Opinion
13990/13
07-28-2017
Kenneth WALUYN and Connie Johnson, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Metropolitan Authority, Masada III Car & Limo Service Corp., Albert Istokhorov and Charles Mcleod, Defendants.
Rubenstein & Rynecki, 16 Court St, suite 1717, Brooklyn, NY 11241, 718–522–1020, Attorneys for plaintiffs. Baker, McEvoy, Morrissey & Moskovits, P.C., 1 MetroTech Center, Brooklyn, NY 11201, 212–857–8230, Attorneys for defendant Masada III Car & Limo Service Corp. Kelly Rode & Kelly, 330 Old Country Rd No. 305, Mineola, NY 11501, 516–739–0400, Attorneys for defendant Charles Mcleod. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 1 MetroTech Center, Brooklyn, NY 11201, 718–215–5300, Attorneys for defendants New York City Transit Authority and MTA.
Rubenstein & Rynecki, 16 Court St, suite 1717, Brooklyn, NY 11241, 718–522–1020, Attorneys for plaintiffs.
Baker, McEvoy, Morrissey & Moskovits, P.C., 1 MetroTech Center, Brooklyn, NY 11201, 212–857–8230, Attorneys for defendant Masada III Car & Limo Service Corp.
Kelly Rode & Kelly, 330 Old Country Rd No. 305, Mineola, NY 11501, 516–739–0400, Attorneys for defendant Charles Mcleod.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 1 MetroTech Center, Brooklyn, NY 11201, 718–215–5300, Attorneys for defendants New York City Transit Authority and MTA.
Paul Wooten, J.
The following papers, numbered 1 to 3, were read on this motion by the plaintiff. PAPERS NUMBERED
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits 1, 2, 3, 4, 5
Answering Affidavits—Exhibits (Memo) 6
Replying Affidavits (Reply Memo)
Motion sequence numbers 4, 5, 6, 7 and 8 are hereby consolidated for disposition.
This action arises out of a two car motor vehicle accident that occurred on November 30, 2012 at or near the intersection of Ocean Avenue and Caton Avenue in Brooklyn, New York. On the date of the accident, Kenneth Waluyn (Waluyn) and Connie Johnson (Johnson) (collectively, plaintiffs) were rear-seated passengers in an Access–A–Ride van owned by Masada III Car & Limo Corp. (Masada) and operated by Albert Istokhorov (Istokhorov) (collectively, Masada defendants) when the Access–A–Ride van was rear-ended by the vehicle operated by Charles Mcleod (Mcleod).
Before the Court are motions by New York City Transit Authority and Metropolitan Transit Authority (collectively, City defendants) for an Order: (1) pursuant to CPLR 3212 for summary judgment dismissing the complaint against them under Vehicle and Traffic Law (VTL) § 388 since they did not own, operate, maintain, manage or control the Access–A–Ride van in which plaintiffs were passengers (motion sequence 4); and (2) dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 8). Plaintiffs do not oppose the City defendants' motions. Also before the Court are motions by the Masada defendants for summary judgment, pursuant to CPLR 3212 : (1) dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 5); and (2) pursuant to CPLR 3211 and 3212 granting summary judgment and dismissing the complaint and any and all cross-claims against them on the issue of liability (motion sequence 6). Plaintiffs oppose the serious injury motion but submit no opposition to the Masada defendants' liability motion. Plaintiffs also cross-move for summary judgment in their favor on the issue of liability against Mcleod (motion sequence 7). Mcleod does not oppose plaintiffs' motion.
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] ; Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ; Winegrad v. NY Univ. Medical Cntr. , 64 NY2d 851, 853 [1985] ). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez , 68 NY2d at 324 ; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc. , 10 NY3d 733, 735 [2008] ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc. , 51 AD3d 651, 652 [2d Dept 2008] ; Greenberg v. Manlon Realty , 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v. Citibank Corp. , 100 NY2d 72, 81 [2003] ; Zuckerman v. City of NY , 49 NY2d 557, 562 [1980] ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395, 404 [1957] ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc. , 65 NY2d 625, 626 [1985] ; Boyd v. Rome Realty Leasing Ltd. Partnership , 21 AD3d 920, 921 [2d Dept 2005] ; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; CPLR 3212[b] ).
DISCUSSION
A. City defendants' motion—Sequences 4 and 8
Section 388(1) of the VTL states, "every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner" ( VTL § 388 ; see Elrac v. Ward , 96 NY2d 58 [2003] ). VTL § 128 defines an "Owner" as:
A person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.
In support of their motion to dismiss pursuant to CPLR 3212 and VTL § 388, the City defendants submit their Verified Answer; a certified copy of a vehicle title record search dated April 30, 2015; and the sworn affidavit of Ronald Roberts (Roberts), Principal Administrative Associate for the City defendants. In his affidavit, Roberts avers that a search of the files and records of the City defendants revealed that on November 30, 2012, the City defendants were neither the registered nor titled owner of the vehicle bearing license plate number T523673C (see City defendants' exhibit C, 3). Robert stated that the records indicated that the owner of the vehicle was the Masada defendants and that said vehicle was registered to the Masada defendants on the date of the alleged accident (id. ). Roberts further averred that on November 20, 2012, the City defendants did not operate, maintain or control said vehicle nor was the operator of said vehicle an employee, agent or servant of the City defendants (id. at 4).
The Court finds that the City defendants established their prima facie entitlement to summary judgment by demonstrating that they did not own or operate the Access–A–Ride van in which plaintiffs were passengers and that they had no involvement with the subject accident (see Farrulla v. Happy care Ambulette Inc. , 125 AD3d 11, 12 [1st Dept 2015]; McHale v. Anthony , 70 AD3d 463, 465 [1st Dept 2010] [summary judgment granted in defendant's favor where "there is no evidence that it either owned, leased or operated the offending truck, and the equities do not justify keeping it in the case"]; Woods v. Craig , 41 AD3d 1260,1260 [4th Dept 2007] ["Defendants ... established their entitlement to judgment as a matter of law ... by establishing that ... Antwoin Craig was not the owner or the operator of the vehicle that caused the accident"] ). Therefore, the Court finds the City defendants' motion must be granted and the complaint is hereby dismissed against said defendants.
To the extent that the Complaint is dismissed against the City defendants, the Court finds that their motion to dismiss the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 8) is denied as moot and academic.
B. Masada defendants motions—sequences 5 & 6
In support of their summary judgment motion on the issue of serious injury as against Waluyn, the Masada defendants submit, inter alia , a copy of the pleadings; the Examination Before Trial (EBT) transcripts of plaintiffs dated July 15, 2014; a certified independent neurological report from Dr. Vladimir Zlatnik, M.D., dated September 3, 2014 (Dr. Zlatnik's report on Waluyn); a certified report from Ronald A. Paynter, M.D., dated November 4, 2014 (Dr. Paynter's report on Waluyn); an affirmed radiological report from Dr. Audrey Eisenstadt, M.D., dated December 9, 2013 (Dr. Eisenstadt's report) and various uncertified medical records from Maimonides Medical Center. In support of their summary judgment motion on the issue of serious injury as against Johnson, the Masada defendants submit, inter alia , an affirmed orthopedic evaluation from Lisa Nason, M.D., dated September 18, 2014 (Dr. Nason's report); a certified independent neurological report from Dr. Zlatnik Dated September 3, 2014 (Dr. Zlatnik's report on Johnson) and a certified report from Dr. Paynter (Dr. Paynter's report on Johnson). In opposition, plaintiffs submit, inter alia , the affidavits of the plaintiffs, a physician's affirmation from David H. Delman, M.D., dated June 6, 2016 (Dr. Delman's affirmation) as it relates to Waluyn and a physician's affirmation from Dr. Nunzio Saulle, M.D., dated June 3, 2016 (Dr. Saulle's affirmation) as it relates to Johnson.
SERIOUS INJURY THRESHOLD
A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102(d) (see Licari v. Elliott , 57 NY2d 230 [1982] ). Insurance Law § 5102(d) defines "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 loss]; permanent consequential limitation of use of a body organ or member [permanent consequential limitation]; significant limitation of use of a body function or system [significant limitation]; 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 [90/180].
The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories. "Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case ( Licari , 57 NY2d at 235 ; Insurance Law § 5104[a] ). The serious injury requirement is in accord with the legislative intent underlying the No–Fault Law, which was enacted to " ‘weed out frivolous claims and limit recovery to significant injuries’ " ( Toure v. Avis Rent A Car Sys., Inc. , 98 NY2d 345, 350 [2002], quoting Dufel v. Green , 84 NY2d 795, 798 [1995] ). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries ( id. at 350 ). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id. ).
BURDEN OF PROOF
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari , 57 NY2d at 237 ). Where a defendant is the movant, the defendant, bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102(d) (see Toure , 98 NY2d at 352 ; Gaddy v. Eyler, 79 NY2d 955, 956–57 [1992] ). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v. Palmieri , 1 NY3d 536, 537 [2003] ; Rubensccastro v. Alfaro , 29 AD3d 436, 437 [1st Dept 2006] ).
"In cases such as the present one, a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" ( Grossman v. Wright , 268 AD2d 79, 83–84 [2d Dept 2000] ). "This established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" (id. ; see Gaddy v. Eyler , 79 NY2d 955 [1992] ). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman , 268 AD2d at 84 ). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id. ; Kauderer v. Penta , 261 AD2d 365 [2d Dept 1999] ).
Here, the Court finds that the Masada defendants failed to submit competent medical evidence establishing, prima facie, that the injured plaintiffs did not sustain a serious injury to the cervical region of their spines under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d), as defendants' own experts found significant limitations in the range of motion in those regions of both Waluyn's and Johnson's spine (see Mangione v. Bua , 148 AD3d 799, 799 [2d Dept 2017] ; Mercado v. Mendoza , 133 AD3d 833 [2d Dept 2015] ; Miller v. Bratsilova , 118 AD3d 761 [2d Dept 2014] ). Specifically, Dr. Zlatnik's report reveals that both plaintiffs have identical limited range of motion in the cervical spine (extension (45/60), flexion (40/50), left lateral bend (35/45), left rotation (70/80) and right rotation (70/80) (see Masada defendants' cross-motion, exhibits F & O at 5). Moreover, while doctor Zlatnik concluded that "range of motion were partially self restricted as the claimed performed better ranges of motion when observed candidly during the examination..." the Court finds that Dr. Zlatnik failed to adequately explain and substantiate his belief that the limitation of motion in the cervical region of the plaintiffs' spine was self-imposed (see Mercado , 133 AD3d at 833 ).
However, notwithstanding defendants' failure to make out their prima facie showing, a search of the complete record before the Court (see CPLR 3212[b] ; Maheshwari v. City of New York , 2 NY3d 288 [2004] ) established that each of the plaintiffs terminated treatment in April or May 2013 and were not examined by any medical professionals until their examinations in February and March 2016, respectively; and both plaintiff failed to provide an explanation for the gap in their treatment. It is axiomatic that "[w]hile a cessation of treatment is not dispositive, the law surely does not require a record of needless treatment in order to survive summary judgment a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury,' must offer some reasonable explanation for having done so" ( Pommells v. Perez , 4 NY3d 566 [2005] ). Accordingly, where a plaintiff and his or her doctor do not provide any explanation as to why he or she failed to pursue treatment, a defendant's motion for summary dismissal of the complaint will be granted (see e.g. Ferraro v. Ridge Car Services , 49 AD3d 498 [2d Dept 2008] [summary judgment granted where plaintiff failed to explain 22 months gap in treatment]; Wright v. Rodriguez , 49 AD3d 532 [2d Dept 2008] [summary judgment granted where plaintiff failed to explain 16 months gap in treatment]; Otero v. 971 Only U , 36 AD3d 430 [2d Dept 2007] [summary judgment granted where plaintiff failed to explain gap in treatment of more than one year]; Milazzo v. Gesner , 33 AD3d 317 [1st Dept 2006] [summary judgment granted for unexplained gap in treatment of three years] ). Here, neither plaintiffs nor their treating or examining physicians offered an explanation for the almost three year gap in treatment. Given the plaintiffs' failure to explain such gap in treatment, the Court finds that the complaint against the Masada defendants must be dismissed.
To the extent that the Complaint is dismissed against the Masada defendants, the Court finds that their motion to dismiss the complaint on the issue of liability (motion sequence 6) must be denied as moot and academic.
C. Plaintiffs' cross-motion—Sequence 7
"To prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault" ( Derieux v. Apollo NY City Ambulette, Inc. , 131 AD3d 504, 504–505 [2d Dept 2015] ; Zhu v. Natale , 131 AD3d 607, 608 [2d Dept 2015] ), as there can be more than one proximate cause of an accident (see id. ). "Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault" (id. ; see Lu Yuan Yang v. Howsal Cab Corp. , 106 AD3d 1055 [2d Dept 2012] ). Moreover, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence ( Cortese v. Pobejimov , 136 AD3d 635, 635 [2d Dept 2016] ). Furthermore, "the right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of the accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] ; Medina v. Rodriguez , 92 AD3d 850 [2d Dept 2012] ; Sharpton v. New York City Tr. Auth. , 136 AD3d 712, 713–714 [2d Dept 2016] ; Phillip v. D & D Carting Co. Inc. , 136 AD3d 18, 25 [2d Dept 2015] ).
Here, the Court finds that both plaintiffs established their entitlement to judgment as a matter of law against Mcleod by demonstrating, prima facie, that the Access–A–Ride van in which they were mere passengers was rear-ended by Mcleod's vehicle (see id. at 23 ; Rodriguez v. Farrell , 115 AD3d 929, 930 [2d Dept 2014] ; Gallo v. Jairath, 122 AD3d 795, 796 [2d Dept 2014] ). In their respectively affidavits, Waluyn and Johnson both averred that they were seat belted passengers in the Access–A–Ride van owned and operated by the Masada defendants when said vehicle was rear-ended by Mcleod's and that neither one of them contributed to the happening of the accident. The Court find plaintiffs' submission sufficient to grant summary judgment against Mcleod. Mcleod failed to raise triable issues of facts as Mcleod failed to submit opposition to the herein motion.
CONCLUSION
Accordingly is it hereby,
ORDERED that the City defendants' motion for summary judgment [MS 4] dismissing the complaint pursuant to VTL § 388 granted; and it is further,
ORDERED that the City defendants' motion to dismiss the Complaint on the issue of serious injury [MS 8] is denied; and it is further,
ORDERED that the Masada defendants' motion to dismiss plaintiffs' complaint on the issue of serious injury [MS 5] is granted; and it is further,
ORDERED that the Masada defendants' motion to dismiss plaintiffs' complaint on the issue of liability is denied; and it is further,
ORDERED that plaintiffs Waluyn's and Johnson's motion for summary judgment on the issue of liability with respect to Mcleod [MS 7] is granted; and it is further,
ORDERED that counsel for plaintiffs is directed to serve a copy of this Order with Notice of Entry upon all parties and the County Clerk who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.