Ziegler v Young
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Ziegler v Young 2012 NY Slip Op 30506(U) February 10, 2012 Supreme Court, Nassau County Docket Number: 16750/10 Judge: Michele M. Woodard 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ROBERTW. ZIEGLER MICHELE M. WOODARD Plaintiff TRIALIIAS Par 8 Index No. : 16750/10 Motion Seq. Nos. : 02, 03 & 04 -against- DECISION AND ORDER MORRS YOUNG, SUSAN YOUNG , DIANA V ASILIALEVEDO , GELCO CORPORA nON and GENERAL ELECTRIC CaMP ANY Defendants. Papers Read on this Motion: Defendants Morris Young and Susan Young s Notice Plaintiff's Affrmation in Opposition Defendants Acevedo and General Electric Company Notice of Cross- Motion Plaintiffs Notice of Cross- Motion Defendants Acevedo and General Electric Company s Reply Affrmation in Parial Opposition Defendants Morris and Susan Young Defendants Acevedo and General Electric Company Reply Defendants Morris and Susan Young s Reply Defendant's Affidavit in Opposition Plaintiff's Reply Affirmation Defendants Acevedo and General Electric Company Affrmation in Opposition )(x The defendants Morris Young and Susan Young move for an order pursuant to CPLR 93212 granting them sumar judgment dismissing plaintiff's complaint and all cross- the grounds that: (a) the undisputed evidence establishes that claims against them on no liability exists against the moving defendants for the accident which gave rise to this action; and b) the injuries claimed by plaintiff do not satisfy the " serious injury " threshold requirement of Insurance Law 9 51 02( d). The plaintiff cross- moves for an order pursuant to CPLR 93212 granting him summar judgment on the issue of liability as [* 2] against defendants Diane Vasil- Alevedo (" Vasili- Alevedo ) and General Electric Company (" GE" The defendants Alevedo and GE cross-move for an order pursuant to CPLR 93212 dismissing the complaint on the grounds that plaintiff did not sustain a serious injur as defined by Insurance Law 5102(d). Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a three car accident which occured in the eastbound lanes of Sunse Highway, just east of its intersection with Brooklyn Avenue , in the Vilage of Massapequa Park , County of Nassau. On June 11 , 2010 , plaintiff's vehicle was allegedly struck in the rear by the vehicle owned by Susan Young and operated by defendant Morris Young. The Vasili- Alevedo vehicle allegedly rearended the Young vehicle , forcing the Young vehicle into the Ziegler vehicle. Prior to this accident , the Ziegler vehicle was coming to a stop for traffic on Sunise Highway. By order dated March 31 , 2011 , the Cour granted defendant Gelco Corporation s motion for an order pursuant to CPLR 93212 granting it summar judgment dismissing the complaint and the crossclaim of defendants Morris Young and Susan Young. Hence , the complaint and co- defendant' s cross- claims were dismissed against Gelco Corporation. In moving for summar judgment on the issue of liability, plaintiff and defendants assert that the evidence (the deposition testimony of the respective drivers in this accident) establishes that defendant Morris Young, stopped his vehicle and was not moving when his vehicle was rear-ended by the Alevedo vehicle. As a result of this impact , the Young vehicle was pushed into the rear of plaintiff's vehicle. Plaintiff was unequivocal that he felt only one rear-end impact. Hence , the sole proximate cause of the accident was the activities of co- defendant Vasili- Alevedo who initiated the accident by rear-ending the Young vehicle. [* 3] In opposition to the motion and cross-motion, Vasil- Alevedo relies upon a statement given to Kristen Roche by plaintiff wherein plaintiff testified as follows: (The accident) " happened on Sunrise Highway in Massapequa, New York , We were heading eastbound. I was stopped at a light with about 5 to 7 cars in front of me , and the gentlemen behind me drove into the back of my car. I felt the impact , obviously, and then I heard a second crash. Based upon this statement , Vasili-Alevedo asserts that an issue of fact exists as to the cause of the accident. A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid collding (Giangrasso other vehicle 1129(a); Ortiz Callahan 87 AD3d 521 (2d Dept 2011); Hub Truck Rental Corp. see 82 AD3d 725 (2d Dept 2011); Vehicle and Traffic Law 9 Hunter , 78 Nsiah-Ababio aprimafacie AD3d 672 (2d Dept 2010)). Accordingly, a rear-end collsion establishes with the case of negligence on the par of the operator of the rear vehicle , thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collsion of Suffolk 10 NY3d 906 , 908 (2008); supra; Parra Giangrasso Callahan , supra; Ortiz (see Tutrani County Hub Truck Rental Corp. Hughes 79 AD3d 1113 , 1114 (2d Dept 2010)). The presumption in rear-end cases does not arise from the act of the lead vehicle in stopping or braking, but from the duty ofthe driver of the vehicle behind to keep a safe distance and not collde with traffic. This duty is codified by VTL 91129(a) which states The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition ofthe highway. ' The failure of a driver to do so constitutes negligence as a matter of law , entitling the plaintiff lead driver whose vehicle was rear- [* 4] ended to summar judgment on the issue of liabilty in the absence of an adequate non-negligence explanation 30 Misc3d 1235(A); City of New York (Department of Sanitation), (Leguen Brucculeri 257 AD2d 605 , (2d Dept 1999); Aromando see, Inzano City of New York 202 AD2d 617 (1994)). Although a rear-end collision usually results when the lead vehicle decelerates , there is no requirement that it do so in order to impose upon a driver the duty to keep a safe distance and not collde with the vehicle in front. A rear-end collsion , in and of itself, creates a presumption of negligence (Leguen City of New York (Department of Sanitation), supra; see generally, Macauley 6 AD3d 584 , 585 (2d Dept 2004)). Elrac, Inc., Here , the Vasil- Alevedo vehicle struck the Young defendant' s vehicle in the rear. Hence , the burden shifts to Vasil- Alevedo to come forward with a non negligent explanation for the rear-ending of the Young vehicle. Simpson Eastman 300 AD2d 647 (2d Dept 2002). Defendant has failed to do so. Accordingly, plaintiff and defendant Young are entitled to sumar judgment on the issue of liabilty. Defendants Morris and Susan Young move for summar judgment on the grounds that plaintiff Ziegler did not sustain a serious injur as defined by Insurance In his Verified Bil of Particulars , Law 95102(d). plaintiff Robert W. Ziegler claims that he sustained the following personal injuries in the accident, all of which he asserts to be " serious injuries " within the meaning of Insurance Law ~5102(d): - Right shoulder rotator cuff tendinosis; - Tear in the superior labrum , right shoulder; - Long head biceps tendinosis; - Right shoulder surgery on November 19 2010; - Neck sprain; - Cervicobrachial syndrome; -Cervical radiculopathy; - Lumbosacral sprain; - Severe restriction of motion in cervical flexion [* 5] - extensions and rotation and in lumbar flexion with a positive leg raise at 10 degrees and a significant leg length imbalance; Scaring resulting from surgery In support thereof, defendants submitted the following: (a) Ziegler s Verified Bil of Pariculars wherein he does not claim a " serious 51 02( d) of the injury " as defined by the first five categories specified in 9 Insurance Law and the nature of the injuries claimed do not qualify under the sixth category thereof; (b) Ziegler s admissions that he was involved in a prior car accident in the late 1970s wherein he injured his neck and back , received chiropractic treatment for the injuries he sustained , and for which he brought a lawsuit; (c) Ziegler s admissions that he was involved in a second prior car accident in the early 1980s wherein he injured his neck and back , received chiropractic treatment for the injuries he sustained , and for which he brought a lawsuit; (d) Ziegler s admissions that he was involved in a third prior car accident in March 2009 wherein he injured his neck and back and received chiropractic treatment for the injuries he sustained; (e) the affirmed report of Dr. Robert Israel , a board certified orthopedic surgeon , who examined Ziegler , performed quantified range-of-motion testing on his cervical spine , lumbar spine , and right shoulder using a goniometer , compared his findings to normal ranges-of-motion values and concluded that Ziegler had normal ranges of motion of his cervical spine , lumbar spine , and right shoulder; performed other clinical tests , which showed no motor or sensory deficits; and based on his clinical findings , concluded that Ziegler has no disability as a result of the accident; (f) the affirmed report of Dr. Alan B. Greenfield , a board certified radiologist , who , along reviewed Ziegler s right shoulder MRI films and found " chronic tendinosis of the supraspinatus with chronic degenerative arhropathy along the underside of the AC joint the glenohumeral joint , with secondar degeneration of the glenoid labra degenerative narowing of congenital/development [* 6] foreshortening of the superior glenoid labrum " and " small intra- aricular any trauma-related injur; and (g) Ziegler effusion : with no evidence of s admissions that he was only confined to his home for three days following the accident, and that the only activities in which he was limited were fishing, staring his lawnower and caring heavy packages. As a proponent of the summary judgment motion , movants had the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use , significant limitation of use and 90/180- day categories. (See Toure Avis Rent a Car Sys. 98 NY2d 345 , 352 (2002)). Defendants ' medical expert must specify the objective tests upon which the stated medical opinions are based and , when rendering an opinion with respect to plaintiff's range of motion , must compare any findings to those ranges of motion considered normal for the v. (Browdame paricular body par. Candura 25 AD3d 747, 748 (2d Dept 2006)). prima facie Defendants established their entitlement to judgement as a matter of law by inter alia the affirmed medical reports of Dr. Robert Israel , an orthopedist and Dr. Alan submitting, Greenfield, a radiologist. These doctors found no significant limitations in the ranges of motion with respect to any of plaintiffs claimed injuries , and no other serious injury within the meaning of Insurance Law 345 Gaddy 352 (2002); Avis Rent a Car Sys. (see Toure 5102(d) causally related to the collision 98 NY2d Eyler 79 NY2d 955, 956- 957 (1992)). The burden now shifts to plaintiff to demonstrate , by the submission of objective proof of the nature and degree of the injur, that he sustained whether the purorted injur, in fact , is serious. a serious injur Perl In order to satisfy the statutory serious injur Meher threshold , or there 18 NY3d 208 are questions of fact as to (2011). a plaintiff must have sustained an injur that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injur [* 7] Avis Rent A Car Sys., Inc. , supra; Scheer See Toure within the meaning ofInsurance Law ~5102(d). Koubek 70 NY2d 678 , 679 (1987); Munoz Hollngsworth 18 AD3d 278 , 279 (1st Dept 2005). Plaintiff must come forth with objective evidence of the e)(tent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent (Sham e)(amination of the plaintiff Cintas Corp. 71 AD3d 978 (2d Dept 2010); B&P Chimney Cleaning, 50 AD3d 1085 (2d Dept 2008); Diaz Sharma 48 AD3d 442 (2d Dept 2007); Cornelius Amato Fast Repair, Inc., 42 AD3d 447 (2d Dept 2007)) and upon medical proof contemporaneous with the (Perl subject accident. Manning Tejeda Meher, supra; Ferraro 38 AD3d 622 (2d Dept 2007); Ridge Car Service 49 AD3d 498 (2d Dept 2008); Zinger Zylberberg, 35 AD3d 851 (2d Dept 2006)). Even when there is medical proof, when contributory factors interrpt the chain of causation between the accident and the claimed injury, summar dismissal of the complaint may be appropriate. Pommells Perez 4 NY3d 566 , 572 (2005). Whether a limitation of use or junction is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative natue of an injury based on the normal fuction, purpose and use of a body part. Dufel Green 84 NY2d 795 , 798 (1995). In opposition to the motion , plaintiff submits an affirmed medical report of Peter Langan , M. dated September 15 2011; an affirmation of Jonathan Klug, M. , a radiologist; medical records of Dr. Richard Siebert , who first treated plaintiff June 14 , 1010; and his own affidavit. In his report , Dr. Langan states that: plaintiff has been under his care since 2010 and postoperatively, "plaintiff's range of motion was measured with a goniometer at extension 40/90 degrees , flexion 60/90 degrees; abduction 60/110 degrees , internal rotation was full and external rotation was 60/75 degrees and abduction and rotation 75/150 degrees. I feel that the right shoulder injury was directly caused by the accident of June [* 8] At the present time , he has weather and stress related pain, limited range of motion and 2010. scaring. " Based on the record submitted , plaintiff has raised a trable issue of fact by submitting, among other things , affirmed reports describing medical examinations conducted contemporaneously with the collsion , as well as affirmed reports describing medical e)(aminations conducted in 2011 (see reports of Drs. Langan, Klug and Siebert). These reports collectively demonstrate that there are triable issues of fact as to whether the collsion caused injuries to the plaintiff that were serious injuries under the permanent consequential limitation" or " significant limitation" of use categories of Insurance Law ~5102(d) (see Evans Lyubomir Sanevich Pitt Iv to app dism. 77 AD3d 611 (2d Dept 2010), Noel 66 AD3d 665 (2d Dept 2009); 16 NY3d 736 (2011); 65 AD3d 1316 (2d Dept Choudhury, Levine 79 AD3d 109 (2d Dept 2010)). 2009); cf Husbands Since plaintiff established that at least some of his injuries satisfy the " no- fault" threshold it is unecessar to address whether (his) proof with respect to other injuries he allegedly sustained would have been suffcient to withstand defendant' s NY3d 821 822 (2010); McLelland motion for summar judgment. Linton Nawaz, 14 Estevez 77 AD3d 403 (2d Dept 2010). Finally, plaintiff has not sustained his burden under 90/180 day category which requires plaintiff to submit objective evidence of a " medically determined injur or enforcement of a non- permanent nature which prevents the injured person from performing substantially all of the natural acts which constitute such person s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurence of the injur. " (Insurance Law 95102(d)). When constring the statutory definition of a 90/180 day claim , the words ' substantially all should be construed to mean that the person has been prevented from performing his usual activities to [* 9] a great extent , rather than some slight curailment." (Thompson Abbasi 15 AD3d 95 (1 st Dept 2005); Eyler, supra). Gaddy While plaintiff was not employed at the time and had not been for several years because of a chronic lung condition , he claims that he never had any prior physical restriction with respect to the use of his ar and is now restricted from many movements , lifting of things and his lifestyle has definitely changed (Plaintiff's Affirmation 5). Specifically, plaintiff has no admissible medical reports stating that he was disabled , unable to 71 AD3d 548 (l st Dept 2010). SMS Taxi Corp., supra; Judd Rubin granted In view of the foregoing, the motion by the Young defendants is denied liabilty and Meher See, Perl work or unable to perform daily activities for the first 90 days out of 180 days. as to the issue of as to the threshold requirement; the cross-motion by plaintiff for summary judgment on the issue of liability is granted denied. and the cross-motion by Alevedo and GE is It is hereby ORDERED , that the paries are directed to appear on February l6 , 2012 at 9:30 a. m. in DCM for trial on damages. This constitutes the Decision and Order of the Court. DATED: 2012 Mineola, N. Y. 11501 Februar 10 ENTER: HON. MICHEL k M. wOoIM F:\DECISION - SERIOUS INJURY\iegler v Young HBL.wpd ENTERED FEB 27 2012 NASSAU COUNTY cOUTY CLERK' S Of PIC I
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