Coston v McGray

[*1] Coston v McGray 2006 NY Slip Op 52703(U) [25 Misc 3d 1209(A)] Decided on December 26, 2006 Supreme Court, Ulster County Work, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 26, 2006
Supreme Court, Ulster County

Willie Coston and CAROL BAILEY, Plaintiffs,

against

Keith McGray, LISA GRAY, ROSA COSTON, ELIZABETH HALL, AMY FRIEDMAN, DAVID NORTON, MARVIN DEPUY, LAUREEN DEPUY, and CHARLOTTE CARR, , Defendants.



04-1530



APPEARANCES:

Schonberg Law Offices of the Hudson Valley, P.C.

By: Bruce A. Schonberg, Esq.

Attorneys for Plaintiffs

Hanson & Fishbein

By: Richard J. Fishbein, Esq.

Attorneys for Defendants Rosa Coston and Elizabeth Hall

Kris T. Jackstadt, Esq.

By: Joan Matalavage, Esq.

Attorneys for Defendants Amy Friedman and David Norton

Horigan, Horigan, Lombardo & Kelly, P.C.

By: Joseph D. Giannetti, Esq.

Attorneys for Defendants Marvin Depuy and Laureen Depuy

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

By: Michael J. Vatter, Esq.

Attorneys for Defendant Charlotte Carr

James R. McCarl, Esq. & Associates

By: James R. McCarl, Esq.

Attorneys for Defendant (on the counterclaim) Willie Coston

Mary M. Work, J.

This is a personal injury action arising out of two separate automobile accidents. Plaintiff, Willie Coston, was involved in the first accident on November 25, 2002 in the Town of Poughkeepsie in Dutchess County. Both plaintiff and his wife, co-plaintiff Carol Bailey, were later involved in another accident, this one occurring on February 19, 2003 in the Town of Olive in Ulster County. Issue has been joined; discovery is complete; a trial date was set for January 8, 2007. Various defendants now move and cross-move for summary judgment against plaintiff.[FN1] The motions all deal with questions surrounding the causation and the extent of any injuries allegedly suffered by plaintiff in the two accidents.

FACTS

Plaintiff is currently fifty years old. Though not working at present, for all of his adult life plaintiff has been an interior and exterior house painter. Over the years, he has suffered from a number of physically traumatic events that have caused him to suffer substantial injuries.

While the record lacks an exact chronology, at some point prior to the mid-1990's plaintiff was the victim of a shooting. The bullet lodged in the upper left portion of his chest. For years afterward plaintiff complained of neck problems and difficulty using his left arm.

In June of 1992, plaintiff was knocked off a ladder and fell twenty feet. He suffered a herniated disc, severe left leg pain and decreased sensation in his left leg. He also complained of pain in the upper extremities and shoulder area. Five years after this incident plaintiff was still complaining of severe back pain and sciatica of the left leg. [*2]

In 1994, nearly a decade before the incidents that gave rise to the present litigation, plaintiff was diagnosed as having low back syndrome, lumbar radiculopathy [FN2] related to a disc herniation, as well as a cervical syndrome. In 1998, plaintiff was still being treated by a physician for back pain and sciatica. Plaintiff was also walking with the aid of a cane. An MRI disclosed degenerative disc disease in plaintiff's lower back.

On May 24, 1999, plaintiff was involved in an automobile accident in which his vehicle rolled over several times and he was ejected from one of its windows. Following this incident plaintiff complained of pain in his back, shoulders and knees, as well as numbness in his left leg and both feet. Around Christmas of 2000, plaintiff fell and aggravated his condition. His physician referred him for physical therapy. In September of 2001, plaintiff was again diagnosed with lumbar radiculopathy and was treated over the next year with additional physical therapy.

On November 25, 2002, plaintiff was involved in the first of the two accidents that gave rise to this lawsuit. He was the passenger in a car driven by his mother, defendant Rosa Coston, and owned by defendant Elizabeth Hall. This vehicle struck the car driven by defendant Keith McGray and owned by defendant Lisa Gray.

When police arrived at the scene of this accident, none of the individuals involved (including plaintiff) complained of physical injury. Indeed, the report prepared by the responding officer characterizes the incident as a "non-injury" motor vehicle accident.[FN3] It was not until seventeen days later, on December 12, 2002, that plaintiff first sought medical treatment for injuries he claimed to have sustained in this accident.

Dr. Luis Mendoza, Jr. examined plaintiff and diagnosed his condition as a cervical and lumbar sprain or strain, cervical and lumbar radiculopathy, and possible cervical and lumbar disc injury. Dr. Mendoza determined that plaintiff had "a temporary total disability" and began plaintiff on a physical therapy regimen.

On February 19, 2003, the pickup driven by plaintiff, in which co-plaintiff Carol Bailey and the couple's young daughter were riding as passengers, struck the rear of the vehicle driven by defendant Martin DePuy as he slowed to avoid two stopped vehicles, one driven by defendant David Norton and owned by defendant Amy Friedman, the other driven by defendant Charlotte Carr. No air bag deployment occurred.

Plaintiff, Bailey and their daughter were taken to a nearby hospital, treated and released.[FN4] Nearly six weeks passed before plaintiff visited Dr. Mendoza on March 31, 2003 with complaints of pain purportedly related to this latest accident. Nonetheless, plaintiff's range of motion test [*3]results were identical to those obtained at the December 12, 2002 office visit. Dr. Mendoza himself noted, in comparing plaintiff's complaints on the two dates, that plaintiff's "complaints were essentially unchanged."

Plaintiff continued to complain of pain despite physical therapy. He was eventually referred for spinal fusion surgery, which was performed in 2004. Plaintiff states that this surgical intervention failed to alleviate his symptoms.

ANALYSIS

New York's "No-Fault Law" (L 1973 ch 13) precludes litigation of personal injury claims arising out of automobile accidents in the absence of "serious injury" (Ins Law §5104[a]; see Pommells v Perez, 4 NY3d 566, 571 [2005]). This term is statutorily defined based upon the nature, severity and duration of the physical symptoms and disabilities of the putative plaintiff (Id.). Implicit in the statutory scheme and explicit in its judicial gloss is the fundamental prerequisite that the injury allegedly sustained be, as a matter of fact, proven to be causally related to the accident giving rise to the lawsuit (see, e.g., Pommells v Perez, supra at 575 [citations omitted]).

In the present case, the moving defendants seek summary judgment on a number of grounds, the primary of which is the lack of proof that plaintiff has suffered serious injury as a result of either or both of the two accidents that are the subject matter of this litigation. In support of their position, defendants cite to the July 20, 2006 affirmation of Dr. Jeffrey Oppenheim, who performed an independent neurosurgical examination of plaintiff. Dr. Oppenheim's report analyzes plaintiff's past (pre-accident) medical history in great detail, and also evaluates plaintiff's current medical condition. Dr. Oppenheim concludes that objective medical evidence proves that plaintiff's neck, back and associated problems all predated the two accidents at issue. As a result, he opines that there is no causal connection between the two accidents and plaintiff's physical complaints.

Of course, on a motion for summary judgment the moving party bears the burden of going forward in the first instance with admissible evidence that, if unchallenged, would prove entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendants here have met that prima facie burden. They have adduced competent proof, through the affirmation of Dr. Oppenheim, that tends to show that plaintiff's complaints of neck and back pain, loss of range of motion and feelings of numbness were, in fact, extant long before either of the two accidents at issue here. Indeed, Dr. Oppenheim's affirmation shows that plaintiff had undergone a followup physical examination in September of 2002, a mere two months before the first of the accidents at issue, for his previously diagnosed lumbar radiculopathy for which he was receiving ongoing treatment.

The Court of Appeals has squarely held that proof of a pre-existing condition can defeat, on a motion for summary judgment, a plaintiff's case for serious injury under the no-fault law (Pommells v Perez, supra at 575-576). The burden of proof thus now shifts to plaintiff to demonstrate the existence of a triable issue of fact with respect to the cause of his claimed physical impairment (see Zuckerman v City of New York, supra, at 562; Romano v St. Vincent's Medical Center, 178 AD2d 467 [1991]). A search of the record reveals that plaintiff has failed completely to show the existence of any triable issue of causation.

The only competent evidence presented by plaintiff in opposition to the pending motions [*4]is the affirmation prepared by Dr. Mendoza. This document, affirmed in October of 2006 and thus prepared with the benefit of, as well as in opposition to, defendants' submissions, is totally devoid of any mention whatsoever of plaintiff's previous medical history. This glaring omission is particularly telling: in response to a recitation of the litany of physical traumas suffered by plaintiff well prior to either of the accidents at issue, and in response to Dr. Oppenheim's reference to objective medical proof of pre-existing injuries affecting plaintiff's cervical and lumbar spine, Dr. Mendoza simply begins his chronology of events on December 12, 2002 with plaintiff's first appointment with him. Dr. Mendoza does not state whether he reviewed plaintiff's prior records, and Dr. Mendoza does not state if he questioned plaintiff on his previous medical history.

Particularly troubling about Dr. Mendoza's affirmation is that it even contradicts his own followup reports. For example, when comparing plaintiff's two office visits before and after the later of the two accidents, the affirmation states (at p 2), "[Plaintiff's] complaints were essentially unchanged." However, when Dr. Mendoza examined plaintiff on March 31, 2003, the doctor wrote in his followup report, "The patient [is] improving since last exam."[FN5]

In addition, Dr. Mendoza asserts in October of 2006 (at p 4 of his affirmation), that "the second accident did, in fact, result in at least a severe aggravation or exacerbation of the injuries sustained in the earlier motor vehicle accident." On March 31, 2003, however, after the examination following the second accident, Dr. Mendoza wrote in his followup report that plaintiff was experiencing a range of motion identical with that achieved on the visit prior to the second accident, along with the claim that plaintiff had in fact improved since the last exam. In short, the conclusory allegations of Dr. Mendoza's affirmation, prepared for the purpose of opposing the present motions, are at odds with the findings recorded by the doctor himself contemporaneously to the diagnoses and treatments provided to plaintiff.

Thus, plaintiff has failed to adduce evidence that would create a triable issue of fact relative to the causation of his injured condition. As a result, defendants are entitled to summary judgment (see generally, Gonzalez v Green, 24 AD3d 939 [3d Dept 2005], and cases cited therein).

The issue of causation is, of course, elemental to plaintiff's claims against all party defendants. While not all of the defendants have moved or joined in the motions for summary judgment, this relief can nonetheless be granted to the non-moving defendants as well, since plaintiff has had the opportunity to litigate the identical issue with the moving parties (see CPLR 3212[b]; WFR Associates v Memorial Hospital, 14 AD3d 840 [3d Dept 2005]). Granting summary judgment to all defendants would serve the ends of judicial economy; failing to do so would only create needless litigation, with no benefit accruing to any party. Therefore, summary judgment is granted to all defendants in this action.

In light of this determination, it is not necessary to address the remaining issue raised by [*5]the moving defendants regarding whether plaintiff's injuries rise to the level of the no-fault threshold embodied in Ins Law §5102(d). In this area, defendants' expert opinion differs markedly with that of plaintiff's expert. Nonetheless, in the absence of a causal nexus between plaintiff's physical condition and the accidents involved in this litigation, whether there exists a triable issue of fact regarding whether plaintiff has suffered "a permanent consequential limitation of use of a body organ or member, or significant limitation of use of a body function or system, or that he was prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident" is merely an academic question (Gonzalez v Green, supra, at 940, citing Franchini v Palmieri, 1 NY3d 536, 537 [2003]).

It is, therefore,

ORDERED that the pending motions for summary judgment are granted in all respects as to all defendants.

This constitutes the decision and order of the Court. All papers including this decision and order are returned to the attorney for defendants Friedman and Norton. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

DATED:October _____, 2009

Kingston, New York

ENTER:

_______________________________________

HON. MARY M. WORK

Acting Supreme Court Justice Footnotes

Footnote 1: One motion was brought by plaintiff as defendant on the counterclaim filed by defendants Amy Friedman (Friedman) and David Norton (Norton). The counterclaim, alleging negligence on the part of plaintiff as the operator of one of the vehicles involved in the later accident, sought indemnification and contribution from plaintiff for any damages incurred due to injuries that may have been suffered by Bailey. Bailey has since discontinued her action against Friedman and Norton. Plaintiff's motion for summary judgment on the counterclaim is, therefore, now moot.

Footnote 2: Irritation of a nerve root at the spine.

Footnote 3: It can also be inferred from the police report that the accident was no more than a "fender bender" which resulted in relatively minor damage to the vehicles involved. The reporting officer described the contact as "scraping" of the side of one vehicle by the bumper of the other. No air bag deployment was noted, and apparently, neither vehicle needed to be towed from the scene.

Footnote 4: The records of this hospital visit are not part of the record filed in connection with the pending motions.

Footnote 5: Perhaps most disturbing about the March 31, 2003 report is its complete lack of reference to the accident of February 19, 2002. The report affirmatively states that plaintiff "was involved in a motor vehicle accident on 11/25/02" and even goes on to state, "As a direct result of this [11/25/02] accident, Mr. Coston continues to complain of moderate neck, headaches [sic], and lower back pain," yet nowhere mentions the subsequent accident.