Opinion
Index No. 700946/2018
12-09-2019
PATRICK SMITH, Plaintiff, v. ALIF UDDIN and PUSHPINDER NATH, Defendants.
NYSCEF DOC. NO. 50 Short Form Order Present: HONORABLE CHEREÉ A. BUGGS Justice Motion Date: November 13, 2019 Motion Cal. No.: 70 and 71 Motion Sequence No.: 1 and 2
The following efile papers numbered EF 13-32, 34-39 and 43-48 submitted and considered on this motion sequence #1 by defendant ALIF UDDIN (hereinafter referred to as "Uddin") seeking an Order pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 3212 for summary judgment declaring that plaintiff PATRICK SMITH (hereinafter referred to as "Plaintiff") did not incur a "serious injury" as defined under New York Insurance Law §5102 (d). This motion sequence # 2 by defendant PUSHPINDER NATH (hereinafter referred to as "Nath") seeking an Order pursuant to CPLR 3211 and 3212 dismissing the Complaint and any and all cross-claims asserted against Nath on the grounds that liability cannot be attributed to Nath, the cross-motion by Plaintiff pursuant to CPLR 3212 granting partial summary judgment as to the issue of liability against both defendants and for such other and further relief as this Court deems just and proper.
| PapersNumbered | |
|---|---|
| Motion Sequence #1 | |
| Notice of Motion- Aff. in Support-Exhibits | EF 13-23 |
| Affirmation in Opposition-Exhibits | EF 43-46 |
| Reply Affirmation | EF 47 |
| Motion Sequence # 2 | |
| Notice of Motion- Aff. in Support-Exhibits | EF 24-32 |
| Affirmation in Opposition-Exhibits | EF 34 |
| Reply Affirmation | EF 35-36 |
| Notice of Cross Motion-Exhibits | EF 37-39 |
| Affirmation in Opp. To Cross-Exhibits | EF 48 |
This is a negligence action arising out of a three car collision that occurred on the Liberty Avenue exit ramp off of the Van Wyck Expressway in the County of Queens, New York. The accident occurred on August 11, 2017 (hereinafter referred to as the "Accident"). Plaintiff alleges that he exited the Van Wyck on to the exit ramp and was stopped at the yield sign when the accident occurred. Plaintiff testified prior to the impact between his and Nath's vehicle he heard "a loud bang". Nath testified that he was stopped behind Plaintiff's vehicle immediately preceding the Accident, that Uddin's vehicle collided with the back of his vehicle causing his vehicle to come into contact with Plaintiff's vehicle. Plaintiff alleges injuries to his neck and back.
Uddin, asserts that the Plaintiff did not incur a "serious injury" as defined under NY Insurance Law §5102 (d) (emphasis added) which reads as follows:
"'Serious injury' means 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."
Plaintiff asserts he suffered a "significant disfigurement"; "permanent consequential limitation of use of a body organ or member";"significant limitation of use of a body function or system"; and/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 90 days during the 180 days immediately following the occurrence of the injury or impairment". NY Insurance Law §5102 (d).
Now, Uddin seeks an Order pursuant to CPLR 3212 for summary judgment declaring that Plaintiff did not incur a "serious injury" as defined under New York Insurance law §5102 (d).
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 AD3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable'" [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Stukas v. Streiter, 83 AD3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 AD3d 767 [2d Dept 2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 AD3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002]; see Chimbo v Bolivar, 142 AD3d 944 [2d Dept 2016]; Bravo v Vargas, 113 AD3d 579 [2d Dept 2014]).
"[T]he proponent of a summary judgment motion must 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" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]. citing Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; see Schmitt v Medford Kidney Center, 121 AD3d 1088 [2d Dept 2014]; Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 NY2d 851 [1985]). Significant limitation of use of a body function or system and/or Permanent consequential limitation of body organ.
Uddin bears the burden of establishing a prima facie case that Plaintiff did not incur a serious injury as defined by New York Insurance Law §5102 (d). Uddin presented evidence from two independent medical examiners in support of his claim. Doctor Joseph C. Elfenbein, M.D.'s report is located at Exhibit E of Uddin's Affirmation in Support. Dr. Elfenbein performed a neurological examination of the Plaintiff on April 17, 2019.
Dr. Elfenbein observed the following. Cervical spine: no muscle spasm or complaint of tenderness upon palpation over the paracervical muscles. No decreased range of motion recorded. Thoracic spine: no muscle spasm or complaint of tenderness upon palpation over the parathoracic muscles. Range of motion for right and left rotation 25 degrees (30 degrees normal). Lumbar spine no muscle spasm or complaint of tenderness upon palpation over the paralumbar muscles. Range of motion recorded for flexion 70 degrees (60 degrees normal). Dr. Elfenbein opined that Plaintiff's Cervical, Thoracic and Lumbar sprains/ strains are resolved. Dr. Elfenbein found no limitations in use of the body parts examined.
Also, Uddin presented evidence from radiologist Dr. Mark Decker, M.D. whose report is located at Exhibit F of Uddin's Affirmation in Support. Dr. Decker performed an independent radiology evaluation on April 9, 2018 using the MRI of Plaintiff's Lumbar and Cervical spine taken at Middle Village Radiology on September 16, 2017.
Upon reviewing the film from the MRI of Plaintiff's cervical spine Dr. Decker found loss of disc signal and straightening of the upper lodosis. Also, a broad bulge at C2-C3 and C3-C4 with no herniation and a broad bulge at C4-C5, C5-C6 and C6-C7 with herniation impressing on the thecal sac. Dr. Decker attributed the straightening of the lordosis to diffuse degenerative disc disease. Dr. Decker attributed the broad bulges with herniation found at C4-C5, C5-C6 and C6-C7 to long standing degeneration not causally related to the Accident.
Upon reviewing the film from the MRI of Plaintiff's lumbar spine Dr. Decker found loss of disc signal at L3-L4, L4-L5, and L5-S1 with loss of disc height. Also, broad bulge with left lateral herniation at L4-L5 and L3-L4. Furthermore, Dr. Decker found broad bulge at L5-S1 with broad asymmetric to right herniation and spondylotic ridge impression on the thecal sac with contact of the S1 nerve roots. Dr. Decker attributed all findings to longstanding degeneration and found they were not causally related to the accident.
Uddin has established prima facie entitlement to summary judgment on the issue of whether Plaintiff suffered a serious injury as defined by NY Insurance Law §5102 (d). The burden now shifts to Plaintiff to "produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]).
Plaintiff produced affirmations from two independent medical examiner along with a personal affidavit in support of his opposition to Uddin's motion. Dr. Miriam Kanter, M.D. examined and treated the Plaintiff between August 17, 2017 through September of 2018 for the alleged injuries to Plaintiff's neck and back. Over the period of time in which Dr. Kanter treated Plaintiff she did a series of range of motion tests on Plaintiff. All the range of motion tests performed on Plaintiff by Dr. Kanter showed deficiencies, the most recent test was recorded on June 26, 2019 the results revealed the following:
Tenderness to palpation and myospasms in paracervical and paralumbar muscles. Range of motion test of Plaintiff's cervical spine revealed: forward flexion 30 degrees (60 degrees normal), extension 20 degrees (60 degrees normal), bilateral rotation 60 degrees (80 degrees normal) and lateral flexion 40 degrees (45 degrees normal). A cervical compression test revealed pain radiating to Plaintiff's left shoulder. Range of motion tests of Plaintiff's lumbar spine revealed: forward flexion 60 degrees (90 degrees normal), extension 20 degrees (25 normal) lateral flexion 15 degrees (25 degrees normal), rotation 20 degrees (30 degrees normal). Examination of the lumbar spine revealed the left iliac crest was higher than the right.
Dr. Kanter concluded within a reasonable degree of medical certainty that there is a direct causal relationship between the Accident and Plaintiff's current injuries and complaints related to his neck and lower back. According to Dr, Kanter, such conditions are considered permanent in nature. Dr. Kanter notes that Plaintiff had a negative prior history, that the aforementioned injuries and attendant symptoms were asymptomatic prior to the Accident and to the extent they were pre-existing or degenerative in nature the Accident aggravated and exacerbated the condition.
Plaintiff's expert's findings dispute the findings of Uddin's experts. Specifically, Dr. Elfenbein found no deficiencies in Plaintiff's range of motion exam of his cervical and lumbar spine, but Dr. Kanter found to the contrary. In Carmelo Noble v. Calvin Ackerman ( 252 A.D.2d 392 [1st Dept 1998]). plaintiff alleged he sustained serious injuries after an accident with defendant pursuant to Insurance Law §5102 (d) defendant's motion for summary judgment was denied by the lower court. On appeal, defendant moved once again for summary judgment on the issue of whether plaintiff sustained a serious injury. (Id). Both sides presented medical expert opinions. Plaintiff's expert found correlation between the alleged injuries and the accident.(Id at 393). Defendant's experts attributed plaintiff's injuries to, among other things, the normal aging process. (Id at 394). The court held "[w]here conflicting medical evidence is offered on the issue of whether the plaintiff's injuries are permanent or significant, and varying inferences may be drawn therefrom, the question if one for the jury" ( Id at 395).
Here, this Court is faced with circumstances similar to the court in Noble . Liability
Nath argues he is entitled to summary judgment on the issue of liability to Plaintiff. Plaintiff cross-moves for partial summary judgment on the grounds that both defendants are liable to Plaintiff. Plaintiff testified as follows: Q: Did the accident occur while you were at the yield sign? A: Yes. Q: Was your vehicle moving or stopped? A: Stopped. Q: For what period of time was your vehicle stopped when an impact happened? A: Approximately, five seconds. Q: How many impacts did you feel? A: One. Q: Prior to the feeling the impact, did you see or hear any other impacts? A: Yes. Q: What did you see or hear prior to that? A: A loud bang. Q: Did you actually see this other impact or actually hear the loud bang? A: Heard it. (Page 17-18 and lines 17-25 and 2-11) Nath testified as follows: Q: So is the answer yes, your car came in contact with the car in front of it at this location? A: My vehicle was hit by other vehicle and because of that my vehicle touched the other vehicle that was in front of me. (Page 31 line 2-7) Q: How long were you stopped for before you were hit in the rear? A: 40 seconds. (Page 31 lines 11-13)
The deposition testimony if any, of Uddin was not submitted to the Court in response to this motion.
Plaintiff has established prima facie entitlement to summary judgment as to Nathand Uddin's liability. "A rear-end collision is sufficient to create a prima facie case of liability and imposes a duty of explanation with respect to the operator of the offending vehicle". (Rimona Levine et al. v. Clyde Taylor et al., 268 A.D.2d 566 [2nd Dept 2000]). In Levine, the plaintiff was struck in the rear by the defendant. Defendant attempted to rebut the presumption of negligence by arguing that the plaintiff stopped short. (Id at 567). The court held defendant's argument was insufficient to rebut the presumption that he was negligent. (Id).
In support of its motion for summary judgment and in opposition to Plaintiff's motion Nath alleges he was hit in the rear by Uddin which caused his vehicle to come into contact with Plaintiff's vehicle. Furthermore, Nath alleges prior to the impact from Uddin's vehicle his vehicle was stopped behind Plaintiff's vehicle.
In Bournazos v. Malfitano (275 A.D.2d 437 [2d Dept 2000]) three vehicles were involved in a motor vehicle accident. The first car came to a full stop due to a malfunction. (Id). The second and third cars dispute what occurred next. The third car asserts the second car came into contact with the first before it came into contact with the second. (Id) The second car asserts that it was stopped before the third car came into contact with it, which subsequently caused it's collision with the first car. The third car failed to dispute that the second car was stopped before it came into contact with the second car. The court held that the second car established their entitlement to summary judgment. (Id at 438) The court reasoned the evidence was undisputed that the second car was stopped before it was struck in the rear (Id). Therefore, it was the third cars burden to rebut the inference of its own negligence created by the rear-end collision, or to demonstrate that negligence on the part of the second car contributed to the collision between the two. (Id) The court held, whether or not the second vehicle struck the first vehicle before the collision between the second and third car was irrelevant in determining the third car's liability. (Id)
Here, Nath established he was stopped prior to the impact between he and Uddin. Furthermore, Plaintiff's testimony that he heard "a loud bang" prior to impact supports Nath's testimony that prior to coming into contact with Plaintiff's vehicle his car was hit by Uddin's vehicle. Nath has raised a triable issue of fact as to Plaintiff's entitlement to summary judgment and has established prima facie entitlement to summary judgment.
Neither Uddin nor Plaintiff raised a triable issue of fact as to Nath's liability.
It was Uddin's burden to rebut the inference of its own negligence created by the rear-end collision, or to demonstrate that negligence on the part of Nath contributed to the collision between the two (Bournazos at 438). Uddin has failed to raise a triable issue of fact as to his liability to Plaintiff. Therefore it is,
ORDERED, that based on the foregoing motion sequence #1 is denied; and it is further,
ORDERED, that based on the foregoing, Nath's motion for summary judgment is granted in its entirety; and it is further,
ORDERED, that the branch of Plaintiff's cross-motion seeking partial summary judgment on the issue of liability as to Uddin is granted; and it is further,
ORDERED, that the branch of Plaintiff's cross-motion seeking partial summary judgment on the issue of liability as to Nath is denied.
The foregoing constitutes the decision and Order of this Court. Dated: December 9, 2019
/s/ _________
Hon. Chereé A. Buggs, JSC