Peguero v L & M Bus Corp.

[*1] Peguero v L & M Bus Corp. 2009 NY Slip Op 51228(U) [24 Misc 3d 1202(A)] Decided on June 4, 2009 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2009
Supreme Court, Kings County

Ana Peguero, Individually and Manuel Peguero an infant by his Mother and Natural Guardian Ana Peguero, Plaintiffs,

against

L & M Bus Corp. et ano., Defendants.



14857/07



The plaintiffs were represented by:

Fitzgerald & Fitzgerald

538 Riverdale Avenue

Yonkers, NY 10705

1-914-378-1010

The defendants were represented by:

Wilson, Elser, Moskowitz

150 E 42 Street

New York, NY 10017

1-212-490-3000

Mark Partnow, J.

Upon the foregoing papers, defendants L & M Bus Corp. (L & M) and Jeff M. Gravesande (Gravesande) move for an order granting partial summary judgment in their favor: (1) dismissing the claims of Manuel Peguero (Manuel) for personal injury and "zone of danger" and all derivative claims; (2) dismissing claims of Ana Peguero (Ana) as based on Manuel's injuries; and (3) dismissing all claims for punitive damages.

BACKGROUND AND CONTENTIONS[*2]

On April 12, 2007, Ana and her eight-year old son Manuel were crossing the street at the intersection of Martense Avenue and 102nd Street in Queens, New York. As they were doing so, they were struck by a bus owed by L & M and driven by Gravesande. Immediately before the impact, Ana pushed Manuel, at which point he fell and the bus struck his foot. Manuel heard Ana screaming "my son, my son." Immediately thereafter, the police responded, and an ambulance was summoned, whereupon both plaintiffs were transported to the hospital for treatment.

Manuel contends that he suffered both physical and psychological injuries. In addition to his own testimony that he has bad dreams and is afraid to cross the street, at her deposition, Ana testified that she brought Manuel to a therapist for treatment because he was experiencing nightmares, nervousness, and a fear of cars. Also, in an affirmed report dated November 11, 2008, Dr. Irving Friedman, psychiatrist, reports that he suffers from acute post-traumatic stress disorder with separation anxiety, insomnia, flashbacks and nightmares, post-traumatic stress disorder with persistent abnormal fears, i.e., sitting in a car, crossing the street, and chronic post-traumatic stress disorder. Dr. Friedman opines that such neuro-psych deficits are directly and causally related to the injures sustained on April 12, 2007, finding no history of any prior emotional disorder.

In support of their motion, defendants contend that Manuel's claims and Ana's derivative claims must be dismissed because Manuel did not suffer a "serious injury" as defined in Insurance Law § 5102 (d).[FN1] They argue that plaintiff's own pleadings confirm that he only sustain minor soft-tissue injuries, and that there is no testimony or supporting medical evidence showing that he sustained any of the statutorily-enumerated injuries. In support of their motion, they provide (1) a letter dated December 8, 2008 prepared by Ann M. Winton, PhD, who reports the results of her psychological evaluation of Manuel, whom she saw on October 21, 2008, and (2) an affirmed report of Dr. Edward S. Crane, who, without stating a specialty, conducted an orthopedic examination of Manuel which led him to conclude that apart from an area skin discoloration on the posteromedial aspect of his left knee, there was no objective evidence of any orthopedic residuals from the accident of 4/12/07.

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form [*3]sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

In opposition, plaintiffs correctly contend that defendants, in predicating their motion on an inadmissible unsworn report of Dr. Winton, fail to demonstrate, prima facie, their entitlement to summary judgment. It is well settled that "when a defendant moves for summary judgment dismissing the complaint based on the plaintiff's failure to establish serious injury' and relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a prima facie showing of entitlement to judgment as a matter of law'" (Pagano v Kingsbury, 182 AD2d 268, 270 [1992], quoting Winegrad v. New York Univ. Medical Center, 64 NY2d 851, 853 [1985]). Thus, the fact that Dr. Winton's report is unsworn prevents the court from considering its contents.

To the extent that it is relevant, the affirmed report of Dr. Crane is inadmissible. Although he reports that Manuel's range of motion: (1) in his left hip was complete, pain-free, and identical to the right, and sets forth his findings; and (2) in his left knee was complete, pain-free and identical to the right, and sets forth his findings, Dr. Crane fails to set forth the objective tests he performed to support said findings (see Serrano v Canton, 299AD2d703, 705 [2002] ["(i)t is required that an expert affidavit identify the specific objective findings that serve as a predicate for the opinion rendered and also that an explanation be provided establishing a sufficient causal relationship between that objective finding and the injury, condition or limitation giving rise to the claim of serious injury, as well as between the injury and the accident itself."]; see also Calucci v Baker, 299 AD2d 897[2002]). In addition, Dr. Crane, in his report, fails to compare his findings to normal ranges of motion (see Bluth v WorldOmni Fin. Corp., 38 AD3d 817 [2007]).

Such deficiencies cannot be cured in reply papers (see Batista v Santiago, 25 AD3d 326 [2006]). Thus, in view of the defendants' failure to meet their initial burden of establishing a prima facie case that Manuel did not sustain a serious injury, it is unnecessary to consider whether the plaintiffs' papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Brathwaite v New York Central Mut. Fire Ins. Co., 13 AD3d 405, 406 [2004]). Accordingly, the defendants' motion is denied.

However, even if the court were required to consider plaintiffs' submissions, the court would find that plaintiff has raised an issue of fact which would mandate denial of defendants' motion. In their bill of particulars, defendants allege that Manuel "was in the zone of danger to plaintiff, Ana Peguero and as a result of the physical injuries to plaintiff's mother he experienced shock, horror, mental anguish and depression in addition to other damages alleged..." They further allege that plaintiff, Ana Peguero, was in the zone of danger to plaintiff Manuel Peguero and as a result of the physical injuries to the infant plaintiff she experienced shock, horror, mental anguish and depression in addition to the other damages alleged..."

"The zone-of-danger rule, which allows one who is himself or herself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress [*4]resulting from viewing the death or serious physical injury of a member of his or her immediate family . . . is premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant's conduct" (Bosvun v Sanperi, 61 NY2d 219, 228-229 [1984]). "[Th]erefore[,] . . . where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death" (Id. at 231; see also Stamm v PHH Vehicle Management Services, LLC, 32 AD3d 784, 786 [2006] ["In order to recover for an alleged emotional injury based on the zone of danger theory of liability, a plaintiff must establish that he suffered serious emotional distress that was proximately caused by the observation of a family member's death or serious injury while in the zone of danger"]).

In the instant case, plaintiffs have raised an issue of fact regarding Manuel's cause of action to recover damages for emotional distress and, by extension, Ana's derivative claim. There is no question but that as pedestrians walking hand-in-hand, both mother and son were in the same "zone of danger" (see Bovsun, 61 NY2d at 228-229; Shipley ex rel Shipley v Williams, 14 Misc 3d 682 [2006]). Moreover, defendants' argument that plaintiffs' cause of action to recover damages for emotional distress requires proof of an independent serious injury, lacks support. Indeed, "[t]here is no basis for [defendant's] attempt to distinguish between those . . . injuries suffered by [plaintiff] as a result of [his] own involvement in the accident and those suffered in consequence of observing [his mother being run down]; both elements of damage are recoverable." (Cushing, 247 AD2d at 893; see also Graber v Bachman, 27 AD3d 986 [2006] [Appellate Division (1) dismissed plaintiff's Insurance Law § 5102 cause of action for a failure to offer objective medical evidence, and (2) while affirming dismissal of plaintiff's cause of action for emotional distress, expressly recognized that plaintiff could recover damages for said cause of action even in the absence of a corresponding physical injury]; Delosivic v City of New York, 174 AD2d 407 [1991], appeal denied 79 NY2d 751 [1991]).

Defendant's reliance on the holding in Bisonette v Compo (307 AD2d 673 674 [2003]), where the court reached a contrary result despite its recognition that "a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury under the Insurance Law" (emphasis provided), is unavailing. In Bisonette, plaintiff commenced a negligence action to recover damages for injuries allegedly sustained by her daughter and son when the vehicle in which they were riding struck a tree. Defendants, in moving for summary judgment, cited the daughter's medical records, which reported only minor physical injuries, as well as plaintiff's deposition testimony, unsupported by a report of a psychiatrist or psychologist, stating that her daughter became quieter and was not as outgoing as she had been prior to the accident. In granting summary judgment to the defendants, the court noted that the daughter's medical records "contain no examinations, diagnosis or treatment of any emotional or psychological conditions, and plaintiff does not allege that any medical expert has identified such an injury or causally linked it to the accident" (Id. at 674). By contrast here, Dr. Friedman's [*5]affirmed report, with diagnosis, supports plaintiffs' assertions of permanent and symptomatic neuro-psych deficits (see Cushing v Seemann, 247 AD2d 891 [1998]), and opines the existence of a causal connection between the accident and Manuel's psychiatric injuries. The court thus finds that plaintiff has raised a factual issue in this regard.

However, defendants have demonstrated that they are entitled to summary judgment as to plaintiffs' claim for punitive damages. Even where there is gross negligence, punitive damages are awarded only in "singularly rare cases" such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public (Karen S. v Streitferdt, 172 AD2d 440, 441 [1991]), or where the conduct involves willful or wanton negligence or recklessness (Hale v Odd Fellow & Rebekah Health Care Facility, 302 AD2d 948 [2003]). As stated by the Appellate Division, Third Department in Frenya by Frenya v Champlain Valley Physicians' Hosp. Med. Cntr. (133 AD2d 1000, 1000-1001 [1987]), "[p]unitive damages may not be claimed in the absence of a wrongful motive on the defendant's part, willful or intentional misdoing, or a reckless indifference equivalent to willful or intentional misdoing (citation omitted)." The purpose of punitive damages is not to remedy private wrongs but to vindicate public rights (Rocanova v Equitable Life Assurance Socy., 83 NY2d 603, 613 [1994]; see also Summerville v Lipsig, 270 AD2d 213 [2000]). In the case of a tort action, the defendant's conduct must be so flagrant as to transcend mere carelessness (citation omitted)" (id). In view of plaintiffs' failure to raise an issue of fact showing that defendants, in this alleged accident, acted in a wanton or malicious fashion, the court grants that branch of defendants' motion seeking dismissal of plaintiffs' cause of action for punitive damages.

The foregoing constitutes the decision and order of the 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 a 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 and eighty days immediately following the occurrence of the injury or impairment."