WHEELER v. ARPI

Full title: JOHN WHEELER, Plaintiff, v. JUAN ARPI and VICTOR ANKUASH, Defendants

Court: Supreme Court of the State of New York, Queens County

Date published: Jul 6, 2011

2011 N.Y. Slip Op. 51252 (N.Y. Sup. Ct. 2011)

Opinion

29255/2009.

Decided July 6, 2011.

Pena Kahn, PLLC, by Cornelius Redmond, Esq., Bronx, New York, for the Plaintiff.

Kim, Patterson Sciarrino, P.C., by Jerome D. Patterson, Esq., Douglaston, New York, for the Defendants Juan Apri and Victor Ankuash.

CHARLES J. MARKEY, J.:

The following papers numbered were read on this motion:

Notices of Motion, Affirm., Exhibits ......................... 1-2 Affirmations in Opposition ................................... 3

This personal injury action stems from a motor vehicle accident that occurred in Suffolk County in 2007. The most significant injury claimed by the plaintiff is a detached retina and the possible prolonged impairment of the plaintiff's vision. This Court previously dismissed the action against two other defendants and severed the balance of the action as against the remaining defendants, Juan Apri and Victor Ankuash.¹ Those defendants have now moved for summary judgment, contending that the plaintiff has failed to demonstrate "serious injury," as a matter of law, under Insurance Law sections 5102 and 5104. The plaintiff has made a cross motion for summary judgment on the issue of liability.

1 The Court notes that, by order dated April 7, 2011, the action was dismissed as to defendants Empire Today, LLC, and Carpet Workshop, LLC, and that the action was severed. Plaintiff has filed a notice of appeal from this Court's order dated April 7, 2001. Jerome D. Patterson, Esq., a member of Kim, Patterson Sciarrino, in preparing the present motion, properly and conscientiously complied with the Court's direction in the April 7 order that the defendants, henceforth, be listed as "JUAN ARPI and VICTOR ANKUASH."

In Lamana v Jankowski , 13 AD3d 134 [1st Dept. 2004], the plaintiff, supported by substantial medical testimony, alleged significant injury to the eye and vision as a result of a motor vehicle accident. The Appellate Division, First Department, reversed the jury verdict for the plaintiff since the trial judge held, as a matter of law, that the plaintiff met the "serious injury" threshold required by Insurance Law sections 5102 and 5104. The appellate court noted that the medical testimony of the plaintiff was not entirely free of question or unimpeachable. It was, therefore, reversible error for the trial judge to have made the determination of "serious injury" as a matter of law.

In several cases across the country, according to this Court's independent legal research, the loss of vision stemming from a motor vehicle accident, has constituted a "serious injury." See, e.g., Anderson v U.S. Postal Serv., 2010 WL 3433054 [C.D. Ill. 2010] [motor vehicle accident caused a punctured retina]; Ritter v Stanton, 745 NE2d 828 [Ind App 2001], cert. denied, 122 S. Ct. 2357; Doyle v Barnett, 658 NE2d 107 [Ind. App. 1995] [needed eyeglasses after motor vehicle accident]; Langley v Byron Stout Pontiac, Inc., 208 Kan. 199, 491 P2d 891, 893-894; Cole v State ex rel. Dept. of Transp. Dev., 755 So. 2d 315 [La. App. 1999], writ denied, 759 So. 2d 766 [La. 2000] [double vision]; Board of Trustees of Fire Police Employees Retirement Sys. v Kielczewski, 77 Md. App. 581, 583, 551 A2d 485, 486, cert. denied, 556 A2d 673; Kitchen v Wilson, 335 SW2d 38 [Mo. 1960] [greater astigmatism in the left eye after motor vehicle accident]; Beave v St. Louis Tr. Co., 212 Mo. 331, 111 SW 52 [Mo. 1907] [needed eyeglasses after motor vehicle accident]; Checkley v Boyd, 198 Or. App. 110, 107 P3d 651 [Or. App], review denied [June 2005]; Morales v Texas Dept. of Protective and Regulatory Servs., 2004 WL 2185960 [Tex. Ct App 2004] [head injuries from car accident resulted in damaged vision];

In one case in New York, a defense threshold motion was granted against a claim of loss of eyesight. In that case, Midura v Zapata, the court stated:

Although an eye injury may cause a "serious injury" [cf. Lamana v Jankowski , 13 AD3d 134 [1st Dept. 2004], plaintiff has not submitted any medical evidence to support her claim of injury to any eye and the Court may not rely on the hearsay testimony in plaintiff's deposition as to what she was told by her treating ophthalmologist. Thus, the evidence submitted by defendants' eye examiner is unrebutted.

In the present case, however, the plaintiff's claim of a detached retina and sharply impaired vision that has continued to date is supported, on this motion, by Dr. Pamela A. Weber, a Board certified ophthalmologist. The question of "serious injury" must be submitted to a jury. The motion by defendants on the threshold issue of "serious injury" is, accordingly, denied.

The plaintiff's cross motion for summary judgment on the issue of liability is granted in view of the admission made by the driver, defendant Victor Ankuash, the driver of the vehicle, during his examination before trial, admitting fault for having crossed into another lane while distracted in conversation with his friend over directions.

In short, the defendants' motion for summary judgment on the threshold issue is denied, and the cross motion by plaintiff on the issue of defendants' liability is granted. Upon the plaintiff filing a note of issue and paying the required fee, a trial shall be held on the issue of "serious injury" and any resulting damages.

The foregoing constitutes the decision, order, and opinion of the Court.