Opinion
Index No. 613149-2019 Motion Seq. Nos. 12 Motion Nos. 001 MD 002 MG
11-05-2020
DAVID PHELAN, Plaintiff, v. DOMENICO AGOSTINO, Defendant.
Siben & Siben, LLP Attorneys for Plaintiff Scahill Law Group P.C. Attorneys for Defendant
Unpublished Opinion
MOTION DATE: 06/24/20
SUBMITTED: 07/29/20
Siben & Siben, LLP Attorneys for Plaintiff
Scahill Law Group P.C. Attorneys for Defendant
PRESENT: HON. DAVID T. REILLY, JSC
David T. Reilly, Justice
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers 1-9; Notice of Cross Motion and supporting papers 10-25; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers 26; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that Motion Seq. 001 and Motion Seq. 002 are hereby consolidated for purposes of this determination; and it is further
ORDERED
that the motion by defendant Domenico Agostino for summary judgment dismissing the complaint is denied; and is further
ORDERED
that plaintiff's "cross-motion" for partial summary judgment on the issue of liability is granted.
Plaintiff David Phelan commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Route 231 and Nicolls Road in the Town of Babylon on February 25, 2019. It is alleged that the accident occurred when the vehicle operated by defendant struck the rear of the plaintiff's vehicle which was stopped for the red light. Plaintiff, by his bill of particulars, alleges, among other things, that he sustained various personal injuries as a result of the subject accident, including but not limited to, multilevel spinal disc herniations and bulges; cervical and lumbar radiculopathy; and bilateral knee sprains.
Defendant now moves for summary judgment on the basis that the injuries alleged to have been sustained by plaintiff as a result of the subject accident do not meet the serious injury threshold requirement of Section 5102 (d) of the Insurance Law. In support of the motion, defendant submits copies of the pleadings, plaintiff's deposition transcript, and the sworn medical report of Dr. Dorothy Scarpinato. At defendant's request, Dr. Scarpinato conducted an independent orthopedic examination of plaintiff on February 14, 2020.
Plaintiff opposes the motion on the grounds that defendant has failed to demonstrate prima facie entitlement to judgment as a matter of law that he did not sustain serious injuries within the meaning of the Insurance Law as a result of the subject accident, and that his evidence in opposition raises triable issues of fact, particularly as to whether he sustained injuries within the "limitations of use" category of the Insurance Law. In opposition to the motion, plaintiff submits his and defendant's deposition transcripts, certified copies of his medical records regarding the injuries at issue, an unsworn narrative report from plaintiff's chiropractor, Craig Selzer, D.C., the affirmation of Glenn Gray, M.D. who performed MRIs on the plaintiff and the sworn medical report of plaintiff's orthopedist, David J. Weissberg, M.D.
The purpose of New York State's No-Fault Insurance Law is to "assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trial[s]" (see Licari v Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 [1982]), and requiring every case, even those with minor injuries, to be decided by a jury would defeat the statute's effectiveness (see Licari v Elliott, supra). Therefore, the No-Fault Insurance law precludes the right of recovery for any "non-economic loss, except in the case of serious injury, or for basic economic loss" (see Insurance Law §5104 [a]; Martin v Schwartz, 308 A.D.2d 318, 766 N.Y.S.2d 13 [1st Dept 2003]). Any injury not falling within the definition of "serious injury" is classified as an insignificant injury, and a trial is not allowed under the No-Fault statute (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Martin v Schwartz, supra).
Insurance Law §5102 (d) defines a "serious injury" 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."
A defendant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using the plaintiff's deposition testimony and medical reports and records prepared by the plaintiff's own physicians (see Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Grossman v Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233 [2d Dept 2000]; Vignola v Varrichio, 243 A.D.2d 464, 662 N.Y.S.2d 831 [2d Dept 1997]; Torres v Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006 [2d Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 A.D.2d 1025, 758 N.Y.S.2d 593 [4th Dept 2003]; Pagano v Kingsbury, supra). However, if a defendant does not establish a prima facie case that the plaintiff's injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff's opposition papers (see Burns v Stranger, 31 A.D.3d 360, 819 N.Y.S.2d 60 [2d Dept 2006]; Rich-Wing v Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706 [2d Dept 2005]; see generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
Here, the defendant, through the submission of competent medical evidence and plaintiff's deposition transcript, established a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Davis-Hassan v Siad, 101 A.D.3d 932, 957 N.Y.S.2d 205 [2d Dept 2012]). Defendant's examining orthopedist, Dr. Scarpinato, used a inclinometer and/or goniometer to test the ranges of motion in plaintiff's spine, shoulders and knees, and compared his respective findings to the normal range of motion values for each region (see e.g. Cantave v Gelle, 60 A.D.3d 988, 877 N.Y.S.2d 129 [2d Dept 2009]; Staff v Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 [2d Dept 2009]; Desulme v Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 [2d Dept 2004]). Dr. Scarpinato states in her medical report that an examination of plaintiff reveals he has full range of motion in his spine, shoulders and knees, that plaintiff reported subjective complaints of paraspinal tenderness in the cervical, thoracic and lumbar spine areas without swelling, that plaintiff's handgrip, pinch and grasp were all normal, that plaintiff's knees had full range of motion with no tenderness or swelling, that plaintiff's quad strength was intact with no instability and that he ambulates with a normal gait without assistive devices. Dr. Scarpinato further states that there are no objective signs of ongoing disability as a result of the accident and that he is capable of working full time and performing his normal activities of daily living.
Furthermore, reference to plaintiff's own deposition testimony sufficiently refutes the allegations that he sustained injuries within the 90/180 category of the Insurance Law (see Pryce v Nelson, 124 A.D.3d 859, 2 N.Y.S.3d 214 [2d Dept 2015]; Knox v Lennihan, 65 A.D.3d 615, 884 N.Y.S.2d 171 [2d Dept 2009]; Rico v Figueroa, 48 A.D.3d 778, 853 N.Y.S.2d 129 [2d Dept 2008]). Plaintiff testified at his examination before trial that he missed one day from work following the accident. He further stated that there are no activities of daily life that he can no longer do, but has decreased the frequency of gym attendance and lowered the amount of weight he used to work out. Finally, plaintiff testified that his back begins to hurt after one to two hours of driving a bus at work.
Defendant, having made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of the statute, shifted the burden to plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that a serious injury was sustained (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Small v City of New York, 148 A.D.3d 959, 49 N.Y.S.3d 176 [2d Dept 2017]). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her complaints with objective medical evidence showing the extent or degree of the limitation caused by the injury and its duration (see Ferraro v Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408 [2d Dept 2008]; Mejia v DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 A.D.3d 996, 821 N.Y.S.2d 642 [2d Dept 2006]; Kearse v New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281 [2d Dept 2005]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e. important . . .), 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" (Dufel v Green, supra at 798). To prove the extent or degree of physical limitation with respect to the "limitations of use" categories, either objective evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration based on a recent examination of the plaintiff must be provided or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part (see Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra at 350; see also Valera v Singh, 89 A.D.3d 929, 923 N.Y.S.2d 530 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322 [2d Dept 2011]). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidence of contemporaneous range of motion limitations is not a prerequisite to recovery (see Perl v Meher, supra; Paulino v Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept 2012]).
In opposition, plaintiff has raised a triable issue of fact as to whether he sustained a "serious injury" within the meaning of Insurance Law § 5102(d) as a result of the accident (see Walker v Esses, 72 A.D.3d 938, 899 N.Y.S.2d 321 [2d Dept 2010]; Yeong Hee Kwak v Villamar, 71 A.D.3d 762; 894 N.Y.S.2d 916 [2d Dept 2010]; Parker v Singh, 71 A.D.3d 750, 896 N.Y.S.2d 437 [2d Dept 2010]; Sanevich v Lyubomir, 66 A.D.3d 665, 885 N.Y.S.2d 635 [2d Dept 2009]). Dr. Weissberg states in his medical report that he first saw plaintiff for an examination on March 12, 2019. At that time, using a goniometer, the doctor noted substantial range of motion deficits in plaintiff's cervical spine with tenderness and spasm on the trapezial muscles, deficits in the thoracolumbar spine with tenderness and spasms on the paraspinal musculature and significant range of motion deficits in the plaintiff's knees. Dr. Weissberg noted that x-rays of plaintiff's spine showed straightening of the normal lardotic curve and an MRI revealed bulges and herniations in plaintiff's cervical spine. Dr. Weissberg treated plaintiff with, among other things, trigger point injections, physical therapy and chiropractic sessions. Plaintiff continued to treat with Dr. Weissberg until at least June 2, 2020. At that time Dr. Weissberg opined that plaintiff sustained multiple sprains to his spinal area with herniated disks to both his cervical spine and lumbar spine, as well as sprains to his bilateral knees which have caused ongoing pain and limitation in range of motion. Dr. Weissberg states "all the above injuries are directly and causally related to the accident of 2/25/2019 and will leave this patient with a partial permanent disability which may require intermittent treatment in the future for ongoing spinal complaints."
Thus, here "where conflicting medical evidence is offered on the issue of whether plaintiff's injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury" (Noble v Ackerman, 252 A.D.2d 392, 395, 675 N.Y.S.2d 86 [1st Dept 1998]; see LaMasa v Bachman, 56 A.D.3d 340, 869 N.Y.S. 17 [1st Dept 2008]; Reynolds v Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 [4th Dept 1996]). Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.
With respect to plaintiff's "cross-motion," to establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Simon v Rent-A-Center E., Inc., ___A.D.3d ___, 2020 NY Slip Op 01379 [2d Dept 2020]; Samouhi v Retamales, ___ A.D.3d ___, 2020 NY Slip Op 01378 [2d Dept 2020]). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Simon v Rent-A-Center E., Inc., supra; Edwards v J & D Express Serv. Corp., ___ A.D.3d ___, 2020 NY Slip Op 01145 [2d Dept 2020]; Spratley v Lafortune, 176 A.D.3d 1247, 109 N.Y.S.3d 667 [2d Dept 2019]). The presumption of negligence in rear-end cases arises from the duty of the driver of the following vehicle to keep a safe distance and not collide with the traffic ahead (see Vehicle and Traffic Law § 1129 [a]; Witonsky v New York City Tr. Auth., 145 A.D.3d 938, 43 N.Y.S.3d 505 [2d Dept 2016]; Service v McCoy, 131 A.D.3d 1038, 16 N.Y.S.2d 283 [2d Dept 2015]). A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on that driver to proffer a non-negligent explanation for the collision (Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Conroy v New York City Tr. Auth., 167 A.D.3d 977, 91 N.Y.S.3d 183 [2d Dept 2018]; Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]). If the driver of the offending vehicle cannot come forward with evidence to rebut the inference of negligence, the driver of the stopped or stopping vehicle is entitled to summary judgment on the issue of liability (Tsyganash v Auto Mall Fleet Mgt., Inc., supra; Cortes v Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept 2011]).
Plaintiff made a prima facie case of entitlement to summary judgment in his favor on the issue of liability by demonstrating that defendant's negligence was the legal and proximate cause of the accident (see Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Niyazov v Hunter EMS, Inc., 154 A.D.3d 954, 63 N.Y.S.3d 457 [2d Dept 2017]). He testified that he was completely stopped at a red traffic light for 12 to 15 seconds when his vehicle was struck from behind by the vehicle operated by defendant.
The burden now shifts to defendant to raise a triable issue of fact as to whether there was a non-negligent explanation for the accident (see Cortes v Whelan, supra). Defendant testified at his deposition that he was following the plaintiff's vehicle on the day of the accident on Deer Park Avenue. Defendant further testified that he observed the light at Nicolls Road change from green to yellow, he began to slow down and struck the back of plaintiff's car. When questioned as to whether he saw the plaintiff's vehicle come to a stop, defendant responded, "[W]hen it was too late, yeah." Although defendant suggests at his deposition that plaintiff "stopped short" such admission does not preclude summary judgment on the issue of defendant's negligence (see Rodriguez v City of New York, supra; Catanzaro v Edery, supra; Buchanan v Keller, supra).
Accordingly, plaintiffs motion for summary judgment on the issue of liability is granted.
This shall constitute the decision and Order of the Court.