Opinion
Index 159104/2017
01-18-2022
ARIEL GONZALEZ, MADELINE GONZALEZ Plaintiff, v. AHMED HASSAN, BONNDERA INC., Defendant. Motion Seq. No. 001 002
Unpublished Opinion
MOTION DATE: 10/14/2021, 11/04/2021
DECISION + ORDER ON MOTION
HON. LISA HEADLEY, JUSTICE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 34, 41, 42, 44, 49, 56, 57, 58, 59, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 43, 50, 51, 52, 53, 54, 55, 60, 61 were read on this motion to/for JUDGMENT - SUMMARY.
This is a negligence action, in which plaintiffs Ariel Gonzalez (Mr. Gonzalez or plaintiff) and Madeline Gonzalez (Ms. Gonzalez) seek damages allegedly sustained as a result of a motor vehicle accident that occurred on March 9, 2017, on Zerega Avenue near the intersection of Lyvere Street in the Bronx. Mr. Gonzalez, the driver of the vehicle, alleges that he was traveling straight on Zerega Avenue when defendant Ahmed Hassan (Mr. Hassan) suddenly reversed into the intersection from Lyvere Street, causing the rear of his vehicle to come into contact with the driver's side of plaintiff s vehicle. Ms. Gonzalez is Mr. Gonzalez' sister and was a passenger in his vehicle at the time of the accident. Mr. Gonzalez alleges that, as a result of the collision, he sustained numerous serious and severe injuries. Mr. Gonzalez was transported by ambulance to Jacobi Medical Center for treatment, where he complained of injuries to his neck, back and left shoulder.
Motion sequence nos. 001 and 002 are consolidated for disposition. In motion sequence no. 001, defendants Mr. Hassan and Bonndera, Inc., the owner of the vehicle operated by Mr. Hassan, move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint on the ground that Mr. Gonzalez cannot meet the serious injury threshold requirement as mandated by Insurance Law §§ 5104 (a) and 5102 (d).
In motion sequence no. 002, Mr. Gonzalez moves, pursuant to CPLR § 3212, for summary judgment dismissing the counterclaim as against him on the ground that he did not breach any duty owed to Ms. Gonzalez, and therefore was not a proximate cause of the accident.
Both plaintiffs cross-move, pursuant to CPLR § 3212, for an order granting them summary judgment as against defendants.
For the reasons set forth below, defendants' motion for summary judgment is denied. Mr. Gonzalez's motion for summary judgment is also denied. The cross motion is granted to the limited extent of granting Ms. Gonzalez's motion for summary judgment on liability only, as an innocent backseat passenger, but is otherwise denied.
DISCUSSION
'"[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] [citation omitted]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). The burden is a heavy one: the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor (Sherman v New York State Thruway Auth., 27 N.Y.3d 1019, 1021 [2016]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 N.Y.2d 982 [1993]).
The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 A.D.3d 224, 226 [1st Dept 2006]). The court is required to examine the evidence in a light most favorable to the party opposing the motion (Martin v Briggs, 235 A.D.2d 192, 196 [1st Dept 1997]). Summary judgment is drastic remedy that may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]), and "should not be granted where there is any doubt as to the existence of a triable issue" of fact (American Home Assur. Co. v Amerford Intl. Corp., 200 A.D.2d 472, 473 [1st Dept 1994]; accordBirnbaum v Hyman, 43 A.D.3d 374, 375 [1st Dept 2007]).
Serious Injury (Motion Sequence No. 001)
Mr. Gonzalez alleges he sustained "serious injuries," as that term is defined in Insurance Law § 5102 (d) (see complaint, [NYSCEF Doc No. 1], ¶ 23). In the Verified Bill of Particulars (NYSCEF Doc No. 23), Mr. Gonzalez alleges soft tissue injuries to the cervical spine, lumbar spine, left shoulder, left knee, and right knee, requiring a right knee arthroscopic surgery. Mr. Gonzalez claims that these allegations constitute serious injuries under the applicable categories of the statute.
'"Under New York's No-Fault Law, an injured party's right to bring a personal injury action for noneconomic losses ... arising out of an automobile accident is limited to those instances where such individual has sustained a serious injury'" (Mesitiv Martin, 190 A.D.3d 1145, 1146 [3d Dept 2021 [citation omitted]; see Insurance Law § 5102 [d]). Under Insurance Law § 5102 (d), a serious injury includes, as is relevant here:
"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 90 days during the 180 days immediately following the occurrence of the injury or impairment."
"Whether a limitation of use or function is 'significant' or 'consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree of qualitative nature of an injury based on the normal function, purpose and use of the body part" (Dufel v Green, 84 N.Y.2d 795, 798 [1995] [citations omitted]; accord Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 353 [2002]).
On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (see Antepara v Garcia, 194 A.D.3d 513, 513 [1st Dept 2021]; Cohen v Bayer, 167 A.D.3d 1397, 1398 [3d Dept 2018]). If this threshold burden is met, the plaintiff must come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (Toure, 98 N.Y.2d at 350-352; see Cortezv Bray, 192 A.D.3d 451, 451 [1st Dept 2021]). Specifically, a plaintiff must show proof of (1) contemporaneous treatment - quantitative or qualitative - establishing that the plaintiffs injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiffs symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).
In support of their motion for summary judgment, defendants submit the affirmed medical reports of Eric L. Cantos, M.D., a board certified radiologist (NYSCEF Doc No. 26), and Barbra Freeman, M.D., a board-certified orthopedist (NYSCEF Doc No. 27), as well as the transcript of Mr. Gonzalez's deposition testimony given on January 24, 2019 (NYSCEF Doc No. 25).
Mr. Gonzalez's deposition establishes that, at the time of the accident, he was operating a motor vehicle (pi dep at 14). Mr. Gonzalez testified to being involved in an intersection accident (id). Mr. Gonzalez admitted to wearing his seatbelt at the time of impact (id. at 39). He further admitted that the impact did not cause airbags within his vehicle to deploy (indicating that this was not a high impact collision (id. at 39). Mr. Gonzalez was transported to Jacobi Medical Center following the incident (id. at 47). Mr. Gonzalez was discharged from the hospital with a prescription for pain medication (id. at 47). One day later, he presented for physical therapy (id. at 51). Mr. Gonzalez continued physical therapy for approximately five months (id. at 52). Mr. Gonzalez also underwent an arthroscopic right knee surgery and received cervical and lumbar injections (id. at 56, 59). Mr. Gonzalez last presented for his alleged injuries in November 2018 (id. at 61).
On August 24, 2020, Dr. Cantos reviewed plaintiffs MRI films of the cervical spine, lumbar spine, right knee, left knee, and left shoulder.
First, Dr. Cantos reviewed plaintiffs MRI film of the right knee, dated April 14, 2017, approximately five weeks after the date of the accident. Dr. Cantos noted no soft tissue hematoma or swelling. Dr. Cantos concluded that the film revealed no evidence of fracture or acute meniscal tear that could be attributed to the accident. Dr. Cantos found that there were degenerative changes, unrelated to the accident, along with discoid lateral meniscus. Dr. Cantos opined that the findings suggested a pre-existing condition.
Dr. Cantos also reviewed plaintiffs MRI film of the left knee, dated April 13, 2017, approximately five weeks after the date of the accident. Dr. Cantos noted no soft tissue hematoma or swelling. Dr. Cantos concluded that the film revealed no evidence of fracture or acute meniscal tear that could be attributed to the accident. Dr. Cantos found that there were degenerative changes, unrelated to the accident, along with discoid lateral meniscus. Dr. Cantos opined that the findings suggested a pre-existing condition.
Dr. Cantos reviewed plaintiff s MRI film of the left shoulder, dated April 12, 2017, noting a narrowed subacromial region with evidence of chronic impingement syndrome. Dr. Cantos opined that the impingement was unrelated to the accident, reflective of a pre-existent condition.
Dr. Cantos found that there were degenerative changes of the acromioclavicular joint along with a down sloping acromion, and that there was no evidence of an acute rotator cuff tear or fracture.
Dr. Cantos reviewed plaintiffs cervical MRI film, dated April 10, 2017, and found it to be unremarkable, with mild changes of degenerative disc disease. Dr. Cantos also reviewed plaintiffs lumbar MRI film, dated April 10, 2017, noting generalized degenerative disc disease from the L2 to SI levels. Given the short time frame between the accident and film, Dr. Cantos opined that plaintiff had an ongoing existent degenerative condition long before the accident occurred. Dr. Cantos found that there was multilevel disc disease inclusive of three herniations from L3 to SI, which could not be dated (NYSCEF Doc No. 26).
Dr. Freeman examined plaintiff on May 31, 2019 and concluded that his examination was objectively normal. Dr. Freeman noted that her findings on the examination were consistent with plaintiffs pre-existing degenerative conditions and not acute traumatic injury.
Dr. Freeman's examination of plaintiff s cervical spine revealed no cervical spasms and range of motion findings within normal ranges for the individual. Dr. Freeman's examination of plaintiffs lumbar spine revealed negative straight leg raises and Faber's test. Dr. Freeman found that range of motion findings were within normal ranges for the individual.
Dr. Freeman's examination of plaintiff s left shoulder revealed negative impingement and apprehension signs. Dr. Freeman found that there was no muscle atrophy, and that motor strength was within normal limits. Dr. Freemen also found that examination of the right knee revealed negative anterior drawer, Lachman's and McMurray's tests, and that there was no gross instability. Examination of the left knee revealed better than normal range of motion, with no swelling, pain or instability. Dr. Freeman opined that plaintiffs MRI reports from one month after the accident were consistent with pre-existing degenerative conditions and not acute traumatic injury. Dr. Freeman further opined that her examination findings and the medical documents reviewed were consistent with plaintiffs pre-existing conditions (NYSCEF Doc No. 27).
This proof satisfies defendants' initial prima facie burden of establishing, by competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident (see Toure, 98 N.Y.2d at 250-352). Defendants' orthopedist's findings of normal range of motion and resolved injuries, and the radiologist's opinion that Mr. Gonzalez had degenerative changes, unrelated to the accident, establishes their prima facie case with respect to whether plaintiff sustained a "serious injury" (see Antepara, 194 A.D.3d at 513; Blumenberg v Lora, 193 A.D.3d 445 [1st Dept 2021]; Cortez, 192 A.D.3d at 451; Tarjavaara v Considine, 188 A.D.3d 509, 510 [1st Dept 2020]; see e.g. Brownie v Redman, 145 A.D.3d 636, 637 [1st Dept 2016] ["Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her left knee by submitting the report of an orthopedist, who found no objective evidence of disability and full range of motion"]).
In opposition, Mr. Gonzalez raises triable issues of fact as to whether he suffered permanent or significant injuries causally related to the underlying automobile accident, by submitting medical reports of physicians who examined and treated him in the aftermath of the accident, quantifying persistent and significant limitations of movement, as well as his medical records, and relevant portions of his deposition and his affidavit (see Reyes v Se Park, 127 A.D.3d 459 [1st Dept 2015]).
After the accident, plaintiff was transported by ambulance to Jacobi Medical Center for treatment, where he complained of injuries to his neck, back and left shoulder (see Jacobi Medical Center medical records [NYSCEF Doc No. 65]). Plaintiff was discharged with pain medication (pi dep at 47; see also medical records). Three days later, plaintiff treated at Metropolitan Hospital, where he made complaints of low back pain, among other issues, and was diagnosed with back pain "most likely related [t]o trauma" (see Metropolitan Hospital emergency room records dated March 13, 2017 [NYSCEF Doc No. 66]; see also pi dep at 52-53).
On March 16, 2017, one week after the accident, plaintiff underwent an initial comprehensive medical examination at Metro Pain Specialists, P.C (Metro Pain Specialists) (see Metro Pain Specialists medical records [NYSCEF Doc No. 67]). During this examination, plaintiff made complaints of bilateral knee pain, left shoulder pain, neck pain, and lower back pain. Quantitatively, plaintiff also underwent a range of motion examination. With respect to the left shoulder, the examination found flexion, extension and abduction with pain, with 48.57% limitation in flexion, 44.44% limitation in extension, 45.45% limitation in abduction, and 28.57% limitation in adduction. With respect to the cervical spine, the examination found flexion, extension and rotation with pain, with 48.57% limitation in flexion, 44.44% limitation in extension, 45.45% limitation in left rotation, 28.57% limitation in right rotation, and an 88.88% limitation in left and right lateral flexion. With respect to the lumbosacral spine, the examination found flexion, extension and rotation with pain, with 50% limitation in flexion and 83.33% limitation in extension. With respect to the right knee, the examination found flexion with pain, with 11% limitation. With respect to the left knee, there was flexion with pain, with an 11% limitation in flexion and a 5-degree change in extension.
In addition to the examinations relating to range of motion, plaintiff was also found to have moderate-to-severe tenderness, muscle spasms to the upper trapezial/paraspinal muscles with regard to his cervical spine, and moderate-to-severe paraspinal muscle tenderness and spasms on palpation (see id). The initial examination also noted that plaintiff needed assistance walking (see id).
On April 17, 2017, Dr. David Abbatematteo of Metro Pain Specialists performed another examination specifically with regard to Mr. Gonzalez's lumbar and cervical spine. He reported that Mr. Gonzalez's cervical spine showed restricted extension and lateral rotation bilateral with end range discomfort noted; tenderness at the upper trapezius muscle and periscapular region, and also paravertebral over the right and left C2-3, C3-4, C4-5, C5-6, C6-7, C7-T1 cervical facet joints. Tender trigger points were felt at the trapezius, levator scapulae, rhomboid minor and major, splenius, capitis and cervicis. With regard to the lumbar spine, Dr. Abbatematteo noted tenderness on palpation paravertebral over the right and left L3-4, L4-5 and L5-S1 lumbar facet joints, and tender trigger points at the lumbar spinalis, longissimus, iliocostalis, serratus posterior inferior and superior gluteal muscles, as well as palpable distal pulses. Dr. Abbatematteo also found straight leg raising positive at 45 degrees on the right side and left side, positive Trendelenburg; positive Dura Tension test; and positive bilateral extension and lateral rotation. He noted that Mr. Gonzalez was sitting with discomfort and had pain and difficulty with the transition from sitting to standing. He diagnosed (1) right and left C2-3, C3-4, C4-5, C5-6, C6-7, C7-T1 cervical facet syndrome; (2) right and left L3-4, L4-5, L5-S1 lumbar facet syndrome; (3) right L4, L5, SI and left L4, L5, SI lumbar radiculopathy; and (4) fibro myositis. He also noted that Mr. Gonzalez reported that he had no low back, thoracic or cervical spine pain prior to the accident (see id).
In addition, plaintiff also received several MRIs with the following results:
LUMBAR SPINE: (1) L3/4 left paracentral and left foraminal disc herniation impinging the descending left L4 and exiting left L3 nerve roots; (2) L4/5 posterior disc herniation with thecal sac deformity, posterior disc bulge, bilateral foraminal extension, narrowing impingement of the exiting L4 nerve roots; (3) L5/S1 broad-based posterior disc herniation with annular tear, thecal sac deformity, disc bulge, and bilateral foraminal disc extension and narrowing; and (4) levoscoliosis.
CERVICAL SPINE: (1) C3/4 subligamentous disc bulge indenting the ventral CSF space; and (2) lower cervical and upper thoracic levoscoliotic curvature.
RIGHT KNEE: (1) small joint effusion; (2) cartilage loss at patellofemoral joint with irregularity of the subchondral bone plate of anterior lateral femoral condyle; and (3) increased signal within discoid variant lateral meniscus. No definite tear.
LEFT KNEE: (1) Cartilage loss trochlear. Proximal patellar tendinosis; and (2) discoid lateral meniscus.
LEFT SHOULDER: (1) hypertrophy acromioclavicular joint; and (2) thickened capsule within the axillary recess (records of Stand-Up MRI of the Bronx [NYSCEF Doc No. 74]).
Mr. Gonzalez underwent a significant course of medical treatment, which included arthroscopic knee surgery on May 8, 2017 (see Healthplus Surgery Center records [NYSCEF Doc No. 70]). In addition, Mr. Gonzalez also had two medial branch blocks to the lumbar spine, and one medial branch block of the cervical spine (see Dynamic Surgery Center records [NYSCEF Doc No. 69]); and three manipulations under anesthesia (see Healthplus Surgery Center records).
In June 2017, Mr. Gonzalez was informed by Metro Pain Specialists that his treatment would no longer be covered by his no-fault insurance carrier (Ariel Gonzalez aff [NYSCEF Doc. No. 72], ¶ 10]). Plaintiff continued treatment at Metropolitan Hospital for right knee pain and back pain from 2017 to 2019 (see Metropolitan Hospital records). At Metropolitan Hospital, Mr. Gonzalez received physical therapy and a home exercise plan that he continues to perform to this day (see id.; see also Ariel Gonzalez aff, ¶¶ 11, 15).
On July 7, 2021, Dr. Camari Wallace, M.D. examined Mr. Gonzalez, who presently complained of pain in his lumbar/sacral spine, cervical spine, right knee, and left knee. With respect to Mr. Gonzalez's cervical spine, the examination revealed mild tenderness at the upper trapezius muscle and periscapular region and also paravertebral over the bilateral C2-3, C3-4, C4-5, C5-6, C6-7, C7- Tl cervical facet joints (see affirmation of Camari Wallace M.D. [NYSCEF Doc No. 71], ¶ 16).
With respect to Mr. Gonzalez's thoracolumbar spine, the examination revealed restricted extension and lateral rotation bilaterally with end range discomfort, tenderness on palpation paravertebral over the bilateral L3-4, L4-5, L5-S1 lumbar facet joints, tenderness on palpation over the bilateral sacroiliac joints, and tender trigger points at the lumbar spinalis, longissimus, iliocostalis, serratus posterior inferior and superior and gluteal muscles (id., ¶ 17).
With respect to Mr. Gonzalez's right knee, the examination revealed periodic swelling, and decreased range of motion with audible clicking during extension and flexion (id., ¶ 18).
Dr. Wallace found that the physical examination conducted using objective tests was significant for a decreased range of motion actively and passively, as indicated, with weakness, tenderness, and positive objective orthopedic tests (id., ¶ 19).
Dr. Wallace opined that his final diagnosis was that, as a result of the March 9, 2017 accident, Mr. Gonzalez sustained a permanent injury to his neck, back, left shoulder, and right knee within a reasonable degree of medical probability; i.e. Mr. Gonzalez's neck, back, left shoulder, left knee and right knee have not healed to function normally and will not heal to function normally with further medical treatment. He diagnosed Mr. Gonzalez with, among other things, a herniated nucleus pulposus at the L3-4, L4- 5, and L5-S1 and a bulge in his cervical spine at C3-4, bilateral C2-3, C3-4, C4-5, C5-6, C6-7, C7-T1 cervical facet syndrome, bilateral L3-4, L4-5, L5-SI lumbar facet syndrome, and bilateral L4, L5, SI lumbar radiculopathy. He also diagnosed right-knee derangement, left shoulder internal derangement, and fibro myositis, and stated that Mr. Gonzalez is status-post right knee arthroscopic surgery for, inter alia, a posterior horn tear (id., ¶ 21).
With respect to causation, Dr. Wallace concluded that, based on the proximity of the treatment to the date of the accident and the fact that Mr. Gonzalez was not and had not been under treatment to the injured areas prior to this accident, as well as the indications and positive findings found in the MRI reports (as well as the other diagnostic and treatment lecoids) and his examination, that are consistent with traumatic injury, it is his opinion that there is a direct causal relationship between the treatment, findings, and the accident at issue. He reviewed the patient's records and confirmed that the patient sought treatment to the injured areas on the date of the accident and/or shortly thereafter, and such treatment continued thereafter (id., ¶ 23).
Furthermore, Dr. Wallace opined to a reasonable degree of medical certainty that to the extent that there were any preexisting or degenerative conditions, the accident exacerbated a previously quiescent underlying condition of the cervical spine, lumbar spine, left shoulder, left knee, and right knee. Thus, to the extent that any of the aforementioned injuries were pre-existing or degenerative, in whole or in part, they were not symptomatic and/or were rendered symptomatic by the accident of March 9, 2017 (id., ¶ 24).
Dr. Wallace also opined that, to a reasonable degree of medical probability, there is a significant limitation in Mr. Gonzalez's left knee, right knee, lumbar spine, cervical spine, and left shoulder as of the result of the March 9, 2017 accident (id., ¶ 30). Dr. Wallace found that the injuries were permanent in nature, and the overall prognosis poor (id., ¶ 27). Dr. Wallace further opined to a reasonable degree of medical certainty that plaintiff has reached maximum medical improvement from physical therapy and that further physical therapy will only be palliative in nature, that he will not heal to function normally with further medical treatment, and that these findings are permanent (id., ¶ 28).
Dr. Wallace recommended that plaintiff continue nonopioid analgesics PRN, to follow-up with the Ortho team or PCP for recurrence of knee symptoms, and also recommended repeat lumbar MBBs and then RFA if diagnostic injections positive. He also advised plaintiff to consider a surgical consultation (id., ¶ 32).
Mr. Gonzalez alleges that, after the accident, he was unable to resume his job as a delivery driver and could not work at all for approximately a year-and-a-half. He currently works for the Church of Saint Matthew & Saint Timothy in Manhattan where he assists in feeding the homeless and performs light janitorial services (Ariel Gonzalez aff, ¶¶ 12-13).
Mr. Gonzalez's present complaints are to his lower back, neck, right knee, and left knee. He continues to have difficulty sleeping due to the injuries sustained in the accident. He can no longer sit for more than a half an hour. As a result, he could not resume his job as a delivery driver after the accident. In addition, he can no longer lift or carry things such as groceries. He also has difficulty bending over to do things such as putting on socks. He cannot twist his body or participate in any athletic activities as he was able to do before the accident. His right knee cracks and pops, and the pain he feels increases with walking u stairs or prolonged walking or working (id., ¶ 14). He continues to perform the stretching and home exercise program provided to him as instructed by his physicians. He also takes over-the-counter pain medication every day (id., ¶ 15).
Plaintiff s submissions are sufficient to raise triable issues of fact as to whether he sustained significant and consequential limitations of use as a result of the accident (see Gordon v Hernandez, 181 A.D.3d 424, 425 [1st Dept 2020]; DeLos Santos v Basilio, 176 A.D.3d 544, 545 [1st Dept 2019]; Hamilton v Marom, 178 A.D.3d 424, 425 [1st Dept 2019]).
The report of Metro Pain Specialists satisfies the requirement of a contemporaneous quantitative and qualitative evaluation, describing his treatment shortly after the emergency room visit, and his quantified limitations, as compared to normal ranges of motion. Metro Pain Specialists found that, on qualitative terms, Mr. Gonzalez had moderate-to-severe tenderness of his cervical spine, muscle spasms to the upper trapezial/paraspinal muscles, and moderate-to-severe paraspinal muscle tenderness and spasms on palpation. The initial examination also reported that Mr. Gonzalez had neck pain and stiffness with restriction of motion with radiation to the left upper extremity, lower back pain with stiffness and restriction of motion with radiation to left lower extremity, and weakness to his left lower extremity. The exam also noted that plaintiff needed assistance walking. On quantitative terms, range of motion testing was performed and, as previously discussed, significant limitations in range of motion were found. Thus, at the initial examination performed by Metro Pain Specialists only one week after the accident, serious injuries were found on both a quantitative and qualitative basis.
Dr. Wallace's report documents an additional recent assessment, and shows quantified continuing limitations of motion, specifying the instrument used to measure range of motion (a goniometer) and comparing to the norm.
All of these submissions are sufficient to raise issues of fact, requiring denial of the motion (see Marcelo v Fabius, 195 A.D.3d 472, 472-473 [1st Dept 2021] [plaintiff sufficiently raised an issue of fact as to whether her injuries were significant, permanent and causally related to the automobile accident by providing contemporaneous proof of treatment by her physician the day after the accident, which documented limitations in range of motion, as well as an affirmed report of a physician who found continuing significant limitations in range of motion and who opined that plaintiffs injuries were causally related to accident]; Gordon, 181 A.D.3d at 424-425 [plaintiff raised fact issue as to permanent and significant injury by submitting report of pain management specialist, finding restricted range of motion shortly after accident and in recent exam, and opining that injuries were causally related to accident]; De Los Santos, 176 A.D.3d at 545 [plaintiffs doctors' reports providing quantified range of motion restrictions compared to normal held sufficient to show continuing limitations]; Montoya v Rosenberger, 176 A.D.3d 581, 581-582 [1stDept 2019] [contemporaneous treatment shown establishing causal link]; Hamilton, 178 A.D.3d at 425 [limitations of motion found by plaintiffs treating orthopedist who opined there was a causal relationship between injuries and accident]).
Although defendants argue that plaintiffs injuries are consistent with pre-existing degenerative changes and not acute traumatic injury, plaintiff s physician, Dr. Wallace, makes a causal connection between the accident and plaintiffs injuries. Moreover, plaintiff specifically averred that, before the accident, he did not have any symptoms of pain in or injuries to his neck, back, left shoulder, or knees (Ariel Gonzalez aff, ¶ 3). These submissions are sufficient to raise an issue of fact, requiring denial of defendants' motion (see Massillonv Regalado, 176 A.D.3d 600, 601 [1st Dept 2019] [although defendant's radiologist opined that the conditions were degenerative, plaintiff refuted with contemporaneous MRI and plaintiffs treating doctors' opinions that the conditions were causally related to the accident]; Montoya, 176 A.D.3d at 582 [where no reported prior injury and onset of symptoms shortly after accident, plaintiffs treating doctor's opinion that conditions were causally related to the accident sufficient raised an equally plausible cause of the injuries]).
With regard to the 90/180 days category of serious injury, to make a prima facie case, the defendant must either point to medical evidence that the plaintiff did not sustain a medically determined injury that prevented him or her from performing substantially all of his or her customary daily activities within the relevant period (see Fernandez v Fernandez, 151 A.D.3d 581, 582 [1st Dept 2017]; Frias v Gonzalez-Vargas, 147 A.D.3d 500, 502 [1st Dept 2017]), or to evidence that plaintiff actually performed her usual and customary activities (see Bianchi v Mason, 179 A.D.3d 567, 568 [1st Dept 2020]; Olivare v Tomlin, 187 A.D.3d 642, 643 [1st Dept 2020]).
Although defendants argue that their proof has ruled out the 90/180 day category of the statute, because Mr. Gonzalez did not suffer a medically-determined injury or impairment of a non-permanent nature that prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence complained, defendants fail to provide any facts or argument supporting this prong of the Insurance Law. As a result, the motion with respect to this prong is denied (seeRobinson v Joseph, 99 A.D.3d 568, 569 [1st Dept 2012] [finding that defendants "failed to meet their initial burden as to plaintiffs 90/180-day claim, since they relied only on the reports of their medical experts who did not examine plaintiff during the relevant statutory period and did not address plaintiffs condition during the relevant period"]).
Finally, defendants argue that plaintiffs course of treatment also belied a claim of serious injury, as it shows a "cessation" in treatment, and that plaintiff is obligated to furnish the court with an explanation for the lack of treatment (see Pommells v Perez, 4 N.Y.3d 566, 574 [2005] ["a plaintiff who terminates therapeutic measures following the accident, while claiming' serious injury,' must offer some reasonable explanation for having done so"]).
Here, the record raises triable issues of fact as to whether plaintiff has offered "some reasonable explanation" for the cessation of physical therapy treatment for his injury. Plaintiff alleges that he was advised that his no-fault benefits were exhausted (Ariel Gonzalez aff, ¶ 10). Thereafter, he was provided with a home exercise program by his doctors at Metropolitan Hospital, has continued to perform that home exercise program to this day, and takes pain relievers every day (Ariel Gonzalez aff, ¶¶ 11, 15). In addition, Dr. Wallace, who recently treated plaintiff, explained that he has reached maximum medical improvement from physical therapy, that further physical therapy will only be palliative in nature, and that plaintiff will not heal to function normally with further medical intervention. Dr. Wallace also referred plaintiff for additional consultations (Wallace affirmation, ¶¶ 28, 32).
These submissions raise issues of fact, requiring denial of the motion (see Ramkumar v Grand Style Transp. Enterps., Inc., 22 N.Y.3d 905, 906-907 [2013] [plaintiffs statement that no-fault benefits were terminated, and that he did not have private insurance to cover continued treatment, raised triable issue of fact]; Pommels, 4 NY3 at 577 [where further therapy would only be palliative in nature, gap sufficiently explained]; Wadford v Gruz, 35 A.D.3d 258, 258-259 [1stDept 2006] [finding expiration of no-fault benefits as sufficient to raise an issue of fact]; Brown v Achy, 9 A.D.3d 30, 33-34 [1st Dept 2004] [finding a more than two-year gap in treatment sufficiently explained based on plaintiffs chiropractor's averment that he had reached maximum medical improvement]).
Accordingly, defendants' motion for summary judgment is denied.
Negligence (Motion Sequence No. 002)
Mr. Gonzalez's motion for summary judgment seeking dismissal of the counterclaim against him (that if Ms. Gonzalez suffered any injuries, Mr. Gonzalez is liable for them), and cross motion for summary judgment, both on the basis that there are no triable issues of fact regarding his liability, are denied. However, Ms. Gonzalez's cross motion for summary judgment is granted on the issue of liability.
By Order dated June 28, 2019, defendants were precluded from testifying at the time of trial and from submitting affidavits in opposition to substantive motions, for their failure to appear for depositions (seeNYSCEF Doc Nos. 14and 15). Although plaintiffs argue that this order means that defendants are prohibited from submitting evidence that would create a question of fact, and thus may not oppose their motions for summary judgment, this court disagrees. This court finds that the order only precludes defendants from submitting affidavits in opposition to the motions, not from opposing the motions. Neither defendant has submitted an affidavit in opposition to plaintiffs' motions, and thus, they are in compliance with the order.
With respect to Mr. Gonzalez's motions, it is well settled that the plaintiff in a negligence action is required to show that the defendant's breach of some duty caused or contributed to the plaintiffs mishap (Brathwaite v Equitable Life Assur. Society of U.S., 232 A.D.2d 352, 353 [2d Dept 1996]). The "mere fact that an accident occurs does not mean that a defendant is liable" (id.). "It is a cardinal rule that a defendant may not be cast in damages merely because of the happening of an accident. It must be proven that the accident occurred because of the negligence of the one sought to be charged" (Shkoditch v One Hundred and Fifty William St. Corp., 17 A.D.2d 168, 169 [1st Dept 1962], affd 16 N.Y.2d 609 [1965]; see Eiseman v State of New York, 70 N.Y.2d 175, 187 [1987] [citations omitted] ["Embedded in the law of this State is the proposition that a duty of reasonable care owed by the tortfeasor to the plaintiff is elemental to any recovery in negligence"]; see also Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584 [1994]).
Furthermore, "'[t]here can be more than one proximate cause of an accident'" (Graeber-Nagel v Naranjan, 101 A.D.3d 1078, 1078 [2d Dept 2012] [citation omitted]; see also Cox v Nunez, 23 A.D.3d 427, 427 [2d Dept 2005]). A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection (see Virzi v Fraser, 51 A.D.3d 784, 784 [2d Dept 2008]; Rotondi v Rao, 49 A.D.3d 520, 520 [2d Dept 2008]). Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault (see Mackenzie v City of New York, 81 A.D.3d 699, 700 [2d Dept 2011]; Bonilla v Gutierrez, 81 A.D.3d 581, 582 [2d Dept 2011]).
In support of the motions for summary judgment, Mr. Gonzalez asserts that he was traveling straight on Zerega Avenue when Mr. Hassan suddenly reversed into the intersection from Lyvere Street, right into his vehicle (see Ariel Gonzalez dep at 15, 18). Madeline Gonzalez similarly testified that plaintiffs' vehicle was moving straight, and not turning when the accident occurred (Madeline Gonzalez dep [NYSCEF Doc No. 51], at 11-12). She did not see the other vehicle involved prior to the accident, and she became aware that their vehicle was involved in an accident when she felt an impact to the middle of the driver's side of the vehicle (id. at 14-16).
The unexcused failure to observe the statutory standard of care is negligence per se (Martin v Herzog, 228 NY 164, 168 [1920]; Dalai v City of New York, 262 A.D.2d 596, 597 [2nd Dept 1999]). Plaintiffs argue that Mr. Hassan was negligent per se as he violated Vehicular and Traffic Law (VTL) § 1211 (a), entitled "Limitations on Backing," which states: "The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." Mr. Gonzalez argues that, pursuant to VTL § 1211(a), as the vehicle backing into an intersection, Mr. Hassan had to yield the right of way to plaintiffs vehicle, and only back up if it was safe to do so.
However, in support of his motion and cross motion, Mr. Gonzalez relies only on plaintiffs' self-serving testimony that he was travelling straight on Zerega Avenue, when Mr. Hassan suddenly backed up and hit plaintiffs' vehicle. This testimony is in complete contradiction to the accident report, in which the attending police officer reported that Mr. Gonzalez stated that, while making a left-hand turn, he was struck by the other car.
"On a motion for summary judgment... self-serving statements of an interested party which refer to matters exclusively within that party's knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts" (Sacher v Long Is. Jewish-Hillside Med. Ctr., 142 A.D.2d 567, 568 [2d Dept 1988]; accord Mills v Niagara Frontier Transp. Autk, 163 A.D.3d 1435, 1438 [4th Dept 2018]; Nahar v Gulati, 33 Misc.3d 1233[A], 2011 NY Slip Op 52230[U], *1 [Sup Ct, NY County 2011]). Indeed, "[i]f everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair" (Punsky v City of New York, 129 A.D. 558, 559 [2d Dept 1908]). Accordingly, plaintiffs' self-serving statements are insufficient to establish Mr. Gonzalez's "prima facie entitlement to summary judgment as a matter of law" (see e.g. Quiroz v 176 N Main, LLC, 125 A.D.3d 628, 631 [2d Dept 2015]).
Moreover, given that there may be more than one proximate cause of an accident, the fact that Mr. Gonzalez may have been turning left onto Zerega Avenue just prior to impact does not preclude a finding that comparative negligence by Mr. Gonzalez contributed to the accident (see Mackenzie, 81 A.D.3d at 700; Bonilla, 81 A.D.3d at 582). Indeed, it is entirely possible that a jury could reasonably find that Mr. Gonzalez failed to use reasonable care in avoiding this accident by driving too fast, failing to see what there was to be seen, and by not taking enough evasive action to avoid being hit by Mr. Hassan. Accordingly, viewing the evidence in the light most favorable to defendants as the non-moving parties, Mr. Gonzalez has failed to establish, prima facie, his freedom from liability and that Mr. Hassan's alleged violation of VTL was the sole proximate cause of the accident (seeAponte v Vani, 155 A.D.3d 929, 930-931 [2d Dept 2017]).
Moreover, the inconsistency between Mr. Gonzalez's testimony and the accident report raises triable issues of fact as to the position of plaintiffs' vehicle, whether or not Mr. Gonzalez could have done anything to avoid the alleged incident, and thus, whose negligence caused the accident. Indeed, "[n]egligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Ugarizza v Schmieder, 46 N.Y.2d 471, 474 [1979]; accordBencosmev Allen, 60 Misc.3d 531, 533 [Sup Ct, NY County 2018] ["summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence"]; see e.g. O'Connor v Tishman, 182 A.D.3d 502 [1st Dept 2020] [denying motion for summary judgment in negligence action, where numerous issues of fact existed]).
Accordingly, given the conflict between his testimony and the accident report as to how the accident occurred, Mr. Gonzalez is not entitled to summary judgment against defendants (see Taveras v Ortiz, 192 A.D.3d 611, 611 [1st Dept 2021] [fact issues as to how accident occurred precluded summary judgment]; Morris v Green, 156 A.D.3d 540, 540 [1st Dept 2017] [summary judgment denied because record showed "conflicting versions as to how the accident occurred"]; Buffa v Carr, 148 A.D.3d 606, 606 [1st Dept 2017] ["Given that issues of fact exist as to which vehicle was responsible for the accident, it is not appropriate to grant plaintiff summary judgment on the issue of liability as against any defendant"]; Huera-Saucedo v City Bronx Leasing, Inc., 147 A.D.3d 695, 695 [1st Dept 2017] ["conflicting versions as to how the accident occurred raise triable issues of fact that preclude summary judgment on the issue of defendants' liability"]).
However, with respect to Ms. Gonzalez, her cross motion for summary judgment on the issue of liability is granted only on the issue of her lack of fault or culpability. Ms. Gonzalez made a prima facie showing that, as an innocent passenger, she was free of any fault in the accident, and summary judgment on that issue is not restricted by potential issues of comparative negligence between the two drivers (see Ramirez v Elias-Tejada, 168 A.D.3d 401, 405 [ 1st Dept 2019] [innocent passengers entitled to summary judgment on their lack of culpable conduct]; Kaplan v Tsirlin, 164 A.D.3d 1150, 1151 [1st Dept 2018] [taxi passenger free from culpability]; Guzman v Desantis, 148 A.D. 33 580, 581 [1st Dept 2017] [no culpable conduct by innocent passenger]). Accordingly, summary judgment on this limited issue is appropriate.
Accordingly, it is
ORDERED that defendants' motion for summary judgment (motion sequence no. 001) is denied; and it is further
ORDERED that plaintiff Ariel Gonzalez's motion for summary judgment on the counterclaim (motion sequence no. 002) is denied; and it is further
ORDERED that plaintiffs' cross motion for summary judgment (motion sequence no. 002) is granted only on the limited issue that plaintiff Madeline Gonzalez is free of culpable conduct and is otherwise denied; and it is further
ORDERED that any relief sought not expressly addressed herein has nonetheless been considered.
This constitutes the decision and order of the Court.