign was illuminated. Plaintiff alleges she looked left for one second and right for one then proceeded onto the crosswalk of the intersection. Plaintiff claims she was walking quickly across the street and got between 50-75 percent of the way across. According to Plaintiff, she first became aware that she was involved in an accident when she felt the impact to her body from the Defendants' vehicle, she did not hear a horn prior to impact. Prior to the accident, Plaintiff claims she did not see the Defendants' vehicle. As a result of the impact, Plaintiff fell and sustained injuries.
Vehicle and Traffic Law ("VTL") section 1146(a) titled "Drivers to exercise due care,"... "every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian... upon any roadway and shall give warning by sounding the horn when necessary." Part 34 Rules of the City of New York ("RCNY") section 4-03(a)(1) titled "Green alone", states the following in relevant part: (i)..."vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited; (ii) Pedestrians facing such signal may proceed across the roadway within any crosswalk; (c)(1) "Steady walking person" states the following in relevant part: "Pedestrians facing such signal may proceed across the roadway in the direction of such signal, and other traffic must yield the right of way to such pedestrians." Section 4-04(d) titled "Pedestrians" states the following in relevant part: "the operator of a vehicle shall exercise due care to avoid colliding with any pedestrian." Vehicle and Traffic Law section 1163, titled "Turning movements and required signals", states in relevant part: "no person shall turn a vehicle at an intersection unless the vehicle is in a proper position upon the roadway...or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety."
VTL section 1112 (a) states:
Whenever pedestrians are controlled by pedestrian-control signals exhibiting the words "WALK" or "DON'T WALK", or exhibiting symbols of a walking person or upraised hand, such signals shall indicate and apply to pedestrians as follows:
(a) Steady WALK or walking person. Pedestrians facing such signal may proceed across the roadway in the direction of the signal and shall be given the right of way by other traffic.
In Gonzalez v. ARC Interior Construction et al. (83 A.D.3d 418 [1st Dept 2011]), the plaintiff had the light in her favor and looked for oncoming traffic before entering the crosswalk. The defendant who also had the light in his favor was making a left turn and only noticed the plaintiff at the "last minute" before the collision occurred (id). The plaintiff moved for summary judgment. The court stated the plaintiff demonstrated a prima facie case by establishing she was crossing the street within the crosswalk, with the light in her favor when she was struck by the defendant(id at 419).
Plaintiff has established prima facie entitlement to judgment as a matter of law. The burden now shifts to the Defendants to raise a triable issue of fact.
Defendants testified as follows: Defendants' driver was on his way home from work prior to the collision. He was traveling on Farmers in light traffic for 10-12 minutes prior to the collision. According to Defendants' driver, the intersection at issue is controlled by a traffic light with no turn signal. The first time Defendants' driver saw the traffic light, it was red and he was one half of a block away. When Defendants' driver arrived at the intersection at issue he stopped and waited for the light to turn green, thereafter his intention was to turn left. Defendants' driver's testimony is unclear about how, if at all, this accident occurred. Defendants' driver testified as follows:
Q: Did your car strike a pedestrian on the day of the accident?
A: No.
Q: Explain in your own words what you car touched that resulted in a car accident.
A: A person, the person. (Page 48 lines 3-9)
Q: So, did your car strike a pedestrian?
A: Yes. I'm sorry. Can we take a break?
Q: Sure. (Page 48 lines 17-21)
Q: Did your car strike one person, more than one person or something else?
A: Did I have contact with somebody?
Q: We already went through this. At some point in time your car touched a person; correct?
A: No. (Page 48-49 lines 24-25 and 2-7)
Mr. Aufenanger: The accident involved two parties, your car and something else. What was the something else?
The Witness: A pedestrian.
Mr. Aufenanger: A pedestrian. Okay.
Q: So, did your car touch one person or more than one person?
A: One person. (Page 49 lines 14-23)
On page 50, Defendants driver testified he did not see the person his car touched at any point prior to the accident. Thereafter, in response to an inquiry abut how he knew he was involved in an accident he stated he saw the person prior to the "car accident". (lines 3-12)
Q: Did your car touch the person before it came to a stop?
A: No
Q: So, your car never touched a person on December 2nd of 2018 at all?
A: No. Like I said, I stopped quickly as soon as I seen the person. (Page 51 lines 8-14)
Q:Why did you stop your car in the middle of making a left turn?
A: I seen the person so I stopped.
Q: Where was the person when you saw the person?
A: Towards the middle of the crosswalk.
Q: Was the person standing, sitting, laying down in a wheelchair or something else when you first saw the person?
A: Towards the middle of the crosswalk.
Q: Was the person standing, sitting, laying down in a wheel chair or something else when you first saw the person?
A: Standing.
Q: I'm sorry. You cut out. A: Standing. (Page 52-53 lines 21-25 and 2-10)
Q: Was the person standing within the crosswalk?
A: Yes.
Q: So, there was just a person standing in the middle of the crosswalk?
A: When I first seen her, yes.
Q: Okay. And then you brought you car to a stop; correct?
A: Yes. (Page 52-54 lines 20-25 and 2-4)
Q: All right. At any point in time on December 2nd of 2018, did your vehicle and a person touch each other?
A: Yes
Q: So, is it your testimony that there was a lady just standing in the middle of a crosswalk and you turned your car near her and she just leaned over onto your car?
A: Yes (Page 56 lines 4-7 and15-20)
To the extent that the certified police report is admissible as a business record and the statements contained therein are admissible as exceptions to the hearsay rule such as admissions of a party (see Terilynn Jackson v Donien Trust et al. 103 A.D.3d 851, 852 [2d Dept 2013]) or an admission against interest (see Michael Ferrara et al. v Diane Poranski, 88 A.D.2d 904 [2d Dept 1982]) the statements would be admissible. The Certified Police Report states: "AT TPO DRIVER 1 STATED WHILE DRIVING N/B ON FARMERS BLVD AND WAS MAKING A LEFT ON W/B 120 AVENUE AND DID NOT SEE THE PEDESTRIAN CROSSING AND HIT PEDESTRIAN BY ACCIDENT". Defendants' driver is listed as Driver 1.
Q: Okay. Is the description that I just read from the police report an accurate representation of what you remember telling the police officer about what happened at the accident?
A: Yes. (Page 70 lines 19-24)
Defendants failed to raise a triable issue of fact. Defendants' driver's testimony is rife with inconsistent statements. Furthermore, Defendants' driver's statements are inconsistent with the statements against interest contained in the certified police report. The Court is unable to deduce Defendants perspective of the events of December 2, 2018 relevant to this action. Thus, Defendants have failed to raise a triable issue of fact. This Court now turns to the threshold matter.
Serious Injury
Plaintiff claims that she incurred a "serious injury" as defined under NY Insurance Law §5102 (d) which reads as follows:
" 'Serious injury' means 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."
Plaintiff claims the following injuries:
• Left shoulder tear of the anterior labrum at the 2 o'clock position, trabecular fracture of the greater tuberosity, and tendinosis of the supraspinatus and infraspinatus tendons requiring surgery by Dr. Daly on November 25, 2019;
• Left foot non-displaced fracture of the 5" metatarsal, bone contusion of the fifth metatarsal, fourth metatarsal, and cuboid; sprain of the Lisfranc ligament and strain of the abductor hallucis muscle;
• Left ankle nondisplaced fractures of the dorsal tip of the head of the talus, bone contusion of the navicular bone, and anterior calcaneal process, joint effusion and tenosynovitis;
• Left knee trabecular fracture of the anterior/lateral tibial plateau, joint effusion, and bone contusion;
• Multi-level posterior central herniations at C3-C4, C4-C5, and C5-C6 with regional traversing nerve root impingement with suspicion of acute herniation at C4-C5; facet joint widening indicating traumatic ligament injury;
• Broad-based posterior central acute herniations at L4-L5 and L5-Sl with regional traversing nerve root impingement; disc space height and signal loss attributed to traumatic injury;
• Tear of the superior labrum of the left hip;
• Tendinosis of the left wrist; and
• Sprain/strain left foot, left knee, left ankle, left wrist, left hip, neck, and back.
Plaintiff claims she suffered multiple fractures; 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.
In support of the motion, Plaintiff submitted certified hospital records from Jamaica Hospital from the date of the collision, a certified copy of Plaintiff's disability notes from the date of the accident through February of 2020, affirmed copies of Plaintiff's MRI reports and a post- operative report from November 15, 2019.
To establish she suffered a fracture, permanent consequential and significant limitation. Plaintiff submitted the following evidence:
Certified Hospital Records
Plaintiff reported that she injured her left knee, left ankle and left foot to the hospital. That, she was experiencing increasing pain since the incident at 5 P.M. Mild tenderness and swelling was noted to the lateral left foot. X-rays were performed at the hospital, the x-rays revealed a closed fracture at the base of Plaintiff's fifth metatarsal bone on her left foot. Abrasion to the left knee and swelling with bruising to the left ankle was also noted. "As the author of a recent article points out a contemporaneous doctor's report is important to proof of causation;" (Joseph Perl v Mehmood Meher, 18 N.Y.3d 208, 218 [2011]).
Affirmed MRI Report
Plaintiff completed MRI's of her left shoulder (January 16, 2019), left hip, left wrist (February 4, 2019), Left knee, left ankle and left foot (December 21, 2018). Dr. Priyesh Patel, M.D. ("Dr. Patel"), a radiologist, reviewed the films and prepared reports.
Left Shoulder
Dr. Patel found tendinosis of the supraspinatus and infraspinatus tendons, a tear of the anterior labrum at the 2'o clock position and a trabecular fracture of the greater tuberosity.
Left Hip
Dr. Patel found a tear of the superior labrum.
Left Wrist
Dr. Patel found tendinosis of the extensor carpi ulnaris tendon and extensor digitorum tendon at the level of the distal radius.
Left Knee
Dr. Patel found bone contusion/trabecular fracture of the anterior/ lateral tibial plateau. Dr. Patel further found joint effusion.
Left Ankle
Dr. Patel found nondisplaced fracture of the dorsal tip of the head of the talus, nondisplaced fracture of the base of the fifth metatarsal bone. Additionally, Dr. Patel found bone contusion of: the fourth metatarsal bone, the navicular bone, the cuboid, and the anterior calcaneal process. Dr. Patel also found joint effusion and tenosynovitis of the peroneus brevis and longus tendons.
Left Foot
In addition to what was mentioned in the Left Ankle Report, Dr. Patel found a sprain of the Lisfranc ligament and the adductor of the hallucis muscle.
Plaintiff completed MRI's of her cervical, thoracic and lumbar spine (January 9, 2019). Dr. B.V. Reddy, MD a radiologist ("Dr. Reddy") reviewed the film and prepared reports for each.
Cervical
Dr. Reddy found multilevel posterior central herniations with regional traversing nerve roots impingement as described with suspicion of acute herniation at C4-C5. Dr. Reddy observed facet joint widening.
Thoracic
Dr. Reddy did not find evidence of significant bulge or herniation.
Lumbar
Dr. Reddy found L4-L5 and L5-S1 broad based posterior central acute herniations and regional traversing nerve root impingement.
Post-Operative Report
Dr. Ronald A. Daly, M.D. prepared a report on November 5, 2019 based upon his physical examination of Plaintiff. However, the medical record is unaffirmed thus, it is inadmissible for the purposes of this motion.
Plaintiff submitted evidence in the form of disability notes and her own testimony to establish that she suffered a serious injury under the 90/180 day category.
Plaintiff testified as follows:
Q: Did you miss anytime from work as a result of this accident in December 2018?
A: Yes
Q: How much time did you miss? A: Fourteen months.
Q: And I presume those are the fourteen months immediately following the accident?
A: Yes (Page 24 lines 16-25)
Q: Okay. Was there anything you regularly did before the accident that a doctor told you not to do at all for the first six months after the accident?
A: They told me not to lift heavy weight after the accident.
Q: Anything else that you did before the accident that a doctor told you not to do at all during the first three to six months after the accident?
A: Not to walk.
Q: At all? A: Walk, but slowly. (Page 34-35 lines 24-25 and 2-12)
Q: My next question will be things that the doctors told you to do less of things. Right now I want to know what things the doctors told you not to do at all.
A: Not to bend down, like (indicating) - -
MS. BARGERON: You can't demonstrate. You have to use words.
A: Like I can't move. Like do the chores that I used to do before, I can't do it. I have my accident. (Page 35-36 lines 18-25 and 2-5)
Plaintiff testified that she was told to do less lifting of heavy things, less cooking and less chores like sweeping.
Plaintiff further submitted letters signed by Adeosun Olanrewaju, M.D. a doctor of internal medicine ("Dr. Olanrewaju") and letters signed by Ronald A. Daly, M.D. an orthopedic surgeon, which indicate from 12/10/2018 to 2/15/2020 that Plaintiff was unable to work due to the injuries sustained in the subject accident. The Office Manager at CitiMedical, PLLC Sandy Jean certified that the records were business records in accordance with CPLR 4518.
Plaintiff's contemporaneous hospital records, the MRI reports, along with Plaintiff's testimony has established prima facie entitlement to judgment as a matter of law. The burden now shifts to the Defendants to raise a triable issue of fact.
In opposition, Defendants submitted the reports of Dr. Regina Hillsman, M.D., an orthopedic Surgeon ("Dr. Hillsman) and Dr. Peter A. Ross, M.D. a radiologist ("Dr. Ross").
Dr. Hillsman performed an independent orthopedic examination of Plaintiff on April 12, 2021. Plaintiff presented with left knee pain. Dr. Hillsman performed range of motion testing on Plaintiff's bilateral shoulders, bilateral elbows, bilateral wrist, bilateral hands, bilateral hips, bilateral knees, bilateral ankles and bilateral feet. Dr. Hillsman used the AMA Guidelines 5th edition and the ASSH Guidelines for the body parts tested except Plaintiff's bilateral ankles and feet for which, Dr. Hillsman did not disclose what guidelines she used.
Dr. Hillsman did not find any decreases in Plaintiff's ranges of motion. Dr. Hillsman opined that a causal relationship has been established between the subject accident and the injuries alleged. However, according to Dr. Hillsman Plaintiff does not demonstrate disability and may perform her normal activities of daily living without restriction
Dr. Ross performed an independent radiology CD review of Plaintiff's bilateral hips, left shoulder, cervical and lumbar spine.
Bilateral Hips
Dr. Ross found no evidence of fractures, dislocations, avascular necrosis changes, labral tears, or soft tissue injuries involving the musculotendinous structures caused by the subject accident.
Left Shoulder
Dr. Ross did not find evidence of rotator cuff tears or musculotendinous retraction changes nor labral tears caused by the subject accident. Dr. Ross attributes the hypertrophic changes of the acromioclavicular joint space which impinges upon the supraspinatus muscle to degenerative changes which are chronic in nature and pre-exist the subject accident.
Cervical Spine
Dr. Ross found mild levoscoliosis present, with mild posterior placement of the C5 vertebra upon C6. According to Dr. Ross, the absence of fractures or abnormal marrow edematous changes argues against a recent post traumatic etiology. Instead, Dr. Ross opined that the findings are chronic in nature and pre-exist the subject accident. Dr. Ross also found that degeneration is the cause of the spondylosis changes, mild narrowing, mild left foraminal stenosis, broad based central disc herniaiton and mild asymmetry that were found.
Lumbar Spine
Dr. Ross attributed all his findings to degenerative discogenic changes that are chronic in nature and pre-existing to the accident.
Defendants have submitted expert opinions which indicate that Plaintiff can engage in her normal activities of daily living, that she has no decrease in her range of motion at the affected areas and that any findings on the MRI's, that were reviewed, are chronic in nature and not attributable to the subject accident."In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury. An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Ahmed D. Toure v Avis Rent A Car Systems, Inc. et al, 98 N.Y.2d 345 [2002]).
Defendants have failed to raise an issue of fact as to whether Plaintiff suffered a serious injury under the 90/180 day category and fracture category. However, Defendants have raised issues of fact as to whether Plaintiff has suffered a serious injury under the permanent consequential, permanent loss of use and significant limitation categories. In Carmelo Noble v. Calvin Ackerman (252 A.D.2d 392 [ 1st Dept 1998]) plaintiff alleged he sustained serious injuries after an accident with defendant pursuant to Insurance Law §5102 (d) defendant's motion for summary judgment was denied by the lower court. On appeal, defendant moved once again for summary judgment on the issue of whether plaintiff sustained a serious injury (id). Both sides presented medical expert opinions. Plaintiff's expert found correlation between the alleged injuries and the accident (id at 393). Defendant's experts attributed plaintiffs injuries to, among other things, the normal aging process (id at 394). The court held "[w]here conflicting medical evidence is offered on the issue of whether the plaintiffs injuries are permanent or significant, and varying inferences may be drawn therefrom, the question is one for the jury" (id at 395). Therefore it is, ORDERED, that the branch of Plaintiff s motion seeking summary judgment on the issue of liability is granted; and it is further, ORDERED, that the branch of Plaintiffs motion seeking summary judgment on the threshold matter of whether Plaintiff suffered a serious injury as defined by NY Insurance Law §5102 (d) is granted; and it is further
ORDERED, that there remain issues of fact as to whether Plaintiff suffered a serious injury under the permanent consequential, permanent loss of use and significant limitation categories of NY Insurance Law §5102 (d) these issues shall be addressed at a trial on damages.
This constitutes the decision and Order of the Court.