Opinion
Index 602133/2017E
05-30-2019
Briana Rexon, Plaintiff, v. Adrienne Giles, Defendant. Motion Seq. Nos. 001; MD, 002; MG
Attorney for Plaintiff: Edelman, Krasin & Jaye, PLLC Attorney for Defendant: Law Offices of Jennifer S. Adams One Executive Boulevard
Unpublished Opinion
Motion Date: 11/7/18, 1/2/19
Submitted: 3/6/19, 3/6/19
Attorney for Plaintiff: Edelman, Krasin & Jaye, PLLC
Attorney for Defendant: Law Offices of Jennifer S. Adams One Executive Boulevard
WILLIAM B. REBOLINI Justice
Upon the E-file document list numbered 10 to 32 read on the application by defendant for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102[d] and upon the cross-motion for summary judgment in favor of plaintiff on the issue of liability or in the alternative, precluding defendant from offering any evidence at the time of trial for her failure to appear for a deposition; it is
ORDERED that the defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law §5102[d] is denied; and it is further
ORDERED that plaintiffs cross-motion for summary judgment on the issue of liability is granted; and it is further
ORDERED that the plaintiffs cross-motion for an order precluding plaintiff from offering any testimony at the time of trial is denied as academic.
This is an action seeking damages for personal injuries sustained by the plaintiff as a result of a motor vehicle accident that occurred on June 14, 2014 at the intersection of Cuba Hill Road and Elwood Road, in the Town of Huntington, County of Suffolk, New York. The action was commenced by the filing of a summons and complaint on February 2, 2017. Issue was joined on July 7, 2017. A preliminary conference was held on September 25, 2017, resulting in an order and plaintiffs deposition was held on March 12, 2018 pursuant thereto. Plaintiff, who was 18 years of age at the time of the accident, alleges in her verified bill of particulars that she sustained permanent consequential limitation of use of a body organ or member, significant limitation of use of body function or symptom and a medically determined injury of impairment of a non-permanent nature which have prevented her from performing substantially all of the material acts which constitute plaintiffs usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. In particular, plaintiff alleges in her verified bill of particulars the following injuries: C6/C7 disc protrusion, cervical radiculopathy, lumbar radiculopathy with cervical disc bulge, contusion of scalp, cervical pain, and back pain. Defendant now moves for summary judgment on the grounds that plaintiff did not sustain a serious injury, as that term is defined by Insurance Law §5102 [d]. In support of the motion, defendant submits a copy of the pleadings, plaintiffs verified bill of particulars, the transcript of plaintiff s deposition, and the independent medical report ("IME") of Dr. Mathew M. Chacko ("Dr. Chacko"). Plaintiff opposes the motion and cross-moves for summary judgment on the issue of liability or in the alternative, for an order precluding defendant from offering any testimony at the time of trial due to her failure to appear for a deposition. Plaintiff submits a copy of the preliminary conference order, her physical therapy records, the MRI report of her cervical spine, the affirmed report of Dr. Aron Rovner ("Dr. Rovner"), an affidavit of Nicholas Vitale, D.P.T, and an affirmation of good faith. Defendant opposes the cross-motion and replies to the opposition papers submitted on her motion. Plaintiff submits a reply to her cross-motion.
Plaintiff testified at her deposition that at the time of the accident, her vehicle was completely stopped on Cuba Hill Road when her vehicle was struck on the front driver's side by defendant's vehicle, which was traveling on Elwood Road. Prior to the accident, plaintiff s vehicle was stopped for a red light behind the line existing in the right turning lane on Cuba Hill Road. Plaintiff further testified that she had observed to her left that defendant's vehicle was traveling on Elwood Road approximately a quarter of a mile away. While the light controlling Cuba Hill Road turned green prior to the impact, plaintiff decided to let defendant's vehicle pass before her before entering the intersection, as it appeared to plaintiff that defendant's vehicle was going to "blow the light" controlling Elwood Road. Plaintiff testified that despite the fact that she had the right of way, defendant's vehicle continued to drive straight ahead, crossing over into the lanes of travel on Cuba Hill road, striking her stopped vehicle. Plaintiff further testified that the force of the impact caused her vehicle to spin 270 degrees pushing it onto a grass shoulder where it collided with a sign, which resulted in her head, left knee, and left ankle making contact with the driver's side door. Plaintiff further testified that she was taken by ambulance to Huntington Hospital complaining of pain to her head, left knee and left ankle. Plaintiff was discharged and instructed to refrain from physical activity and consult with her primary care physician. Plaintiff presented to her primary care physician at NYU Langone and Huntington Medical Group and was referred to Dr. Christopher Frendo, a spine specialist. Plaintiff testified that Dr. Frendo referred her for a cervical MRI and prescribed a course of physical therapy. An MRI of plaintiff s cervical spine was taken on January 22, 2015, which revealed a C6-7 left paracentral disc protrusion with slight mass effect upon the exiting left C7 nerve root. Plaintiff then also began treatment with Dr. Rovner and was evaluated by Dr. Rovner several times between 2014 and 2018. Plaintiff testified that she continued physical therapy until her no-fault insurance denied coverage. Plaintiff further testified that she had been a referee of youth soccer games on weekends for three years prior to the accident but has ceased this activity since the accident, is no longer a member of her taekwondo club, and that she has trouble sleeping, standing, and bending.
It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; see also Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Porcano v. Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590 [1988]; Nolan v. Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 [1984], aff'd 64 N.Y.S.2d 681, 485 N.Y.S.2d 526 [1984]).
Insurance Law § 5102 (d) defines "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."
In order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 N.Y.2d 295, 727 N.Y.S.2d 378 [2001 ]). A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (see Schilling v Labrador, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2d Dept 2011]). To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed, or there must be a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]; Cebron v. Tuncoglu, 109 A.D.3d 631, 970 N.Y.S.2d 826 [2d Dept 2013]).
On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A CarSys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v. Eyler, 79 N.Y.2d 955, 582N.Y.S.2d 990 [1992]; Akhtar v. Santos, 57 A.D.3d 593, 869 N.Y.S.2d 220 [2d Dept 2008]). A defendant can establish that a plaintiffs injuries are not serious within the meaning of Insurance Law § 5102 (d) "by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Nunez v. Teel, 162 A.D.3d 1058, 75 N.Y.S.3d 541 [2d Dept. 2018]; see also Brite v Miller, 82 A.D.3d 811, 918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept 1992]; Moore v. Edison, 25 A.D.3d 672, 811 N.Y.S.2d 724 [2d Dept 2006]; Farozes v. Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706 [2d Dept 2005]). A defendant may also establish entitlement to summary judgment using the plaintiffs own sworn deposition testimony and unsworn medical reports and records prepared by the plaintiffs own physicians (see Uribe v. Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Elshaarawy v. U-HaulCo. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010]; Fragale v. Geiger, 288 A.D.2d 431, 733N.Y.S.2d901 [2001]; Grossman v. Wright, 26S A.D.2d79, 707N.Y.S.2d233 [2000]; Vignola v. Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [1997]; Torres v. Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [1994]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., supra; Burns v. Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept. 2006]; Rich-Wing v. Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2 Dept. 2005];Boone v. New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731 [2d Dept 1999]). Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 [1995]; Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Beltran v. PowowLimo, Inc., 98 A.D.3d 1070, 951 N.Y.S.2d 231 [2d Dept 2012]; Tornabene v. Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [2d Dept. 2003]; Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept. 1992]).
Here, defendant initially asserts that she is entitled to summary judgment dismissing plaintiffs complaint on the grounds that plaintiff did not assert in her verified bill of particulars that her injuries fell within a particular section or section of Insurance Law 5102 [d]. However, the court notes that plaintiff indeed indicated in her verified bill of particulars that she sustained permanent consequential limitation of use of a body organ or member, significant limitation of use of body function or symptom and a medically determined injury of impairment of a non-permanent nature which have prevented her from performing substantially all of the material acts which constitute plaintiffs usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. These allegations sufficiently delineate the provisions of Insurance Law 5102[d] relied upon by plaintiff. Defendant next asserts that plaintiff should be precluded from claiming a serious injury because she stopped treatment without a reasonable excuse for doing so. During her deposition, however, plaintiff explained that she ceased further treatment due to a denial of insurance coverage. Moreover, plaintiffs physician opined that plaintiff has reached maximum medical improvement and any further treatment would be palliative. These are sufficient justifications for the cessation of treatment (see Jules v. Barbecho, 55 A.D.3d 548, 549, 866 N.Y.S.2d 214 [2d Dept. 2008]).
Defendant next relies upon the affirmed report of Dr. Chacko, a neurologist, to support the claim that plaintiff has not sustained a serious injury. Upon examination, Dr. Chacko found plaintiff exhibited full range of motion to her lumbar and cervical spines yet his report indicates plaintiff had lumbar spine range of motion limitations (see Ramos v Baig, 145 A.D.3d 695, 41 N.Y.S.3d 902 [2d Dept 2016], Cockburn v Neal, 145 A.D.3d 660, 44N.Y.S.3d59 [2d Dept 2016]; Dean v Coffee-Dean, 144 A.D.3d 1080, 41 N.Y.S.3d 750 [2d Dept 2016]; Mercado v Mendoza, 133 A.D.3d 833, 19 N.Y.S.3d 757 [2d Dept 2015]). The presence of inconsistencies within the defendant's expert's affirmed report creates a question of fact (see, e.g., Velasquez v Quijada, 269 A.D.2d 592, 703 N.Y.S.2d 518 [2d Dept 2000]; Martinez v Pioneer Transp. Corp., 48 A.D.3d 306, 851 N.Y.S.2d 306 [1st Dept 2008]; Martin v Schwartz, 308A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]). Further, Dr. Chacko indicated that the decreased ranges of motion were voluntary and subjective, however, he failed to explain, with any objective medical evidence, the basis for his conclusion that the limitations were self-imposed (Mercado v. Mendoza. supra; Chung v. Levy, 66 A.D.3d 946, 887 N.Y.S.2d 676 [2d Dept. 2009]). Moreover, Dr. Chacko did not address the MRI results of plaintiff s cervical spine except to state that the MRI "did not reveal any significant traumatic pathology" nor did Dr. Chacko relate his findings to the 90/180 serious injury category indicated in plaintiff s bill of particulars for the period of time immediately following the accident (Ballard v. Cunneen, 76 A.D.3d 1037, 908 N.Y.S.2d 442 [2d Dept. 2010]; Volpetti v. Yoon Kap, 28 A.D.3d 750, 814 N.Y.S.2d 236 [2d Dept. 2006]; see also Kapeleris v. Riordan, 89 A.D.3d 903, 933 N.Y.S.2d 92 [2d Dept. 2011]).
Based upon the above, defendant failed to meet her prima facie burden establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102[d] (Quiceno v. Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643 [2d Dept. 2010]; Agathe v. Tun Chen Wang, 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2006]); see also Reitz v. Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173 [2d Dept. 2010]; Walters v. Papanastassiou, 31 A.D.3d 439, 819 N.Y.S.2d 48 [2d Dept 2006]) and thus there are triable issues as to whether plaintiff suffered a serious injury (see Greenidge v. United Parcel Serv., Inc., 153 A.D.3d 905, 60 N.Y.S.3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima face entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiffs opposing papers were sufficient to raise a triable issue of fact (see Cues v Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346 [2d Dept 2011]; Reynolds v WaiSangLeng, 78 A.D.3d 919, 911 N.Y.S.2d 431 [2d Dept 2010]; McMillan v. Naparano, 61A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept. 2009]; Yong Deok Lee v. Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]); Krayn v. Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406 [2d Dept 2007]; Walker v. Village of Ossining, 18 A.D.3d 867, 796 N.Y.S.2d 658 [2d Dept 2005]). Nevertheless, even if this Court were to find that defendant's burden had been met, plaintiff presented objective medical evidence regarding her limitations in range of motion to her cervical spine sufficient to raise an issue of fact to be resolved at trial (see Romano v. Persky, 117 A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Kalpakis v. County oj Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]). Moreover, the conflicting medical opinions of the respective experts raise issues of fact as well as issues of credibility to be resolved by a jury at trial (see Romano v. Persky, 117A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Ocasio v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Kalpakis v County of Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]). Accordingly, defendant's motion for summary judgment is denied.
Addressing now the motion by plaintiff for summary judgment on liability, Vehicle and Traffic Law § 1110 provides that the driver of a vehicle shall obey the instructions of any official traffic control device, and Vehicle and Traffic Law § 1111 (d) (1) provides, in part, that all vehicles must stop when faced with a steady circular red traffic signal before entering an intersection, and remain standing until an indication to proceed is shown. Vehicle and Traffic Law § 1111 (a)(1) provides that vehicles faced with a steady circular green signal may proceed straight through or turn right or left at an intersection, unless a sign provides otherwise. Also, the failure of a driver to stop at a red light constitutes negligence as a matter of law (see Monteleone v. Jung Pyo Hong, 79 A.D.3d 988, 913N.Y.S.2d 755 [2d Dept 2010];Pitt v. Alpert, 51 A.D.3d 650, 857 N.Y.S.2d 661 [2d Dept2008]). Further, a driver with the right of way is entitled to anticipate that another driver will obey the traffic laws that require him to yield the right of way (see Smith v. Omanes, 123 A.D.3d 691, 998 N.Y.S.2d 198 [2d Dept 2014]; Yelder v. Walters, 64 A.D.3d 762, 883 N.Y.S.2d 290 [2d Dept 2009]). A plaintiff may obtain partial summary judgment on the issue of liability without demonstrating the absence of his or her own comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).
Here, plaintiff has established prima facie her entitlement to judgment as a matter of law on the issue of liability by demonstrating that she was operating her vehicle in a lawful and prudent manner, and that the accident was caused by defendant's vehicle improperly proceeding through the red light and striking her vehicle (see Jiang-Hong Chen v. Heart Tr., Inc., 143 A.D.3d 945, 39 N.Y.S.3d 504 [2d Dept 2016]; Joaquin v. Franco, 116 A.D.3d 1009, 985 N.Y.S.2d 131 [2d Dept 2014]; Delig v. Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 [2d Dept 2011]; Shapiro v. Munoz, 28 A.D.3d 638, 813 N.Y.S.2d 755 [2d Dept 2006].
The burden, then, shifted to defendant to raise a triable issue of fact (see Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 [2d Dept 2006]; Rainford v. Han, 18 A.D.3d 638, 795 N.Y.S.2d 645 [2d Dept 2005]). Defendant, however, has failed to submit any evidence in admissible form to raise a triable issue of fact (see Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). In particular, there is neither an affidavit nor testimony from defendant disputing plaintiffs version of the accident and the affirmation of defendant's attorney has no probative value (see Cullin v Spiess, 122 A.D.3d 792, 997 N.Y.S.2d 460 [2d Dept 2014]). Further, where, as here, a party fails to oppose matters advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the court (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; Madeline D 'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co, LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2dDept 2010]). Accordingly, the motion by plaintiff for summary judgment in her favor on the issue of i liability is granted.