Opinion
1404 CA 17–01220
12-22-2017
Marcella JAMES, Plaintiff–Respondent–Appellant, v. Darnell A. THOMAS, Randolph Thomas and Marilyn G. Thomas, Defendants–Appellants–Respondents.
BARTH SULLIVAN BEHR, BUFFALO (BRENDAN S. BYRNE OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
BARTH SULLIVAN BEHR, BUFFALO (BRENDAN S. BYRNE OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiff commenced this action to recover damages for injuries that she allegedly sustained when the vehicle she was driving was struck from behind by a vehicle driven by defendant Darnell A. Thomas. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury in the accident within the meaning of the three categories of serious injury alleged by her (see Insurance Law § 5102[d] ), and plaintiff cross-moved for partial summary judgment on the issue of negligence. Supreme Court denied defendants' motion and plaintiff's cross motion. Defendants appeal and plaintiff cross-appeals, and we affirm.
We agree with plaintiff on defendants' appeal that the court properly denied defendants' motion because they failed to meet their initial burden of establishing that plaintiff's injuries were not caused by the accident. Defendants contended with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury alleged by plaintiff that such injuries were preexisting, having resulted from a previous motor vehicle accident. Although defendants' expert ultimately opined in his report that plaintiff's injuries were not causally related to the accident, that report relies on plaintiff's medical records, which conclude that plaintiff sustained injuries that were causally related to the collision. The report also noted the quantitative assessments of plaintiff's physicians with respect to her limited range of motion in her cervical and lumbar spine after the accident. Thus, defendants failed to eliminate all issues of fact with respect to whether plaintiff sustained serious injuries that were causally related to the accident under those two categories (see Croisdale v. Weed, 139 A.D.3d 1363, 1364, 32 N.Y.S.3d 399 [4th Dept. 2016] ; Nyhlen v. Giles, 138 A.D.3d 1428, 1429, 31 N.Y.S.3d 706 [4th Dept. 2016] ; Houston v. Geerlings, 83 A.D.3d 1448, 1450, 920 N.Y.S.2d 537 [4th Dept. 2011] ).
We further conclude that defendants failed to establish their entitlement to judgment as a matter of law on the third category of serious injury alleged by plaintiff, i.e., the 90/180–day category, inasmuch as "[t]he examination[ ] by defendants' physician[ ] took place well after the relevant 180–day period, [he] did not opine about plaintiff's condition during that period, and defendants submitted no other evidence refuting plaintiff's claim that, as a result of her injuries, she ... was unable" to perform household chores, cook, or shovel light snow following the accident ( Steele v. Santana, 125 A.D.3d 523, 524, 4 N.Y.S.3d 181 [1st Dept. 2015] ; see Summers v. Spada, 109 A.D.3d 1192, 1193, 971 N.Y.S.2d 773 [4th Dept. 2013] ). In any event, plaintiff's deposition testimony, which was submitted by defendants in support of their motion, establishes that there is an issue of fact whether plaintiff could perform substantially all of her activities of daily living for not less than 90 days during the 180 days immediately following the occurrence of her injuries (see Durante v. Hogan, 137 A.D.3d 1677, 1678, 27 N.Y.S.3d 774 [4th Dept. 2016] ). In light of defendants' failure to meet their initial burden on the motion, there is no need to consider the sufficiency of plaintiff's opposition thereto (see Thomas v. Huh, 115 A.D.3d 1225, 1226, 982 N.Y.S.2d 634 [4th Dept. 2014] ).
The court also properly denied plaintiff's cross motion. It is well settled that a rear-end collision establishes a prima facie case of negligence on the part of the driver of the rear vehicle and, in order to rebut the presumption of negligence, the driver of the rear vehicle must submit a nonnegligent explanation for the collision (see Shulga v. Ashcroft, 11 A.D.3d 893, 894, 784 N.Y.S.2d 744 [4th Dept. 2004] ). Here, there is evidence in the record that plaintiff stopped her vehicle suddenly, which is sufficient to overcome the inference of negligence and preclude an award of summary judgment (see Zbock v. Gietz, 145 A.D.3d 1521, 1522, 44 N.Y.S.3d 302 [4th Dept. 2016] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.