Opinion
188 CA 21-00994
07-08-2022
David R. MARKIEWICZ, Plaintiff-Respondent, v. Kathryn M. JONES, Defendant-Appellant.
BARTH CONDREN LLP, BUFFALO (JOHN R. CONDREN OF COUNSEL), FOR DEFENDANT-APPELLANT. VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
BARTH CONDREN LLP, BUFFALO (JOHN R. CONDREN OF COUNSEL), FOR DEFENDANT-APPELLANT.
VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury to his left knee, lumbar spine, and left hip, and that plaintiff sustained a serious injury under the 90/180-day category of serious injury within the meaning of Insurance Law § 5102 (d), and by denying the cross motion in its entirety, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when his left foot was run over by a vehicle operated by defendant. Plaintiff alleged that, as a result of the accident, he suffered a serious injury under the fracture, permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury as defined in Insurance Law § 5102 (d). Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury, and plaintiff cross-moved for summary judgment on the issues of serious injury and negligence. Defendant now appeals from an order that denied her motion, denied the cross motion with respect to the issue of serious injury, and granted the cross motion with respect to the issue of negligence.
Initially, with respect to the cross motion, we agree with defendant that there is a triable issue of fact regarding the emergency doctrine and that Supreme Court thus erred in granting plaintiff's cross motion with respect to the issue of negligence. We therefore modify the order accordingly. "Under the emergency doctrine, when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the [driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context[,] ... provided the [driver] has not created the emergency" ( Dalton v. Lucas , 96 A.D.3d 1648, 1648, 947 N.Y.S.2d 285 [4th Dept. 2012] [internal quotation marks omitted]; see Caristo v. Sanzone , 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001] ). The doctrine recognizes that a "person in such an emergency situation cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though later it appears that the actor made the wrong decision" ( Rivera v. New York City Tr. Auth. , 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991], rearg denied 77 N.Y.2d 990, 571 N.Y.S.2d 916, 575 N.E.2d 402 [1991] [internal quotation marks omitted]). Here, we conclude that "[t]he existence of an emergency and the reasonableness of [defendant's] response thereto ... constitute issues of fact" for the jury to determine ( Dalton , 96 A.D.3d at 1649, 947 N.Y.S.2d 285 ).
We also agree with defendant that, as plaintiff correctly concedes, plaintiff abandoned any claim of serious injury under the 90/180-day category by failing to oppose defendant's motion with respect to that category (see generally Burns v. Kroening , 164 A.D.3d 1640, 1641, 84 N.Y.S.3d 643 [4th Dept. 2018] ). We therefore further modify the order accordingly.
Contrary to the contention of defendant, the court properly denied her motion with respect to plaintiff's allegations that he suffered a serious injury to his left foot and ankle under the fracture, permanent consequential limitation of use, and significant limitation of use categories. With respect to the fracture category, defendant failed to establish her prima facie entitlement to judgment as a matter of law (see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). In an affirmed report submitted in support of the motion, defendant's expert physician "acknowledged that his review of the emergency room records shows that the hospital clinically diagnosed plaintiff with a [fracture of the left talus], thereby raising issues of fact" ( Lavy v. Zaman , 95 A.D.3d 585, 585, 944 N.Y.S.2d 94 [1st Dept. 2012] ).
With respect to the permanent consequential limitation of use and significant limitation of use categories, "[w]hether a limitation of use ... is significant or consequential 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, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002], rearg denied 98 N.Y.2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002] [internal quotation marks omitted]; see generally Gamblin v. Nam , 200 A.D.3d 1610, 1612-1613, 161 N.Y.S.3d 550 [4th Dept. 2021] ; Habir v. Wilczak , 191 A.D.3d 1320, 1322, 141 N.Y.S.3d 596 [4th Dept. 2021] ). Here, although defendant established her prima facie entitlement to judgment as a matter of law with respect to plaintiff's left foot and ankle injury under those categories (see generally Pommells v. Perez , 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ), plaintiff raised a triable issue of fact in opposition (see generally Jacobsen v. New York City Health & Hosps. Corp. , 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ; Zuckerman , 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Plaintiff submitted objective evidence that he sustained a crush injury to his left foot and ankle, as well as the opinion of his podiatrist that the injury was "significant, permanent, and causally related to the accident" ( Carter v. Patterson , 197 A.D.3d 857, 859, 153 N.Y.S.3d 240 [4th Dept. 2021] ).
However, we agree with defendant that the court erred in denying her motion with respect to plaintiff's allegations that he sustained serious injury to his left knee, and we therefore further modify the order accordingly. Defendant met her burden on her motion with respect to that issue by submitting the affirmed report of her expert physician, who opined that plaintiff's left knee had a "possible contusion," which had resolved, and that there was no evidence of a fracture, which was the sole injury alleged by plaintiff with respect to the left knee. The expert further noted that the records of plaintiff's orthopedic surgeon did not include a finding of a fracture (see generally Woodward v. Ciamaricone , 175 A.D.3d 942, 943-944, 108 N.Y.S.3d 91 [4th Dept. 2019] ; Heatter v. Dmowski , 115 A.D.3d 1325, 1326, 983 N.Y.S.2d 179 [4th Dept. 2014] ). Contrary to plaintiff's assertion, his medical records do not raise a question of fact whether he sustained a fracture to his left kneecap. The statement in the medical records of a reviewing physician that an X ray revealed "[s]erpiginous curvilinear lucency traversing the anterior central aspect of the patella" that "could conceivably represent a nondisplaced fracture line" but that there was "[n]o additional evidence of fracture" is speculative and does not raise a triable issue of fact (see generally Kwitek v. Seier , 105 A.D.3d 1419, 1421, 963 N.Y.S.2d 801 [4th Dept. 2013] ; Brackenbury v. Franklin , 93 A.D.3d 423, 423, 939 N.Y.S.2d 63 [1st Dept. 2012] ).
Defendant is similarly entitled to summary judgment with respect to plaintiff's allegations that he sustained serious injury to his lumbar spine and left hip, and we therefore further modify the order accordingly. Defendant met her initial burden with respect to those injuries with the opinion of her expert physician, who concluded that plaintiff's lower back and hip pain were the result of underlying degenerative disc disease of the lumbar spine with no evidence of any injury caused by the accident, and who determined that plaintiff had almost full range of motion of his lumbar spine and left hip (see French v. Symborski , 118 A.D.3d 1251, 1251-1252, 987 N.Y.S.2d 724 [4th Dept. 2014], lv denied 24 N.Y.3d 904, 2014 WL 4637174 [2014] ; see generally Palivoda v. Sluberski , 275 A.D.2d 1036, 1036-1037, 713 N.Y.S.2d 378 [4th Dept. 2000] ). In response, plaintiff submitted his medical records, which stated, inter alia, that plaintiff had mild lower lumbar degenerative disc and facet disease. Plaintiff also submitted a narrative report prepared by his chiropractor, but that unsworn report "did not constitute proof in admissible form" ( McCarthy v. Hameed , 191 A.D.3d 1462, 1464, 141 N.Y.S.3d 824 [4th Dept. 2021] ). Moreover, even if that report was in admissible form, it does not provide any "objective evidence" of plaintiff's alleged limitations in range of motion ( Paternosh v. Wood , 151 A.D.3d 1733, 1734, 56 N.Y.S.3d 747 [4th Dept. 2017] ). Nor did plaintiff's chiropractor address the defense expert physician's conclusion–or the medical records that support such a conclusion–that plaintiff's lower back injury is degenerative in nature (see Cohen v. Broten , 197 A.D.3d 949, 950, 150 N.Y.S.3d 656 [4th Dept. 2021] ).