Paredes v Saldana

[*1] Paredes v Saldana 2009 NY Slip Op 51173(U) [23 Misc 3d 1137(A)] Decided on May 28, 2009 Civil Court Of The City Of New York, Queens County Velasquez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2009
Civil Court of the City of New York, Queens County

Margarita Paredes and Wilmar Gutierrez, Plaintiffs,

against

Mariano Saldana, Defendant.



000863-QTS-08

Carmen Velasquez, J.

In this action, plaintiff, Margarita Paredes, seeks damages for personal injuries and her husband, plaintiff, Wilmar Gutierrez, for loss of services allegedly sustained as the result of a motor vehicle accident on August 8, 2006. Defendant, Mariano Saldano, moves for summary judgment on the ground that he is not liable for the accident and on the ground that plaintiff, Margarita Paredes, has not sustained a serious injury as defined by Insurance Law §5102(d).

The automobile accident involved in this action occurred at about 7:00 pm at the intersection of 250th Street and 86th Avenue in Queens County. Both drivers resided just a few blocks from the location of the accident and both were operating SUV vehicles. The plaintiff, Wilmar Gutierrez, was driving a 2003 Mitsubishi Montero Sport north on 250th Street with his wife, Margarita Paredes, in the front passenger seat. The defendant, Mariano Saldana, was proceeding in a westerly direction on 86th Avenue in a 2002 Jeep Cherokee. Both 250th Street and 86th Avenue are two way streets, 86th Avenue is approximately forty feet wide and 250th Street is approximately thirty feet wide. At the time of the accident, a stop sign controlled traffic on 250th Street but there was no traffic control regulating traffic traveling on 86th Avenue.

According to the deposition testimony and affidavit of plaintiff, Wilmar Gutierrez, he stopped at the stop sign before proceeding into the intersection and looked to his left, then to his right and again to his left. He did not see any vehicles on 86th Avenue, although he was able to see at least a distance of a block in each direction. The front of his vehicle had already passed the intersection when he felt his car tumbling over. The plaintiff, Margarita Paredes, gave the same version of the accident in her deposition testimony. Neither she nor the plaintiff driver saw the defendant's vehicle before the accident. However, from the damage to his vehicle Wilmar [*2]Gutierrez determined that the defendant's vehicle had struck the right rear passenger side of his Mitsubihi. The cost to repair the damage was approximately ten thousand dollars.

The defendant, Mariano Saldana, testified at his deposition that he was driving at about 25 to 28 miles per hour as he approached the intersection. The front wheels of his vehicle had just entered the intersection when he saw the Mitsubishi vehicle operated by plaintiff, Wilmar Gutierrez, in front of him in the intersection. The defendant stated that he jammed on his brakes, but the other vehicle appeared to speed up and he was unable to stop the Cherokee Jeep he was driving before it struck the Mitsubishi vehicle. The right front of the defendant's vehicle hit the passenger side of the vehicle operated by Wilmar Gutierrez, and the Mitsubishi flipped over completely, landing upright, still partially in the intersection. The cost to repair the defendant's Cherokee Jeep was also approximately ten thousand dollars.

The question of whether plaintiff, Wilmar Gutierrez, stopped at the stop sign is not dispositive, since the evidence submitted on this motion establishes that he failed to yield even if he stopped. A driver is negligent when an accident occurs because he fails to see what he should have seen through the proper use of his senses. The plaintiff driver should have seen the defendant's vehicle approaching when he stopped at the stop sign and yielded the right of way. Therefore, the defendant has established his prima facie entitlement to judgment as a matter of law on the issue of liability (see generally Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650; Hull v Spagnoli, 44 AD3d 1007; Gergis v. Miccio, 39 AD3d 468; Odumbo v Perera, 27 AD3d 709; Bongiovi v Hoffman, 18 AD3d 686 ; Breslin v. Rudden, 291 AD2d 471; LeClaire v Pratt, 270 AD2d 612; Bolta v Lohan, 242 AD2d 356).However, summary judgment cannot be granted if there is sufficient evidence to raise a triable issue of fact as to whether the defendant failed to use reasonable care (see Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427; Romano v 202 Corp., 305 AD2d 576).

There is evidence in this case which raises triable issues as to whether the defendant was speeding or otherwise engaged in negligent conduct that contributed to the accident. The severity of the impact and, if credited, the fact that the plaintiffs did not see the defendant's vehicle when their vehicle stopped at the stop sign, supports a finding that the defendant was driving at an excessive rate of speed.There is also evidence that the defendant was inattentive and failed to take evasive action. When the accident occurred the plaintiffs' vehicle was more than halfway across the forty foot intersection while the defendant's vehicle was just entering the intersection, and the the right front of defendant's vehicle struck the right rear of plaintiffs' vehicle. This supports a finding that the defendant failed to take reasonable care to avoid the accident with plaintiff's vehicle which was in the intersection. A driver who lawfully enters an intersection may still be found negligent if he fails to take reasonable care to avoid a collision with another vehicle in the intersection (see Franco v Rizzo, 877 NYS2d 415 {61 AD3d 818} ; Nevarez v S.R.M. Mgt. Corp.,58AD3d 295; Gorham v Methum, 57 AD3d 480; Knizeski v Settembres Limousine, Inc., 54 AD3d 1005; Rotondi v Rao, 49 AD3d 520; Borukow v Cuff, 48 AD3d 726; Romano v. 202 Corp., 305 AD2d 576). Therefore, the defendant, Mariano Saldana, is not entitled to summary judgment on the issue of liability [*3]

The defendant has also moved for summary judgment, based on the failure to establish that plaintiff, Margarita Paredes, sustained a serious injury within the meaning of Insurance Law §5102(d).

The defendant has met his initial burden on this branch of the motion by submitting the affirmed report of Dr. Jacquelin Emmanuel, an orthopaedic surgeon, which indicates that objective tests performed during the doctor's examination of plaintiff, Margarita Paredes, revealed that she had normal range of motion. The defendant has also submitted the affirmed reports of Dr. Sheldon Feit, a radiologist, who conducted a film review of both the cervical MRI and the lumbar MRI of this plaintiff's spine and found only disc bulges which he attributed to pre-existing degenerative changes. This evidence was sufficient to establish, prima facie, that the plaintiff, Margarita Paredes, did not sustain a serious injury within the meaning of Insurance Law §5102(d) (see Pommels v Perez, 4 NY3d 566; Toure v Avis Rent A Car Sys., 98 NY2d 345; Wright v. Peralta, 26 AD3d 489; Mc Cauley v Ross, 298 AD2d 506; Villalta v Schechter, 273 AD2d 299).

Plaintiff, Margarita Paredes, alleges in her bill of particulars that she sustained a serious injury in that she suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system. The injuries alleged are cervical and lumbar disc bulges and herniations, a contusion to the left rib cage region, and exacerbation of a pre-existing condition - fibromyalgia. According to her deposition testimony, she was confined to her home for about a month and was unable to return to work, as a respiratory therapist, until sometime in November 2006. When she returned, she had difficulty moving the oxygen tanks and other equipment and required assistance. She was treated for her injuries for approximately six months following the accident and stopped treatment because she was told that the cost would no longer be covered by insurance. She continues to have pain in her neck, back and shoulder and has been limited in performing her household chores, caring for her son, her sexual activities with her husband, and other customary activities.

In opposition to defendant's motion and support of their claim of "serious injury," the plaintiffs have submitted affirmations from Dr. Jatinder S. Bakshi, a neurologist, and Dr. Daniel Shapiro, who specializes in physical medicine and rehabilitation. Both of these doctors are

affiliated with Neurological Services of Queens, P.C. in Bayside, New York where plaintiff, Margarita Paredes, was treated for her injuries following the accident of August 8, 2006. She was seen by Dr. Bakshi for examination and treatment on several occasions from September 20, 2006 to November 23, 2006. Margarita Paredes returned for re-evaluation on February 5, 2009, after this motion was made and Dr. Shapiro referred her "for an updated Computerized Spinal Range of Motion Exam" which was conducted on that date. Dr. Shapiro then saw her for clinical evaluation on February 12, 2009. The plaintiffs have also submitted affirmations from two radiologists attesting to the accuracy of reports of a lumbar MRI performed on September 28, 2006 and a cervical MRI performed on October 24, 2006 which indicated that the plaintiff, Margarita Paredes, had lumbar and cervical bulges and herniations [*4]

It is the settled "rule that the mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of a objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration" (Kearse v New York City Tr. Auth., 16 AD3d 45; accord Pommells v Brown, 4 NY3d at 574; also see Garcia v Solbes, 41 AD3d 426). Plaintiffs rely upon the affirmations of Dr. Bakshi and Dr. Shapiro and the annexed reports and records maintained by their office to provide this evidence.

Dr. Bakshi, first examined the plaintiff, Margarita Paredes, on September 20, 2006 and then saw her on several occasions in October and November, 2006. The findings and opinions he expresses in his affirmation are based on his examinations, the patient's medical history, which included her fibromyalgia condition, the description of her symptoms, and review of the medical records maintained by his office. These records, copies of which were submitted on this motion, included: reports of examinations by Dr. Bakshi dated September 20 and November 30, 2006; EMG & NCS ostudies conducted by Dr. Bakshi; Computerized Muscle Strength and Range of Motion Tests conducted by Dr. Bakshi which set forth quantified range of motion limitations; Lumbar and Cervical MRI. Reports that have been affirmed by the doctors who conducted the MRI procedures.

In the opinion of Dr. Bakshi, the herniated discs in the lumbar and cervical spine of Margarita Paredes and the resulting cervical radiculopathy and physical weakness, are directly causally related to the accident of August 8, 2006. He states that while pre-existing conditions, such as a degenerative condition of the spine might have increased her vulnerability to injury, her symptoms and limitations, which are permanent, were caused by the accident of August 8, 2006. Dr. Bakshi concludes "that the injuries she sustained definitely and conclusively reduced her functional capacity to perform her customary activities."

The findings and opinion of Dr. Shapiro are based on his examination of Margarita Paredes on February 12, 2009, the computerized spinal range of motion examination conducted on February 5, 2009, the patient's description of her symptoms and medical history, and review of the records and reports maintained by Dr. Bakshi. Dr. Shapiro sets forth quantified range of motion deficits of the cervical and lumbar spine of Margarita Paredes which he attributes to the accident of August 8, 2006 and concludes that she suffered a permanent injury which significantly limits her ability to perform her customary personal activities. He also agrees with Dr. Bakshi that a pre-existing condition, such as a degenerative condition of plaintiff's spine might have increased her vulnerability to the injury, but would not explain her current symptoms and limitations which Dr. Shapiro found were caused by the accident of August 8, 2006.

The pre-existing fibromyalgia medical condition of plaintiff, Margaret Paredes, is not an issue on this motion, since the defendant's experts found that she did not have any limitations or restrictions. They asserted that she had normal range of motion and that the disc bulges in the MRIs of her lumbar and cervical spine were attributable to pre-existing degenerative changes. This was refuted by plaintiffs' experts whose findings are sufficient to raise a triable issue of fact as to whether or not she sustained a serious injury within the meaning of Insurance Law [*5]§5102(d). Therefore, an award of summary judgment to the defendant based on the failure to establish that the plaintiff, Margarita Paredes, sustained a "serious injury" is precluded. (see Pommells v Perez, 4 NY3d 566; Toure v Avis Rent A Car, 98 NY2d 345; Lopez v Senatore, 65 NY2d 1017; Newman-Bachhuber v Hu, 295 AD2d 412; Davis v Coleman, 289 AD2d 365; Wilner v Gauthier, 264 AD2d 732; Rut v Grigionis, 214 AD2d 721).

Accordingly, the motion by defendant, Mariano Saldana, for summary judgment dismissing the complaint of plaintiffs, Margarita Paredes and Wilmar Gutierrez, is denied. in all respects.

This constitutes the opinion, decision and order of the Court.

Dated: May 28, 2009

_____________________________________

HON. CARMEN R. VELASQUEZ.

Judge, Civil Court