Marc v Kohl

[*1] Marc v Kohl 2006 NY Slip Op 51700(U) [13 Misc 3d 1206(A)] Decided on July 5, 2006 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2006
Supreme Court, Kings County

Miraym Marc, Plaintiff,

against

David Kohl and Aron Y. Hayum, Defendants.



40092/03



Attorneys for Plaintiff

The Law Offices of Alvin M. Bernstone, LLP

292 Madison Avenue - 24th Fl.

New York, NY 10017

(212) 532-1200

Attorneys for Defendant, Kohl

Corigliano, Geiger, Verrill, McEnaney & Brandwein

Two Robbins Lane - Suite 200

Jericho, NY 11753

(516) 681-9757

Attorneys for Defendant, Hayum

Law Offices of Robert P. Tusa

1 Metrotech Center - 19th Fl.

Brooklyn, NY 11201-3838

(718) 250-0400

Lawrence S. Knipel, J.

Upon the foregoing papers, defendant David Kohl moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that: (1) as applied to the facts of the instant action, the doctrine of emergency, as a matter of law, precludes the imposition of liability on his part; or, (2) plaintiff Mirayam Marc did not sustain a "serious injury" as that term is defined in Insurance Law  5102 (d)[FN1] and 5104 [*2](a).[FN2] Defendant Aron Y. Hayum moves [FN3] for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint ground that: (1) as a matter of law, he was not liable for plaintiff's injuries; or (2) plaintiff did not suffer a "serious injury" as that term is defined in the Insurance Law.

This is an action for personal injuries allegedly sustained by plaintiff as the result of a three-automobile motor vehicle chain reaction collision that occurred on September 7, 2003, on Fort Hamilton Parkway at its intersection with Chester Street in Brooklyn. Kohl, the driver of the rearmost vehicle, swerved left and collided with a vehicle operated by Hayum. The Hayum vehicle, in turn, collided with a third automobile in which plaintiff was a passenger. Plaintiff sustained injuries as a result of the collision. By summons and verified complaint filed on October 20, 2003, plaintiff commenced the instant action, alleging that defendants' negligence proximately caused her injuries. Discovery ensued, and is now presumably complete, since plaintiff filed a note of issue on July 22, 2005.

The court initially denies as untimely the motion by Hayum. As stated above, the note of issue in this action was filed on July 22, 2005. The motion by Hayum is dated November 17, 2005 and was filed on November 22, 2005. The motion was thus made almost four months after the note of issue was filed.

CPLR 3212 (a) provides that a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue unless the court sets an earlier date. Here, applicable Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, expressly provides that no motions for summary judgment may be made more than 60 days after the plaintiff files a note of issue (see e.g. Bevilacqua v City of New York, 21 AD3d 340 [2005]). Thus, counsel for Hayum has the burden of establishing good cause for the delay (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; First Union Auto Fin., Inc. v Donat, 16 AD3d 372 [2005]; Breiding v Giladi, 15 AD3d 435 [2005]). [*3]

" [G]ood cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, non-prejudicial filings, however tardy" (Brill, 2 NY3d at 652). "No excuse at all, or a perfunctory excuse, cannot be good cause'" (id.). Here, counsel for Hayum offers absolutely no reason for the delay in bringing the motion. Accordingly, counsel for Hayum has failed to demonstrate the requisite "good cause." The motion by Hayum is thus denied as untimely.

The court now considers the motion for summary judgment by Kohl. Kohl first argues that the emergency doctrine precludes any liability on his part. Counsel for Kohl notes the deposition testimony of his client, wherein Kohl asserts that he was traveling in the right lane of Fort Hamilton Parkway, in the same direction as the other subject vehicles. Kohl further testified that as he approached a gas station, a minivan exited the station by a driveway into the right lane "without warning". Kohl also testified that he quickly swerved into the left lane in order to avoid striking the minivan, and that he struck the Hayum vehicle only because he did not have enough time to avoid the minivan.

Counsel for Kohl asserts that the above testimony establishes that his client is not liable for negligence under the emergency doctrine. Counsel further asserts that none of the facts testified to by his client are in dispute.

A defendant who moves for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Moreover, it is generally improper for a trial court to grant a defendant's motion for summary judgment in a negligence action because whether the parties acted reasonably is almost always a question of fact (Johannsdotter v Kohn, 90 AD2d 842 [1982]; see also Chahales v Garber, 195 AD2d 585 [1993]). Lastly, when determining the outcome of a defendant's motion for summary judgment, opposed by plaintiff, a trial court is required to accept the plaintiff's pleadings as true and resolve all inferences in the manner most favorable to plaintiff (Henderson v City of New York, 178 AD2d 129, 130 [1991]; see also Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [1976]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]).

Kohl has not demonstrated prima facie entitlement to judgment as a matter of law with respect to his liability. As stated above, it is generally improper for this court to grant summary judgment in a negligence action. Moreover, "[t]he emergency doctrine applies when a party is confronted with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration" (Cheung v Dominican Convent of Our Lady of the Rosary, 22 AD3d 450, 451 [2005]; Calzareth v Yip, 248 AD2d 661 [1998]). "[T]he existence of an emergency and the reasonableness of a party's [*4]response to it will ordinarily present questions of fact" (Bello v Transit Auth. of New York City, 12 AD3d 58, 60 [2004]; Morgan v Ski Roundtop, 290 AD2d 618 [2002]). For example, as a matter of law, a driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic (Huggins v Figueroa, 305 AD2d 460 [2003]; Bentley v Moore, 251 AD2d 612 [1998]; Koch v Levenson, 225 AD2d 592 [1996]; Goff v Goudreau , 222 AD2d 650 [1995]). However, and contrary to the assertions by counsel for Kohl, the emergency doctrine typically is inapplicable to rear-end traffic accidents (Campanella v Moore, 266 AD2d 423 [1999]; Johnson v Phillips, 261 AD2d 269, 271 [1999], citing Sass v Ambu Trans, Inc., 238 AD2d 570 [1997]). The defense is only available when the driver's reaction to the emergency was reasonable (Smith v Brennan, 245 AD2d 596 [1997]; Ferrer v Harris, 55 NY2d 285, 293 [1982]) and when the reacting driver has not engaged in tortious conduct that indirectly caused the accident (Hentschel v Robert Campbell Carpet Srvs., 256 AD2d 500 [1998]).

Notwithstanding the emergency doctrine, a driver of an automobile is required "to see what by the proper use of [his] senses [he] might have seen" (Le Claire v Pratt, 270 AD2d 612, 613 [2000], quoting Weigand v United Traction Co., 221 NY 39, 42 [1917]). Also, a driver of an automobile that approaches another automobile from the rear is duty-bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Chepel v Meyers, 206 AD2d 235, 236 [2003]; Power v Hupart, 260 AD2d 458 [1999]; Vehicle and Traffic Law § 1129 [a]). Further, a driver must maintain a safe distance between his vehicle and the one in front of him, and any rear-end collision establishes a prima facie case of negligence on the part of the rear-ending driver (see e.g. Reed v New York City Tr. Auth., 299 AD2d 330 [2002]; Johnson v Phillips, 261 AD2d 269, 271 [1999]). Moreover, the rearmost driver in a chain-reaction collision bears a presumption of responsibility (Mustafaj v Driscoll, 5 AD3d 138 [2004]).

Lastly, the court notes that Kohl testified that he was traveling "probably much less than" twenty miles an hour and that the minivan was "[m]aybe 100 feet, maybe 75 feet" away (Examination Before Trial of David Kohl, p. 15). In view of the foregoing authority and Kohl's testimony, the court cannot determine, as a matter of law, that Kohl did not engage in prior tortious conduct or was "confronted with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration" (Cheung, 22 AD3d at 451). Under the circumstances, factual issues abound. Accordingly, Kohl's application for summary judgment with respect to liability is denied.

The court now considers Kohl's argument that plaintiff did not suffer a "serious injury". To succeed, Kohl must first sustain the initial burden of showing that plaintiff did not sustain a "serious injury", as that term is defined by Insurance Law § 5102 (d), by tendering evidence that eliminates any material issues of fact (Gaddy v Eyler, 79 NY2d 955 [1992]; see also Ocasio v Henry, 276 AD2d 611 [2000]; Villalta v Schechter, 273 [*5]AD2d 299 [2000]). "A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)" (Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]; see also Brown v Achy, 9 AD3d 30, 31 [2004]; Diaz v Turner, 306 AD2d 241, 242 [2003]; Figueroa v Westbury Trans, 304 AD2d 614 [2003]; Fauk v Jenkins, 301 AD2d 564, 565 [2003]; Bernabel v Perullo, 300 AD2d 330 [2002]; Malpica v Lavergne, 294 AD2d 340 [2002]; Espinal v Galicia, 290 AD2d 528 [2002]; Duldulao v City of New York, 284 AD2d 296, 297 [2001]).

In support of his motion, Kohl submits various documents, including plaintiff's verified bill of particulars, transcripts of plaintiff's examinations before trial testimony, and an affirmation and report of an independent orthopedic examination of plaintiff conducted by Dr. Robert Israel at Kohl's request.

Dr. Israel examined plaintiff on December 14, 2004. Dr. Katz administered range-of-motion, spasm, and muscle strength tests on her neck, back, shoulders, and right leg. He found no evidence of impaired coordination or range of motion, as well as no swelling, tenderness, spasm, muscle atrophy, deformity or abnormal curvature of the spine. He also found that her appearance, posture, muscle strength, coordination, reaction to stimuli, reflexes, and ranges of motion were entirely normal.

Dr. Israel diagnosed plaintiff with resolved sprains of the cervical, thoracic and lumbosacral spines, a resolved sprain of the right shoulder, a resolved contusion of the right knee, and a resolved contusion of the left shoulder. Dr. Israel also opines that plaintiff is not disabled, and that any allegation of continued injury as a result of the subject accident is unsupported by the examination.

By submitting the affirmation and report of Dr. Israel,[FN4] Kohl has met his initial burden of establishing the lack of credible objective evidence of a "serious injury" suffered by plaintiff (Toure v Avis Rent A Car Sys., 98 NY2d 345, 352-353 [2002]; McCauley v Ross, 298 AD2d 506, 506-507 [2002]). Specifically, by submitting an affirmed report of a recent medical examination wherein the examining physician did not find impaired ranges of motion and did not find any disabilities, defendant established prima facie entitlement to judgment as a matter of law (Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]). The burden thus shifts to plaintiff to come forward with evidence sufficient to raise a triable issue of fact with respect to the "serious injury" threshold (Luckey v Bauch, 17 AD3d 411 [2005]; McLoyrd v Pennypacker, 178 AD2d 227, 228 [1991]). [*6]

In opposition, plaintiff submits her own affidavit, transcripts of testimony given at examinations before trial and various affirmed medical reports, including one by neurologist Dr. Alexander Berenblit. Dr. Berenblit affirms that he began treating plaintiff on September 11, 2003. He notes that on that date, plaintiff's whole body range of motion was impaired by 52%. He further notes that from that date until March 22, 2005, plaintiff attended physical therapy three times a week.

Dr. Berenblit again examined plaintiff on October 20, 2005. On that date, Dr. Berenblit administered range-of-motion tests on plaintiff, and noted limitations in the range of motion of plaintiff's neck and back from 17%-50%. Dr. Berenblit opines that these limitations are permanent and were caused by the subject accident.

Plaintiff has, by tendering the affirmed report of Dr. Berenblit, demonstrated the existence of an issue of fact with respect to whether, as a result of the accident, she has suffered a "serious injury" (a permanent consequential or significant limitation of the use of her lumbosacral and cervical spines) as that term is defined in Insurance Law § 5102 (d). Although Kohl established prima facie entitlement to judgment as a matter of law, "the affirmation of the injured plaintiff's physician, who, on the basis of recent range of motion testing as well as range of motion testing done shortly after the subject accident, determined that the injured plaintiff had sustained restrictions in range of motion, was sufficient to raise a triable issue of fact" (Privitera v Brown, 28 AD3d 733, 733 [2006], citing Williams v New York City Tr. Auth., 12 AD3d 365). Dr. Berenblit's affirmed report was based on examinations performed shortly after the accident as well as recently. During such examinations, he noted positive objective test results indicating quantitative and restricted ranges of motion of the cervical and lumbosacral spine regions of plaintiff. His opinions are thus supported by objective medical testing and evidence (Toure, 98 NY2d at 353). Moreover, he opined that the limitations of use are permanent and causally related to the subject accident (cf. Pommells v Perez, 4 NY3d 566, 579-580 [2005] [no triable issue of fact where plaintiff's doctor noted that pain was result of a condition that preceded the subject accident]). Such evidence is sufficient to raise a triable issue of fact with respect to whether plaintiff suffered a "serious injury" as that term is defined under Insurance Law § 5102 (d) (Balanta v Stanlaine Taxi Corp., 307 AD2d 1017, 1018 [2003]; see also Toure, 98 NY2d at 345).

"Whether a limitation of use or function is significant or consequential...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, 84 NY2d 795, 798 [1995] [internal quotations omitted]). Here, Dr. Berenblit performed objective tests and found that the movements of plaintiff's neck and back are restricted by specific and significant amounts. Thus, an issue of fact exists as to whether either plaintiff sustained a "serious injury" as a result of the subject accident (see e.g. Toure, 98 NY2d at 353).

In sum, the motion for summary judgment by Kohl is denied due to the existence [*7]of material issues of fact. The motion for summary judgment by Hayum is denied as untimely.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: 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 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."

Footnote 2: Insurance Law §5104 (a) provides, in relevant part, that "[n]otwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."

Footnote 3: Aron Y. Hayum incorrectly terms his application a cross motion. A cross motion is a motion against a moving party (Gaines v Shell-Mar Foods, Inc., 21 AD2d 986 [2005]; CPLR 2215; see also Williams v Sahay, 12 AD3d 366 [2004]). Here, the only party that has moved for summary judgment is David Kohl. Since the motion by Hayum seeks summary judgment against the plaintiff, who has not moved for summary judgment, the application by Hayum is thus a motion and not a cross motion. The court further notes that Hayum does not seek summary judgment with respect to his cross claim against Kohl.

Footnote 4: The court notes that defendants have submitted other medical records and documents other than the affirmed report of Dr. Israel. Under Kearse, however, the affirmed report of Dr. Israel suffices to establish prima facie entitlement to judgment as a matter of law with respect to the "serious injury" threshold.