Chamagua v Rosenfeld
Annotate this CaseDecided on January 7, 2005
Civil Court of the City of New York, Bronx County
MARGARITA CHAMAGUA, Plaintiffs,
against
DANIEL H. ROSENFELD, Defendants. DANIEL H. ROSENFELD, First Third Party-Plaintiff, ROGER MADOFF, WORLD OMNI FINANCIAL CORP., RICHARD BARTZ, JOYCE BARTZ, YOGESH KUMAR and JOHN JORDAENS, First Third-Party Defendant. JOHN JORDAENS, Second Third-Party Plaintiff, E.DASKEL CORP., Second Third Party Defendant RICHARD BARTZ and JOYCE BARTZ, Third Third-Party Plaintiff, E.DASKEL CORP., Third Third-Party Defendant
40235/97
Wilma Guzman, J.
Plaintiff has moved this court for leave to reargue the Decision/Order dated November 28, 2000, which granted defendants' motion for summary judgment, and upon reargument, deny defendants' motion for summary judgment, deny defendants' motion to preclude, and to grant plaintiff leave to serve an amended complaint adding third-party defendants as direct defendants to this action. Since the Decision/Order dated November 28, 2000, granted plaintiff leave to renew, this court will exercise its discretion and consider plaintiff's motion as a motion to renew, not as a motion to reargue.
The court, upon due deliberation having been had, hereby grants plaintiff's application to renew, and simultaneously decides plaintiff's motion for leave to serve an amended complaint adding the third-party defendants as direct defendants; and defendants' motions for summary judgment on the issues of threshold and liability. Upon renewal, plaintiff's motion for leave to serve an amended complaint is hereby granted with respect to third-party defendants Richard Bartz, Joyce Bartz, [*2]Yogesh Kumar, and John Jordaens. Plaintiff's motion for leave to amend complaint and add third-party defendants Roger Madoff, World Omni Financial Corp., and E. Daskel Corp. is hereby denied. Furthermore, defendants' motions for summary judgment on the issues of threshold are hereby denied. Defendants Madoff, World Omni Financial Corp., and Rosenfeld's motion for summary judgment on the issue of liability is hereby granted. In addition, defendants' motions to preclude are hereby denied. The judgment entered against plaintiff in this action on or about November 28, 2000 is hereby vacated. Upon completion of discovery, the filing of a Notice of Trial and payment of related fees, the clerk is to restore this action to the trial calendar.
Discussion
This is an action for personal injuries sustained by plaintiff, Margarita Chamagua, as a result of an automobile accident involving six cars, which occurred on June 16, 1995 on the Cross Island Expressway in the County of the Queens, in the State of New York. Originally, defendant moved by motion for summary judgment dismissing plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of the No Fault Law set forth in Insurance Law § 5102(d).
The Decision/Order dated November 28, 2000, granted defendant's motion based on plaintiff's failure to comply with the CPLR. However, the Decision/Order dated November 28, 2000, also granted plaintiff leave to renew the motion upon submission all the documents necessary for a proper determination. Plaintiff has complied with the Decision/Order dated November 28, 2000, and has provided this court with the necessary documents for a proper review. Accordingly, plaintiff's application for renewal is granted, and upon renewal, this court will simultaneously decide plaintiff's motion for leave to serve an amended complaint adding the third-party defendants as direct defendants, defendants' motions to preclude, and defendants' motions for summary judgment on threshold and liability.
Defendant Rosenfeld's Liability
Defendants Rosenfeld contend that he was lawfully stopped when he was rear-ended and pushed into the car in front of him and as such he is not negligent as a matter of law. Defendant Rosenfeld testified at the examination before trial that he was stopped for 20 to 25 seconds before the collision. Defendant Madoff testified at the examination before trial that defendant Rosenfeld was stopped less than thirty seconds prior to impact. As a result, defendant Rosenfeld requested summary judgment on the issue of liability.
It is well settled that a rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred. Toulson v. Pae, 6 AD3d 292, 774 N.Y.S.2d 706 (1st Dept. 2004) and Burns v. Gonzalez, 307 AD2d 863, 763 N.Y.S.2d 603 (1st Dept. 2003). In the case at bar, defendants Rosenfeld and Madoff testified at the examination before trial that defendant Rosenfeld was lawfully stopped when he was rear-ended and pushed into the car in front of him. Hence, defendant Madoff, the car behind defendant Rosenfeld, has the duty to explain how the accident occurred and offer some reason as to why defendant Rosenfeld should be held liable for the accident. Defendant Madoff has failed to suggest or even offer any evidence of defendant Rosenfeld's negligence. Therefore, the court finds that defendant Rosenfeld, having been lawfully stopped, is not liable for the accident as a matter of law.
Defendant Madoff's Liability[*3]
Having applied the same analysis with respect to defendant Madoff and World Omni Financial Corp.'s motion for summary judgment on liability, this Court finds that defendants, as a matter of law, are not liable for the accident. Defendant Madoff testified at the examination before trial that he was stopped for a couple of seconds prior to impact. Defendant Madoff also offers the testimony of defendant Rosenfeld taken at the examination before trial, where he states that he believes that defendant Madoff was stopped prior to the collision. The car behind defendant Madoff, has the duty to explain how the accident occurred and offer some reason as to why defendant Madoff should be held liable for the accident. No one has suggested or offered any evidence of defendant Madoff's negligence. Consequently, this Court finds that defendant Madoff and World Omni Financial Corp, as the owner, having been lawfully stopped, is not liable for the accident as a matter of law. Therefore, defendants Madoff and World Omni Financial Corp. motion for summary judgment on liability is hereby granted.
Motion to Amend Complaint
Under Relation Back Theory
This Court having found that defendants Madoff and World Omni Financial Corp. are not liable, as a matter of law, addresses plaintiff's request for leave to amend complaint and add third-party defendants Richard Bartz, Joyce Bartz, Yogesh Kumar, E. Daskel Corp., and John Jordaens as direct defendants to this action. Under the Statute of Limitations, the time within which a plaintiff must commence an action arising out of a motor vehicle accident is three years. In the case at bar, the Statute of Limitations for the accident that occurred on June 16, 1995 expired on June 15, 1998. Plaintiff would have had to bring defendants into this action by June 15, 1998, unless she can show that she is entitled to utilize the relation back doctrine. The relation back doctrine is aimed at liberalizing strict formalistic requirements while respecting the important "notice" policies inherent in the statute of limitations. The doctrine enables a plaintiff to correct a pleading error by adding either a new party or a new claim after the statute of limitations has expired. There are two alternative approaches in which a plaintiff can establish the relation back doctrine. Hemmings v. St. Marks Housing, 642 N.Y.S.2d 1018, 169 Misc 2d 155 (NY Sup. Ct. 1996).
The first approach to the relation back doctrine deals with the situation where a third-party defendant has been served with the third-party complaint within the statute of limitations. In such cases, the third-party defendant has adequate notice of the transactions or occurrences underlying the litigation and has notice of the plaintiff's potential claim against defendant. As such, an amendment asserting a direct claim against the third-party defendant relates back to the date of service of the third-party complaint. Duffy v. Horton Memorial Hospital et al., 66 NY2d 473, 488 N.E.2d 820 (Ct. App. 1985). (See also, Peretick v. City of New York, 263 AD2d 410, 693 N.Y.S.2d 576 (1st Dept. 1999), "As third-party defendants had notice of these claims, ... the amended complaint relates back to the time of service.").
In contrast, a claim asserted against a person who was a complete stranger to the original litigation was held not to relate back to the commencement of the first action where the new defendant did not have knowledge of the claim against him until the new complaint was served well after the statute of limitations had expired. Liverpool v.Arverne Houses, Inc., 67 NY2d 878, 492 N.E.2d 1218 (Ct. App. 1986), Fitzpatrick v. City of New York, 714 N.Y.S.2d 185, 185 Misc 2d 79 (Sup. Ct. 2000).
In the case at bar, third-party defendants Richard Bartz, Joyce Bartz, Yogesh Kumar, and [*4]John Jordaens were served with the third-party complaints in 1996. Since they were served prior to June 15, 1998, the expiration of the statute of limitations, these defendants are considered to be timely served. Insofar as these third-party defendants had notice of plaintiff's potential claim, defendants should have conducted discovery knowing that they could be brought in as direct defendants and they cannot claim that an amendment will result in prejudice to them. Therefore, plaintiff's amended complaint relates back to the date of service of the third-party complaint, and is deemed to be interposed within the statute of limitations. Accordingly, plaintiff's motion for leave to amend the complaint to add third-party defendants Richard Bartz, Joyce Bartz, Yogesh Kumar, and John Jordaens is hereby granted.
The second approach to the relation back doctrine deals with the situation where a third-party defendant was not served with the third-party complaint within the statute of limitations. In this scenario, plaintiff seeks to add a direct defendant who was a stranger to the action prior to the running of the statute of limitations. The relation back doctrine allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted where the two defendants are "united in interests." Buran v. Coupal, 87 NY2d 173, 638 N.Y.S.2d 405 (Ct. App. 1995), and Emmett v. Townof Edmeston, 2 NY3d 817, 781 N.Y.S.2d 260 (Ct. App. 2004). The courts have used the three following prong test in determining whether the relation back doctrine should apply to a totally new defendant:
"(1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is "united in interest" with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining his defense on his merits, and
(3)the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well."
See Buran, supr; Mondello v. New York Blood Center, 80 NY2d 219, 590 N.Y.S.2d 19 (Ct. App. 1992); Brock v. Bua, 83 AD2d 61, 443 N.Y.S.2d 407 (2nd Dept. 1981); and Cintron v. Lynn, 306 AD2d 118, 762 N.Y.S.2d 355 (1st Dept. 2003).
The courts have noted that unity of interests exists between defendants where their interests is "such that they stand or fall together and that judgment against one will similarly affect the other." Lord v.Broadwall, 301 AD2d 362, 753 N.Y.S.2d 68 (1st Dept. 2003). In addition, unity of interest has been found when one of the parties is vicariously liable for the conduct of the other. See Mondello, supra.
In the case at bar, third-party defendant E. Daskel Corp was served with a third-party summons and complaint on August 5, 1998. Given that plaintiff's statute of limitations expired on June 15, 1998, plaintiff can use the relation back doctrine only if she can show that third-party defendant E. Daskel Corp. was "united in interest" with a defendant that was timely served. Plaintiff has failed to offer any evidence that would suggest or prove that third-party defendant E. Daskel Corp. was a party "united in interest" with a defendant that was timely served. Therefore, plaintiff's motion to amend complaint and add third-party defendant E. Daskel Corp. as a direct defendant in this action is denied.
Motion on Threshold Injury
[*5]Defendants have moved this court for summary judgment dismissing the plaintiff's complaint for failure to establish a serious injury as set forth in Section 5102 of the Insurance Law. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 ( Ct. App.1986) and Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316 (Ct. App.1985). It is well-settled that a defendant seeking summary judgment as to the no-fault threshold bears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. Villalta v. Schechter, 273 AD2d 299, 710 N.Y.S.2d 87 (2nd Dept. 2000) and Pirrelli v. Long Island Railroad, 226 AD2d 166, 641 N.Y.S.2d 240 (1st Dept. 1996).
In support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of the plaintiff's examining physician. Pagano v. Kingsbury, 182 AD2d 268, 587 N.Y.S.2d 692 (2nd Dept. 1992). Also, an affirmed physician's report, being in admissible form and showing that a plaintiff was not suffering from any disability or consequential injury from the accident would be sufficient to satisfy a defendant's burden of proof and shifts to the plaintiff the burden of establishing the existence of a triable issue of fact. See Gaddy v. Eyler, 79 NY2d 955, 582 N.Y.S.2d 990 (Ct. App.1992), where defendant established a prima facie case that plaintiff's injuries were not serious through the affidavit of a physician who examined plaintiff and concluded that plaintiff had a normal examination. When the movant has made such a showing, the burden shifts and it then becomes incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 ( Ct. App.1986).
In support of the motion for summary judgment, defendant submitted a medical report form Dr. Charles Pitman, an orthopedist who examined plaintiff on December 18, 1997. Dr. Pitman diagnosed plaintiff with post cervical strain. As a result of his examination, Dr. Pitman found full flexion, extension, lateral flexion and rotation of the cervical spine and of both shoulders. Dr. Pitman found no residual disability or evidence of permanency. The medical evidence submitted in support of summary judgment indicates that plaintiff has not suffered a serious injury or disability as a result of the accident, thereby shifting the burden to plaintiff to make a prima facie showing of serious injury.
Once the burden shifts, it is incumbent upon a plaintiff, in opposition to a defendant's motion, to submit proof of serious injury in admissible form. A claim of serious injury can be sustained by a chiropractic expert's designation of the numeric percentage of the loss of range of motion showing the extent or degree of the plaintiff's physical limitation; or by an expert's qualitative assessment, upon an objective basis, of a plaintiff's condition and compares the plaintiff's limitations to the normal function, purpose or use of the affected organ, member, function or system. Toure v. Avis Rent A Car Systems, 98 NY2d 345, 746 N.Y.S.2d 865 (Ct. App. 2002).
Plaintiff has submitted a sworn affidavit from Dr. Robert Schepp, a neuroradiologist who had performed x-ray and MRI studies plaintiff's cervical spine. Some of Dr. Schepp observations include an anterior wedge fracture of the C6 vertebral, posterior osteophytes encroaching the bony spinal canal, a central left lateral herniated nucleus pulposus with deformation of the thecal sac and spinal cord, and a central posterior bulging disc at C4-5. In addition, plaintiff submitted a medical report from Dr. Kwa. Although the report was dated June 25, 2003, it does not indicate the date of [*6]the examination. As a result of his examination, Dr. Kwan found that plaintiff had a significant limitation of range of motion of the neck of approximately 30%. Dr Kwan also found that an impingement on the spinal cord and injury to the cervical musculature have resulted in a permanent, partial disability which was caused by said accident. The medical evidence presented by plaintiff's physician is sufficient to survive summary judgment. (See Ramos v. Dekhtyar, 301 AD2d 428, 753 N.Y.S. 489 (1st Dept. 2003), where First Department found sufficient objective medical evidence to defeat summary judgment within a physician's affidavit where the physician determined there to be numeric limitations based on range of motion tests that were conducted by the physician as an expert.)
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party. Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 N.Y.S.2d 834 (1st Dept. 1989). It is well-settled that issue finding, not issue determination, is the key to summary judgment. Rose v. Da Ecib USA, 259 AD2d 258, 686 N.Y.S.2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material, triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 N.Y.S.2d 498 (Ct. App.1957). Whether or not the injuries discussed by Dr. Pitman and Dr. Kwan were a result of the accident is a material issue that should be determined by a jury. In addition, the weight given to the medical opinions submitted on behalf of plaintiff is also proper determination for a jury. Ramos v. Dekhtyar, 301 AD2d 428, 753 N.Y.S. 489 (1st Dept. 2003). To find differently at this juncture would, according to precedent, invade the jury's province. Brown v. Achy, 9 AD3d 30, 776 N.Y.S.2d 56 (1st Dept. 2004).
Motion to Preclude
Pursuant to CPLR § 3126, defendant Jordaens has moved this court to preclude plaintiff from producing evidence at trial regarding her fracture and treatment with Dr. Schepp. Defendant alleges that this information was not included in plaintiff's bill of particulars nor revealed at the examination before trial. According to CPLR §3126, a court may issue an order to preclude information upon the finding that a party's failure to disclose was willful. Furthermore, the Appellate Courts have precluded information from being offered at trial when such information was not pleaded in the bill of particulars. See State of New York v. Horsemen's Benevolent and Protective Association, 34 AD2d 769, 311 N.Y.S. 511 (1st Dept. 1970), "the purpose of the bill of particulars is to amplify the pleading, limit the proof and prevent surprise at trial." In the case at bar, plaintiff contends that the information regarding plaintiff's fracture was inadvertently omitted from the original bill of particulars but was corrected with an amended bill of particulars pursuant to CPLR § 3042 (g), which allows one amendment of the bill of particulars prior to the filing of the note of issue. Plaintiff also claims that the amended bill of particulars, along with the medical reports indicating a fracture, were exchanged during the course of discovery. This Court finds that plaintiff's initial omission was not willful and the amendment of the bill of particulars was properly disclosed. Accordingly, defendant Jordaen's motion to preclude plaintiff's fracture and treatment with Dr. Schepp is hereby denied. However, defendants are entitled to a limited discovery as follows: deposition of plaintiff regarding the fracture, and a further independent medical examination with regard to the fracture. Defendants shall have 60 days to complete discovery or it is deemed waived.
CONCLUSION
[*7]
This court hereby grants plaintiff's application to renew, and simultaneously decides plaintiff's motion for leave to serve an amended complaint adding the third-party defendants as direct defendants; and defendants' motions for summary judgment on the issues of threshold and liability. Upon renewal, plaintiff's motion for leave to serve an amended complaint is hereby granted with respect to third-party defendants Richard Bartz, Joyce Bartz, Yogesh Kumar, and John Jordaens. Plaintiff's motion for leave to amend complaint and add third-party defendants Madoff, World Omni Financial Corp., and E. Daskel Corp. is hereby denied. Plaintiff shall have 30 days from service of this Order with Notice of Entry, to serve a supplemental summons and an amended complaint, defendants shall have 20 days after being served to answer the amended complaint.
Considered in the light most favorable to the plaintiffs, defendants' motions for summary judgment on the issue of threshold is hereby denied. The evidence adduced is insufficient to conclude, as a matter of law, that the plaintiff has not sustained a statutory serious injury as a result of this accident. Furthermore, defendants Rosenfeld, Madoff, and World Omni Financial Corp's motion for summary judgment on the issue of liability is hereby granted. The evidence presented is sufficient to conclude, as a matter of law, that defendants are not liable for said accident. Defendant's motion to preclude plaintiff's fracture and treatment by Dr. Schepp is hereby denied. Defendants may conduct a limited examination before trial and independent medical examination of plaintiff regarding the fracture. All discovery is to be completed within 60 days of notice of entry of this decision or it is deemed waived. Plaintiff shall serve a copy of this order with Notice of Entry, within 30 days of entry.
This constitutes the decision and Order of this Court.
_________________________
DATE HON. WILMA GUZMAN
Judge, Civil Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
