Opinion
Index No. E2018009332
04-21-2021
TITUS HOWELL, Plaintiff, v. TIMOTHY WALLACE and BARBARA WALLACE, Defendants.
Timothy C. Bellavia, Esq., for Plaintiff Daniel P. Fletcher, Esq., for Defendants
Unpublished Opinion
Special Term April 15, 2021
Timothy C. Bellavia, Esq., for Plaintiff
Daniel P. Fletcher, Esq., for Defendants
DECISION & ORDER
Honorable William K. Taylor, Supreme Court Justice
Titus Howell ("Plaintiff") commenced the instant negligence action seeking damages for alleged serious injuries sustained in a September 7, 2016 rear-end car accident involving a vehicle operated by Barbara Wallace and owned by Timothy Wallace (collectively "Defendants"). Plaintiff's amplified pleading alleges causally related serious injuries to his lumbar spine under the following Insurance Law § 5102(d) categories: 1) permanent consequential limitation of use of a body organ or member; 2) significant limitation of use of a body function or system; and 3) a medically determined injury or impairment of a non-permanent nature which prevents her from performing substantially all of the material acts constituting her usual and customary daily activities for not less than 90 days during the first 180 days following the occurrence of the injury.
Before the Court is Plaintiff's motion for summary judgment pursuant to CPLR 3212 upon the issues of negligence and serious injury. Defendants oppose the motion and cross-move for summary judgment. For the reasons that follow, Plaintiff's motion for summary judgment directed to Defendants' negligence as the sole proximate cause in the happening of the accident is GRANTED and the remaining portion of both Plaintiff and Defendants' respective motions for summary judgment directed to serious injury are DENIED.
When considering a summary judgment motion "the proponent...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" necessitating a trial. Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986); CPLR 3212(b). Proof offered by the moving party must be in admissible form. See Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980); Dix v Pines Hotel, Inc., 188 A.D.2d 1007 (4th Dept 1992). And once a prima facie showing has been made, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez, 68 N.Y.2d at 324; see also, Mortillaro v Rochester Gen. Hosp., 94 A.D.3d 1497, 1499 (4th Dept 2012).
As a threshold matter, Plaintiff established his prima facie case of negligence in that his stopped vehicle was rear-ended by Defendants' vehicle. See e.g., Sims v Ciccone-Burton, 167 A.D.3d 1541, 1542 (4th Dept 2018). It was thus incumbent on Defendants to submit a non-negligent explanation for the happening of the accident. They have failed to do so. See e.g., Sims 167 A.D.3d at 1543 ("Far from constituting a nonnegligent explanation for the crash, the driver's deposition testimony conclusively establishes her own negligence, i.e., that she breached her 'duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.'").
A close reading of the police accident report coupled with Defendant Barbara Wallace's deposition testimony do not support an issue of fact as to a non-negligent explanation for the instant rear-end collision. Compare Doc. No. 12, Certified Police Report with Doc. No. 18, Barbara Wallace depo trans. The police accident report provides that Defendant Barbara Wallace "took her eyes off the traffic ahead for a moment and when she looked ahead again [Plaintiff] was suddenly stopped." Even if this statement within the report was not inadmissible hearsay, which it is per Huff v Rodriguez, 45 A.D.3d 1430, 1432 (2d Dept 2007), it supports a sudden realization as opposed to a sudden stop. As for admissible evidence on the motion, the Court is left only with Defendant Barbara Wallace's deposition testimony that she never took her eyes off the road prior to the accident. As such, Defendants have failed to proffer in admissible form a non-negligent explanation for the happening of the accident. See e.g., Le Grand v Silberstein, 123 A.D.3d 773, 774 (2d Dept 2014)("A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence..."); Shamah v Richmond County Ambulance Service, Inc., 279 A.D.2d 564, 565 (2d Dept 2001)("[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead.").
The Court now turns to the motions as they relate to the claimed serious injuries. To make out a prima facie case for serious injury under the permanent consequential limitation of use and significant limitation of use categories, the Court must look to "[w]hether a limitation of use or function is 'significant' or 'consequential' [as it] relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part." Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 353 (2002). Objective medical proof is required and subjective complaints, standing alone, are insufficient. See Id. at 350; see also Pommells v Perez, 4 N.Y.3d 566, 572 (2005); Jaromin v Northrup, 39 A.D.3d 1264, 1265 (4th Dept 2007). Limitations found to be minor, mild or slight "are properly characterized as 'insignificant' or inconsequential within the meaning of the statute." Downie v McDonough, 117 A.D.3d 1401, 1403 (4th Dept 2014). To make out a prima facie case for summary judgment as to Plaintiff's 90/180-day category, Defendant is "required to 'establish as a matter of law that plaintiff was not curtailed from performing h[er] usual activities to a great extent rather than some slight curtailment' during the relevant time period." Cook v Peterson, 137 A.D.3d 1594, 1598 (4th Dept 2016).
With respect to Plaintiff's alleged causally-related serious injuries to his lumbar spine under Insurance Law § 5102(d)'s permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury, even assuming arguendo that the parties met their respective initial burdens triable issues of fact have been raised in response.
For instance, on Plaintiff's motion he offers an affidavit from his treating neurosurgeon, Dr. Zeidman, who opines that based upon his review of lumbar imaging studies and a review of Plaintiff's medical history that Plaintiff has continued lumbar spine pain symptoms that significantly limit his daily living and that the instant accident aggravated Plaintiff's pre-existing asymptomatic lumbar degenerative condition. See Doc. No. 19, Dr. Zeidman Affirmation at ¶9-11. Meanwhile, Defendants offered in support of their motion the IME report of Dr. Molinari who opined that Plaintiff has a degenerative lumbar condition and that neither the physical examination he conducted upon Plaintiff nor objective medical evidence reveal any evidence of a significant causally related traumatic injury. See Doc. No. 41, Molinari IME at 5.
Accordingly, is hereby
ORDERED, that Plaintiff's motion for summary judgment as to Defendants' negligence is GRANTED and those remaining portions of Plaintiff's and Defendants' respective motions for summary judgment directed to serious injury are DENIED. Any prayers for relief not specifically addressed herein are DENIED.
This constitutes the decision and order of the Court.