Opinion
Index No. 402318/2011
04-23-2014
HILDA SAMUELS-ROCHESTER, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY BUS COMPANY, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants.
Decision and Order
HON. MICHAEL D. STALLMAN, J.:
In this action, plaintiff alleges that she was thrown from her seat on the bus because the driver allegedly drove too fast as he was making a right turn. Defendants now move for summary judgment on the grounds that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), and that the movement of the bus was no different than the usual jerks and jolts experienced in bus travel.
BACKGROUND
Plaintiff testified at her deposition that, on September 13, 2010, she boarded a BX23 bus at the bus stop at Pelham Bay. (Reynoso Affirm., Ex G [Samuels-Rochester EBT], at 18-19.) According to plaintiff, she sat in the first row of seats that faced forward, past the seats for the disabled, i.e., "at the seat behind the disabled seat, to the corner at the window", on the side "where the door is." (Id. at 22-23.) Plaintiff stated that no one was sitting next to her. (Id. at 23.) Plaintiff testified that she was thrown from her seat when the bus driver made a right turn onto Asch Loop: "Well, he was driving so fast that when he go around that corner? [sic] I was thrown from the window seat over to him on the other side, on the floor." (Id. at 29.) Plaintiff stated that she fell onto her left side. (Id. at 31.)
When asked to approximate the speed of the bus, plaintiff answered that bus driver was driving 40 or 45 miles an hour. (Id. at 30.) However, plaintiff testified that she had not looked at the speedometer and that she did not hear any other passengers comment about the speed of the bus. (Id.) At a statutory hearing held on February 1, 2011, plaintiff testified that she did not see anyone else fall to the floor. (Reynoso Affirm., Ex I, at 33.)
According to the bill of particulars, plaintiff suffered, among other things, injuries to her left knee, left shoulder, cervical and lumbar spine. (Reynoso Affirm., Ex D [Bill of Particulars] ¶ 4.)
At his deposition, Ernie Lamboy testified that he was a bus operator driving a bus on the BX23 route on September 13, 2010. (Reynoso Affirm., Ex J [Lamboy EBT], at 14.) According to Lamboy, the bus stopped on the corner of Asch Loop and Alcott, someone got off, and then he made a right turn when the traffic light was green. (Id. at 20-21.) Lamboy testified that he applied the brake on the turn. (Id. at 27.) When asked about the approximate speed of the bus at the point that he applied the brake, Lamboy testified as follows:
"A. I can't recall."(Id. at 28.)
Q. Do you know if it was more or less than five miles an hour?
A. It was more than that.
Q. Do you know if it was more or less than 10 miles an hour?
A. About 15 or 10.
Q. So 10 to 15?
A. Probably. It all depends on the bus. Every bus drives different.
* * *
Q. Do you remember exactly what speed you were traveling at the point that you applied your brake during the turn?
A. No."
DISCUSSION
The standards for summary judgment are well-settled.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender [ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers."(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].) Defendants contend that they are entitled to summary judgment on two grounds: (1) plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d); and (2) that the movement of the bus was no different than the usual jerks and jolts experienced in bus travel.
I
The No-Fault Law "bars recovery in automobile accident cases for 'non-economic loss' (e.g., pain and suffering) unless the plaintiff has a 'serious injury' as defined in the statute. . . ." (Perl v Meher, 18 NY3d 208 [2011].)
"Of the several categories of'serious injury' listed in the statutory definition, three are relevant here: 'permanent consequential limitation of use of a body organ or member'; 'significant limitation of use of a body function or system'; and '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])."(Id.)
To meet the prima facie burden of summary judgment, a defendant must "submit[ ] expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident." (Vega v MTA Bus Co., 96 AD3d 506, 507 [1st Dept 2012].) Here, defendants met their prima facie burden by submitting the affirmed report of Dr. Robert Israel, who examined plaintiff on April 18, 2012 and measured, using a goniometer, normal ranges of motion in her cervical spine, lumbar spine, left shoulder, and left knee. (Reynoso Affirm., Ex I.)
As plaintiff points out, the New York State Board for Professional Medical Conduct (BPMC) apparently issued a consent agreement and order, BPMC Order #13-156, effective June 7, 2013, which temporarily suspended Dr. Israel for a period of three years and precluded him from performing any independent medical examinations. (Gotkin Opp. Affirm., Ex IX.) In light of BPMC's order, the Chair of the New York State Workers' Compensation Board also revoked Dr. Israel's authorization to perform independent medical examinations in the New York State workers' compensation system, effective June 7, 2013. (Id.) However, plaintiff's medical examination in this case was performed prior to the effective date of BPMC Order #13-156, and plaintiff does not claim to be one of the patients whose medical examination gave rise to BPMC's disciplinary action. The disciplinary action taken against Dr. Israel goes to the weight of his opinion, not its admissibility.
Notwithstanding Dr. Israel's opinion, plaintiff's submissions raise triable issues of fact as to whether plaintiff suffered a serious injury under the categories of a permanent consequential limitation of use or a significant limitation of use. Dr. Robert Schepp, a radiologist, examined plaintiff's MRI films and found diffuse posterior bulging discs at C5-C6 and C6-C7; a partial tear/tendonitis of the distal supraspinatus tendon of plaintiff s left shoulder; and a meniscal tear in plaintiff's left knee. (Gotkin Opp. Affirm., Ex VI.) Plaintiff's own chiropractor, Henry Hall, D.C., examined plaintiff on October 4, 2013, and found limited ranges of motion in plaintiff's lumbar spine and cervical spine. (Gotkin Opp. Affirm., Ex V.) Plaintiff's orthopedic surgeon, Dr. Richard Memoli, examined plaintiff on September 23,2010 and November 8, 2010 and found limited ranges of motion in plaintiff's cervical spine, lumbar spine, and left shoulder. (Gotkin Opp. Affirm, Ex VII.)
Plaintiff's chiropractor adequately explains plaintiff's cessation of treatment in 2013. According to Hall, plaintiff had reached the maximum medical improvement in October 2013. (Gotkin Opp. Affirm., Ex V. [Hall Aff.] ¶ 13.) Defendants cite no authority for the proposition that plaintiff must explain a cessation of treatment with each treating medical provider.
In reply, defendants claim that plaintiff did not refute their evidence of a pre-existing, degenerative condition. However, defendants did not submit an affidavit or affirmation from an expert to that effect. Dr. Israel was the only physician whose affirmation was submitted in defendants' moving papers, and Dr. Israel did not opine that any loss of range of motion in plaintiff's spine was attributable to a pre-existing, degenerative condition.
Thus, triable issues of fact warrant denial of defendants' motion for summary judgment on the ground that plaintiff did not suffer a serious injury. Because plaintiff has raised triable issues of fact as to whether she suffered a serious injury under the categories of a permanent consequential limitation of use or a significant limitation of use, the Court need not address the sufficiency of plaintiff's submissions to raise triable issues of fact as to whether plaintiff met the no-fault threshold under a different statutory category of serious injury, with respect to her other alleged injuries. (See Johnson v KS Transp., Inc., 115 AD3d 425 [1st Dept 2014].) Thus, all pleaded statutory grounds of "serious injury" are reserved for trial."If the trier of fact determines that plaintiff sustained a serious injury [on any statutory ground], it may award damages for all injuries causally related to the accident, even those that do not meet the threshold." (Angeles v American United Transp., Inc., 110 AD3d 639, 640 [1st Dept 2013].)
II.
"To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was 'unusual and violent'. Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff."(Urquhart v New York City Tr. Auth., 85 NY2d 828, 830 [1995].) The plaintiff's proof must provide "objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant." (Id.; Disalvatore v New York City Tr. Auth., 45 AD3d 402 [1st Dept 2007]; Fonseca v Manhattan and Bronx Surface Tr. Operating Autho., 14 AD3d 397 [1st Dept 2005].)
'"No 'hard and fast' rule can be formulated as to precisely what amount of jerking or jolting of a streetcar or bus will give rise to an inference of negligence and, conversely, what amount of such jerking or jolting is usual and ordinary, incidental to the operation of such vehicle. . . . At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact to be determined in the light of the surrounding circumstances.'"(Harris v Manhattan and Bronx Surface Tr. Operating Auth., 138 AD2d 56, 58 [1st Dept 1988][citation omitted].) The fact that no other bus passengers fell on the bus may constitute evidence for the trier of fact to conclude that the movement of the bus was not unusual or violent. (See Martin v New York City Tr. Auth., 48 AD3d 522 [2d Dept 2008] [jury could have reasonably concluded that the plaintiff's fall was not caused by any negligence on the part of the bus operator because none of the other passengers on the crowded bus was caused to fall by the movement of the bus].)
Here, triable issues of fact arise as to whether the right turn that Lamboy made on Asch Loop was of a different class than the jerks and jolts commonly experienced in city bus travel. On the one hand, Lamboy testified that his bus had stopped to discharge passengers before he made the right turn, and that he had applied the brake on the turn. On the other hand, plaintiff testified that the right turn threw her from the window seat onto the floor of the bus, onto her left side. These two differing accounts raise issues of fact that warrant denial of summary judgment.
As defendants indicate, the Appellate Division, Second Department ruled in Banfield v New York City Transit Authority (36 AD3d 732 [2d Dept 2007]) and Golub v New York City Transit Authority (40 AD3d 581 [2d Dept 2007]) that testimony from the plaintiff that she was caused to land next to, or in front of, her seat
"is not, in itself, sufficient to provide the requisite objective support necessary to demonstrate that the movement of the bus was 'unusual and violent,' and of a 'different class than the jerks and jolts commonly experienced in city bus travel.'"(Banfield, 36 AD3d at 733, quoting Urquhart, 85 NY2d 828; Golub, 40 AD3d at 582.) Similarly, in Rayford v County of Westchester (59 AD3d 508 [2d Dept 2009]), the Appellate Division, Second Department ruled that a plaintiff's deposition testimony that she "was merely caused to land on the steps next to where she had been standing" lacked the necessary objective support to demonstrate that the movement of the bus was "unusual or violent."
However, these cases are distinguishable from the instant case. In Banfield, Golub, and Ray ford, each plaintiff landed on the floor next to where she had been sitting or standing. By contrast, in this case, plaintiff testified that she was seated next to the window. Thus, viewing the allegations in the light most favorable to plaintiff, the non-movant, the force of the right turn did not merely cause plaintiff to land in the area immediately adjacent to plaintiff's seat. Rather, the force of the turn might have caused plaintiff to move across an empty seat to her left and then onto the floor of the bus. The testimony provides adequate objective support for the contention that plaintiff experienced more than the common jerks and jolts experienced in city bus travel. (See Disalvatore, 45 AD3d at 403 [plaintiff testified that she was thrown to the floor and then slid down the aisle]; Cf. Rountree v Manhattan and Bronx Surface Tr. Operating Auth., 261 AD2d 324 [1st Dept 1999] [sudden stop was forceful enough to throw the plaintiff 20 feet across the bus].)
Finally, defendants argue in reply that plaintiff cannot demonstrate that the movement of the bus was "unusual", in that plaintiff testified at her deposition that she took the BX23 bus every evening (Samuels-Rochester EBT, at 21), and in that plaintiff testified at her statutory hearing on February 1, 2011 that "everyone knows he drives fast." (Reynoso Affirm., Ex I at 76.) This argument appears to be improperly raised for the first time in reply. (See Ritt v Lenox Hill Hosp., 182 AD2d 560 [1st Dept 1992].) In any event, the argument is without merit. Whether the movements of a bus are "unusual or violent" is not determined on what is "unusual" for the bus operator, Mr. Lamboy, but rather on what is "unusual or violent" as compared to the jerks and jolts commonly experienced in city bus travel.
By referring to this quotation from the statutory hearing, the Court does not suggest that it would be admissible to prove the truth of its assertion, whether it is an expression of opinion or unattributed multiple hearsay.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is denied. Dated: April 23, 2014
New York, New York
ENTER:
__________
J.S.C.