Opinion
Index No. 704572/2018 Motion Seq. No. 2
05-13-2021
PATRICIA BLACK, Plaintiff, v. MATTHEW SANTOS and FERNANDO SANTOS, Defendants.
Unpublished Opinion
Motion Date: January 19, 2021
LEONARD LIVOTE JUSTICE
The following numbered papers have been read on this motion by defendants for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a "serious injury," as defined in Insurance Law § 5102 (d), and on this cross motion by plaintiff for summary judgment on liability, and on the issue of "serious injury, pursuant to CPLR 3212.
Papers Numbered
Notice of Motion - Affirmation- Exhibits.....................................
E14-E23
Notice of Cross Motion - Affirmation - Exhibits..........................
E27-E32
Reply Affirmations......................................................................
E33-E34
Upon the foregoing papers, it is ordered that defendants' motion, and plaintiff s cross motion, are determined as follows:
This is an action to recover damages for personal injuries allegedly sustained in a motor vehicle accident on April 14, 2017, on the Cross Island Parkway. In her bill of particulars, plaintiff alleged, among other things, "disc herniation(s) at L4-5; L5-S1; C5-C6; disc bulging L3-4; fracture of tooth #18; adhesive capsulitis of left shoulder." Defendants move for summary judgment, dismissing the complaint, for plaintiffs failure to prove a "serious injury" pursuant to Ins. Law 5102 (d). Plaintiff cross-moves for summary judgment on liability,"and for judgment on the issue of "serious injury."
"[T]he 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 demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]; see Wonderly v City of Poughkeepsie, 185 A.D.3d 632 [2d Dept 2020]; Oxford Health Plans (NY), Inc. v Biomed Pharms., Inc., 181 A.D.3d 808 [2d Dept 2020]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (see Trustees of Columbia Univ, in the City of N.Y.v D'Agostino Supermarkets, Inc., 36 N.Y.3d 69 [2020]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Roos v King Constr., 179 A.D.3d 857 [2d Dept 2020]). On plaintiffs motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving defendants (see Hewitt v Palmer Veterinary Clinic, P.C., 35 N.Y.3d 541 [2020]; Matter of New York City Asbestos Litig., 33 N.Y.3d 20 [2019]; Monroy v Lexington Operating Partners, LLC, 179 A.D.3d 1053 [2d Dept 2020]; Rivera v Town of Wappinger, 164 A.D.3d 932 [2d Dept 2018]). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]; Martin v Cartledge, 102 A.D.3d 841 [2d Dept 2013]), and the denial of summary judgment.
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable' [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]; see also, Rotuba Extruders v.Ceppos, 46N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2d Dept 2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Charlery v Allied Transit Corp., 163 A.D.3d 914 [2d Dept 2018]; Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]).). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact (see Ayotte v Gervasio, 81 N.Y.2d 1062; Khadka v American Home Mortg. Servicing, Inc., 139 A.D.3d 808 [2016]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985]; Cach, LLC v Khan, 188 A.D.3d 1135 [2d Dept 2020])
On defendants' motion for summary judgment, defendants bear the initial burden of establishing that plaintiff did not sustain a "serious injury" within the meaning of the Insurance Law (see Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Licari v Elliott, 57 N.Y.2d 230 [1982]; Shamsoodeen v Kibong, 41 A.D.3d 577 [2007]). By submitting the affidavits or affirmations of medical experts, who through objective medical testing conclude that plaintiffs' injuries are not serious within the meaning of Insurance Law § 5102 (d), a defendant can meet his or her prima facie burden (see Margarin v Krop, 24 A.D.3d 733 [2005]; Karabchievsky v Crowder, 24 A.D.3d 614 [2005]).
Plaintiff was examined by Regina Hillsman, M.D., an orthopedist, on June 29, 2020, on behalf of defendants. In her affirmed medical report regarding the examination of plaintiff, Dr. Hillsman reported complaints of pain in plaintiff s neck, back and left shoulder, and found normal ranges of motion in plaintiffs cervical, thoracic, and lumbar spine and in her shoulder, which were supported by objective testing and compared to normal function (see Kaminski v Kawamoto, 49 A.D.3d 501 [2008]). Dr. Hillsman concluded that her physical examination of plaintiff revealed that the "sprain and strain" injuries to the parts of the body examined, had "resolved," without any long-lasting effect. Based on defendants' medical evidence alone, defendants have presented a prima facie case of entitlement to summary judgment under Insurance Law § 5102 (d), with regard to the claimed injuries to plaintiffs neck, back and shoulder (see Maitre v Empire Paratransit Corp., 192 A.D.3d 786 [2d Dept 2021]; Foy v Pieters, 190 A.D.3d 700 [2d Dept 2021]; Preciado v Garfield, 133 A.D.3d 582 [2015]; Ceglian v. Chan, 283 A.D.2d 536 [2001]).
However, Dr. Hillsman's examination of plaintiff did not address plaintiff s claim of an injury to her "tooth # 18," as stated in her bill of particulars. Failure to respond to a listed injury does not result in a shift of the burden, and it is, thus, not incumbent upon plaintiffs to produce prima facie evidence, in admissible form, to support the claim of "serious injury" with regard to that injury (see Lopez v. Senatore, 65 N.Y.2d 1017 [1985]; Licari v Elliott, 57 N.Y.2d 230 [1982]). Additionally, here, plaintiff has submitted the affirmed report of James M. Hensley, DDS, MAGD, a dentist, who saw plaintiff on April 19, 2017, and, ultimately, performed a ceramic crown restoration on tooth #18. He opined that plaintiff "sustained a nondisplaced fracture at the lingual wall of tooth #18" which resulted from the subject automobile accident. Such evidence of "a fracture"is sufficient, under Ins. Law 5102 (d), to raise a material issue of fact which has been left unresolved, thereby requiring a determination by a trier of the facts (see Sucre v Consolidated Edison Co. of N Y., Inc., 184 A.D.3d 712 [2d Dept 2020] Flaccavento v John's Farms, 173 A.D.3d 1141 [2d Dept 2019]), and the denial of defendants' motion. Even had defendants addressed said dental injury, and properly disputed same, said evidence would only have raised an outstanding issue of fact as to that injury.
As plaintiff has established that a question of fact exists as to having met the No-Fault threshold on at least one of her alleged injuries, she has succeeded in defeating the instant motion (see Linton v Nawaz, 14 N.Y.3d 821 [2010]; Nussbaum v Chase, 166 A.D.3d 638 [2d Dept 2018] Navarro v Afifi, 138 A.D.3d 803 [2016]), and defendants have failed to demonstrate entitlement to summary judgment on the issue of "serious injury."
Plaintiff's cross motion seeks summary judgment on liability, and on the issue of "serious injury." Based upon the facts presented, taken from plaintiffs affidavit in support, and from defendant driver's deposition testimony, plaintiff moves for summary judgment, demonstrating that she was stopped in her lane of traffic, for approximately two seconds, when defendants' vehicle struck her car in the rear. Such evidence established, prima facie, entitlement to judgment as a matter of law on the issue of liability (see Rincon v Renaud, 186 A.D.3d 1551 [2d Dept 2020]; Hai Ying Xiao v Martinez, 185 A.D.3d 1014 [2d Dept 2020]; Modena v M&S Meeh. Servs., Inc., 181 A.D.3d 802 [2d Dept 2020]; Batashvili v Veliz-Palacios, 170 A.D.3d 791 [2d Dept 2019]), by demonstrating that defendant driver was negligent, and that his negligence was the sole proximate cause of the accident, by reason of his violation of Vehicle and Traffic Law § 1129 [a], which states that the operator of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Sorocco v Meglio, 157 A.D.3d 838 [2d Dept 2018]; Schmertzler v Lease Plan U.S.A., Inc., 137 A.D.3d 1101 [2d Dept 2016]). Thus, a collision as described by both plaintiff and defendant herein establishes a prima facie case of negligence on the part of the driver of the following (rear) vehicle, and requires that driver to rebut the inference by providing a non-negligent explanation for the collision (see Tutrani v County of Suffolk, 10 N.Y.3d 906 [2008]; Modena v M&S Meeh. Servs., Inc., 181 A.D.3d 802).
In the case at bar, defendants have failed to submit affidavits in opposition on this issue. As such, defendants have failed to rebut plaintiffs account of the accident; have failed to allege that plaintiffs vehicle made a "sudden stop" or an "unexpected lane change," or take any other action, which could be considered a non-negligent explanation for the accident (see Butbul v City of New York, 147 A.D.3d 897 [2017]; Finney v Morton, 127 A.D.3d 1134 [2015]); and have failed to raise a triable issue of fact in rebuttal (see Rossnagel v Kelly, 177 A.D.3d 650 [2d Dept 2019]; Skura v Wojtlowski, 165 A.D.3d 1196 [2d Dept 2018]; Vuksanaj v Abbott, 159 A.D.3d 1031 [2d Dept 2018]). As such, the branch of plaintiff s cross motion seeking summary judgment on liability is granted, without opposition.
The branch of plaintiffs cross motion seeking summary judgment on the issue of whether her alleged "tooth fracture" is to be considered a "serious injury," pursuant to Ins. Law 5102 (d), is denied. Plaintiffs treating dentist, Dr. Hensley, did opine, in his affirmation herein, submitted in support of plaintiff, that plaintiff "sustained a non displaced fracture ... of tooth #18" in the subject accident, which required him to perform a crown restoration." However, such opinion is problematic in that his office notes for plaintiff, from over six months before the accident date, state "#18 will need future crown," and, on "4/19/17," the date of plaintiff's first visit to him, there is no mention of "tooth #18" and he adds "nothing significant showing on radiographs." While he explains that a "nondisplaced" tooth fracture may not be revealed on such radiographs, such language is too vague and ambiguous to remove any question of fact as to whether plaintiff suffered a fractured tooth as a result of the accident, or at a later date.
Further, with regard to whether a dental fracture constitutes a No-Fault "serious injury," the case law, including that cited by plaintiff, requires "an undeniable fracture which called for prompt repair arid ongoing treatment" (Kennedy v Anthony, 195 A.D.2d 942, 944 [3rd Dept 1993]; see Chatoorang v Navdrrete-Duque, 105 A.D.3d 518 [1st Dept 2013]; Newman v Datta, 72 A.D.3d 537 [1st Dept 2010]), or "treatment" and "future treatment" (Sanchez v Romano, 292 A.D.2d 202,202 [1st Dept 2002]). Dr. Hensley's affidavit makes no mention of either "ongoing" or "future" treatment. As such, plaintiffs allegation that plaintiff sustained "a fracture ... which needed substantial corrective dentistry including a crown," is unsupported, and without merit, based on the documentation submitted herein. As a result, plaintiff has failed to demonstrate entitlement to summary judgment on the issue of "Serious injury" based on the claimed "tooth fracture."
The parties' remaining contentions and arguments are either without merit, or need not be addressed in light of the foregoing determinations.
Accordingly, defendants' motion for summary judgment, seeking dismissal of plaintiffs' complaint on the issue of failure to meet the "serious injury" threshold requirement of Insurance Law § 5102 (d), is denied. The branch of plaintiffs cross motion for summary judgment on liability is granted, without opposition. The branch of plaintiffs cross motion for summary judgment on the issue of "serious injury" is denied.