Opinion
Index No. 000472/2021 NYSCEF Doc. No. 49
10-05-2022
MITCHELL J. NEWVINE, Plaintiff, v. JEFFERY J. BARZEE, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. JOSEPH E. LAMENDOLA, JSC
Plaintiff Mitchell J. Newvine commenced this personal injury motor vehicle action against defendant Jeffery J. Barzee. According to the complaint, on July 18, 2019, plaintiff was riding a bicycle and defendant was operating a 2009 Chevrolet pick-up truck on East Molloy Road in Mattydale, New York. At approximately 7:00 p.m., acollision occurred between Plaintiff, on his bicycle, and the Defendant's vehicle when the Defendant turned left from East Molloy Road into the parking lot of the Mattydale Volunteer Fire Department at 173 East Molloy Road.
Pending before the Court now are three motions: 1) Defendant's motion to bifurcate the liability and damages aspects of the trial; 2) Plaintiffs motion for partial summary judgment on the issues of liability and/or serious injury; and 3) Defendant's motion to preclude the testimony of Plaintiffs accident reconstruction expert, Thomas Onions.
Motion for Bifurcation
Defendant seeks bifurcation of trial on the issues of liability and damages, arguing that the primary issue between the parties is that of liability, and that "the injuries are fairly contained and there isn't much of a dispute over the scope of damages." Defendant contends that sympathy for the Plaintiffs serious injuries might affect the jury's deliberations as to liability, and that bifurcation would save both parties from the significant costs of medical testimony. Plaintiff opposes the motion to bifurcate, arguing that the pattern jury instructions address any concerns of misplaced sympathy (PJI 1:27); that conducting two trials "is less expeditious and cost effective;" and that bifurcation in the present matter would not assist in the clarification or simplification of issues as envisioned by the provisions of 22 NYCRR 202.42a.
"As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately." Turnmire v. Concrete Applied Tech. Corp., 56 A.D.3d 1125, 1128 [4th Dept., 2008] citing Piccione v. Tri-main Dev., LP, 5 A.D.3d 1086, 1087 [4th Dept., 2004], An exception to that rule "arises where the plaintiffs injuries have 'an important bearing' on the issue of liability." DeAngelis v. Martens Farms, LLC, 104 A.D.3d 1131 [4th Dept., 2013] citing Parmar v. Skinner, 154 A.D.2d 444, 445 [4th Dept., 1989], In the present matter, Plaintiffs damages do not have 'an important bearing' on liability. The bifurcation of liability and damages in the present matter would additionally greatly simplify the trial. In opposing the motion, Plaintiff has "failed to establish the need to depart from the general rule" favoring bifurcation. Id., 104 A.D.3d at 1131. Defendant's motion to bifurcate shall therefore be granted.
Plaintiff's Motion for Summary Judgment
The court's function with respect to a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). Summary judgment has been described as a "drastic remedy" because it amounts to a finding by the court that there is no issue of fact to be resolved at a trial, thereby obviating the need for any trial at all. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The party seeking summary judgment is obliged to "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." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Weinsrad v. New York Univ. Med Ctr., 64 N.Y.2d 851,853 (1985).
Once that initial burden is satisfied, the "burden of production" shifts to the opponent, who must produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. Alvarez, 68 N.Y.2d 320. The opponent's proffer must constitute more than "mere conclusions, expressions of hope or unsubstantiated allegations or assertions." Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). In the face of a motion for summary judgment, the party against whom it is sought is obligated to lay bare his proof, that is, to demonstrate by affidavit or otherwise that one or more triable issues of fact genuinely exist. If such proof is not forthcoming, summary judgment may well be the result. Id. The burden of persuasion, however, remains with the proponent of the issue; thus, if the evidence is equally balanced the movant will be found to have failed in meeting his burden of proof and summary judgment must be denied.
The court reviews a summary judgment motion in the light most favorable to the party opposing it, giving that party the benefit of every inference that may be reasonably and fairly drawn. Ugarriza v. Schmieder, 46 N.Y.2d 471,475-6 (1979); Secore v. Allen, 27 A.D.3d 825 (3d Dept 2006). Through that prism, the court determines whether any triable issue of a material fact exists. If it does, then resolution of the issue must await trial. If it does not, then the court may summarily grant judgment without the need for a trial. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957); Gadani v. Dormitory Authority of the State of New York, 43 A.D.3d 1218 (3d Dept 2007); Raven Industries, Inc, v. Irvine, 40 A.D.3d 1241 (3d Dept 2007).
"[I]n seeking . . . summary judgment on liability, plaintiff[ ] [is] required to establish . . . that [defendant] was negligent and that [his] negligence was a proximate cause of the accident" (Edwards v Gorman, 162 A.D.3d 1480, 1481 [4th Dept 2018]). Plaintiff is not required to establish the absence of his own comparative fault (see Rodriguez v City of New York, 31 N.Y.3d 312, 315 [2018]). Plaintiff contends that defendant failed to yield the right-of-way to plaintiffs vehicle when the turn could not be made with reasonable safety in violation of Vehicle and Traffic Law § 1141 and 1163(a). See Sirlin v. Schreib, 117 A.D.3d 819 [2nd Dept. 2014] "However, it is only the unexcused violation of a provision in the Vehicle and Traffic Law that constitutes negligence per se" (Habir v Wilczak, 191 A.D.3d 1320, 1321 [4th Dept 2021]).
Plaintiff made a prima facie showing of liability on the part of the Defendant by proffering evidence that the Defendant turned left into Plaintiffs lane of travel causing Plaintiffs bicycle to collide with the Defendant's truck. The burden of proof having been shifted to the Defendant, triable issues of fact as to whether he violated Vehicle & Traffic Law § 1141 and 1163(a) need be established. Defendant adduced evidence that the Plaintiff was intoxicated (BAC of .15%), operating his motorized bicycle at approximately 15 to 20 mph, and that when Plaintiff entered the Defendant's lane of travel the Defendant quickly turned left to avoid a collision. The evidence adduced by the Defendant in opposition to the Plaintiffs motion was sufficient to raise a triable issue of fact as to Defendant's negligence. (Brodney v Picinic, 172 A.D.3d 673, 674 [2d Dept 2019]; see generally Habir, 191 A.D.3d at 598; Carnevale v Bommer, 175 A.D.3d 881, 881-882 [4th Dept 2019]). Plaintiff s motion for summary judgment on the issue of liability must therefore be denied.
Plaintiff additionally seeks summary judgment on the issue of whether Plaintiff suffered a serious injury as defined by Insurance Law §5102(d). Defendant has not offered any opposition to this motion. Further, the evidence submitted by Plaintiff establishes that Plaintiff is a 'covered person' as a bicyclist, and that he suffered a comminuted displaced fracture of the distal femoral diametaphysis and comminuted angulated fractures of the right distal and proximal femur. The evidence submitted establishes that Plaintiff is entitled to summary judgment as a matter of law on the issue of threshold injury, or 'serious injury', under Insurance Law §5102(d). Plaintiffs motion for summary judgment on the issue of serious/threshold injury shall therefore be granted.
Defendant's Motion to Preclude Expert Testimony
Defendant seeks to preclude the testimony of the Plaintiffs accident reconstruction expert witness, Thomas C. Onions. Defendant argues that Mr. Onions does not have admissible expert testimony to proffer as he does not know the speeds of the parties, the relative distances at any point other than impact, the locations of the parties in any "meaningful manner," and has not performed any analysis to offer to the jury. In sum, Defendant argues that the testimony proffered by Mr. Thomas is not necessary as being beyond the knowledge/capacity of the average juror.
"As a general rule, the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court. The guiding principle is that expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror."
DeLong v. County of Erie, 60 N.Y.2d 296, 307 [1983]
Where the evidence to be proffered by an accident reconstruction expert would merely establish the mechanics of the accident, preclusion of such testimony is appropriate given that such testimony was not beyond the understanding of the typical juror and could be established by fact witnesses. Tojek v. Root, 34 A.D.3d 1210, 1211 [4th Dept., 2006. The testimony being proffered by Plaintiffs accident reconstruction expert, Thomas C. Onions, much like that in Tojek, supra, is merely mapping and/or mechanics of the accident and as such is not beyond the understanding of the average juror nor beyond the ability of the fact witnesses to establish. The Defendant's motion for preclusion of the testimony of Thomas C. Onions is therefore granted.
Accordingly, it is hereby
ORDERED, that Defendant's motion to bifurcate trial of liability and damages is GRANTED; and it is further
ORDERED, that Plaintiffs Cross-Motion for summary judgment on the issue of liability is DENIED; and it is further
ORDERED, that Plaintiff's Cross-Motion for summary judgment on the issue of a threshold serious injury pursuant to Insurance Law § 5102(d) is GRANTED; and it is further
ORDERED, that Defendant's motion to preclude testimony of Plaintiffs expert witness, Thomas C. Onions, is GRANTED.
PAPERS CONSIDERED :
1) Notice of Motion, filed on June 3, 2022 (NYSCEF # 19).
2) Attorney Affirmation in Support, with annexed exhibits, filed on June 3, 2022 (NYSCEF #20-22).
3) Notice of Cross-Motion, filed on July 7, 2022 (NYSCEF # 24).
4) Attorney Affidavit in Opposition of Motion/Support of Cross-Motion, with annexed exhibits, filed on July 7, 2022 (NYSCEF # 25-36).
5) Affidavit of Plaintiff, filed on July 7, 2022 (NYSCEF # 37).
6) Affidavit of Plaintiff's Expert, Thomas C. Onions, filed on July 7, 2022 (NYSCEF #38).
7) Statement of Material Facts, filed July 7, 2022 (NYSCEF #39).
8) Memorandum in Opposition to Motion/in Support of Cross-Motion, filed July 7, 2022 (NYSCEF #40).
9) Notice of [Defendant's] Cross-Motion, filed August 15, 2022 (NYSCEF #43).
10) Affirmation in Opposition to Plaintiffs Cross-Motion &in Support of Defendant's Cross-Motion, with annexed exhibit, filed August 15, 2022 (NYSCEF #44-45).
11) Statement of Material Facts, filed on August 15, 2022 (NYSCEF # 46).
12) Reply Affirmation in Support of Plaintiffs Cross-Motion, filed on August 15, 2022 (NYSCEF #47).