Opinion
No. 20700/2020E
01-21-2022
MANUELA MARTINEZ, Plaintiff, v. HAROLD HILLARD, AMBER ANDERSON-HILLARD, JOHN A. SANTANTA and LORINDA ENTERPRISES, Defendants.
Unpublished Opinion
Hon. BIANKA PEREZ Justice Supreme Court
The following papers NYSCEF Doc. # 45 to 95 were read on this motion (Seq. No. #003, 004) for SUMMARY JUDGMENT DEFENDANT noticed on June 29, 2021.
| Notice of Motion - Affirmation in Support - Exhibits Annexed | No(s). |
| Affirmation in Opposition and Exhibits | No(s). |
| Replying Affidavit and Exhibits | No(s). |
Upon the foregoing papers, defendants move for summary judgment, dismissing the complaint of the plaintiff Manuela Martinez for her alleged failure to satisfy the "serious injury" threshold as defined by New York Insurance Law §5102(d). Plaintiff opposes the motion. Defendants John A. Santana and Lorinda Enterprises further move for partial summary judgment on the issue of liability against co-defendants. The motions are granted in part, denied in part, in accordance with this order.
Defendants' Threshold Motions
When a defendant seeks summary judgment alleging that a plaintiff does not meet the "serious injury" threshold required to maintain a lawsuit, the burden is on the defendant to establish through competent evidence that the plaintiff has no cause of action (Franchini v. Plameri, 1 N.Y.3d 536 [2003]). "Such evidence includes 'affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim'" (Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590 [1st Dept. 2011][internal quotations omitted]). A defendant may also meet his or her summary judgment burden with sufficient medical evidence demonstrating that the plaintiff's injuries are not causally related to the accident (see Farrington v. Go On Time Car Service, 76 A.D.3d 818 [1st Dept. 2010], citing Pommels v. Perez, 4 N.Y.3d 566, 572 [2005]). Once this initial threshold is met, the burden shifts to the plaintiff to raise a material issue of fact using objective, admissible medical proof (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002]).
In this case, Defendants established that Plaintiff's alleged injuries were not permanent or significant in nature. Defendants accomplished this by submitting a sworn report from orthopedic surgeon Dr. Jason R. Baynes who found normal or near-normal ranges of motion in the allegedly injured body parts, and all diagnostic testing was either normal or negative (Riollano v. Leavey, 173 A.D.3d 494, 495 [1st Dept. 2019]). The moving co-defendants join in the motion, relying upon Dr. Baynes' conclusions in support.
In opposition to the motion, Plaintiff successfully raised a triable issue of fact as to whether she sustained a "permanent consequential" or "significant" limitation of use of her right shoulder. Plaintiff submitted affirmed treatment records showing that he complained of pain and had significant range-of-motion limitations in the injured body parts shortly after the accident and more recently. In a narrative summary, treating physician Dr. Jeffrey Guttman reports recent persisting limitations in her right shoulder. He concludes that Plaintiff sustained personal injuries that were causally-related to the subject motor vehicle accident.
At a more recent examination, Dr. Guttman continued to find significant range-of-motion limitations in plaintiff's cervical and lumbar spine. He opines that Plaintiff sustained a permanent partial disability in that treatment area as a result of this motor vehicle accident. The above submissions are sufficient to raise fact issues as to whether Plaintiff sustained a "permanent consequential" or "significant" limitation of use of his spine as a result of this accident (Encarnacion v. Castillo, 146 A.D.3d 600, 601 [1st Dept. 2017]). Contrary to Defendants' contentions, their medical expert did not establish that Plaintiff's spinal injury was pre-existing. Even if they did, Plaintiff's submissions in opposition raise issues of fact (see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 481-82 [1st Dept. 2011]).
Since there remain issues of fact as to whether Plaintiff sustained a serious injury to her right shoulder, she may recover for any other injury sustained in the accident, including her lumbar spine, even though it does not meet the "serious injury" threshold (see, e.g, Bonilla v. Vargas-Nunez, 147 A.D.3d 461, 462 [1st Dept. 2017]).
Defendants, however, established their entitlement to dismissal of Plaintiff's "90/180 day" injury claim. Plaintiff admitted at deposition that she missed less than a week of work immediately following the accident, which is fatal to her "90/180 day" injury claim (see Williams v. Perez, 92 A.D.3d 528 [1st Dept. 2012]), even if she only returned to modified or light duty work (Pakeman v. Karekezia, 98 A.D.3d 840, 841 [1st Dept. 2012]). Finally, the there is no evidence on this record that Plaintiff sustained a "permanent loss of use" of any body part - which requires a "total" loss of use (Swift v. New York City Transit Authority, 115 A.D.3d 507, 509 [1st Dept. 2014]).
Defendant's Liability Motion
Plaintiff commenced the instant action to recover for injuries they allegedly sustained in a motor vehicle accident that occurred on July 12, 2019 while travelling on City Island Road near Park Drive in Bronx, New York. Defendants John A. Santana and Lorinda Enterprises now seek summary judgment on the basis that their bus was struck in the rear by a vehicle operated by co- defendants Harold Hillard and Amber Anderson-Hillard. Plaintiff and co-defendants oppose, arguing that there are questions of fact as to why defendant's bus unexpectedly stopped short. However, they failed to offer any non-negligent explanation for causing the rear end collision with the bus.
The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law (Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). Only when the movant satisfies its prima facie burden will the burden shift to the opponent "to lay bare his or her proof and demonstrate the existence of triable issues of fact"' (Alvarez, 68 N.Y.2d at 324; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Chance v Felder, 33 A.D.3d 645, 645-646 [2d Dept 2006]). "It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident." (Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept. 2010] citing Tutrani v County of Suffolk, 10 N.Y.3d 906, 908 [2008]; Agramonte v City of New York, 288 A.D.2d 75, 76 [1st Dept. 2001]; see also Dattilo v Best Transp. Inc 79 A.D.3d 432 [1st Dept. 2010]).
In this case, defendant Santana established a prima facie case of negligence on the part of the Hillard defendants, as he testified and was corroborated that the accident occurred when the vehicle he was operating was in struck the rear while lawfully traversing City Island Road.
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is granted only to the extent of dismissing Plaintiff's claims that she sustained a "permanent loss of use," a "90/180 day" injury claim, and it is further, ORDERED, that Defendants' motion for summary judgment on threshold is otherwise denied, and it is further, ORDERED, that Defendants John A. Santana and Lorinda Enterprises' motion for summary judgment on the issue of liability is granted, and it is further, ORDERED, that the Clerk of the Court is directed to enter judgment against the plaintiff and co-defendants herein dismissing the causes of action in the complaint and any cross-claims as against defendants John A. Santana and Lorinda Enterprises ONLY.
Movant shall serve a copy of this order, together with notice of entry, on all parties within 30 days of the date of entry of this order.
This constitutes the Decision and Order of this Court.