Green v Panullo

[*1] Green v Panullo 2005 NY Slip Op 52265(U) [11 Misc 3d 1053(A)] Decided on November 30, 2005 Supreme Court, Suffolk County Werner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2005
Supreme Court, Suffolk County

MARION GREEN & STEVEN GAMBLES, CASEDISP, Plaintiff(s),

against

JAMES PANULLO and TOWN OF BABYLON, AVILES &, Defendant(s).



997-04



LAW OFFICE OF CARL MALTESE

Attorneys for Plaintiffs

1050 West Jericho Turnpike

Smithtown, New York 11787

LEWIS JOHS AVALLONE

AVILES & KAUFMAN, LLP

Attorneys for Defendants

By Brian J. Greenwood, Esq.

425 Broad Hollow Road

Melville, New York 11747-4712

Mary M. Werner, J.

Upon the following papers read on this Motion and Supporting Papers 1-10 and Exhibits A-J; Answering Affidavit 11-28 and Exhibits A- D; Replying Affidavit 29-37; it is

ORDERED that the motion (seq. No.001) by defendants James Pannullo and Town of Babylon for summary judgment pursuant to CPLR § 3212 dismissing the [*2]complaint and granting summary judgment in their favor upon the ground that there is no factual or legal basis upon which defendants can be held liable and alternatively upon the ground that the plaintiffs Marion Green and Steven Gambles have not sustained a "serious injury" pursuant to New York State No-Fault law is decided as follows.

This is an action for personal injury allegedly sustained by plaintiffs Marion Green and Steven Gambles, arising out of an automobile accident that occurred on February 7, 2003 at the intersection of Levey Blvd. and South 24th St. in Wyandanch, New York. At the time of the accident, defendant James Pannullo ("Pannullo") was operating a snow plow owned by the Town of Babylon ("Town"). Plaintiff Marion Green was operating a personally owned snow plow and plaintiff Steven Gambles was a passenger in his vehicle. According to the deposition testimony of defendant Pannullo he was traveling at approximately eight or nine miles per hour as he was approaching the intersection, applied his brakes, slid into the intersection striking plaintiff's snow plow while traveling about a half a mile per hour, the snow plow of the Town vehicle made "ultra light" contact with the snow plow of the plaintiff's vehicle, "they just tapped", there was "no damage", and both plaintiffs told defendant Pannullo "they were fine".

Defendants maintain that pursuant to Vehicle and Traffic Law §1103(b) the defendant Pannullo was engaged in plowing a highway at the time of the accident, defendants can be held liable only if Pannullo operated the snowplow with "reckless disregard for the safety of others". VTL §1103(b), see, Riley v. County of Broome, 95 NY2d 455, 742 NE2d 98, 719 NYS2d 623 (2000); Primeau v. Town of Amherst, 17 AD3d 1003, 794 NYS2d 169; (4th Dep't, 2005) aff'd ___ NY3d.___, 2005 NY LEXIS 2719 (2005). Defendants argue that there is no evidence that the defendant Pannullo operated the snowplow with "reckless disregard for the safety of others" and therefore summary judgment granting defendants motion for dismissal on the grounds that there is no legal or factual basis upon which defendants may be held liable should be granted.

Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable, since it serves to deprive a party of his day in court. Relief should be granted only where no genuine triable issue of fact exists. Henderson v. City of New York, 178 AD2d 129, 576 NYS2d 562 (1st Dept 1991). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of his or her day in court. Russel v. A. Barton Hepburn Hospital, 154 AD2d 796, 546 NYS2d 239 (3d Dept 1989). Here, defendants, by the testimony of defendant Pannullo have met their burden of establishing prima facie that they are entitled to summary judgment on the issue of liability as a matter of law. Plaintiffs have opposed this motion with a single argument of counsel that the admission of defendant Pannullo, that prior to the impact he did not see plaintiff's vehicle, is evidence of recklessness and this creates an issue of fact for a jury. Defendants reply that whether defendant Pannullo saw plaintiffs is [*3]immaterial inasmuch as he clearly testified that he attempted to stop before even reaching the intersection and that the snow plow slid into the intersection.

The circumstances presented in this case are operatively identical to those presented in Primeau v. Town of Amherst, supra , wherein the Fourth Department reversed the trial court denial of the motion of the defendant driver and Town of Amherst to set aside a jury verdict finding liability on the part of the defendants. Viewing the facts in the light most favorable to plaintiff, the court found that "the evidence establishes, at most, that [the driver of the Town owned snowplow] failed to apply his brakes soon enough to stop before reaching a stop sign, and instead inadvertently entered the intersection at a speed of three or four miles per hour. That evidence is insufficient to establish that [he] acted recklessly." Where Vehicle and Traffic Law § 1103 (b) applies, defendants' motion for summary judgment on liability are properly granted where "plaintiffs failed to raise a triable issue of fact as to whether the truck was being operated in reckless disregard of others resulting in a risk so great as to make it highly probable that harm would follow'". Levine v. GBE Contr. Corp., 2 AD3d 596, 597, 768 NYS2d 357 (2nd Dep't, 2003) citing Farese v. Town of Carmel, 296 AD2d 436, 437, 745 NYS2d 197 (2nd Dep't, 2002), see, Riley v. County of Broome, 95 NY2d 455; 742 NE2d 98; 719 NYS2d 623 (2000), State Farm Mut. Auto. Ins. Co. v. Town of Babylon, 9 Misc 3d 128A, __N.Y.S.2d __ (App. Term, 2nd Dep't, 2005).

In view of the dismissal of the complaint, the Court need not address the alternative ground for dismissal that plaintiffs have not met the threshold requirement of the New York State No-Fault law for "serious physical injury". In the event that the Court reached this issue, the Court would grant summary judgment for defendants on this alternative ground.

Plaintiff, Marion Green, in his verified Bill of Particulars, complains of bilateral L5-S1 radiculopathy, significant limitation and restriction of the cervical spine in flexion, extension left and right rotation and left and right lateral flexion, loss of the cervical lordosis curvature, pain radiating from the cervical spine into the, supra spinatuus, posterior deltoids, trapezoid rhomboids, arms and hands, permanent significant limitation in the mobility of the neck, permanent chronic cervical sprain with accompanying irritation of the cervical soft tissue, severe pain, loss of stability, tenderness, weakness, stiffness, soreness and discomfort in the right shoulder, the lumbar spine region, thoracic spine, muscle spasms, radiating pain from the lumbar spine into the extremities, loss of normal lumbar lordosis.

Plaintiff, Steven Gambles, in his verified Bill of Particulars, complains of central disc herniation that effaces the ventral aspect of the thecal sac, disc bulge at C6-C7, disc herniation at L5-S1 that touches the proximal aspect of the right S1 never root and narrows the right neural foramen, bilateral median motor and sensory nerve [*4]compression at the wrist with severe sensory axonal loss, severe pain, tenderness, weakness, stiffness, soreness and discomfort in the cervical spine, the lumbar spine region, thoracic spine, muscle spasms, radiating pain from the cervical spine into the extremities, loss of cervical lordosis curvature, loss of normal lumbar lordosis, radiating pain from the lumbar spine into the extremities, muscle spasms, aggravation of a pre-existing injury to the right leg, neck back and wrist.

Insurance Law § 5102 (d) defines the term "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 function or system; 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."

On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of serious injury as defined by Insurance Law § 5102 (d), the initial burden is on defendants "to present evidence, in competent form, showing that plaintiff has no cause of action" (Rodriguez v. Goldstein, 182 AD2d 396, 582 NYS2d 395 [1st Dept. 1992]). Once defendants have met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists (DeAngelo v. Fidel Corp. Services, Inc., 171 AD2d 588, 567 NYS2d 454 [1st Dept. 1991]). Such proof in order to be in a competent or admissible form, shall consist of affidavits or affirmations (Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept. 1992]). The proof must be viewed in a light most favorable to the non-moving party (Cammarere v. Villanova, 166 AD2d 760, 562 NYS2d 808 [3d Dept. 1990]).

In order to demonstrate that a plaintiff has suffered a "serious injury" for purposes of the No-Fault Law (see, Insurance Law § 5102 [d]), an expert's qualitative assessment of a plaintiff's condition may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact. By contrast, an expert's opinion unsupported by an objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-Fault Law to eliminate statutorily insignificant injuries or frivolous claims. Toure v. Avis Rent a Car Sys., 98 NY2d 345, 746 NYS2d 865 [ 2002].

The Court of Appeals has discussed the difficulties encountered by courts in [*5]deciding whether the threshold for serious injury has been met where plaintiffs allege "soft-tissue injuries involving complaints of pain that may be difficult to observe or quantify". Pommells v. Perez, ___N.Y.3d__ , ____N.Y.S.2d_____,2005 NY LEXIS 1041, 3-4 (2005). Recognizing that "[m]any courts have approached injuries of this sort with a well-deserved skepticism", the Court observed that the "failure to grant summary judgment even where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims." Id. Thus, the Court further elucidated the criteria to be used in evaluating cases in which "plaintiffs claim to have suffered soft-tissue injuries herniated discs caused by car accidents", concluding that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, an intervening medical problem or a pre-existing condition summary dismissal of the complaint may be appropriate." Id. Notably, in evaluating the submissions, the Court clarified that a sworn medical opinion relying upon unsworn MRI reports is competent evidence. Id, at fn 5. "A plaintiff who terminates therapeutic measures following the accident, while claiming serious injury'" must offer some reasonable explanation for having done so".Id. The medical affidavit of plaintiff's treating physician attesting that "further medical therapy would be only palliative in nature,'" is sufficient to explain a two and one-half year "so-called gap in treatment". Id. So too, where defendant challenges causation by persuasive evidence that the claimed injuries are the result of intervening or pre-existing conditions, plaintiff has "the burden to come forward with evidence addressing defendant's claimed lack of causation." Id. Moreover, the failure of a plaintiff to obtain objective medical evaluation and treatment "contemporaneous with the accident" and the absence of such competent medical proof warrants dismissal of the complaint. Suk Ching Yeung v. Rojas, 18 AD3d 863, 796 NYS2d 661 (2nd Dep't, 2005); Nemchyonok v. Peng Liu Ying, 2 AD3d 421; 767 NYS2d 811 (2nd Dep't, 2003); Ifrach v. Neiman, 306 AD2d 380, 760 NYS2d 866 (2nd Dep't, 2003).

On this motion defendants submit the affirmations of neurologist Howard B. Reiser, M.D., and orthopaedist Noah S. Finkel, M.D. the deposition testimony of both plaintiffs, to establish that defendant has made a prima facie showing that each plaintiff has not sustained a "serious injury" pursuant to New York State No-Fault law. Based upon his neurological examination and objective testing of plaintiff Marion Green on February 2, 2005, Dr. Reiser notes that plaintiff had a history of "long-standing diabetes and hypertension", prior back problems and "lazer surgery on his eyes probably related to diabetic complications" and found "no objective causally related neurological deficit", observing that plaintiff's abnormal eye examination and sensory and reflex abnormalities were related to underlying diabetic peripheral neuropathy. Based upon his orthopedic examination and objective testing of plaintiff Marion Green on February 18, 2005, Dr. Finkel noted plaintiff's prior lower back and neck injury and diabetes, and found degenerative disc disease in both cervical and lumbar areas, that "absent reflexes are compatible with a diabetic peripheral neuropathy and not secondary to spinal entrapment." Based upon his neurological examination and objective testing of [*6]plaintiff Steven Gambles on February 2, 2005, Dr. Reiser noted plaintiff had "some pain in his low and midback prior to the incident of February 7, 2003", "symptoms in his upper extremities" determined to be carpal tunnel syndrome" carpal tunnel operations in 2000 and 2002, pre-existing artery disease, and found that while plaintiff "presents with subjective posttramaumatic symptom of pain in his entire spine", "no objective ongoing neurological disorder causally related to the incident of 2/7/03." Based upon his orthopedic examination and objective testing of plaintiff Steven Gambles on February 21, 2005, Dr. Finkel noted plaintiff's "prior lower back and neck problems for which he was being treated by the same chiropractor at the time of the accident on February 7, 2003" had prior diagnosis of "arthritis in his back", prior carpal tunnel surgery and found that plaintiff " has sustained a cervical and lumbar strain superimposed upon previously existing degenerative disc disease", "significant subjectivity and strength withheld' phenomena noted" during the examination, and " no ongoing objective residual findings related" to the accident. Thus, defendants have made a prima facie showing that this plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

In opposition, plaintiff Marion Green submits the affirmation of neurologist Farshad D. Hannanian, M.D. dated June 30, 2003. In this affirmation, Dr. Hannanian I reports his impression as "cervical sprain and strain rule out cervical radiculopathy, lumbar sprain and strain rule out lumbar radiculopathy, post-traumatic ulnar neuropathy and post-traumatic headache" and assessment as "based upon the history provided by the patient and my findings that the injuries evaluated are a direct result of the motor vehicle of 2/7/03." Dr. Hannanian does not discuss the effect of plaintiff's diabetes nor does he address plaintiff's prior back and neck injuries. The report is dated four months after the accident and there is no further medical proof submitted regarding plaintiff's treatment between June of 2003 and the present. In opposition to the motion, plaintiff Steven Gambles submits the affirmed reports of Melissa Sapan M.D. interpreting his March 21, 2003 MRI of his cervical spine and the March 20, 2003 MRI of his lumbrosacral spine, and the affirmation of orthopaedic surgeon Alan J. Zimmerman, M.D. dated March 13, 2003 reporting his impression based upon a single examination of plaintiff as "cervical throracic and lumbar derangement" and "aggravation of a preexisting carpal tunnel syndrome right and left hands" and concluding that the injuries are a direct result of the accident.

The Court finds that neither plaintiff has submitted sufficient affidavits detailing the nature of medical treatment from initial treatment to the date of their last examination sufficient to defeat summary judgment. See, Schwab v. Mintzer, 287 AD2d 493, 731 NYS2d 634(2nd Dep't, 2001). Further, neither plaintiff sought immediate medical treatment, and the affirmations of their doctors do not address their significant prior medical history and merely relate examination results in March and June of 2003, well over two years ago. Moreover, both affirmations set forth conclusions of causation without specifically relating the objective basis for the opinion. Garces v. Yip, 16 AD3d 375, 790 NYS2d 712 (2nd Dep't, 2005). Here, where [*7]defendants have challenged causation by persuasive evidence that the claimed injuries are the result of pre-existing conditions, plaintiffs have not met their "burden to come forward with evidence addressing defendant's claimed lack of causation." Pommells v. Perez, supra . Finally, the failure of plaintiffs to obtain objective medical evaluation and treatment "contemporaneous with the accident" and the absence of such competent medical proof warrants dismissal of the complaint. Suk Ching Yeung v. Rojas, 18 AD3d 863, 796 NYS2d 661 (2nd Dep't, 2005); Nemchyonok v. Peng Liu Ying, 2 AD3d 421; 767 NYS2d 811 (2nd Dep't, 2003); Ifrach v. Neiman, 306 AD2d 380, 760 NYS2d 866 (2nd Dep't, 2003). Accordingly, it is

ORDERED that the branch of the motion for summary judgment in defendants favor upon the ground that there is no factual or legal basis upon which defendants can be held liable is granted and the complaint is dismissed.

A copy of this decision (or order) shall accompany any proposed order/counter order or judgment submitted to the court.

Dated:

MARY M. WERNER, J.S.C. [*8]

FINAL DISPOSITION NON-FINAL DISPOSITION

SCAN DO NOT SCAN