Opinion
# 2020-053-532 Claim No. 133706 Motion No. M-95672
08-28-2020
TERRANCE MARSHA and SUSAN MARSHA v. THE STATE OF NEW YORK
O'BRIEN & FORD, P.C. BY: Christopher M. Pannozzo, Esq. HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General
Synopsis
Claimants' motion for summary judgment on the issues of negligence and serious injury as defined by Insurance Law 5102 (d) is granted. Vehicle in which claimant was a passenger was rear-ended at a high speed by a NYS Trooper, who later pled guilty to reckless driving in violation of Vehicle and Traffic Law 1212.
Case information
| UID: | 2020-053-532 |
| Claimant(s): | TERRANCE MARSHA and SUSAN MARSHA |
| Claimant short name: | MARSHA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The original claim lists State of New York, New York State Thruway Authority and New York State Police as defendants. The New York State Police are an agency of the State without the capacity to sue or be sued. The caption of the proposed claim has been amended sua sponte to reflect the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133706 |
| Motion number(s): | M-95672 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | O'BRIEN & FORD, P.C. BY: Christopher M. Pannozzo, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 28, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Terrance Marsha and Susan Marsha filed claim no. 133706 on September 27, 2019 alleging that on July 15, 2019 claimant Terrance Marsha (Claimant) was a front passenger in a 2019 Dodge Caravan and was seriously injured when a 2016 Dodge police cruiser operated by New York State Trooper Stephen C. Barker (Trooper Barker) collided with the rear of the vehicle in which Claimant was an occupant. The accident took place on the New York State Thruway (I-90) approximately five miles east of Exit 59. An answer was filed by the State of New York denying the allegations in the claim on December 5, 2019. The claimants move for summary judgment on the issues of negligence and serious injury as defined by Insurance Law § 5102(d).
FACTUAL BACKGROUND
On July 15, 2019 at approximately 1:08 p.m., a 2019 Dodge Caravan driven by Harry Gibbons and owned by EAN Holdings LLC was traveling westbound on I-90 in the Town of Sheridan, New York. In addition to Mr. Gibbons, there were four passengers in the van, including Claimant, who was seated in the front passenger seat. The driver and occupants of the van were employed by Enterprise Rent-A-Car and were traveling in the course of their employment.
The NYS Police accident reconstruction report prepared by NYS Police Investigator Kyle D. Folts (Inspector Folts) stated that the westbound lanes were relatively straight and level and the weather conditions at the time of the subject accident were clear. Trooper Barker, who was driving the police vehicle in the course of his employment, collided with the rear of the van that had been slowing for traffic ahead in the left lane. Investigator Folt's report calculated that Trooper Barker's vehicle was going 81 mph at the time he applied his brake less than five seconds prior to impact and struck the van at a speed of 73 mph. Investigator Folts concluded his report by stating that Trooper Barker failed to observe and react to the slowing traffic ahead of him and that his failure to do so was the primary contributing factor that resulted in this accident (Exhibit F).
On December 30, 2019, Trooper Barker was charged in the Sheridan Town Court with Reckless Endangerment in the Second Degree in violation of NYS Penal Law § 120.20 and Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. On January 16, 2020, Trooper Barker pled guilty to the charge of Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212.
In a separate action pending before this Court (Claim No. 133516), Harry Gibbons testified at his deposition that he was the driver of the van involved in this accident and that the accident occurred near the Dunkirk exit on I-90. He testified that he was traveling in the left or passing lane and that there was stop and go traffic requiring him to often come to a complete stop. Gibbons testified that immediately prior to the accident he had come to a complete stop and the next thing he remembered was a loud bang and then he was rendered unconscious (Exhibit I).
DECISION AND LAW
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).
It has been held that in a case involving a rear-end collision a prima facie case of negligence is established against the operator of the rear vehicle where the vehicle in front has stopped or is stopping (Baker v Savo, 142 AD3d 1368 [4th Dept 2016]; Barron v Northtown World Auto, 137 AD3d 1708 [4th Dept 2016]). In such instances, the operator of the rear vehicle has a duty to come forward with an adequate non-negligent explanation for the accident (Barron, Id. at 1709, citing to Borowski v Ptak, 107 AD3d 1498 [4th Dept 2013]). The deposition testimony of Mr. Gibbons, which was corroborated by Investigator McCusker's report, establishes that the van had come to a stop prior to the accident and that Trooper Barker failed to observe and react to slow and stop his vehicle in order to avoid the collision. In opposition, the defendant does not contest that it is liable for the acts or omissions of its employee, Trooper Barker, and has not come forward with any non-negligent explanation for Trooper Barker's conduct. As a result, the Court finds that claimants have met their burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of this accident.
Furthermore, as a result of the subject accident, Trooper Barker pled guilty to a misdemeanor offense of reckless driving in violation of Vehicle and Traffic Law § 1212, which provides, in relevant part, that "[r]eckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." Trooper Barker's guilty plea to reckless driving also establishes the defendant's liability for negligence in causing claimants' injuries (Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; see Allstate Ins. Co. v Zuk, 78 NY2d 41[1991]). Accordingly, there is no question of fact to raise a triable issue and claimants' motion for summary judgment on the issue of negligence is granted.
The claimants also seek summary judgment on the issue of serious injury. In order for claimant to recover for non-economic loss resulting from the subject motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The claimants contend that a serious injury has been established under four separate categories, namely, a fracture; a significant limitation of use of a body function or system; permanent consequential limitation of use of a body organ or member; and 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. The defendant does not oppose this motion with respect to the issue of whether Claimant has sustained a "serious injury."
In support of claimants' motion they submit the affirmation of John Callahan, M.D., the Claimant's treating orthopedist. Dr. Callahan affirms with a reasonable degree of medical certainty that the transverse fracture of Claimant's right radius for which an open reduction surgery was performed on July 23, 2019 was a direct and proximate cause of the motor vehicle crash of July 15, 2019 and that the accident was a substantial factor in causing the fracture. Dr. Callahan also affirms that Claimant experienced numbness and a limitation in the use and range of motion of his right hand and index finger that Dr. Callahan determined to be a 100% impairment. Dr. Callahan also affirmed that he ordered an EMG that was performed by George Kalanaros, M.D., who diagnosed Claimant with carpal tunnel syndrome in his right wrist.
Dr. Callahan opines with a reasonable degree of medical certainty that Claimant sustained a significant limitation as well as permanent consequential limitation of the use of his right arm and wrist as a result of the July 15, 2019 motor vehicle crash. Dr. Callahan next opines that Claimant sustained both a qualitative and quantitative loss of functionality, range of motion, and ability to use his right wrist and arm as a result of the July 15, 2019 motor vehicle crash. Finally, Dr. Callahan opines that the types of injuries sustained by Claimant prevented him from performing all of the material acts which constituted his usual and customary activities in excess of 90 days within the first 180 days following the subject accident. The Court finds that claimants have sustained their burden to establish the existence of a serious injury within the meaning of the Insurance Law and that there is no question of fact to raise a triable issue. Accordingly, claimants' motion for summary judgment on the issue of serious injury is granted with respect to all four categories as defined by Insurance Law § 5102(d).
Based on the foregoing, claimant's motion no. M-95672 for summary judgment with respect to the issues of negligence and serious injury is granted.
August 28, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1) Notice of motion and affidavit of Christopher Pannozzo, Esq., dated July 14, 2020, with annexed Exhibits A-P; along with Affirmation of John M. Callahan, M.D. with annexed Exhibits A-D; 2) Affirmation in opposition of Assistant Attorney General, Carlton K. Brownell, III, Esq. dated July 28, 2020; and 3) Reply affidavit of Christopher Pannozzo, Esq., sworn to August 7, 2020 with annexed Exhibits A-B.