Sanfilippo v Tomasino
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Sanfilippo v Tomasino 2012 NY Slip Op 31573(U) June 7, 2012 Supreme Court, Suffolk County Docket Number: 22673/2009 Judge: William B. Rebolini 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] co'" Short Form Order SUPREME IAS. COURT - STATE OF NEW YORK PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Kenneth Index No.: 22673/2009 Sanfilippo, Plaintiff, -againstSusan Tomasmo, Defendant. Motion Sequence No.: 001: MG Motion Date: 9/9/11 Suhmmed: 3/28/12 Motion Sequence No.: 002; MD Motion Date: 10/26/11 Submitted: 3/28/12 Att01l1cy for Plamtiff: Harold Chctrick, P.c. 60 East 42"J Street, SUltc 445 New York. NY 10165 Clerk of the Court Attorney for Defendant: Scalzi & Noh, PLLC 16 E. Old Country Road Hicksville, Upon the folJ.owmg papers numbered] NY 11801 to 23 read upon this motion and cross motion for summary Judgment: Notice of Motion and supporting papers (001), 1 - 9; Notice of Cross Motion and supporting papers (002), 10- 19; Answering Affidavits and supporting papers, 20 -11, ReplYing AffidaVits and supporting papers, 22 - 23. Kenneth Sanfilippo seeks damages for personal Injuries he alleges to have sustained m a motor vehicle accident on November 3, 2007, at Route 110 at or near iLSIntersection with Jefferson Avenue III Babylon, New York, \vhen hlS vehicle, whIch \vas stopped for a red light, was struck In the rear by a vehicle operated by the defendant Susan Tomasl1lo. [* 2] Sanl1lillllo v. Tomasino Index No.: 22673/2009 Pugc 2 In his motion (001). the plallltiff secKs summary Judgment against thc defendant on the asscncd hasis th,lt she bears responsibility for the OCCUITcnceof the accident. The dcfendant cross moves for dismissal of the complaint on the asserted basis that the plaint] ff did not sustain a serious injury as defined by Insurance Law §5102 (d). Pursuant to Insurance Law §5102(d). ,. Isjerious lllJury" IS derined as a personalllljury .. whlch results in de:lth: dismemberment; significant disfigurement: :1 rracture: loss of a fetus: permanen1 loss or use of a hody organ, member, function or system: permanent consequentla[ lil11ltallon or use or a body organ or member; signiricant limitation of use of a body function or system: or a medical determi ned InJLlryor impairment of a non-permanent nature whIch prevents the InJured person from perroflmng substantially al I of the material acts which constitute such person's usual and customary dai Iy acti vities for not less than ninety days dunng thc one hundred eighty days i rnmcdiately 1'01 [owing thc occuO'cnce of the injury or impairment" (Insurance Law S5 i02(d)). The tcrm "Significant," as it appears in the statutc, has been defined as "something more than a mmor limiration of use," and the telm "substantially all" has been construed to me<ln"!hat the person has been cu!1atled from performlllg his usual activities to a great extent rather than some slight cunailment" (Licari v, Elliot, 57 NY2d 230 [1982]). On a motion for summary judgment to dismiss a complaint for failure to set forth a prill/a faeil' case of serious injury as defined by Insurance Law §5102(d), the initial burden is on thc defcndant to ··present evidence in competent form. showing that p!:untiff has no cause of action" (Rodriquez v. Goldstein, 182 AD2d 396 [1~lDept., 19911). Once the defendant has met that burden the p):l1nt1ffthen must establish by compctent proof. a prill/alacle case that such serious injury exists (see, DeAngelo v. ~idcl Corp. Servs., 171 AD2d 588 [1 SI Dept., 199] J). In ordcr to be tIl competent or adlntSSI ble form such proof must consist of affidavits or affirmUlic)l1s (see, Pagano v. Kln£shurv. 182 AD1d 168 11"d Dept., 1991J). 'rile proof must be viewed In a light most ravorable to the nonmoving party. here the pl:lIntll'l' (sec, Cantnl~lrerc v, Villanova, 166 AD2d 760 I},·dDept., 1990"1). [n order to recover under the "permanent Joss of use" category of *5 I02(d). plaintirf must demonstrate a totallnss of use of a body organ. member, runction or system (~. Oberlv v. Bangs Amhulance, 96 NY2d 195 [200 [-I). To prove thccxtcnt or degree of physIcal lImitatIon with respect to the "permanent consequcntial limitation of use of a body organ or member" or "significant limilation of use of a body function or system" calegories. eithcr a specific percentage of the loss of range of motion mUSI be ascrihed or there must be a sulTicient description of the "qualitatl vc nalure·· of pfaintill's [imit,-lIions, with an objective hasis, corrclatmg plaintiff's limitations to the normal fum:tion. puq)Ose and use of the body pal1 (see, Tome v. Avis Rent A Car Svstems. Inc .. 98 NY2d 3-l:'i /1000 I). A minor. mild or slighllimltalioll of use ISconsidered insigni ricant withm the meaning of the statute (see, i.ieari v Elliott. 57 NY2d 1:;0 I [9811). In suppon 01" his motion, the plaintiff has submitted, //Iier alia. an anorney's affirmation: copies of the SUllllllons and complaint, defcndant 's answer and plaintiff's veri ficd bIll of paniculars; a copy orthe unSIgned but cerll ficd transcript of hiS examlllation before tnal duted October 27,20 I O. which is conSidered as adoptcd as ~lCCLlrale y the moving pal1y {see, Ashif v. Won Ok Lee, 57 AD:;d h [* 3] Sanfilippo \'. Tomasino Index No.: 22673/2009 Page J 70011'''.1 Oept..100SI): a signed copy of the transcript of Susan Tomasino dated AprilS. 2011 and a copy of the accident repolt dated November 9. 201 I signed by Susan Tomasino. Kenneth Sanfil1ppo testified as follows: He was involved 111 an automobile accident on Novemher 3, 1007 at approximately 6:30 p.m. The weather was cold and clear and It was dark outside. The roads were dry. He was traveling south on Route I 10, which he described as havmg two south hound travellunes. As he approached the Intersection WIthJefferson Street while traveling In the right travel L.U1C, the traffic signal light turned red. He brought his vehicle to a stop behind fOLlr cars, also in the right lane, and remalIled stopped ror the duration 01" the red light. There were vehicles stopped In the left travel lane as well. About a second or two prior to the heavy impact to the rear of hiS vehiclc, he saw the defendant's vehicle approachIng "pretty fast" Without its hghts on. The impact to the rear of hIS vehIcle caused his vehicle to strike the rear of the vehIcle in front of him IIIthe right lane: he testified that his vehIcle had been stopped about five feet in back of that vehicle hefore his vehicle hit it. When he approached the defendant's vehicle after the accident, she told him that she thought the traffic hght was green. However, he stated at the time her vehicle struck his vehicle in the rear. the light just turned green and one of the four cars in front of him had started moving forward, but that his foot was still on his brake. Susan Tomasino testified to the effect that she was operating her car on November 3, 2007 at 6:30 p_lll. when it was involved III the accident on Route 110, near her apanment, at the traffic light at the intersection of Route 110 with Jefferson A venue Lathe left and Maryland Avenue to the right of thc Intersection as one travels south on Route I 10. She was on dinner break from work and had to be back by 6:30 p.m. She testified that Jl was a damp, miscnlbJe day and she did not have her windshield wIpers on hut her headlIghts were all. She stated she tnlveled sout.h on Route 110 (also known as Broad\vay) for about two blocks in the right travel lane at about "fifteen, twenty, tops." When she l"irsllUrned onto Roule 110 she could see lhe traffic signallighl was green. She did not see lhe plallltill's vehicle or the vehicle lJl front of his vehIcle at any l·imc prior In the aCCIdent. Shc became aware of the pluintifl·s vehIcle when she rell "a ternble rockrng sensation." She dId not know whether the plaintitl"s vehIcle was stopped or moving at the tIme of the impact. She thought thaI aftcr she turned onto Broadway, she hud bcen looklllg off to the side unel did not look up quick enough. She staled that somehow her head was down, then she looked up at the light and then there \Vasthe impact. She observed no vehicles ahead of her as she traveled on Route I IO/Broadway prior to the aCCIdent. She testified that the front of her vehicle struck {he rear of the plaintiff's vehicle. Based upon the adduced testimonies. the plaintiff has established entillemcnt to summary judgment on the issue of liahility as a matter of law. When a driver approaches another vehIcle from the I-car,he is bounu to maintain a reasonably safe rateofspeed and 10 maintain conlrol of his vehicle and use reasonahle care 10 avoid colliding wilh the other vchlcle (sec. Chepe! v. Mevers_ 306 A02d 235 Il,,,J OepI..1003/: Power v. Hupal1, 260 AD2d 458 ["2ndDept.. 19991: see also, Vehicle and Traffic Law s! 129r<1I). The plaintilT has demonstrated that thIS was a rear-end collision. that his vehicle was stopped at the time of the impact and that the defendant faIled to maintain control of her vehicle or to use reasonahle care to avoid COllldlllg with the plallltiffs' vehicle und failed 10 see the pl;lIlltifl's vehicle prior to striking II. A driver, as a mallcr of law, is charged with seeing what there [* 4] SanfililH}o v. Tomasino Index No.: 22673/2009 Pagl' 4 IS to be seen on the road, that is, what should have been seen or what IS capable of belllg seen aLthe time (see, People v. Anderson, 7 Misc3d 1022A [City Court, Ithaca 20051). Here, the defendanL testified that she never saw the plalIlliff's vehicle pnor to striking It in the rear wllh the front of her vehicle. She had her head down and then looked up to the light vvhen the impact occurred. She (lid not ohserve any vehicles In front of her pnor to the nnpact. The motIon by plaintiff IS granted. In suppOli of the cross motIon, the defendant Tomasino has submitted, illier alia, an attorney's affirmatiun: a copy of the MV 104 Police ACCident Repoli dated November 3,2007, \vhlch constitutes hearsay and IS lIladmlssible (see, Lac~l!!nino v. Gonzalez, 306 AD2d 250 [2"J Dept., 2003"]: Ilel!Y v. Coller, 262 AD2d 606 [2"J Dept., 1999"]); a copy of the summons and complal nt and plainti ff's verified bill of pat1iculars; a copy of plaintiffs depOSItion transcnpt dated Octoher 27,20 I0 and defendant's transcnpt dated Apri I 5,20 II; a copy of plaimi ff' s medicul record hy Neil J Dash, M.D.: the SIgned repon of Isaac Cohen, M_D. dated June 9, 201lconcernlng his Independent orthopedic evaluatlon of the plainti 1'1'; nd the report of Melissa Sapan Cohn, M.D. dated a January 3. 2010 coneel1ling her independent radiological review of the x-rays of the plaintiff's cervical spine. In hIS bill of particulars, lhe p1:Jinllff alleges that, as a result of thIS accident, he suffered severe cerebral concussion; post traumatic cerebral concussion syndrome and headaches of long duration, straightemng of the cervical spine: C6-7 Intra vertebral disc space naJTowing, sprain/strain or the cervical spine; sevcre pain radiating across both shoulders with numbness in both upper extremltles: spra111/slraln of the thoracic, lumbar and lumbosacral spine: brachial plexus syndromc of the lumbar spine with paresthesia and muscle spasm; associated tearing and stretching of the muscles Ilgamcnts and soft tlSSUC111 neck and back: permanent restriction 111 range of motion of the the neck and hack: and the inabilIty to walk, stand, lift or bear weight without constant and continuous p~lln In the neck and back and with increasing pain upon prolongmg s,-ud actiVIties. The plaintlirs treating physiCian, Dr. D,-ISh,examined the plaintiff on Novemher 13, 2007. He set fonh that the pla111tifl had been seen at New Island Hospital emergency room on November 4, 2007, then follo'vved up With a phYSIcal therapist on November 5, 2007. Thc plamti ff compla1l1ed of low h,lCk pain to the right and left ot'T2-T4, tingling and pain In the upper extremities with full runge of mollon. HIS ImpreSSion was that the plaintiff had brachial plexus syndrome, paresthesia, muscle spasm, headaches and l()w hack pain. On November:27, 2007, the plalntlll' s complaints tll Dr Dash were the same WIth pOStllve tenderness to the right and left ofT2-T4 areaofthe paraspinal \\,iith positive muscle spasm The findings were pOSitive for numbness :lIld tingling in the right and Icrt upper extremities. On February 26, :?:OOS, the plaintill \vas found 10 stl!l have lower hack pam radiating 1.0 the hl);.1ter:11lower extremities, tenderness at L2-4 and was diagnosed With parethesla, bracillul plcxus syndrome and lower back pain It is noted that nelther Dr. Sapan Cohn nor Dr. Cohen have submitted COPICSof then to qualJ fy as expcrts 111 this matter. Although Dr. Cohen set forth the nlUlllplc records and reports he reVIewed IllCludlllg the x-ray reports of plaintiffs cervical spine from November 9.2007. dorsal SPI11C dated Novembcr 11, :2007 and lumhar spme dated November 4, elllTlCldulII l'irae [* 5] Sanfilippo v. Tomasino Index No.: 22673/2009 P<tge 5 2007. those x-ray repolls and multiple records have not been provided with the moving papcrs. Dr. Sapan Cohn has submitted a repon conceming her revicw of the plaintiff's cervical spine x-ray but has not submitted a copy of the origmal report. The general rule m Ncw York is that an expert cannot basc an opmion on facts he did not observe and which were not in evidence and that expert testimony is Ilmited to facts in eVIdence (sec, Allen v. Uh, 82 AD3d 1025 l2nJ Dept., 20111; Marzuillo v. Isom, 277 AD2d 362l2"J Der\.. 2000J; Stnn!!J!e v. Rothman. 142 AD2d 637 [2"J Dept., [9881; O'Shea v. Sarro, l06 AD2d435 l2nJ Dept., 1984]; HOl1lhrook v. Peuk Resorts, 194 Mlsc2d 273 I.Sup. Ct., Tomkins County, May 29, 20021). It IS further noted that Dr. Sapan Cohn has not submitted a report or opInIon concerlllng thc fIndings relating to the plalntilT's lumbar and dorsal spine x-rays, J"<.\iSlng~lctLlalIssues and leaving this Court to speculute as La those findings. f AddItionally, the phunli ff tcsti fied that he was sent by Dr. Nash for MRI studies, which studies have not been provided and conceming which the defcndant's expel1s do not comment. The plalntilT has claimcd to have sustained paresthesia with radiating pain down the bilateral lower extremities. cerebral concussion, post cerebral concussion syndrome, brachial plexus syndrome and headaches, however, no repon from a neurologist who examined the plaintiff on bchalf of the moving defendant has been submittcd to rule out lhese claimed neurological or radlaling pain injuries (see, Browdame v. Candura, 25 AD3d 747 [2nJ Dept., 2006]), thus leaving it to thIS COUl1to speculate as to those claimed injuries and raismg further factual issues which preclude summary Judgmcnt (see, Coleman v. Sha1l2r1-LaTaXI. Inc., 49 AD3d 587 [2"JDept., 2008 J: Hughes v. Bo Cll. 31 ADJd 385 [2,><1 Dept., 20061; Matthews v. Cunie Transp. Corp., 302 AD2d 566 1'2,><1 Dept., 2003J: Lowell v. Peters, 3 AD3d 778 (3rt!Dept., 2004]). The plaintiff testified that he received care and treatment from a neurologIst and reccived a CT scan for thc numbness to the side or his face which developed aftcr the accident and which he testified he is claiming as an injury in this action. In addition, he states he suffered from headaches for close to a year after the uccidcnt. Defenuunt 's cxami ll111g phYSIcians did nol eXal11lnethe plal111llT during the statutory period or 180 days following the aCCIdent, thus rendenng defendant physicians' affidavits insufficlentlo dcmonstrate entitlement to summary judgment all the Issue of whether the pl~llntiff was unable to substantially perform all of the material aClS which constituted hIS usual and customary daily activities for a period in excess 01'90 days during the 180 days lmmediately folIowmg the accident (sec. FUlTSv. Griffith, 43 AD3d 389 l2,><1 Dept., 20071: Blanchard v. Wilcox, 183 AD2d 821 [31\1 Dept., 2001]: sec. Uddin v. Cooper, 31 AD3d 270 [PI Dept., 2006]: Toussaint v. Claudio, 23 AD3d 16811'1 DepI..1005]; Lin v. New York City Transit Auth., 2009 NY Slip Op 30488U [Sup. Cr.. Queens County. February 13. 1009]) and they do not 0rllle on that category of injury. The plamtiff testified that he underwent phYSIcal therapy from November 2007 through April 2008. three times a week. Plaintiff slates Ihal since the accident. he cannot play baskethall with his fliends hecause his legs get numh and that he used to go [0 Ihe batting range and play baseball but cannot do that any more hecause a couple swings or the bal cause his shoulders to stan getting l1ght. Plamtiff also clai ms that he cannot stand for very long_ Based upon the foregoing. 11 is dcterrnined that the defendant fai led to satIsfy the burden of cSL'ablishlllg. {Jl"IIlla Ir./{"il'. that plaintiff did noL sustain a "serious mjury"' within the meanlllg 01' [* 6] Sanfilippo v. Tomasino Index No.: 22673/2009 Pag(' 6 Insurance Law §5101 (d) as to either category of mjury (sec. A~athe v. Tun Chen Wan!!, JJ AD3d 737 [1u,J Dept., 1006J): see also, Walters v. Papanastassioll, 31 AD3d 439 [2"d Depl.. 2006]). Inasmuch as the moving party has fai led to establish primajacie entitlement to judgment as a matter of law in the first instance on the issue of "scnolls injury" within the meaning of Insurance Law §51 02 (d), it is unnecessary to consider whether the opposing papers were sufficient to raise a tnable Issue of fact (see. Yon!:!Deok Lee v. Sin!!h, 56 AD3d 662 f2",J Depl., 2008J): Kravn v. Torella, 40 AD3d 588 [2,1<1 Dcpt.. 2007J; Walker v. Villa!!e of OssimnQ. 18 AD3d 867 (2'1<1 Depl., 2005]) as the burden has not shifted. The CfOSS motion by the defendant is denied. Accordingly. it IS ORDERED, that motion bythcplainriff, Kenneth Sanfilippo, for an ordergrantingsummary judgment in his favor on the issue of liability is granted: and the plaintiff is directed to serve a copy of this order with notice of entry upon the defendant and the Clerk of the Calendar Department, Supreme COUft, Riverhead, withm thirty days of the date of this order and the Clerk is directed to place Ihis mattcr 011 the ready trial calendar for a trial on damages fOlthwith: and it is further ORIlERED, that cross motion by the defendant, Susan Tomasino. for an order granting summary judgment dismissing the complaltlt on the basis that thc plaintifF did not sustain a serious injury is denied. Dated: ___ FINAL DISPOSITION x NON-FINAL DlSI'OSITION
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