Opinion
708218/2014
06-07-2016
Iliana Rabun-Wood, Plaintiff, v. Fresh Direct Holdings LLC, FRESH DIRECT, LLC and ANTHONY VIERA, Defendants.
This is a personal injury action in which plaintiff, ILIANA RABUN-WOOD, seeks to recover damages for injuries she sustained as a result of an accident that occurred on June 1, 2014 on Edgecombe Avenue and West 142nd Street, in New York County, New York.
Plaintiff commenced this action by filing a summons and verified complaint on November 5, 2014. Issue was joined by service of defendants' verified answer dated November 25, 2014. Plaintiff filed the note of issue on December 17, 2015. Defendants now move for summary judgment, dismissing plaintiff's complaint on the ground that there is no evidence that defendants were negligent. Plaintiff moves for summary judgment on the issue of liability as well as the issue of serious injury threshold pursuant to Insurance Law 5102.
At her deposition, plaintiff testified that just prior to the accident, she left her home located at 555 Edgecombe Avenue and traveled southbound on Edgecombe Avenue at approximately fifteen miles per hour. Edgecombe Avenue is a one-way street with vehicles parked on both sides of the roadway. There is a single lane for moving traffic. As she approached the intersection of Edgecombe Avenue and West 142nd Street, she observed defenants' delivery truck double parked on the right side. There was sufficient room for her to pass the truck on the left side. She proceeded to move around the truck. Suddenly the truck's door "popped open" in her face. She testified that she assumes she hit the truck or the door. The last thing she remembers is the truck's door opening in her face. She does not remember making contact with any parts of the truck, but the door was in front of her face. The next thing she recalls was lying on the ground.
Defendant Anthony Viera, who was employed by defendant Fresh Direct as a driver at the time of the accident, testified that he was scheduled to make a delivery at 153 Edgecombe Avenue. He was operating a Fresh Direct box truck. At the time of the accident, the truck was double parked at the intersection of Edgecombe Avenue and 142nd Street, blocking the crosswalk. The intersection is a T intersection. The truck was double parked within the intersetion for approximately ten to twenty minutes. He testified that he was instructed by his superiors not to park or double park in an intersection. He always parked in this location to avoid impeding with traffic since it was the widest area of the block. After parking his truck, he looked into his side mirror and saw two motor vehicles proceeding on Edgecombe Avenue coming towards his truck. He also observed plaintiff on her bicylce behind the two vehicles. He gathered his papers and scanner, perparing for the deliery. Prior to exiting the truck, he looked in his side mirror again. He did not see plaintiff. Before exiting the truck he did wonder where the bicycle went. He opened the door to the truck, took a step on the ground, and then heard something. The door was open when he heard something happen. The noise he heard was plaintiff falling to the ground. He saw the bicycle, without an operator, coming towards him so he jumped back into the truck and closed the door. He did not witness the accident. He testified that after the accident, he spoke to an eye witness who told him that plaintiff fell trying to avoid a person who walked out into the street.
As an initial matter, this Court rejects defendants' argument that plaintiff should be precluded from opposing their summary judgment motion due to plaintiff's alleged failure to comply with the Compliance Conference Stipulation dated July 1, 2015. Defendants failed to submit an affirmation of good faith as is required by 22 NYCRR 202.7(a) for such discovery related relief.
Defendants' counsel, David M. Bordoni, Esq., contends that defendants' actions were not the proximate cause of the accident, that plaintiff's lawsuit is premised upon speculation, and that plaintiff's voluntary operation of a bicycle bars her recovery pursuant to the assumption of risk doctrine. Counsel states that merely because the truck was parked in the general vicinity of where plaintiff fell off her bicycle does not establish that defendants were negligent (citing Sheehan v New York, 40 NY2d 496 [1976]["the presence of the bus in the traveling lane at the time it was struck merely furnished the condition or occasion for the occurrence for the event rather than one of its causes"]). Additionally, counsel argues that defendants established a prima facie entitlement to judgment as a matter of law since plaintiff cannot remember making contact with the truck's door, and thus, plaintiff cannot identify the cause of the accident (citing Califano v Maple Lanes, 91 AD3d 896 [2d Dept. 2012]). Defendants also assert, as an affirmative defense, that plaintiff assumed the risk inherent in riding her bicycle at least fifteen mph on the busy and crowded streets of Manhattan (citing Milea v Our Lady of Miracles Roman Catholic Church, 290 AD2d 424 [2d Dept. 2002]).
Counsel for plaintiff, Kenneth R. Shapiro, Esq., contends that defendants failed to establish a prima facie entitlement to summary judgment, that defendants were the proximate cause of the accident, and, inter alia, that defendant Viera violated VTL § 1214 which provides that:
"No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door
open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers."
Counsel contends that defendant Viera's testimony that he did not see plaintiff's bicycle right before opening the door constitutes negligence as a matter of law since Viera failed to see what should he should have seen (citing Villa v Leandrou, 31 Misc 3d 1237[A][Sup. Ct., Queens Cnty. 2011]). Counsel also contends that Viera failed to comply with defendant Fresh Direct's Rules and Regulations and the NYC Administrative Code by double parking in an intersection, blocking the crosswalk, and failing to place cones, flares, and reflective triangles around the truck. Based on such, counsel seeks summary judgment in favor of plaintiff. Regarding defendants' argument that plaintiff only speculates as to the cause of the accident, counsel argues that because plaintiff has no recollection of the exact moment of the accident, she need only establish that it was more likely or more reasonable that the alleged injury was caused by defendants' negligence than by some other cause (citing Timmins v Benjamin, 77 AD3d 1254 [3d Dept, 2010]; Gayle v City of New York, 92 NY2d 936 [1998]; Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986]). As to the assumption of the risk doctrine, plaintiff's counsel contends that plaintiff cannot be said to have assumed the risk by merely riding her bicycle (citing Cotty v Town of Southampton, 64 AD3d 251 [2d Dept. 2009]["riding a bicycle on a paved public roadway normal does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine"]).
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]). A court deciding a motion for summary judgment is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and proof submitted by the parties in favor of the opponent to the motion (see Myers v Fir Cab Corp., 64 NY2d 806 [1985]).
Upon reviewing the motion, opposition, and reply papers submitted on both motions, this Court finds as follows:
Based upon the testimony of both parties, including plaintiff's testimony that the last thing she saw was the truck's door opening in her face, plaintiff has put forth more than mere speculation that her accident was more likely caused by defendants' negligence than by some other condition. As such, defendants have not established a prima facie entitlement to judgment as a matter of law. As to the assumption of risk defense, this Court finds that such cannot be extended to plaintiff who was participating in the activity of bicycling.
Likewise, this Court finds that plaintiff has not established a prima facie entitlement to judgment as a matter of law. "A court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned" (Conciatori v. Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007]). Thus, this Court finds that as the parties have presented incomplete versions of facts as to how the accident occurred, there are triable issues of fact including whether defendant Viera made sufficient efforts to see if it was reasonably safe to open the truck's door before exiting the vehicle, and whether any negligence on plaintiff's part contributed to the accident including whether she started to lose control of her bicycle before reaching the truck. Therefore, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law as there are questions of fact as to both parties' negligence (see Roman v A1 Limousine, Inc.,76 AD3d 552 [2d Dept. 2010]; Lum v Wallace, 70 AD3d 1013 [2d Dept. 2010]; Lopez v Reyes-Flores, 52 ASD3d 785 [2d Dept. 2008]; Scibelli v Hopchick, 27 AD3d 720 [2d Dept. 2006]). Additionally, issues of proximate cause are generally fact questions to be decided by a jury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).
Plaintiff also moves for summary judgment on the issue of serious injury threshold pursuant to Insurance Law 5102. Plaintiff asserts that as a result of the accident, she sustained a fractured elbow, fractured jaw, and multiple teeth fractures. Based on the certified records from Richard S. Gilbert, M.D., Vanderbilt Clinics, Columbia University Healthcare, Harlem Hospital, and Dr. Isaac Seinuk, D.D.S., M.P.H. establishing that plaintiff sustained fractures, plaintiff's counsel contends that plaintiff's injuries qualify as serious injuries (citing Moffit v Murray, 2 AD3d 1110 [3d Dept. 2003]).
Dr. Seinuk first examined plaintiff on August 13, 2015 and most recently examined plaintiff on December 8, 2015. He affirms that he reviewed plaintiff's dental records from the Vanderbilt Clinic at Columbia University Health Care and the dental radiograph films. He found that plaintiff sustained massive dental trauma due to the accident, including a fractured jaw and multiple teeth fractures. He states that plaintiff is undergoing bonded restoration, root canal therapy, and crowns, and that she will need implantation treatment to replace the lost teeth from the trauma.
The certified records from Dr. Gilbert and Harlem Hospital establish that an x-ray of plaintiff's left elbow was conducted on the same day as the subject accident and showed an intra-articular occult fracture. She was admitted for three days and was placed in a left long-arm cast.
In opposition, defendant submits the affirmation from George L. Unis, M.D. who examined plaintiff on July 16, 2015. Plaintiff presented with complaints of pain in her left shoulder and left elbow as well as occasional pain in her left wrist. Dr. Unis notes the medical records he reviewed, including the dental records. He acknowledges that plaintiff's left arm was placed in a cast for two weeks, at which point it was converted to a splint. He also notes that plaintiff received physical therapy until November 2014. Dr. Unis' impression was contusion, left shoulder, resolved; contusion, left elbow, (possible fracture, proximal ulna), resolved; contusion, left wrist, resolved. He concludes that plaintiff has no objective evidence of orthopedic disease relating to the subject accident, and she is not disabled. He fails to address whether plaintiff sustained a fracture to her jaw or multiple teeth fractures.
As Dr. Unis does not dispute the fractures relating to plaintiff's jaw, teeth, and left elbow, plaintiff has demonstrated that she sustained a serious injury (see Newman v Datta, 72 AD3d 537 [1st Dept. 2010]; Moffit v Murray, 2 AD3d 1110 [3d Dept. 2003]; Kennedy v Anthony, 195 AD2d 942 [3d Dept. 1993]).
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that defendants FRESH DIRECT HOLDINGS LLC, FRESH DIRECT, LLC and ANTHONY VIERA's motion (seq. no. 1) for summary judgment, dismissing plaintiff's complaint is denied; and it is further
ORDERED, that the branch of plaintiff ILIANA RABUN-WOOD's motion (seq. no. 2) for summary judgment on the issue of liability is denied; and it is further
ORDERED, that the branch of plaintiff ILIANA RABUN-WOOD's motion (seq. no. 2) for summary judgment on the issue of serious injury threshold pursuant to Insurance Law 5102 is granted. Dated: Long Island City, NY June 7, 2016_