Mennella v. Lasala

Full title: Anthony C. Mennella, Plaintiff, v. Jasper C. Lasala, Defendant. Donna M…

Court: New York Supreme Court, Greene County

Date published: Oct 22, 2015

2015 N.Y. Slip Op. 52003 (N.Y. Sup. Ct. 2015)

Opinion

12-0612

10-22-2015

Anthony C. Mennella, Plaintiff, v. Jasper C. Lasala, Defendant. Donna M. Trojan, Plaintiff, v. Jasper C. Lasala and Anthony C. Mennella, Defendants.

John G. Rusk, Esq. Counsel for Plaintiff, movant Donna M. Trojan Rusk, Wadlin, Heppner & Martuscello, LLP 255 Fait Street, P.O. Box 3356 Kingston, New York 12402 Thomas E. Kelly, Esq. Counsel for Defendant, movant Jasper C. Lasala Kelly & Leonard, LLP 199 Milton Avenue Ballston Spa, New York 12020 William D. Pretsch, Esq. Counsel for Plaintiff, Anthony C. Mennella 41 Pearl Street, P.O. Box 4193 Kingston, New York 12402 Patrick T. Finnegan, Esq. Counsel for Defendant, cross-movant Anthony C. Mennella McCabe, Collins, McGeough & Fowler, LLP 346 Westbury Avenue, P.O. Box 9000 Carle Place, New York 11514-9000

Lisa M. Fisher, J

John G. Rusk, Esq. Counsel for Plaintiff, movant Donna M. Trojan Rusk, Wadlin, Heppner & Martuscello, LLP 255 Fait Street, P.O. Box 3356 Kingston, New York 12402 Thomas E. Kelly, Esq. Counsel for Defendant, movant Jasper C. Lasala Kelly & Leonard, LLP 199 Milton Avenue Ballston Spa, New York 12020 William D. Pretsch, Esq. Counsel for Plaintiff, Anthony C. Mennella 41 Pearl Street, P.O. Box 4193 Kingston, New York 12402 Patrick T. Finnegan, Esq. Counsel for Defendant, cross-movant Anthony C. Mennella McCabe, Collins, McGeough & Fowler, LLP 346 Westbury Avenue, P.O. Box 9000 Carle Place, New York 11514-9000 Lisa M. Fisher, J.

This case involves a motor vehicle collision occurring at the intersection of Route 32 and Route 23A on January 20, 2011 in the Town of Catskill, County of Greene. The general happenings of this accident are uncontested. Plaintiff Donna M. Trojan (hereinafter "Trojan") was a seatbelted front seat passenger in the vehicle operated by Plaintiff-Defendant Anthony C. Mennella (hereinafter "Mennella") traveling through a green light on Route 32. Defendant Jasper C. Lasala (hereinafter "Lasala") was the owner and operator of the motor vehicle traveling on Route 23A towards the intersection when he felt a sharp pain in his chest, his foot came off the brake, and he continued into the intersection colliding with the vehicle occupied by Plaintiff Trojan and Plaintiff-Defendant Mennella.

Plaintiff Trojan and Plaintiff-Defendant Mennella brought separate actions against Defendant Lasala. Both actions were consolidated on motion by Decision and Order of Supreme Court (Tailleur, A.J.) on September 4, 2013.

Now there are multiple summary judgment motions before the Court. During the pendency of these motions, Plaintiff-Defendant Mennella in his capacity as a Plaintiff settled his claim against Defendant Lasala. Therefore, all applications made against Plaintiff-Defendant Mennella in his capacity of a Plaintiff are withdrawn as moot and not addressed by the Court herein, and he only remains in his capacity as a Defendant in the action by Plaintiff Trojan.

The first motion is by Plaintiff Trojan, whom has moved for summary judgment on the issue of liability against both Defendant Mennella and Defendant Lasala. She contends that she is entitled to summary judgment against Defendant Mennella because he was driving under the influence of alcohol, failed to keep a proper lookout, and failed to take preventative measures to avoid the accident. She also contends that she is entitled to summary judgment against Defendant Lasala because he did not suffer an unforeseen or unexpected medical emergency moments prior to the collision as supported by her expert, and therefore Defendant Lasala has no reasonable excuse for his conduct which constitutes negligence per se. Further, she argues that Defendant Lasala has not plead the affirmative defense of a medical emergency and is procedurally prohibited from doing so now.

Second, Defendant Mennella has moved for summary judgment on the issue of liability. From Defendant Mennella's notice of Cross-motion and affirmation, including the wherefore clause in his memorandum of law, it appears he is only moving for summary judgment against Defendant Lasala, and not against Plaintiff Trojan. Thus if successful, the claims asserted by Plaintiff Trojan would still stand against him. However, his papers—specifically his memorandum of law—make arguments against the assertions by Plaintiff Trojan as well; in fact, that is the first point heading in his argument section. Since Defendant Mennella has also cross-moved for "any further relief as the Court may seem just and proper," given that both the arguments were made in his memorandum of law, and that all parties have submitted proof in opposition to each other's liability arguments made in this cross-motion, the Court will also view Defendant Mennella's cross-motion as one for summary judgment against both Plaintiff Trojan and Defendant Lasala. Plaintiff Trojan's motion opposes the merits of this application and fully sets forth on the merits her argument, whereas Defendant Lasala directly opposed this motion. Because of this, there cannot be any prejudice since both had a fair and full opportunity to oppose the merits of such application. (See Isereau v Brushton-Moira School Dist., 6 AD3d 1004, 1006 [3d Dept 2004] [defining prejudice as the ability to defend on the merits]; see also Sutton v Town of Schuzler Falls, 185 AD2d 430, 431 [3d Dept 1992].)

In his motion, Defendant Mennella argues that he cannot be liable for this motor vehicle accident and Plaintiff Trojan has not proffered any evidence to support a finding of liability against him because, even though he was intoxicated, he was not the proximate cause of the motor vehicle accident. Further, he argues that Defendant Lasala's claim of medical emergency is insufficient to create an issue of fact which would defeat a motion for summary judgment against him because 1) he failed to plead the affirmative defense of a medical emergency, 2) it is unsupported by the factual record, 3) Defendant Lasala is negligent per se, and 4) Defendant Lasala was the sole proximate cause of this accident and Defendant Mennella bears no liability.

Third, Defendant Lasala moves for summary judgment arguing that Plaintiff Trojan did not sustain a serious injury under the insurance law. Specifically, he claims that Plaintiff Trojan did not sustain a permanent consequential limitation of use as she has never been diagnosed as having such, and all of her diagnostic testing either predated this accident or are related to the progressive nature of her pre-existing conditions—including those caused by prior motor vehicle accidents. He further argues that she does not satisfy the 90/180 day category because "substantially all" of her daily activities were not curtailed to a great extent necessary under the law. This is particularly true because she was unemployed at the time of the accident as she was already classified as fully disabled and having significant abdominal health issues—which was where she was coming from when the accident occurred (the hospital). He avers that she was able to continue to do her daily activities including housework, sitting, and standing. Plaintiff Trojan fully opposes such application.

The fourth and final motion is of Defendant Mennella, whom joins in on Defendant Lasala's motion for summary judgment arguing Plaintiff Trojan did not sustain a serious injury. She similarly opposes this application.

Since both Plaintiff Trojan and Defendant Mennella's motion and cross-motion are factually and legally similar, and Defendant Lasala and Defendant Mennalla's motions are identical, the Court organizes and discusses them as such.

I. Motions for Summary Judgment on Liability

It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]; Sternbach v Cornell Univ., 162 AD2d 922, 923 [3d Dept 1990].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination." (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."].)

It is equally well-settled by the Court of Appeals that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003].)

To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Alvarez, 68 NY2d at 320; Hollis, 302 AD2d at 700.) Such "burden may not be met by pointing to gaps in plaintiff's proof." (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010]; accord Dow v Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007].) The failure of the moving papers to eliminate all material issues of fact requires the denial of the motion for summary judgment. (See Alvarez, 68 NY2d at 324; Winegrad, 64 NY2d at 853.) If the movant fails to make a prima facie showing, the motion for summary judgment must be denied even if the nonmovant's papers are considered insufficient. (See Winegrad, 64 NY2d at 853; see also Wilson v Proctor's Theater & Arts Ctr., 223 AD2d 826 [3d Dept 1996].)

Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination." (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."].) Plaintiff Trojan and Defendant Mennella's Motion and Cross-motion for Summary Judgment

Plaintiff argues that Defendant Mennella was driving under the influence of alcohol, failed to keep a proper lookout, and failed to take preventative measures to avoid the accident. She points to the fact that Defendant Mennella pled guilty to a DWAI and admitted that he did not apply his brakes or swerve before the collision. Thus, she argues she is entitled to summary judgment against him.

Defendant Mennella argues that his intoxication alone is insufficient to establish liability against him. Even though he admits he was intoxicated, he argues he was not the proximate cause of the accident. He points out that there is no evidence proffered by Plaintiff or in the record that he was negligent in any way for the accident, particularly given Plaintiff's own testimony. Ultimately he claims that Defendant Lasala is solely liable and cannot argue a medical emergency.

Although Defendant Mennella's driving while intoxicated unquestionably constituted negligent per se, "[e]vidence of negligence is not enough by itself to establish liability . . . . [i]t must also be proved that the negligence was the cause of the event which produced the harm[.]" (Sheehan v City of New York, 40 NY2d 496, 501 [1976]; accord Saugerties Bank v Delaware & Hudson Co., 236 NY 425, 431 [1923].) "Furthermore, proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance . . . has been violated." (Sheehan, 40 NY2d at 501; see also Homin v Cleveland & Whitehill Co., 281 NY 484, 487—88 [1939] ["Violation of a statute, without other evidence, constitutes evidence of negligence and might constitute negligence per se, and if such violation is the proximate cause of the accident liability is established."], citing Martin v Herzog, 228 NY 164 [1920] [other citations omitted] [emphasis added].)

Therefore, it is well-established that Defendant Mennella's legal intoxication, without a showing of causation, cannot provide a basis for liability. (See Kemper v Arnow, 18 AD3d 939 [3d Dept 2005] [affirming dismissal of complaint where the defendant was operating a snowmobile while intoxicated but found not to be the proximate cause of the accident when the plaintiff attempted to jump on the defendant's moving snowmobile and fell off]; Wallace v Terrell, 295 AD2d 840, 841 [3d Dept 2002] [affirming dismissal of complaint where the defendant was legally intoxicated but found to not be the proximate cause of the accident when when the plaintiff lost control and crossed into the defendant's lane]; Tiberi v Barkley, 226 AD2d 1005, 1007 [3d Dept 1996] ["Even if, as plaintiff alleges, defendant was under the influence of alcohol at the time of the accident . . . there is still nothing in the record other than bald speculation indicating that any impairment or action by defendant caused or contributed to the happening of the accident."]; David v Granger, 35 AD2d 636, 635 [3d Dept 1970] ["Admission of the blood test result would not by itself establish decedent's liability but would at most permit an inference to be drawn that he was driving while his ability impaired. It would still remain to be established whether such impairment was the proximate cause of the accident."]; see also Brown v Gabbidon, 2007 WL 1423788, at *6 [SDNY 2007] ["Although defendant's driving constitutes negligence per se under New York law, his intoxication, without a showing of causation, cannot provide a basis for liability on its own."]; Reed v City of Syracuse, 309 AD2d 1195, 1196 [4th Dept 2003] ["Although his blood alcohol level exceeded the legal limit and he was not a licensed driver, no proof was offered that [the Defendant] was doing anything other than proceeding through a green light in conformance with the traffic laws at the time of the accident."]; Pyen v Jin Woong Woo, 44 Misc 3d 1223(A), at *4 [Sup Ct, Queens County 2014, McDonald, J.] ["Therefore, driving while intoxicated does not automatically establish the defendant's negligence for causing the accident and does not vitiate the effect of any negligence on the part of the co-defendant."].)

While Plaintiff Trojan argues that Defendant Mennella is also liable because he did not make any attempts to slow down before the intersection or avoid the collision, this does not render Defendant Mennella liable given the facts in the record. She testified that she did not see Defendant Lasala's vehicle at all before they got to and into the intersection. The first time she saw Defendant Lasala's vehicle it was right outside her door, under the traffic light, and "[h]e was already coming." When asked if Defendant Mennella braked, she testified "[w]e were already there. Couldn't brake." Defendant Mennella corroborated this, and testified that "[t]here was no time[]" to apply the brakes. He testified he did not even say anything right before the impact because "[t]here wasn't time, no." Plaintiff Trojan was asked if Defendant Mennella swerved, to which she testified "[n]o. We were —" and counsel cut her off. Counsel then asked what she thought Defendant Mennella did wrong, to which she replied that he drank alcohol. On follow-up, she agreed that the only negligence she believed was attributed to Defendant Mennella was his intoxication.

Given the well-established case law and her own testimony corroborated by Defendant Menella, it simply cannot be said that Plaintiff Trojan has established entitlement to summary judgment. The branch of her motion for summary judgment against Defendant Mennella is denied, in its entirety.

Rather, it is Defendant Mennella who has established entitlement to summary judgment. The facts in the record—including the testimony of both Defendant Mennella and Plaintiff Trojan—establish that he was confronted with an emergency that he did not cause and he had no time to react. (See Caristo v Sanzone, 96 NY2d 172, 174 [2001], quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991].) "Whether a driver acted reasonably is ordinarily a question for the trier of fact, but resolution on a motion for summary judgment is permitted if the driver presents sufficient evidence to establish that reasonableness of his . . . actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue.'" (Dearden v Tompkins County, 6 AD3d 783, 784—85 [3d Dept 2004], quoting Smith v Brennan, 245 AD2d 596, 597 [3d Dept 1997].)

Here, Plaintiff Trojan's papers do not raise a question of fact. When viewed in a light most favorable to Plaintiff with every reasonable inference, it is uncontroverted in both law and fact—even Plaintiff's own testimony—that Defendant Mennella could do nothing to avoid the collision. (Sears v Doviak, 306 AD2d 681, 682 [3d Dept 2003] [finding no liability against the defendant driver where "[e]ven plaintiff agreed that there was nothing that defendant could have done to avoid the collision[]" where another car crossed the center line and collided with defendant's vehicle].) Plaintiff testified that the negligence she believed Defendant Mennella committed was driving while intoxicated, which is also the bulk of Plaintiff's motion for summary judgment, however the case law is clear and conclusive that this alone is not enough to establish liability. (See Kemper, 18 AD3d at 939 [affirming dismissal of claim the defendant's only wrongdoing was being intoxicated but not cause of accident]; accord Wallace, 295 AD2d at 841; see also Tiberi, 226 AD2d at 1007 [finding proof of intoxication alone is not enough to establish liability against the defendant driver]; Brown, 2007 WL 1423788, at *6; accord David, 35 AD2d at 635; Reed, 309 AD2d at 1196; Pyen, 44 Misc 2d at *4.)

Any claim that he could have but just did not take evasive action, while sharply contradictory to the record, would also constitute speculation and also be insufficient to raise a triable issue of fact. (See Dearden, 6 AD3d at 785 ["Speculation regarding evasive action that a defendant driver should have taken to avoid a collision, especially when the driver had, at most, a few seconds to react, does not raise a triable issue of fact."]; see also Burnell v Huneau, 1 AD3d 758, 761 [3d Dept 2003] ["Plaintiff's claims that defendant might have had time to reduce his speed or take other evasive action are speculative given the uncontroverted evidence that defendant had no more than two seconds to react."]; Sears, 306 AD2d at 683.) Therefore, Defendant Mennella has established that he cannot be found liable for this motor vehicle accident and is awarded summary judgment dismissing the complaint and any claims against him.

Plaintiff Trojan's Motion Against Defendant Lasala

Plaintiff Trojan argues that it is undisputed that Defendant Lasala failed to stop for a red light and subsequently crashed into the vehicle occupied by her; this amounts to negligence per se. She also contends that Defendant Lasala cannot rely on the medical emergency doctrine to claim that he was having a heart attack because it was not plead. Notwithstanding, she claims that there is no evidence supporting his claim that he suffered a medical emergency and she proffers a medical expert affirmation arguing such.

Defendant Lasala opposes the motion, arguing that procedurally he is permitted to amend his answer to add the emergency doctrine because such reliance is not a surprise to any party and is not prejudicial. He also argues that there is evidence in the record demonstrating he had a medical emergency, including his expert's affidavit which raises a question of credibility and fact for jury determination precluding summary judgment.

Defendant Lasala's omission of the medical emergency doctrine is not fatal. Indeed, CPLR § 3018 (b) requires a party to "plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading[.]" Application of this rule necessarily turns on the particular facts and circumstances of each case. Defendant Lasala's contention that he had experienced chest pains and felt a "shock like heart pain" immediately prior to the accident cannot be said to constitute a surprise to any party, particularly given that it was a part of this case from inception based on the police accident report. Thus, the Court disagrees with Plaintiff and permits the application of the medical emergency doctrine even though Defendant Lasala failed to plead it. (See Kaneb v Lamay, 58 AD3d 1097, 1098 [3d Dept 2009] [holding that the trial court properly considered and applied a doctrine not plead by the defendant where the plaintiff could not claim surprise or prejudice], citing to Bello v Transit Auth. of NY City, 12 AD3d 58, 61 [2d Dept 2004] [holding the trial court did not err in considering the emergency doctrine because there was no unfair surprise in the defendant's failure to plead such doctrine "where the facts relating to the existence of the emergency are known to the adverse party and would not raise new issues of fact not appearing on the face of the prior pleadings, the party seeking to rely on the emergency doctrine would not have to raise it as an affirmative defense."], citing CPLR § 3018 [b].)

Turning to the merits, Plaintiff Trojan has established entitlement to summary judgment based on the affirmation of her medical expert who opined that there is no corroborating evidence supporting Defendant Lasala's contention that he suffered a heart-related emergency immediately prior to the accident. Plaintiff further points out that Defendant Lasala refused medical attention at the scene of the accident and did not seek treatment for a major medical emergency—a heart attack—until nearly five hours later. When he went to the hospital, none of the tests performed revealed any type of arrhythmia, heartbeat irregularity, or any other type of cardiac event.

The burden shifts to Defendant Lasala to raise a question of fact or credibility, which he does. He also points to his expert's affidavit which opined that the "shock like heart pain" Defendant Lasala felt was "more than likely" related to Defendant Lasala's pre-existing cardiac issues. The medical expert further stated that Defendant Lasala has a significant history of cardiac-related conditions, including heart surgery following a previous heart attack, but Defendant Lasala's driving has not been limited and this "shock like heart pain" could not have been predicted or anticipated.

While the Court finds Defendant Lasala's account that he delayed treatment for a heart attack for almost five hours improbable—if not incredulous—to which no irregularities were revealed in the multiple tests he underwent, the Court still cannot not make credibility determinations as to the veracity of his claims. Nor can the Court resolve the conflicting opinions of Plaintiff Trojan and Defendant Lasala's medical experts; this precludes summary judgment. (See O'Brian v Couch, 124 AD3d 975, 977 [3d Dept 2015]; Lopez-Viola v Duell, 100 AD3d 1239, 1242 [3d Dept 2012].) There is also no evidence that the medical emergency Defendant Lasala allegedly had was foreseeable or anticipated, particularly given his medical expert's affidavit.

Further of concern to the Court in this motion, Plaintiff's expert did not state that the hospital tests would have revealed heart irregularities five hours after a heart attack or cardiac issue; he only stated that at the time of the testing there was no indications of any problems. The Court cannot and will not draw an assumption that the tests five hours later would have revealed irregularities without medical evidence or testimony demonstrating such; that fact is not in the record and the Court cannot render medical determinations without expert guidance.

Given that Defendant Lasala's expert has been his treating physician since 2009, and the evidence is viewed in a light most favorable with every reasonable inference resolved in the non-movant, the Court finds Defendant Lasala has raised a question of fact which defeats Plaintiff Trojan's motion for summary judgment. Therefore, the branch of Plaintiff Trojan's motion for summary judgment against Defendant Lasala is also denied. II. Defendant Lasala's Motion for Summary Judgment on Serious Injury

Under New York's no-fault system of automobile insurance, a person injured in a motor vehicle accident may only recover damages through a court action if he or she sustained a serious injury. (See Insurance Law § 5104 [a] ["in any action . . . for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."].) A "[s]erious injury" is defined as the following:

[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.

(Insurance Law § 5102 [d].)

"It is well established that to satisfy the statutory serious injury threshold, plaintiff must have sustained an injury that is identifiable by objective proof; plaintiff's subjective complaints of pain do not qualify as a serious injury within the meaning of Insurance Law § 5102(d)." (Tuna v Babendererde, 32 AD3d 574, 575 [3d Dept 2006] [citations omitted].) "On a motion for summary judgment dismissing a complaint that alleges a serious injury under Insurance § 5102[d], the defendant bears the initial burden of establishing by competent medical evidence that plaintiff did not sustain a serious injury caused by the accident.'" (Howard v Espinosa, 70 AD3d 1091, 1091—92 [3d Dept 2010], quoting Haddadnia v Saville, 29 AD3d 1211, 1211 [3d Dept 2006]; see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 352 [2002] [noting that the defendants have the "initial burden to establish a prima facie case that plaintiff's alleged injuries do not meet the serious injury threshold under the No-Fault Law"]; see also Nowak v Breen, 55 AD3d 1186, 1187 [3d Dept 2008] ["In support of a motion for summary judgment, a defendant must submit competent medical evidence that the plaintiff did not sustain a serious injury."] [citations omitted].)

Here, Plaintiff's Verified Bill of Particulars alleged that the serious injuries she sustained include that she 1) suffered a permanent consequential limitation of use of a body organ or member, 2) a significant limitation of use of a body function or system, and 3) a medically determined injury or impairment of a non-permanent nature which prevents her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. Defendant Lasala argues that Plaintiff Trojan has not suffered any of these serious injuries, and supports his motion with Plaintiff's Verified Bill of Particulars and supplement, Plaintiff's deposition transcript, a report/correspondence from a physician conducting a defense medical examination (hereinafter "DME"), and Plaintiff's various medical records and treatment reports. This evidence established that, on the date of the accident, Plaintiff went to the hospital emergency room via ambulance on a backboard and with a neck collar. She complained of neck pain and back pain, and was treated at the hospital for right upper abdominal pain, right rib pain, mid-back pain, and a laceration to her forehead. Subsequently, Plaintiff followed-up with her primary care physician and began to complain of pins and needles sensations in her right arm and hand, bilateral mid-back pain, and bilateral lower lumber pain radiating bilaterally into her buttocks. The record establishes that Plaintiff underwent, inter alia, multiple MRIs revealing thoracic and lumbar radiculopathy, and multiple EMGs revealing C6-C7 radiculopathy on the right side, L4 radiculopathy on the right, and L5 radiculopathy bilaterally.

Plaintiff Trojan presented to the DME physician Stanley F. Penc, M.D., Ph. D., a neurologist, for a physical examination. Dr. Penc conducted a thorough review of Plaintiff's history and wrote in his report that "[a]lthough initially after the subject motor vehicle accident she had an exacerbation of thoracic pain, over a few months she returned to her prior baseline." (emphasis added.) However, he believed the spinal injuries were pre-existing and not causally related to the subject motor vehicle accident. Ultimately, he opined that Plaintiff Trojan "has no objective evidence of any neurologic condition credibly caused by the subject motor vehicle accident." Further, he stated that he found "no degree of neurologic disability."

Here, Dr. Penc has opined as to Plaintiff Trojan's neurological issues, finding no neurological conditions or limitations exist. He did not opine where there were other orthopedic conditions or limitations plaguing Plaintiff, which is of concern to the Court. Even assuming Dr. Penc may have proven entitlement to summary judgment as to the permanent consequential limitation of use and sustained a significant limitation of use, his own report states that the subject accident resulted in an exacerbation of thoracic pain "over a few months" before returning to the "baseline" of her pre-existing injuries. In a light most favorable to the non-movant with the benefit of every reasonable inference, this alone sustains Plaintiff Trojan's 90/180 day—particularly given her deposition testimony wherein she averred she was unable to operate a motor vehicle after the subject accident for six months and perform other tasks for more than a year and a half.

But even assuming that Defendant Lasala met his burden, his motion still fails as Plaintiff has raised a question of fact. Once the defendant has met his burden it shifts "to the plaintiff to submit objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury." (Nowak, 55 AD3d at 1187; Toure, 98 NY2d at 350—51; see Trotter v Hart, 285 AD2d 772, 773 [3d Dept 2001] [requiring plaintiff to submit "competent medical evidence based upon objective medical findings and diagnostic tests to support his claim of serious injury."].) "To establish either permanent consequential limitation or a significant limitation, the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones." (Clements v Lasher, 15 AD3d 712, 713 [3d Dept 2005]; see Toure, 98 NY2d at 350.) "To successfully create a triable issue of fact with respect to the 90/180-day category, plaintiffs' evidence must establish the existence of a nonpermanent medically determined injury or impairment that prevents [the plaintiff] from performing substantially all of [his] usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury." (Clements, 15 AD at 713; Insurance Law § 5102 [d]; see Toure, 98 NY2d at 357.)

Here, Lydia Shajenko, M.D., Ph.D. opined in her report that Plaintiff Trojan's injuries are causally related to the subject motor vehicle accident and, "[f]urthermore it is [her] medical opinion under a high degree of medical certainty that the injuries are permanent and severe." Gregory J. Soltanoff, D.C. also opined that Plaintiff's injuries had a degree of permanency casually related to the subject accident. This alone creates a credibility determination which is properly resolved by a jury.

Further, there is objective proof of these injuries, including multiple MRIs and EMGs revealing new injuries not previously present. In the medical records and reports from both Gabriel Aguilar, M.D. and Dr. Soltanoff, both performed physical examinations on Plaintiff Trojan and found limitations in her range of motion which was quantified by percentage limitations or providing what was normal and what was Plaintiff's range of motion. (Toure, 98 NY.2d at 350—51 ["[a]n 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."].) Dr. Aguilar opined that there is both "subjective and objective findings" that demonstrate Plaintiff's condition is due to the subject accident only and "no contributing factors are present from pre-existing conditions[.]" He also stated that she should be precluded from her regular work duties. Thus, this further establishes that there is a question of fact as to whether Plaintiff Trojan sustained a significant limitation of use, considering Dr. Penc found none related to the accident and Dr. Shajenko, Dr. Aguilar, and Dr. Soltanoff confirming her injuries were related to the accident.

Notwithstanding, the Court believes it is most clear-cut that Plaintiff Trojan satisfies the 90/180 category based on her deposition testimony. Even though she was not working at the time of the accident, she testified that she used to walk and bike ride for over an hour at a time, but since the accident she has only been able to do half an hour of walking and 20 minutes of bike riding. She also averred that she was unable to drive a motor vehicle for the first six months after the accident, and presently cannot for more than 45 minutes. She also testified that she was unable to do housework such as dusting and the dishes for a year and a half after the accident. The Court is satisfied that her inability to drive, walk, bike ride, and perform housework after the accident for at least 6 month to a year and a half, coupled with Dr. Penc's statement that the months after the accident there was an exacerbation of her injuries above her "prior baseline[,]" along with Dr. Aguilar ruling her out of regular work duties, and in a light most favorable to the non-movant with the benefit of reasonable inferences, demonstrates that Plaintiff Trojan's daily activities were affected to a great extent and she sustained a serious injury under the 90/180 category. (Solis v Silvagni, 82 AD3d 1349, 1349—50 [3d Dept 2011] ["The curtailment of plaintiff's daily activities must be to a great extent rather than some slight curtailment.'"], quoting Baker v Thorpe, 43 AD3d 535, 537 [3d Dept 2007], quoting Licari v Elliott, 57 NY2d 230, 236 [1982].) The fact that Plaintiff Trojan was not working or was disabled prior to the accident does not preclude her recovery where the activities she was doing at the time of the accident are greatly limited after the accident; a defendant takes a plaintiff as he finds her.

Since she has established at least one of the serious injury thresholds, she can recover from any and all of the injuries proximately caused by the accident. (See Linton v Nawaz, 14 NY3d 821, 822 [2010] ["Since plaintiff established that at least some of his injuries meet the No Fault' threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment."]; see also Mulligan, 120 AD3d at 1156; Rubin v SMS Taxi Corp., 71 AD3d 548, 549—50 [1st Dept 2010] ["Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied."].)

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Plaintiff's motion for summary judgment against Defendants Mennella and Lasala is DENIED, in its entirety, and all other relief requested therein is denied; and it is further

ORDERED that Defendant Mennella's motion for summary judgment is GRANTED, in its entirety, dismissing all claims by all parties against him; and it is further

ORDERED that Defendant Lasala's motion for summary judgment on serious injury is DENIED, in its entirety, and all other relief requested therein is denied; and it is further

ORDERED that Defendant Mennella's motion for summary judgment on serious injury is DENIED, in its entirety, as moot and on the merits, and all other relief requested therein is denied.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: October 22, 2015 Catskill, New York HON. LISA M. FISHER SUPREME COURT JUSTICE Papers Considered: 1) Notice of motion (Plaintiff Donna M. Trojan),dated April 28, 2015; affirmation in support, of John G. Rusk, Esq., with annexed exhibits, dated April 28, 2015; affidavit of Donna M. Trojan, with annexed exhibit, dated April 9, 2015; affirmation of Bruce Charash, M.D., with annexed exhibit, dated September 12, 2014; plaintiff's memorandum of law in support of plaintiff's partial motion for summary judgment on liability, dated April 28, 2015; 2) Affidavit in opposition, of Thomas E. Kelly, Esq., dated May 26, 2015; 3) Defendant's notice of cross-motion for summary judgment on liability and in partial opposition to plaintiff's motion for summary judgment (Defendant Anthony Mennella), dated June 9, 2015; memorandum of law in support of defendant's motion for summary judgment on liability and in partial opposition to plaintiff's motion for summary judgment, dated June 9, 2015; affirmation in support, of Patrick T. Finnegan, Esq., with annexed exhibits, dated June 9, 2015; 4) Notice of motion (Defendant Jasper C. Lasala), dated August 20, 2015; affidavit, of Thomas E. Kelly, Esq., with annexed exhibits, dated April 20, 2015; memorandum of law, dated August 20, 2015; 5) Affirmation in opposition, of John R. Rusk, Esq., dated September 14, 2015; affidavit of Donna M. Trojan, with annexed exhibit, dated September 11, 2015; plaintiff's memorandum of law in opposition to defendant, Jasper Lasala's motion for summary judgment on the issue of serious injury, dated September 14, 2015; 6) Defendant's notice of motion (Defendant Anthony C. Mennella), dated September 24, 2015; affirmation of Mark P. Donohue, Esq., dated September 24, 2015; and 7) Affirmation in opposition, of John G. Rusk, Esq., dated September 30, 2015.