Yanping Xu v Gold Coast Freightways, Inc.
2012 NY Slip Op 30990(U)
April 10, 2012
Supreme Court, Suffolk County
Docket Number: 09-4327
Judge: Jeffrey Arlen Spinner
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[* 1]
INDEX No. 09-4327
CAL. NO.
II-02279MV
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
LA.S. PART2! - SUFFOLK COUNTY
copy
PRESENT:
Hon.
JEFFREY ARLEN SPINNER
Justice of the Supreme Court
MOTION DATE 5-24-11
ADJ. DATE
2-14-12
Mot. Seq. # 002 - MD
---------------------------------------------------------------X
YANPING XU and WILLIAM VAN ZWIENEN,
Plaintiffs,
- against -
. ,
.,
!;
JOSEPH
Attorney
40 Main
Sayville,
C. STROBLE, ESQ.
for Plaintiffs
Street, P.O. Box 596
New York 11782
.
GOLD COAST FREIGHTWAYS, INC., and
KLAUS R. NONN,
KELLER, O'REILLY & WATSON, P.c.
Attorney for Defendants
242 Crossways Park West
Woodbury, New York 11797
Defendants.
----------------------------------------------------------------X
Upon the following papers numbered I to -.l.L.. read on this motion for summary judgment; Notice of Motion I Order
to Show Cause and supporting papers (002) I - 21 ; Notice of Cross Motion and supporting papers __ ; AnsweringAffidavits
and supporting papers 22-29 ; Replying Affidavits and supporting papers 30-31 ; Other_;
(and !lonel he!lolIngC<'lt1I1!e1in !IIPport
!Ind oppo!ed t<"lthe ltloti<"ln) it is,
ORDERED that motion (002) by the defendants, Gold Coast Freightways, Inc. and Klaus R.
Nonn, for summary judgment dismissing the complaint and all cross claims asserted against them on the
basis that they bear no liability for the occurrence of the accident, is denied, and for further order
dismissing the complaint and all cross claims asserted against them on the basis that the plaintiff,
Yanping Xu, did not sustain a serious injury as defined by Insurance Law § 5102 (d), is also denied.
In this action premised upon the alleged negligence of the defendants, the plaintiff, Yanping Xu,
seeks damages [or personal injuries allegedly sustained on December 4, 2008, at or near Church Street in
Islip, New York, when her vehicle was involved in an accident involving the tractor trailer owned by
defendant Gold Coast Freightways, Inc. and operated by defendant Klaus R. Nann, while the tractor
trailer was backing from the roadway into a parking lot. A derivative claim has been asserted on behalf
of William Van Zwienen.
The defendants seek summary judgment dismissing the complaint and all cross claims asserted
against them on the bases that they bear no liability for the occurrence of the accident, and assert that the
plaintiff, Yanping Xu, did not sustain a serious injury as defined by Insurance Law § 5102 (d). It is
noted that there arc no cross claims asserted against the moving defendants.
[* 2]
Xu v Gold Coast
Index No. 09-4327
Page 2
The proponent of a summary judgment motion must make a prima facie showing of entitlement
to judgment as a matter oflaw, tendering sufficient evidence to eliminate any material issues of fact
from the case (Friends of Animals v Associated Fur Mfr.'!., 46 NY2d 1065,416 NYS2d 790 [1979]).
To grant summary judgment it must clearly appear that no material and triable issue of fact is presented
(Sillman v Twentieth Century-Fox Film Corporatioll, 3 NY2d 395,165 NYS2d 498 [1957]). The
movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y.U. Medic{t/
Center, 64 NY2d 851, 487 N YS2d 316 [1985]). Failure to make such a showing requires denial of the
motion, regardless of the sufficiency of the opposing papers (Willegrad v N. Y. U. Medical Center,
supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to
defeat the motion for summary judgment, must proffer evidence in admissible form ...and must "show
facts sufficient to require a trial of any issue of fact" (CPLR 32l2[b]; Zuckerman v City of New York,
49 NY2d 557, 427 NYS2d 595 [1980J). The opposing pat1y must assemble, lay bare and reveal his
proof in order to establish that the matters set forth in his pleadings are real and capable or being
established (Castro v Liberty Blis Co., 79 AD2d 1014,435 NYS2d 340 [2d Dcpt 1981]).
In support of this application, the defendants have submitted, inter alia, an attorney's affirmation;
copies of the summons and complaint and answer and plaintiffs verified bill of particulars; copies of the
unsigned and uncertified transcript of the examination before trial ofYanping Xu dated January 7, 2010,
the certified but unsigned transcript ofYanping Xu dated February 24, 20ID, the unsigned but certified
copy of the transcript of the examination before trial of Klaus R. Nonn dated November 5, 2010; copies
of the plaintiffs medical records maintained by William M. Frank, M.D, Panetta Physical therapy, P.C.,
Matthew Kalter, M.D., Southside Hospital, Zilka Radiology, Joseph Terrana, M.D., Stony Brook
University Hospital; the report dated October 22, 2010 of Edward Toriello and addendum dated January
25, 2011, concerning his independent orthopedic examination of plaintiff; the report dated October 1,
2010 by Scott S. Coyne, M.D. concerning his radiological review of the plaintiffs left knee, left hip, left
shoulder, chest, CT of the abdomen and pelvis; MRJ examinations of the cervical and lumbar spine and
left knee; and the radiology reports as set forth in the report.
The plaintiff has incorporated by reference those exhibits submitted by the defendants labeled 0,
E, F, G. Therefore, the transcripts of the plaintiff's examinations before trial are considered herein. It is
noted that the report by Scott S. Coyne, M.D., submitted with the moving papers, is partially illegible.
Even if Dr. Coyne's report were legible, the report by Dr. Toriello concerning his independent
orthopedic examination of the plaintifl~ submitted by the defendants, raises factual issues which preclude
summary judgment on the issue of serious injury.
Pursuant 10 Insurance Law § 5102(d), '''[s]erious injury' means a personal injury which results in
death: dismemberment: significant disfigurement; a fracture; loss ora retus; permanent loss or use ofa
body organ, member, function or system; pennanent consequential limitation of use ofa body organ or
member; significant limitation or use of a body funcLion or system; or a medical determined injury or
impairment of a non-permanent nature which prevents the injured person frol11perfonning substantially
all ol"the material acts which constitute such person's usual and customary daily activities for not less
than ninety days during the one hundred eighty days immediately following the occurrence of the injury
or impairment.'·
[* 3]
Xu v Gold Coast
Index No. 09-4327
Page 3
The tenn "significant;' as it appears in the statute, has been defined as "something more than a
minor limitation or use," and the term "substantially all" has been construed to mean "that the person has
been curtailed tram pcrforming his usual activities to a great extent rather than some slight curtailmenl
(Licari v Elliot, 57 NY2d 230, 455 NYS2d 570 [1982]).
On a motion for summary judgment to dismiss a complaint for failure to set forth a prima facic
case of serious injury as defined by Insurance Law § SI02(d), the initial burden is on the defendant to
"present evidence in competent form, showing that plaintiff has no cause of action" (Rodriquez v
Goldstein, 182 AD2d 396, 582 NYS2d 395, 396 [15t Dept 1992]). Once the defendant has met the
burden, the plaintiff must then, by competent proof, establish aprimajacie case that such serious injury
exists (DeAngelo v Fidel Corp. Services, Inc., 17\ AD2d 588, 567 NYS2d 454, 455 [1st Dept 1991]).
Such proof: in order to be in competent or admissible form, shall consist of arJidavits or affirmations
(Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Dept 1992]). The proof must be viewed in a
light most favorable to the non-moving party, here the plaintiff(Cammarere
v Villanova, 166 AD2d
760, 562 NYS2d 808, 810 [3d Dept 1990]).
In order to recover under the "pcrmanent loss of use" category, a plaintiff must demonstrate a
total loss of use ofa body organ, member, function or system (Oberly v Bangs Ambulance Tnc., 96
NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to
the "permanent consequential limitation of use of a body organ or member" or "significant limitation of
use of a body function or system" categories, either a specific percentage of the loss of range of motion
must be ascribed or there must be a sufficient description of the "qualitative nature" of plaintiffs
limitations, with an objective basis, correlating plaintiff's limitations to the nonnal function, purpose and
use of the body part (Tollre v Avis Relit A Car Systems, Inc., 98 NY2d 345, 746 NYS2d 865 [2000l). A
minor, mild or slight limitation of use is considered insignificant within the meaning of the statute
(Lic(lri v Elliott, supra).
As a result of the within accident, the plaintiff alleges she sustained injuries consisting of a small
right paracentral herniated disc at C4-5; bulging discs at C4-5 and C6-7 which impinge upon the thecal
sac; degenerative disc disease from C2 to TI; mild cervical spine scoliosis; moderate sized central
herniated disc at IA-5; small bulging disc at L3-4; degenerative disc disease from L3 to sr, most severe
at 1,4-5; anterior disc protrusion into the prevcrtebral soft tissues of L4-5; anterior osteophytes from L3
to 1..5;small SI meningeal cyst; hemangiomas at several levels in the lumbar spine; tear of medial
mcniscal body of the left knee; bilateral knee pain; bilateral shoulder pain; lumbar spine sprain/strain;
lumbar radiculopathy; post traumatic headaches secondary to nerve damage in the cervical spine;
cervical sprain; cervical radiculopathy; neck pain with radiation to the upper extremities; tingling and
\,veakness in both arms: post traumatic myofascial pain syndromc; sensory deficit in the upper extremity;
significant limitation in cervical and lumbar range of motion; cervical myofascia\ pain; loss of strength,
inability to lift: and anxiety and depression.
Upon review and consideration of the evidentiary submissions. it is determined that the
def~ndants have not established prima facie entitlement to summary judgment dismissing the complaint
on the basis that Yanping Xu did not sustain a serious injury as defined by Insurance Law § 5102 (d).
The defendant's moving papers raise triable issues of ract which preclude summary judgment.
[* 4]
Xu v Gold Coast
Index No. 09·4327
Page 4
Although the plaintiff has claimed cervical and lumbar radiculopathy as injuries sustained in the
subject accident, no report from a neurologist who examined the plaintiff on behalf of the moving
defendants has been submitted to rule out these claimed neurologicallradicular injuries (see Browdame v
Calli/urn, 25 AD3d 747, 807 NYS2d 658[2d Dept 2006]), thus raising factual issue precluding
summary judgment.
Dr. Toriello has set forth in his report concerning his independent orthopedic examination of the
plaintiff that he examined the plaintiffs cervical spine, lumbar spine, shoulders, knees, ankles, feet and
toes to determine the rang~ of motion relative to each area examined. However, he has not set forth in
his report of October 22, 2010, the method used to determine such range of motion, such as with the use
of a goniometer, inclinometer or arthroidal protractor (see Martin v Pietrzak, 273 AD2d 361, 709
NYS2d 591 12d Dept 2000]; Vomero v Gronrous, J 9 Misc3d l109A, 859 NYS2d 907 (Nassau County
2008]), leaving it to this court to speculate as to how he determined such range of motion when
examining the plaintiff (Rodriguez v Schickler, 229 AD2d 326, 645 NYS2d 31 II st Dept 1996), iv
denied 89 NY2d 810,656 NYS2d 738 [1997]). In examining the plaintiffs cervical spine range of
motion values, Dr. Toriello set forth the normal range of motion and failed to set forth his actual findings
except to state that the plaintiff could fully rotate and could flex her neck without discomfort, thus
raising factual issues as to his actual determinations. Dr. Toriello has also raised credibility issues which
preclude summary judgment. He set forth that examination of the cervical spine revealed range of
motion in all directions often degrees until she was distracted, and examination of the lumbar spine
revealed decreased flexion of thirty degrees until she was distracted, and that by the end of the
examination, she was able to pick up a bag from the floor. On a motion for summary judgment, the
court is not to determine credibility, but is to determine whether there exists a factual issue, or if
arguably there is a genuine issue of fact, CPLR §3212(b),S.J. Capelin Associates, Inc. v. Globe
Manufacturing Corporation, 357 N.Y.S.2d 478, 34 N.Y.2d 338. These factual and credibility issues
preclude summary judgment.
In his addendum ofJanuary 25, 2011, Dr. Toriello set forth that range of motion testing was
measured by use of a goniometer and by visual inspection. Again, he raises factual issues concerning his
statement that examination of the lumbar spine revealed decreased tlexion of thirty degrees until the
plaintifTwas distracted, and that by the end of the examination, she was able to fully /lex at the waist to
pick up a bag from the floor. He then set forth the range of motion for the lumbar spine, but did not set
forth range ormotion determinations relative to the plaintiffs cervical spine. Thus. the addendum by
Dr. Toriello docs not eliminate the factual and credibility issues raised in his initial report. Additionally.
Dr. Toriello docs not rule out in either his initial rep0l1 or the addendum whether or not the alleged
cervical and lumbar hemialcd and bulging discs \vere causally related 10 the accident.
The report by Dr. Coyne Joes not rule out that these bulging or herniat(;J lumbar and cervical
discs were not cuused by the accident. l-fe stated th<ltthe bulging and herniated discs arc degenerative
and long standing, but docs not address what is meant by the same. or the age oCthese "pre·existing"
conditions. Although he indicates that disc protrusions frequently result from degenerative disc process,
which is the most probable cause orthe disc protrusion at C4-S, he does not nile out that the disc
protrusions preceded the accident or were not caused by the accident. This raises further factual issues
concerning whether or not the plaintiff sustained a serious injury as defined by Insurance Law §SI 02 (d).
[* 5]
Xu v Gold Coast
Index No. 09-4327
Page 5
It is further noted that the defendants' examining physicians did not examine the plaintilT during
the statutory period of 180 days following the accident, thus rendering the defendants' physician's
affidavits insufficient to demonstrate entitlement to summary judgment on the issue of whether the
plaintiff was unable to substantially perform all of the material acls which constituted her usual and
customary daily activities for a period in excess of90 days during the 180 days immediately following
the accident (Bhlllchard v Wilcox, 283 AD2d 821, 725 NYS2d 433 [3d Oept 2001]; .)'eeUddin v
Cooper, 32 A03d 270, 820 NYS2d 44 [1st Oept 2006]; TOllSsail/t v Cll/lldio, 23 AD3d 268, 803 NYS2d
564 [ 15t Oept 2005]), and the experts offer no opinion with regard to this category of serious injury (see
Delayhaye v Caledonia Limo & Car Service, llrc., 61 A03d 814, 877 NYS2d 438 [2d Oept 2009]). It
is noted that the plaintifTtestified that following the accident, she was confined to home for about two to
three months due to the pain and injuries suffered in the subject accident Prior to the accident, she
could climb nineteen floors by stairs, but can no longer climb stairs, go hiking, do housework, lift heavy
things from the washing machine, dig in the garden, sit straight, or sit for a period of time to use the
computer.
Based upon the foregoing, it is determined that the defendants have failed to demonstrate
entitlement to summary judgment on either category of injury defined in Insurance Law § 5102 (d) ~ee
Ago/he v TUII Chen Wang, 98 NY2d 345, 746 NYS2d 865 (20061); see also Walters v PapmlOs/assiou,
31 AD3d 439, 819 NYS2d 48 [2d Dept 2006]). Inasmuch as the moving party has failed to establish
prima facie entitlement to judgment as a matter of law in the first instance on the issue of "serious
injury" within the meaning of Insurance Law § 5102 (d), it is wlllecessary to consider whether the
opposing papers were sufficient to raise a triable issue of fact (see Yong Deok Lee v Singlr, 56 AD3d
662,867 NYS2d 339 [2d Dept 2008]); Krllyn v Torello, 40 ADJd 588, 833 NYS2d 406 [2d Oept 2007];
Walker v Village of Ossining, 18 ADJd 867, 796 NYS2d 658 [2d Ocp! 2005]).
Accordingly, that part of motion (002) by the defendants which summary sccksjudgment
dismissing the complaint as asserted against them on the basis that the plaintitT did not suffer a serious
injury as defined by Insurance Law §51 02 (d) is denied.
As to the issue of liability, the plaintifTtestified to the extent that on December 4, 2008, at about
10:30 a.m., she was involved in an automobile accident at Church Street and Orville Street, Bohemia,
while driving her vehicle. She exited the parking lot for the vitamin store on Orville Street, and planned
10 turn left onto Church Street. She looked to her right, to the south, and did not see any cars traveling
towards her. As she began to travel south 011 Orville street, she saw a container truck slopped on Orville
Street/acing Church Street, with the rear of tile truck facing towards her, over to the center and len side,
close to the east side of the roadway. She began to slow her vehicle and stopped behind the truck. which
was some distance ahead of her stopped car. J ler car came to a stop at the norlh side of a parking 101.
The front of the truck was making a right turn to head west, but the rear of the truck was getting closer to
her and came to about one meter from her vehicle. She started to scream, and the right rear of the truck.
which was still in front and to the left ofhcr vehicle, struck the driver's door of her vehicle while her
vehicle was still stopped. She stated that shc could not mOve her vehicle bcc8use she thought she was
going to die.
[* 6]
Xu v Gold Coasl
Index No. 09-4327
Page 6
Klaus R. Nonn testified to the extent that on the date of the accident, he had a commercial
driver's license issued by the State of New Jersey. At the lime of the accident, he was making a delivery
of vitamins to Nature's Bounty at 110 Orville Street. He was driving a Kenworth tractor, with a fortyeight foot trailer attached. The trailer was half full of vitamins which weighed about 15,000 pounds.
The trailer additionally weighed about 15,000 pounds. When he first observed the plaintiff's vehicle, it
was underneath the rear wheels orthe trailer up to its front door. He stated that at the time of the impact,
three quarters oCthe trailer was in the driveway as he was backing into the parking lot at about three
miles per haUl'. He had his right turn directional on at the time. His vehicle came to a sudden stop. lie
thought he hit the fire plug. He continued that there was nothing obstructing his view of the rear of the
trailer at the time the impact occurred. While he was entering the drivew-ay at Nature's Bounty, he took
a quick glance out the right hand mirror to the rear of the trailer and did not see anything, so he
proceeded to back up.
Here thcre are factual issues which preclude summary judgment from being granted to the
defendant. The plaintiff alleges that her vehicle carne to a stop behind the trailer. While her vehicle was
still stopped at a distance behind the trailer, she saw the rear of the trailcr move towards hcr vehiclc.
The defendant did not see the plaintiffs vehicle prior to, or while he was backing up from the roadway
into the parking lot. Thus, the defendant has not established prima facie entitlement to summary
judgment dismissing the complaint on the issue of liability. VTI, § 1211 (a) provides that "[T]he driver
of a vehicle shall not back the same unless such movement can be made with safety and without
interfering with other traffic." In De Sessa v City 0/ White Plains, 30 Misc2d 817, 219 NYS2d 190
[Sup. Ct. Westchester County 19611, the court stated that "[Aj driver oCa large truck has the duty of
operating his vehicle with reasonable care. Specifically, he is bound to use caution in backing his
vehicle, particularly because of its size, and because he is not able to see its rear at all times." Here,
there are factual issues with regard to whether the defendant driver was negligent in failing to see the
plaintiff's vehicle. It is for the jury to dete011ine whether the defendant was driving in a manner which
was reasonable under the circumstances by taking a "quick glance" prior to backing up the large tractor
trailer (see Townley v Bagby Tmmfer Company, 19 AD2d 757, 241 NYS2d 492 )3d Dcpt 19631.
Accordingly. that part ormation (002) which seeks summary judgment dismissing the complaint
on the basis that the defendants bear no liability for in the acc~ence of the accident is denie4.
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