Opinion
# 2013-045-002 Claim No. 118803 Motion No. M-80831
01-17-2013
JENNINE NANGLE v. THE STATE OF NEW YORK
Synopsis
Defendant's motion for summary judgment due to failure to sustain a serious injury, threshold issue. Case information
UID: 2013-045-002 Claimant(s): JENNINE NANGLE Claimant short name: NANGLE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118803 Motion number(s): M-80831 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Rappaport, Glass, Greene & Levine, LLP Claimant's attorney: By: Matthew Zullo, Esq. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Kimberly A. Kinirons, Assistant Attorney General Third-party defendant's attorney: Signature date: January 17, 2013 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation with annexed Exhibits A-I, Defendant's Memorandum of Law, Claimant's Affirmation in Opposition with annexed Exhibits 1-4, Claimant's Memorandum of Law and Defendant's Reply Affirmation.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 seeking an order of summary judgment dismissing the claim on the ground that claimant did not suffer a serious injury as defined by Insurance Law § 5102(d).
The subject claim arises out of a motor vehicle accident which occurred on December 5, 2008 at approximately 6:59 p.m. on Portion Road near its intersection with Morris Avenue in Farmingville, New York. At that time, claimant, Jennine Nangle, alleges that she was operating a motor vehicle which was traveling straight in the northbound lanes of Portion Road. Defendant's vehicle was being operated by Michael Pacific, an employee of the New York State Unified Court System. Claimant states that defendant's vehicle struck her vehicle when Mr. Pacific made a left turn into her lane of travel. As a result, claimant alleges that she sustained injuries to her neck, lower back, left hip and right knee.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Defendant initially contends that claimant failed to plead serious injury in her amended claim. However, in a personal injury action the Court of Claims Act § 11(b) merely requires in relevant part that a claim shall state "the items of damage or the injuries claimed." Additionally, defendant cannot credibly claim surprise or prejudice as it raised the issue of serious injury in its Eighth Affirmative Defense raised in its answer. Thus, the Court finds this argument to be without merit.
The serious injury threshold is an issue of damages, not liability (Van Nostrand v Froehlich, 44 AD3d 54 [2d Dept 2007]). Defendant argues that it is entitled to summary judgment in this matter since claimant cannot show that she suffered a serious injury as required by Insurance Law §§ 5102 and 5104.
Insurance Law § 5102(d) 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 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.
It is well settled that a defendant seeking summary judgment bears the prima facie burden of establishing that claimant did not sustain a serious injury resulting from the accident as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (Stief v URA, Inc., 89 AD3d 720 [2d Dept 2011]).
In this case defendant met its burden by submitting competent medical evidence, the medical report of Dr. Alan P. Wolf, M.D., establishing that the claimed injuries did not constitute serious injuries within the meaning of Insurance Law § 5102 (Karpinos v Cora, 89 AD3d 994 [2d Dept 2011]). Furthermore, defendant established through Dr. Wolf's report, claimant's deposition testimony and claimant's employment records that claimant did not have an injury or impairment which prevented her from performing substantially all of the acts that constituted her usual and customary daily activities during 90 of the first 180 days following her accident (id.). As a result, the burden now shifts to claimant to come forward with sufficient evidence to create a material issue of fact.
Claimant has submitted the medical report of Dr. Barry Rubin, M.D. wherein Dr. Rubin conducted tests which showed that claimant had limited range of motion in her spine. Additionally, even though defendant has provided employment records from the Hart Agency which appear to show that claimant did not miss significant time from her position at the agency, claimant testified at her deposition that she missed approximately six months of work following her accident. The conflicting reports and testimony raise triable issues of fact which cannot be resolved at this stage (Sheuly v Fry, 100 AD3d 980 [2d Dept 2012]).
Therefore, for the foregoing reasons, defendant's motion is denied.
January 17, 2013
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims