Romagnolo v Ahrem

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Romagnolo v Ahrem 2012 NY Slip Op 30308(U) February 2, 2012 Supreme Court, Suffolk County Docket Number: 09-40640 Judge: Peter H. Mayer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT h)l{M OR.Il!]{ INDEX No. CAL. No. 09-40640 11-00297MV SUPREME COURT - STATE OF NEW YORK IAS. PART 17 - SUFFOLK COUNTY PRESENT: Hon. PETER H. MAYER Justice of the Supreme Court MOTION DATE 6-14-11 (11001) MOTlONDATE 7-19-1] (#002) ADJ. DATE 8-]0-1 I Mot. Seq. II 001 - MD # 002 - XMD ---------------------------------------------------------------X MICHAEL MICHAEL ROMAGNOLO, Plaintiff, S. LANGELLA, Attorney for PlaintitT 2459 Ocean Avenue Ronkonkoma, New· York P.c. 11779 - against JOI-IN C. BURATTI PAMELA AHREM AND ROBERT T. AHREM, Defendants. & ASSOCIATES Attorney for Defendants 150 Broadway, Suite 140 New York, New York 10038 ---------------------------------------------------------------X Upon the reading and filing of the following papers in this matter: (I) Notice of Motion/Order to Show Cause by the defendants, dated May 20, 2011, and supporting papers (including Memorandum of Law dated __ ); (2) AfTInnation in Opposition by the plaintiff, dated July 28, 20] I, and sUPPOIting papers; (3)Rcply Affinnation by the plaintif'C dated August 2, 20 I 1, and supporting papers; (4) Reply Affinnation by the defendants, dated July 28, 20 II , and supporting papers; and now IJPONDUE DELlBERA TION AND CONSIDERATION B Y THE COURT ofthe Ioregoiog papers, the motion is decided as follows: it is ORDERED that this motion by defendants Pamela Ahtel11and Robert Ahrem seeking summary judgment dismissing plaintiffs complaint is denied; and it is further ORDERED that this cross motion by plaintiff Michael Romagnolo seeking summary judgment in his favor on the issue of liability is denied. Plaintiff Michael Romagnolo commenced this action against defendants Pamela Ahrem and Robert Ahrem to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occulTed at the intersection of Patchogue-Holbrook Road and Union Avenue in the Town ofI3rookhaven on July 6, 2008. It is alleged that plaintiffs vehicle, which V-ias traveling southbound on Patchogue-Holbrook Road, was struck on the driver's side by the vehicle owned by defe'ndant Pamela Ahrem and operated by defendant Robert Al1fem when the Ahrem vehicle attempted to make a left turn Irom northbound Patchogue-Holbrook Road onto Union Avenue. By his bill of particulars, plaintiff [* 2] Romagnolo v Ahrem Index No. 09-40640 Page NO.2 allegcs that hc sustained various personal injuries as a result of the subject accident. including a radial head fracture with medial epicondylitis of the left elbow. left foot plantar fascitis, and left knee patella tendinitis, Plaintiff further alleges that as a result of the injuries he sustained due to the incident he was confined to his home for approximately five weeks, and that he mIssed approximately five to six weeks from his employment as a bartender. Defendants now move for summary judgment on the basis that the injuries plaintiffallegcs to have sustained as a result of the subject accident do not meet the "serious injury" threshold requirement or Insurance Law 9 5102(d), Defendants, in support of the motion, submit copies of the pleadings, plaintilrs deposition transcript, uncertified copies of plaintiff's mcdieal records from Southside Hospital, and the sworn medical reports of Lee Kupersmith, M.D., and Michael Winn, M.D. At defendants' request, Dr. Kupersmith conducted an independent orthopedic examination of plaintiff on November 16,2010 and Dr. WilID performed an independent radiological review of the X-ray of plaintiff's left elbow on June 8, 2010. It has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Greell, 84 NY2d 795, 798, 622 NYS2d 900 [1995]; see also TOllre v Avis Relit A Cllr Sys., 98 NY2d 345, 746 NYS2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]; Porcallo v Lehmall, 255 AD2d 430, 680 NYS2d 590 [2d Ocpt 1988]; No/all v Fard, 100 I\D2d 579, 473 NYS2d 516 [1984J, aff'd64 NYS2d 681, 485 NYS2d 526 [2d Ocpt 1984]). Insurance Law § 5102 (d) defines a "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 llse or a body organ or member; significant limitation of use of a body fimction or system; or a medically determined injury or impaIrment of a non-permanent nature which prevents the injured person tJ.-om 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 onc hundred eighty days immediately following the occurrcnce of the injury or impairment:' A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury" (see Toure v Avis Relit A Car S)s., ,rupra; Gaddy v Eyler, 79 NY2d 955,582 NYS2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses. "those findings must be in admissible form, [such as], affidavits and affirmations, and not unsworn reports" to demonstrate entillement to judgment as a matter of Jaw (Pagallo v Killg.fbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 1992]). A defendant may also establish entillement to summary judgmenlllsing the plainliffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians (I'ee Fragale v Geiger, 288 AD2d 431,733 NYS2d 901 [.2dDept 2001.1; Grossmall v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Vigllola v Varricilia, 243 l\D2d 464, 662 NYS2d 831 [2d Ocpt 1997]; Torres v Micheletti, 208 AD2d 519,616 NYS2d 1006 f2d Dcpt 1994]). Once a defendant has met this . . [* 3] Romagno!o v Ahrem Index No. 09-40640 Page NO.3 burden, the plaintiff must then submit objective and admissible proof ohhe nature and degree of !he alleged injury in order to meet the threshold of the statutory standard for '·serious injury" under New York's No-Fault Insurance Law (see Dufel v Green, supra; Tornabene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 2003J; Pagano v Kingsbury, supra). I lowcver, ira defendant does not establish a prima facie case that lhe plaintiff's injuries do not meet the serious injury threshold. the court need not consider the sufticiency of the plaintiffs opposition papers (see Bums v St1'lluger, 31 AD3d 360,819 NYS2d 60 [2d Dep' 2006]; Rich-Willg v Hllboolal, ]8 !\D3d 726, 795 NYS2d 706[2d Depl 2005); see generally Winegrad v New York Univ. Merl. etr., 64 NY2d 851,487 NYS2J. 316 fl985l). Based upon the adduced evidence, defendants established, prima facie, their entitlement to judgment as a matter of law that the injuries plaintiff allegedly sustained as a result of the subject accident fail to meet the serious injury threshold requirement oflnsurance Law § 5102(d) (see TOllre v Avis Rent A Car Sys., supra; DeJeslis v CrllZ, 73 AD3d 539, 902 NYS2d 503 [1st Dept 2010]; Sillgh v City of New York, 7] AD3d ] ]21, 898 NYS2d 2] 8 [2d Dept 20] 0]). Defendant's examining orthopedist, Dr. Kupersmith, in his medical report states that an examination of plaintifrs left elbow, knee, and ankle revealed that he has full ranges of motion in those areas, and that there was no evidence of tenderness, effusion or swelling. Dr. Kupersmith opines that the contusions that plaintiff sustained to his len elbow, knee, and ankle as a result of the subject accident have resolved. Dr. Kupersmith states that plaintiffs patella tendinitis also has resolved, and that based upon his review of the X-ray reports concerning plaintiffs left elbow, he did not find any evidence of a left elbow radial head fracture. Dr. Kupersmith further states that plaintiff docs not have any objective evidence of an orthopedic disability as a result orthe subject accident. Likewise, Dr. Winn states in his medicaJ report that the X-ray examination or plaintiffs left elbow docs not reveal any evidence of a fracture or dislocation, or joint clfusion, and that the joint spaces of plaintiffs left elbow are well maintained. Dr. Wino further states that there arc no findings on the X-ray examination of plaintifl's left elbow that arc causally related to the subject accident. Furthermore, reference to plaintiff's own deposition testimony sufficiently refi.nes the "90/180" category under Insurance Law § 5102(d) ("ee Jack v Acapulco Car Serv., Inc., 63 AD3d 1526, 897 NYS2d 648 r4lh Dept 20]0]; Hleszcz v Hiscock, 69 AD3d 639, 894 NYS2d 481 [2d Dept 2010]; Lopez v Abdul-Wahab, 67 AD3d 598, 889 NYS2d 178 [2d Dept 2009]; Kllchero v Tabaclmikov, 54 AD3d 729,864 NYS2d 459 [2d Depl 2008]). Therefore, defendants have shifted the burden to plaintilTto come forward with evidence in admissible form to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Po1t7mells v Perez, 4 NY3d 566, 797 NYS2d 380 1"2005);see generally Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980J). To recover under the "limitations of use'· categories, a plaintifTmust present objective medical evidence of the extent. percentage or degree or the limitation or loss of range of motion and its duration (see Magid v Uncoln Servs. Corp., 60 AD3d 100S, 877 NYS2d 127 [2d Dept 2009J; Laniffa v Yui Ming Lall, 32 AD3d 996, 821 NYS2d 642 [2d Dopt 2006]; Cerisier v Thibiu, 29 AD3d 507, 815 NYS2d 140 l2d Dept 200GJ, Meyers v Bohower YeshiJ,u Bllei Zion, 20 AD3d 456, 797 NYS2d 773 [2d Dept 20051). 1\ surlieicnt description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the nonnal function, purpose and use ofIhe body part may also suffice (see [* 4] Romagnolo v Ahrem rndex No. 09-40640 Page No.4 TOllre vAvis Rem A Car Systems, file" supra; Dufel v Greell, supra). A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]). Further, evidence of pain and discomfol1 alone, unsupported by credible medical evidence that diagnoses and identifies the injuries, is insufficient to sustain a finding of senous injury (see Scheer v Koubek, 70 NY2d 678, 518 NYS2d 788 [19871). Unsworn medical reports of a plaintiffs examining physician or chiropractor are insufficient to defeat a motion for summary judgment (see Grasso vAllgemmi, 79 NY2d 813, 580 NYS2d 178 [1991]). However, a plaintiff may rely upon unsworn MRT reports if they have been referred to by a defendant's examining expert (see Caulkins v Vicillanzo, 71 AD3d 1224,895 NYS2d 600 [3d Dept 2010J, Ayzel1 v Melendez, 299 AD2d 38],749 NYS2d 445 [2d Dcp! 2002]). Plaintiif opposes the motion on the grounds that he sustained injuries within the "limitations of use" categories of the Insurance Law as a result of the subject accident, and that defendants failed to meet their prima facie burden on the motion. More particularly, plaintiff contends that he sustamed a fracture to his left elbow as a result of the subject accident. Plaintifl~ in opposition to the motion, submits the sworn medical reports of Philip Schrank, M.D., and Gabriel Gelves, M.D., and a copy of his medical records from Southside Hospital. In opposition to defendants' prima facie showing, plaintiiThas come forward with admissible evidence that raises a triable issue of fact as to whether he sustained an injury within the limitations of use categories of Insurance Law g 5102(d) (see Pommells v Perez., supra, Licari v Elliott, supra; Harris v Boudart, 70 AD3d 643, 893 NYS2d 631 [2d Dept 2010]). Plaintiff, in opposition, primarily relies upon the allirmation of Dr. Schrank, his treating orthopedic physician. In his medical report., Dr. Schrank states that he began treating plaintifl on July 9, 2009, for left elbow pain and left ankle pain, and continued to treat him until November 25, 2009. Dr. Schrank states that an examination ofplaintitl's left:upper extremity revealed left elbow tenderness over the antccubital fossa, a decreased range of motion in his left upper extremity, tenderness upon palpation to the lateral and medial epicondyle, and radial head tenderness. Dr. Schrank states that an examination of plaintiff's left lower extremity revealed tenderness over the inferior pole of the patella and the distal tib-fib ligamcnt. Dr. Schrank opines that plmntiffsustained a left elbow radial head fracture, a left ankle medial contusion, and let! knee patella tendinitis as a result of the subject accident. Similarly, Dr. Gelves states in his medical report that his revicw of plaintiffs left elbow X-ray films reveals that plaintiff sustained a cortical fracture of his left elbow as a result of the subject accident. Additionally, pla111tiff's medical reports from Southside Hospital Emergency Room Department indicate that plaintiff sustained a closed radial head fracture of thc left elbow and left knee contusion. Thus, the affirmed medical reports of plaintiff's experts conniet with those of defendants' experts, who found that plainti iTdid not sustain a fracture to his left elbow and that any contuSIOns sustained in the subject accident were resolved. "Where conflicting medical evidence is offered on the issue of whether a plaintiff's injuries are permanent or significant, and varying inferences may be drawn, the question is one for the .Jury" (Noble v Ackerman, 252 AD2d 392, 395, 675 NYS2d 86 1"1t Oept s 1998]; see Johnson v Garcia, 82 AD3d 561, 919 NYS2d 13 [1st Dept 2011]; LaMasa v Bachman., 56 AD3d 340, 869 NYS] 7 [I st Dept 2008]; Ocasio v Zorbas, 14 AD3d 499, 789 NYS2d 166 [2d Dept 2005]; Reynolds v Burghezi, 227 AD2d 941,643 NYS2d 248 [4th Dcpt I 996J). Moreover, "where [a] [* 5] Romagnolo v Ahrem Index No. 09- .. -0640 1 Page No. :\ plaintiff L'stablishcs that at least some of his injuries meet the ·no-j~lUlt· threshold. it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sut"liciem to withstand ldelendants' J motion for summary judgment"" (Unloll v Nltwltz. 14 NY3d lQ 1. 822. 900 NYS2d 239 [20 I0]; see Rubin J! SMS Taxi Corp .. 71 AD3d 548. 898 NYS2cl 110 r hI D-:1't 2010j). Accordingly. delcndants' motion for summary judgment dismissing plaintiff s complaint is denied. Plaintiff cross-moves for summary .i uugment in his (wor on the Issue of liability, argu1l1gthat Robert Ahrem's disregard of the rcd light controlling his direction of traveL in violation of Vehicle and Traffic Lmv § 1111(d)(1). \-vas.the sole proximate cause of the subject accident. Plaintiff in support of the cross motion, submits copies of the parties' deposition transcripts, photocopies of the Ahrem vehicle. and an affidavit from nonparty witness Ro~e Sidoti Defendants oppose the motion on the ground that plaintiff failed to establish that he had the green light in his favor at the time of the accident or that Robert i\hrem·s operation of his vehicle contributed to the subject accident's occurrence. Defendants, III opposition to the motion, submit Robert Ahrem's deposition transcript. The conduct ofmOlorists at a traffic signal is governcd by Vehicle and Traffic Law § 1111, and not the more gcneral provisions of the Vehicle and Traffic Law, such as those set forth in §§ 1140 or 1141, which govern the conduct of drivers at intersections that arc not controlled by traffic lights (see Dicke v And. 31 AD3d 696, 821 NYS2d 93 [2d Dept 2006 J; Sflggio I' Latloue, 21 A])3d 407.799 NYS2d 586 [2d Dept2005]: RI/do/ph v Kahn, 4 AD3d 408.771 NYS2d 370 [2d Dept2004J). Section 1111(d)(!) of the Vehicle and Traffic Law allows a driver approaching an intersection with a green traffic signal to proceed through the intersection, provided he or she yields the righLof way to vehicles lawfully within the intersection. ami exercises reasonable care under the circumstances to avoid a collision (see Tapifl v Royal Tours Serv., fnc.. 67 AD3d 894. 889 NYS2d 225 [2d Oept 2009J; Scltiskie JI Fernau. 177 AD2d 441. 716 NYS2d [2d Dept 2000J; Siegel v Sweeltey, 266 AD2d 200. 697 NYS2d .117 [1d Dept 1999J~see generally Shea II Judson, 283 NY 393. 28 NE2d 885 ["1940]). A motorist t~lell1g steady grecn light has the right to assume that the light is red for cross trallic, and that such a traffic will obey the law by stopping for the red light and remaining stationary until the light has changed to green (see Baughman v Libasci. 30 A02d 696,292 NYS2d 588 l2d Dept 1968J). Moreover. a driver IS not required to reduce his or her speed at evcry intersection. and only is required to cmploy ::iuch reductions WhlTC"varranted by the prevailing traffic conditions (see VTL § 1180(a)(e): Wallace v Kuhn. 13 J\1J3d 1042.804 NYS2d 187l4th Oept 2005J: Barile I' Carroll. 280 AD2d 988. 720 NYS2d 674l4th Dept 2(011). However, a driver proceeding under a green light is not permitted to blindly and wantonly enter an intersection without kecpll1g a proper lookout or employing a reasonable speed (see Nuziale 11 Paper Tmnsp. of Green Bay inc .. 39 i\D3d 833. 835 NYS2d 316 [2d Dept 2007 J). Plal11ti : based upon his submissions, established a pnma lucie case that Rohert J\hrcll1' S n negligence was the proximate cause oft-he subject accident (see VTL ~ 1111 (d)(I)~ Deleg t' Viuci. 82 AD3d 1146.919 NYS2d 396 t2d Ocpt 2011 J; Monteleone I' JlIlIg Pyo Holtg. 79 i\D3d 988. 913 NYS1d 755 j::!:dDept 10 ](J"I: Pitt I' Alperl. 51 AD3d 650, 857 NYS2d 6(l! I"2dDcpt 2008]; Borges v Zukolf!.\·ki. 22 J\D3d 439, 801 NYS2d 544 1"2d Dept 20051). Plaintiffs evidence was suflicicnt to demonstrate that Robert Ahrem proceeded through the subject intersection against the red light, without stopping. and struck plaintilTs vehicle. At his deposition. plaintiff testified that he was traveling in the [* 6] Romagnolo v Ahrem Index No. 09-40640 Page NO.6 right lane of Patchogue-Holbrook Road. that the light was green, that no vehicles wcre ahead of his vehicle, and that he did not change lanes prior to the subject accident's occurrence. PlaintitT fUr/her testified that the Ahrem vehicle was in the Ie-Ii lane of southbound Patchogue-Holbrook Road whcn hc first obscrved the Ahrem vehicle, approximately fivc seconds before thc accident happened. In addition. Rose Sidoti in her affidavit avers that she witnessed the accident while she was stoppcd at a red light facing eastbound on Union Avenuc. Sidoti states that she observed defendants' vehicle turn left from the northbound Ictl turning lane, proceeding through a rcd light at the subject intersection, and that plaintiffs vehicle was unable to avoid colliding with defendants' vehicle, because it was the tirst vehicle through the intersection. SidotI further states that she observed approximately six vehicles turn left fi"om the left turning lane prior to the Ahrem vehicle's turn. Therefore, the burden shifted to defendants to raise a triable issue of lact as to whether plaintiff was negligent, and whether such negligence was a proximate cause of the accident (see Packer v Miraso/a, 256 AD2d 394, 681 NYS2d 559 I2d Dept 1998]; see generally Pucco v Caputo, 272 AD2d 387,707 NYS2d 478 [2d Dept 2000]; Hanak v JIlI,i, 265 AD2d 453, 696 NYS2d 237 [2d Dcpt 1999]). In opposition to plaintiffs prima facie showing, defendants have raised a triable issue of fact as to whether plaintiff's conduct in the operation of his vehicle may have contributed to said accident's occurrence (see Anastasi v Terio, 84 AD2d 992, 924 NYS2d 424 I2d Dept 2011]; Kim v Acosta, 72 AD3d 648, 897 NYS2d 721 l2d Oept 2010]; Fmmese v Consolidated Dairies, TIlC., 83 AD3d 775, 920 NYS2d 688 [2d Dept 20] 1]; Cox v Nunez, 23 AD3d 427, 805 NYS2d 604 [2d Dcpt 2005]). At his deposition, Robert Ahrcm testified that he was traveling northbound on Patchogue-Holbrook Road, that there is a separate traffic light that controls vehicles turning left onto Union A venue, and that the traffic light was green when he entered the turning lane and proceeded to make his turn. i\hrem testified that there was a vehicle stopped in the left lane of the southbound side of the road, that his view was not obstructed by the stopped vehicle, and that he was able to see approximately "four or five cars back when he looked down the southbound right lane" prior to executing his turn. i\hrem further testified that he did not see plaintitr's vehicle prior to the impact and that the front of his vehicle was in the middle of the right southbound lane when the collision occurred. "There can be more than one proximate cause or an accident" (Cox v NUllez, supra at 427), and issues of comparative negligence generally are a question for the jury (see SokoJovsliy v Mucip, IIlC., 32 AD3d 1011, 821 NYS2d 463 12d Dept 2006]; Va/ore v Mellltosh, 8 AD3d 662, 779 NYS2d 782 [2d Dept 2004]). Additionally, given the connicting versions as to how the accident actually occurred, issues of credibility have been raised that cannot be determined on a motion for summary judgment (see Viggiano v Camara, 250 AD2d. 836, 673 NYS2d 714 I2d Dep! 1998]; see generally Zuckermall v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980])_ Accordingly, plaintiff's motion for partial swnmary judgment is denied. Dated: Y7u PETER H. MAYER, .Sc.

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