Opinion
No. 4677/13.
08-03-2015
Carlos VARGAS, Plaintiff, v. Brian A. LANCASTER, Beverly G. Christie, Marlon Gray and Christopher B. Brown, Defendants.
Frommer & Cerrato, LLP, Garden City, for Plaintiff. Patricia McDonagh, Esq., James G. Bilello & Associates, Westbury, for Defendant.
Frommer & Cerrato, LLP, Garden City, for Plaintiff.
Patricia McDonagh, Esq., James G. Bilello & Associates, Westbury, for Defendant.
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of defendant Beverly G. Christie (hereinafter Christie), filed on January 14, 2015, under motion sequence number three, for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability and dismissing the complaint and all cross claims asserted against her on the basis that she was not the cause of the automobile collision that injured plaintiff Carlos Vargas (hereinafter Vargas).
— Notice of Motion
— Affirmation in support
— Exhibits A–I
Vargas's affirmation in opposition
Marlon Gray and Christopher B. Brown's affirmation in opposition
Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of defendants Marlon Gray (hereinafter Gray) and Christopher B. Brown (hereinafter Brown), filed on January 29, 2015, under motion sequence number four, for an order pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against them on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d).
— Notice of motion
— Affirmation in support
— Exhibits A–I
Vargas's affirmation in opposition
— Exhibits 1–5
Gray and Brown's affirmation in reply
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of cross motion of defendant Christie, filed on February 9, 2015, under motion sequence number five, for an order pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against her on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d).
— Notice of cross motion
— Affirmation in support
— Exhibits A–C
Vargas's affirmation in opposition
— Exhibits 1–5
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of cross motion of defendant Brian A. Lancaster's (hereinafter Lancaster), filed on February 14, 2015, under motion sequence number six, for an order pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against him on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d).
— Notice of cross motion
— Affirmation in support
— Exhibits A–E
Vargas's affirmation in opposition
— Exhibits 1–5
Lancaster's affirmation in reply
BACKGROUND
On March 14, 2013, Vargas commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated May 17, 2013, defendants Gray and Brown joined issue. By verified answer dated June 28, 2013, defendant Lancaster joined issue. By verified answer dated June 11, 2013, defendant Christie joined issue. On November 18, 2014, a note of issue was filed.
Vargas has alleged in his complaint and bill of particulars that on May 15, 2012, at approximately 12:30 p.m., he was driving a Ford Transit Connect owned by Today and Quick Inc. on Linden Boulevard traveling east bound toward its intersection with Stone Avenue in Brooklyn, New York. At that date, time and location defendant Lancaster lost control of his vehicle and crossed over the median into west bound traffic and collided with the vehicle owned and operated by Christie. That collision then caused Christie's vehicle to swerve in front of Vargas's vehicle. This caused Vargas's vehicle to collide with a vehicle operated by Gray and owned by Brown. Vargas claims that the collisions were caused by the negligence of the other drivers and that their negligence caused him to sustain serious physical injuries.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 923 [1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 at 324 [1986] ).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated for Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept 1990] ).
Christie's Motion for Summary Judgment
Christie has submitted her own deposition and the deposition transcripts of Vargas, Lancaster and Gray in support of her motion for summary judgment dismissing the complaint and all cross claims asserted against her.
Each deposition transcript is in admissible form and together they set forth the following undisputed facts. On May 15, 2012, at approximately 12:30 pm, Christie was driving her Toyota Camry in the middle lane of Linden Boulevard, a two way street with three lanes of traffic in each direction separated by a concrete median. It was a rainy afternoon at the time and the roads were wet. At that time Lancaster was driving his GMC Envoy SUV on Linden Boulevard in the opposite direction toward its intersection with Stone Street in Brooklyn. Lancaster lost control of his vehicle and crossed the center median. Christie saw the Lancaster vehicle cross the median coming toward her and jammed her brakes and steered to the right but was unable to avoid a collision. After colliding with the Lancaster vehicle Christie did not make contact with any other vehicle.
Vargas was driving a Ford Transit Connect in the middle lane of Linden Boulevard behind Christie's vehicle. Vargas also observed the Lancaster vehicle cross over the median and strike Christie's vehicle. After seeing the impact between the Lancaster and Christie vehicle, Vargas slammed his brakes and felt an impact to his rear caused by Gray's vehicle.
Gray was driving Brown's Mitsubishi Gallant on Linden Boulevard in the same direction as Vargas and Christie. Gray also saw the Lancaster vehicle cross over the median into opposing traffic. Gray immediately reacted by slamming his breaks which caused him to slide into the back of Vargas's vehicle.
These undisputed facts demonstrate prima facie that Christie was faced with a sudden and unexpected emergency situation which she neither caused nor contributed to and that she reacted to it by unsuccessfully attempting to avoid the collision with the Lancaster vehicle. The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency (see Pacelli v. Intruck Leasing Corp., 128 AD3d 921, 924 [2nd Dept 2015], citing Bello v. Transit Auth. of N.Y. City, 12 AD3d 58, 60 [2nd Dept 2004] ). "Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues may in appropriate circumstances be determined as a matter of law" (Pacelli v. Intruck Leasing Corp., 128 AD3d 921, 924 [2nd Dept 2015], citing Vitale v. Levine, 44 AD3d 935, 936 [2nd Dept 2007], quoting Bello v. Transit Auth. of N.Y. City, 12 AD3d at 60 [2nd Dept 2004] ).
Christie's deposition testimony establishes that she noticed the Lancaster vehicle crossing the median and coming toward her a split second before it collided with her. Her testimony was supported by the deposition testimony of Vargas, Lancaster and Gray. The Court finds that Christie's reaction was not unreasonable and did not cause or contribute to the collision between the Vargas and Gray vehicle as a matter of law. In sum Christie has demonstrated prima facie that she breached no duty to Vargas and that she did not proximately cause the collision between Vargas and Gray.
Vargas, Gray and Brown have opposed the motion with an affirmation of their respective counsels. However, the opposition papers failed to raise a triable issue of fact.
Accordingly, Christie's motion to dismiss the complaint and all cross claims asserted against her based on her freedom from liability is granted. Furthermore, the Court need not and will not address Christie's motion to dismiss the complaint and all cross claims asserted against her on the grounds that Vargas did not suffer a serious injury.
Gray, Brown and Lancaster's Motions for Summary Judgment
Gray and Brown have jointly moved to dismiss Vargas's complaint on the basis that he did not have a serious injury as defined in Insurance Law § 5102(d). Lancaster has also moved for dismissal for the same reasons. 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." "A defendant can establish that the plaintiff's 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 plaintiff's claim" (see Grossman v. Wright, 268 A.D.2d 79, 83 [2nd Dept 2000] ). "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury" (Id. at 84 ).
In support of the instant motion, Gray, Brown and Lancaster have shared and relied on the same evidence. They have submitted a copy of plaintiff's deposition transcript and verified bill of particulars. They have also submitted the affirmed report of Drs. Thomas P. Nipper, an orthopedic surgeon; Bert R. Heyligers, a radiologist; and Alla Mesh a neurologist, who conducted an independent medical examination of Vargas.
Dr. Heyligers reviewed Vargas' MRI studies of the cervical spine taken on June 23, 2012, and lumbar spine studies taken on June 23 and September 28, 2012. Dr. Heyligers found no anomalies in the cervical spine and found a disc bulge in the lumbar spine at L5–S1. He opined that the bulge was part of a chronic process and not caused by trauma.
Drs. Mesh and Nipper both conducted an independent medical examination of the plaintiff on July 16, 2014. Dr. Mesh found no neurologic anomalies. Dr. Nipper conducted range of motion testing of the plaintiff's cervical and lumber spine. He generally set forth his findings and compared those findings to what is normal and concluded in his affirmed report that plaintiff had full unrestricted range of motion. However, with regard to the straight leg raise test Dr. Nipper only stated that it was negative and did not compare his finding to what is normal (Shirman v. Lawal, 69 AD3d 838 [2nd Dept 2010]citing Walker v. Public Adm'r of Suffolk County, 60 AD3d 757, 758 [2nd Dept 2009] ).
By not comparing the findings to what is normal, none of the moving defendants meet their burden of establishing that Vargas's injuries were not serious within the meaning of Insurance Law § 5102(d) (Id. )
Accordingly, Gray, Brown and Lancaster's respective motions for summary judgment must be denied regardless of the sufficiency of Vargas's opposing papers (Dowling v. Valeus, 119 AD3d 834 [2nd Dept 2014]citing Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
CONCLUSION
Beverly G. Christie's motion for summary judgment in her favor on liability and an order dismissing the complaint and all cross claims asserted against her is granted.
Marlon Gray and Christopher B. Brown's joint motion for an order dismissing the complaint and all cross claims asserted against them on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d) is denied.
Beverly G. Christie's motion for summary judgment dismissing the complaint and all cross claims asserted against her on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d) is deemed moot.
Brian A. Lancaster's motion for an order dismissing the complaint and all cross claims asserted against him on the grounds that Vargas did not suffer a serious injury as defined in Insurance Law § 5102(d) is denied.
The foregoing constitutes the decision and order of this court.