Opinion
Index Nos. 159813/2019 Motion Seq. No. 001 002
03-08-2024
KAREEM ROBINSON, Plaintiff, v. JOSUE PIERRE, UBER TECHNOLOGIES, INC., LYFT, INC. Defendant.
Unpublished Opinion
MOTION DATE 12/27/2022
PRESENT: HON. JAMES G. CLYNES, Justice
DECISION + ORDER ON MOTION
JAMES G. CLYNES, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 31, 32, 33, 34, 35, 36, 37, 38, 39,40.41,42,43,44,45,46,47,48,49,50 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21,22,23,24, 25, 26, 27, 28,29, 30. 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61.62 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents and following oral argument, the motion by Plaintiff for summary judgment against Defendant Josue Pierre on the issue of liability dismissing Defendant's affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct of the Plaintiff (Third Affirmative Defense) and the failure to wear a seat belt defense (Fifth Affirmative Defense) [Motion Sequence #1], and the motion by Defendant for summary judgment in favor of Defendant on the ground that Plaintiff has failed to meet the threshold for recovery under Insurance Law 5102 (d) are consolidated and decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a November 17,2018 motor vehicle accident between a vehicle owned and operated by Defendant Pierre and a vehicle operated by Plaintiff on the Sprain Brook Parkway in Westchester, New York. Each car was traveling northbound. Plaintiff alleges that the front of Defendant's vehicle collided into the rear end of the Plaintiff s vehicle. Although Plaintiffs Complaint initially named Uber Technologies, Inc. and Lyft, Inc., the action against those defendants was discontinued without prejudice.
Plaintiffs Motion for Summary' Judgment as to Liability (Motion Sequence #1)
Plaintiff s motion for partial summary' judgment on the issue of liability in favor of Plaintiff as against Defendants is granted. "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 eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 N.Y.2d 851. 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City of New York, 49 N.Y.2d 557, 560 [1980]).
In support of his motion, Plaintiff relies on Plaintiffs EBT testimony. Plaintiffs Bill of Particulars states that when the accident occurred, Plaintiff was traveling northbound when the front of Defendant's vehicle collided into the rear end of Plaintiff s vehicle. Plaintiff testified that he had been traveling in the far-right lane of the three-lane parkway for approximately 10-12 minutes prior to the accident, and that Plaintiff was not attempting to change lanes at the time of the accident. Plaintiff also testified that while driving in the far-right lane, Plaintiff saw through his rear-view mirror, a vehicle coming up at a high rate of speed behind him in the same lane and was struck in the rear. Plaintiff testified that he was travelling at approximately 45 miles per hour at the moment of impact and was wearing his seatbelt.
A rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (Franklin v Chalov, 209 A.D.3d 524 [1st Dept 2022]).
In opposition. Defendant relies on a certified police report, an MV104 form, and a Driver's Affidavit.
As an initial matter, pursuant to the April 1, 2022 Court Order, Defendant is precluded from testifying at trial. These orders typically include language precluding a defendant who has failed to appear for their deposition from submitting an affidavit in opposition to or in support of dispositive motions. Therefore, the Court rejects Defendant's affidavit from February 2020.
The certified police report states that Plaintiffs vehicle conducted a lane change from the center lane to the right lane. The MV 104 form dated December 3. 2018 signed by Defendant states that Defendant's vehicle was travelling in the middle lane, that Plaintiffs vehicle suddenly changed lanes from the right lane to the middle lane without any signal, causing Defendant's vehicle to hit Plaintiffs vehicle. Defendant's MV104 form states that before the police officer arrived at the scene, the Plaintiff switched seats with his passenger and that Plaintiff was drunk.
While the MV104 form is signed, it does not include sworn testimony by Defendant Driver. Thus, the unsworn statements of Defendant contained within the MV 104 form are hearsay, are insufficient as a matter of law to raise a triable issue of fact, and cannot be considered in opposition to a motion for summary judgment (Rue v Stokes, 191 A.D.2d 245, 246 [1st Dept 1993]). While the Court may consider the inadmissible evidence insofar as it is not the sole basis for opposition to summary judgment (Pietropinto v Benjamin, 104 A.D.3d 617 [1st Dept 2013]; Clemmer v Drah Cab Corp., 74 A.D.3d 660 [1st Dept 2010]), Defendants have not submitted any admissible evidence to oppose the motion.
The attorney affirmation has no probative weight and cannot raise a triable issue of fact (Id. at 245). New York courts have consistently held an attorney's affirmation to be inadequate to oppose a summary judgment motion (see GTF Marketing Inc. v Colonial Aluminum Sales. Inc., 66 N.Y.2d 965, 968 [1985]). As such, Defendants have failed to provide a nonnegligent explanation for the accident or raise an issue of fact. The motion is granted.
Defendant's Motion for Summary Judgment, Serious Injury Threshold (Motion Sequence #2)
Plaintiffs Bill of Particulars alleges that Plaintiff sustained injuries to his head, lumbar spine, cervical spine, left foot, and left hip. Plaintiffs Bill of Particulars indicates that Plaintiff underwent manipulation under anesthesia of the cervical, thoracic, and lumbar spine, and the pelvis, on February 22, 2019. Plaintiff was admitted to Westchester Medical Center on November 17, 2018 and released on November 18, 2018. Plaintiffs Bill of Particulars further alleges that Plaintiff was confined to bed for one week and confined to his home for approximately five months.
The burden rests upon the movant to establish that the plaintiff has not sustained a serious injury (Lowe v Bennett, 122 A.D.2d 728 [1st Dept 1986]). When the movant has made such a showing, the burden shifts to the plaintiff to produce prima facie evidence to support the claim of serious injury (see Lopez v Senators, 65 N.Y.2d 1017 [1985]).
In support of their motion, Defendants rely on the affirmed independent medical examination reports of Dr. Berkowitz, a radiologist, Dr. Semble, MD, an orthopedist, and Plaintiffs examination before trial (EBT) testimony.
Dr. Semble examined Plaintiff on August 15, 2022. measured Plaintiffs range of motion with a goniometer, and compared measurements to normal values according to AMA Guidelines. Dr. Semble reported that Plaintiff had normal range of motion in his lumbar spine, cervical spine, thoracic spine, left hip, and pelvis. Dr. Semble also reported that there was no atrophy to the muscles in Plaintiff s right and left thigh or Plaintiff s right or left calf and that muscle strength in each range was normal. Dr. Semble concluded that Plaintiffs cervical spine sprain and lumbar spine sprain were both resolved, that there were no objective clinical findings to substantiate Plaintiff s claim of serious injury, and that Plaintiff had no orthopedic disability, residuals, or permanency.
Dr. Berkowitz reviewed the MRI of Plaintiff on January 11, 2019. Dr. Berkowitz concluded that the MRI revealed scattered white lesions that are nonspecific and can be correlated to other causes such as Lyme's disease or the Plaintiffs age. Dr. Berkowitz concluded that there was no evidence of any traumatic injury to the brain. Dr. Berkowitz concluded that there was no causal relationship between the alleged accident and the Plaintiffs MRL
Defendants have met their initial burden of establishing that Plaintiff did not sustain serious injuries as a result of the accident under Insurance Law 5102 (d) (Perez v Rodriguez, 25 A.D.3d 506 [1st Dept 2006]).
In opposition, Plaintiff has raised a triable issue of fact. Plaintiff relies on the affidavit dated December 23, 2022 of Glenn Whitney, a chiropractor, the MRI reports and EKG testing records, a procedure report of manipulation under anesthesia, and the certified medical records from Westchester Medical Center, The New York Court of Appeals ruled that a sworn medical opinion that relies on unsworn MRI reports constitutes competent evidence (Pommells v Perez, 4 N.Y.3d 566 [2005]).
Dr. Whitney's associate, William Cooper, initially treated Plaintiff on November 19, 2018 two days after the accident. Plaintiff was treated with trigger point therapy myofascial release and chiropractic adjustments three times a week for four weeks and subsequent manipulation under anesthesia on February 22, 2019. Dr. Whitney's affidavit states that orthopedic tests were administered on Plaintiff that were positive for limited range of motion and injury. Dr. Whitney's affidavit states that Plaintiffs range of motion of his lumbar, cervical, and thoracic ranges of motion were below normal after administering tests with a goniometer. Dr. Whitney's affidavit concluded that Plaintiffs cervical compression tests were positive, that straight leg raising was positive in limited range of motion, and that palpation of the back in multiple areas revealed severe pain. Dr. Whitney reviewed the MRI reports and concluded that the disc pathology was causally related to the accident.
Plaintiff testified that though he did not completely lose consciousness after the accident, he was unable to exit the vehicle and that the medical personnel took him to the hospital. The police were called to the scene of the accident and filed a police report, which was attached to the motion. Plaintiff testified that he was confined to his home for five months after the accident. He further testified that he was unable to work in his role as a therapist for special needs children, he could no longer mow the lawn or go grocery shopping, play football, softball, or engage in other recreational activities, and that he was a "power lifter" but could no longer engage in several exercises that he could previously. Plaintiff testified that standing for long periods of time causes pain.
Plaintiff has offered sufficient admissible evidence to raise an issue of fact that his injuries resulted in the criteria defined in Insurance Law 5102 (d). As such, Defendant's motion for summary judgment on the grounds that Plaintiff did not sustain a serious injury under Insurance Law 5102 (d) is denied. Accordingly, based on the foregoing it is hereby
ORDERED that Plaintiffs motion for summary judgment on liability in favor of Plaintiff and against Defendant (Motion Sequence #1) is granted; and it is further
ORDERED that Defendant's motion for summary judgment on the grounds that Plaintiff fails to meet the serious injury threshold under Insurance Law 5102 (d) (Motion Sequence #2) is denied; and it is further
ORDERED that any requested relief not specifically addressed herein has nonetheless been considered; and it is further
ORDERED that within 30 days of entry'. Plaintiff shall serve a copy of this Decision and Order upon Defendants with Notice of Entry.
This constitutes the Decision and Order of the Court.