Alcala v Roth

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Alcala v Roth 2012 NY Slip Op 31853(U) July 9, 2012 Supreme Court, Suffolk County Docket Number: 16523/2010 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] Shon FOl1n Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Dwayne Alcala, Index No.: 16523/2010 Plamtiff, -agamst- William P. Roth, Shea Trucking Corp., All Corporate Transport, Ismael Diaz, Ul1\versal Shielding and Karl E. Thompson, Defendants. Attornevs [See Rider Annexed] Motion Sequence No.: 003; MD Motion Date: 8/29/11 Submitted: 3/28/12 Motion Sequence No : 004; XMD Motion Date: 10/5/11 Submitted: 3128/12 Motion Sequence No.: 005; MD Motion Date: I 0/26/I I Submitted: 3/28/I2 Motion Sequence No : 006; XMG Motion Date: 12/7/11 Subm1tted: 3/28/I2 Upon the following papers numbered 1 to 70 read upon these motions and cross motion for summary judb'lnent: Notice of Motion and supporting papers, 1 - 12; 25 - 37; Notice of Cross Motion and supporting papers, 13 ~ 24; 38 - 51; Answering Affidavits and supPol1ing papers, 52 59; 65 - 66; 67 - 68; 69 - 70; Replying Affidavits and supporting papers, 61 - 62; 63 - 64, these applications are dctennincd as follows: The plaintiff Dwayne Alcala commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of PIne Aire Drive and Madison Avenue 1I1 the Town ofIslip on September 22,2008. The accident allegedly occurred when the vehicle operated by Daniel Fawcett, now deceased, and owned by the defendant All Corporate Transport attempted to pass the vehIcle owned by the defendant Shea Trucking Corp. and operated by the defendant Wilham Roth. The All Corporate Transport vehIcle then struck the [* 2] Alcala v. Roth. et al. Index No.: 16523/2010 I}age 2 front of the Shea Trucking Corp. vehicle and spun into oncoming traffic. The All Corporate Transport vehicle crossed the double yellow hne into oncoming traffic and struck the vehicle owned by the defendam Universal Shielding and operated by the defendant Ismael Diaz. Following the second collision, the defendant Universal Shielding vehicle struck the vehicle operated by the defendant Karl E. Thompson, which was traveling in the right westbound lane of Pine Aire Drive. At the time of the accident, the plaintiff was a front scat passenger in the vehicle operated by the defendant Thompson. The plainti ff alleges in his bill of particulars, among other things, that he sustained a diSC bulge at L4/L5, lumbar radiculitis, lumbar spme strain, and intemal derangement of the left knee. The plaintiff further alleges that as a result of the injuries he sustained in the accident he was confined to his bed and home for approximately two and a half weeks. The defendant All Corporate Transport Inc. now moves for summary judgment on the basis that the injuries allegedly sustained by the plaintiff fail to meet the "serious injury" threshold requirement of Insurance Law· §5102(d). Defendant Karl E. Thompson has made a cross-motion, and defendants lsmael Diaz and Universal Shielding Inc. have made a separate motion, deemed herein 10be a cross-motion, for identical relief. Defendants have submitted copies of the pleadings, Ihe plaintiffs deposition transcript, and the medical rcp0l1s of Dr. Edward Weiland, Dr. John Denton, and Dr. Robert Tantleff. The plaintiff opposes the applications 011 the ground that the defendants failed to meet their lacie burden of demonstrating that plaintiff did not sustain a "serious injury" within the meeting of the Insurance Law as a result of the accidcnt. In addition, plaintiff has submitted the medical report of Dr. Hargovind DeWal, as well as his own deposition transcript. prill/(/ II has long been established that the "legislative intent underlying the No-Fault Law was to weed out JI·ivololis claims and I1mit recovery to significant injuries" (J)t~/'elv Green, 84 NY2d 795, 798 [1995·1; ser! Toure I' Al'is Relit A Car 5)-'s., 98 NY2d 345 ['2(021). Therefore, the determll1atlon of whether or noLa plaintilThas susta1l1ed a "serious injury" is to be made by the court 111he first t instance (see Licari v Elliott, 57 NY2d 230 [19821; Porcctllo l' Lel1I11ll1l, 255 AD2d 430 [2"J Dept 1988]; No/aa "Ford, 100 AD2d 579 [2'" Dcp! 1984], "II'd 64 NY2d 681 984]). rt Insurance Law ~5102 (d) defines a "serious injury" as "a personal injury which results in death; dismcmbermcnt; signl ficant disfiguremenL; a fracture; loss of a fetus; pcnnanent loss of use of a body organ, member, function or system; pcmlanent 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 lmpalmlcnt of a non-pemwnellt nature which prevents thc Injured person from performing substantially all of the matenal aels which constitute sLlchperson's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately l"allowing the occurrence of the injury or impainnenl.'· [* 3] Alcala v. Roth. et al. Index No.: 16523/2010 Page 3 A defendant secking summary judgmcnt on the ground that a plaintiffs negligence claim is barred under the No-Fault Insurance Law bears thc initial burden of establishing a primafacie case that the plaintiff did not sustain a "serious injury" (see TOlll·e v Avis Relit A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). When a defendant seeking summary judgment based on the lack of serious inj ury relies on the findings of the defendant's own witnesses, "thosc findings must be in admissible fonn, [such as], affidavits and affinnations, and not unSWOI1l epol1s" to r demonstrate entitlemcnt to judgment as a matter of law (Pag(lIto v Kingsbury, 182 AD2d 268, 270 [·2 Dept 19(2)). A defendant may also establish entitlement to summary judgment using the plallltiffs deposition testimony and medical reports and records prepared by the plaintifrs own physicians (see Fragale)1 Geiger, 288 AD2d 431 [2"dDcpt 2001]; Grossman)1 Wrigllt, 268 AD2d 791-2nJ Dept 2000]; VigllOhl v Vllrrichio, 243 AD2d 464 [2'1<1 Dert 1997J; Torres I' Micheletti, 208 AD2d 519 [2"'! Dept 1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dule! v Green, 84 NY2d 795, 798 [I 995J; Tornabene v Pawlewski, 305 AD2d 1025 [4'h Oepl 2003J; Pagtlllo v Kingsbury, 182 AD2d 268 [2nd Dept 1992]). i1d The defendants' examining neurologist, Dr. Weiland, reported that his examination of the plaintiff on February 24,2011 revealed that he has full range of motion in his lumbar spinc and left knee. Dr. Weiland stated that upon palpation of lhe plaintiffs paraspinal muscles there were no spasms or crepitus, that the straight leg raising test was nOl1l1aland that the IllOlor examination revealed 5/5 "power resistance throughout." Dr. Weiland opined that there was no evidence of any '"Iatcralizing neurological deficits," that there is no need for any further neurological treatments and that the plaintiffis able to perfonn his daily living activities without any restrictions. The dcfemlants' examining orthopedist, Dr. Denton, 111dicated in his report that an examinatIon of'the plaintirron Jaml8ry 10, 2011 revealed mild muscle spasm and tendemcss upon palpation orthe paralulllbar llluscles bilaterally. Dr. Denton stated that the plaintltlhas decreased range of motion in flexion at 20/GOdegrees and extension at 10/25 degrees in his lumbar spine, that he has decreased range of motion in fleXIOn111 right knee at 125/150 degrees without evidence his of erythema or crepitus. In Dr. Denton's 0pll1lQn,the lumbar spll1esprain and right knee sprain have resolved and therc is no evidcnce ofpemlanent orthopcdic disability. The defcndants' radiologIst, Dr. Tantlefr, rcviewcd a lumbar spinc MRI taken on October 9, 2008 and rep0l1ed that il showed that the plainti FfsulTers from degenerative discogenic changes of the lower thoracic and upper lumbar spine. In his opinion, the changes are not inconSIstent with the plaintl ffs age, they arc of no definitIve clinical signi ficance, and the findings are not causally related to the subject accident. Based upon the cvidence before this Court, the defendants failed to show prillla/acic that the plainti ff did 110tsustain a "serious injury" within the mcaning of the Insurance Law as a result of the subject accident (see TOlll'e v Avis Rent A Car Sy. ¢ ¢..98 NY2d 345 [2002J; Gaddy v Eyler, 79 NY2d , [* 4] Alcala v. Roth. et al. Index No.: 16523/2010 Page 4 Weddel'burIl v Simlllons, 95 AD3d 1304 [2"J Dept 2012]). Although each of the defendants' experts concluded that the plaintiff did not sustain a "serious inj ury" to his lumbar spine as a result of the subject accident, Dr. Denton recounted in hIs aHimled medical report that the range of motion testing that he perf<'mned on the plaJnti ff more than two years after the accIdent revealed the existence of a s1gnificant range of motion limitation in his spine, as well as muscle spasm and tenderness in his lumbar spine (see JOlles v Anderson, 93 AD3d 640 [21)<.1 2012]; see (/Iso Cnes Dept v Tavarolle, 85 AD3d 846 [2'" Dept 2011]; Fields v IJildago, 74 AD3d 740 [2d Dept 2010]). Moreover, Dr. Denton faded to pro\'ide any range of motion measurements for the plaintiff's left knee, which the plaintifT clearly claims in his bill of particulars to have injured as a result of the accident. However, Dr. Denton did provide range of motion measurements for the plall1tiffs right knee and found that there were significant range of motion limitations in the plaintiff's right knee. Thus, Dr. Denton's findings belie his conclusions and callmto question Dr. Weiland's conclusions that the plamtiff's complaints were subjective in nature (see Sparks v Detterlil1e, 86 AD 3d 60 I [2nd Dept 2011J; Astudillo v MV Transp., IIlC~, 84 AD3d 1289 [2"<.1 Dept 2011]; Washington v Delossantos, 44 AD3d 748 [2"d Dept 2007]). Furthcn1lOre, the defendants' submissions \vere contradictory IIIthat Dr. Weiland stated that the pJainti ffhas full range of motion in his lumbar spine, whereas Dr. Denton stated that the plaintiff has decreased range of motion in his lumbar spine. Where connlcting medical evidence 1Soffered on the issue of whether a plaintiffs injuries are permanent or signifiC<ll1t nd varyltlg 1Il fcrcnces may be drawn, an 1ssue of credibility forthe jury has a been presented (see Barrett v New York City Tr. A ilth., 80 AD3d 550 [2nd Dept 2011]; Jacobs v Rololl, 76 AD3d 905 [1" Dcpt 2010]; MerctIllo-Arifv Garcia, 74 AD3d 446 [1'( Dept 2010]; Martinez t' Pioneer Tramp. Corp~, 48 AD3d 306 [1'[ Dept 2008J; Garcia v. Long Island MTA, 2 AD3d 675 [2'" Dcpt 2003]). 955 l1992]; [nasmuch as the defendants failed to meet their prill/a j(u.'ie burden, the Court need not consider whether the plaintiff~s opposition papers arc sufficient to raise a triable issue of fact (see Scott v Gresio, 9() AD3d 736 [2nd Dept 2011J, Walter v JValch, 88 AD3d 872 [2ml Oept 2011]). The defendant Thompson has also cross-moved for all order granting summary judgment in his favor on the issue of liablhty. In support oftlle motion, the defendant Thompson submits copies ofthc pleadings, a certi fled copy of the police accident report, the p;uiies' deposltion transcripts and the deposition transcript ofnonpal1y witness, Leon Laroche. The defendant Thompson testlfied at nn examinatlOl1 before trial that as he was travel1l1gIII the right lane of the westbound side of P1I1C Airc Drive hc heard a "bang" on the eastbound side of Pille Aire Drive. Immediately after hcanng the "bang," 111s vehicle was struck by the Universal Shielding vehicle, wh1eh was traveling next to his vehicle in the left lane of the westbound traffic. The defendant Thompson further testified that the Univcrsal Shielding vehicle was pushed lllto IllS vehiclc aner it had been struck by the All Corporate Transpoli vehicle which had been traveling eastbound 011Pine Aire Drive, [* 5] Alcala v. Roth, et al. Index No.: 16523/2010 Page 5 The defendant Ismacl Diaz testified at an examination before trial that he \vas traveling westbound on Pine Aire Dnve \vhen he observed the All Corporate Transport vehicle traveling on the eastbound shoulder, along the right side of the Shea Trucking vehicle. The defendant Dwz explained that the "extreme left" of the All Corporate Transport vehicle struck the "extreme right" orthe Shea Trucking vehicle, causing the All Corporate Transport vehicle to cross over the double yellow line into the westbound traffic. It then struck the front ofthe Universal Shielding vehicle that Diaz was operating. The defendant Diaz further testified that he never saw the Thompson vehicle pnor to the accident. The defendant Roth testified at an examination before trial that he was operating the Shea Trucking vehicle when he heard an engine revving, and upon checking his right passenger side lllllTOrhe observed the All Corporate Transport vehicle travelIng partially on thc shoulder and partlallyon the roadway of PlI1e Aire Drive. The defendant Roth testified that immediately upon noticing the other vehicle, he eased his foot off the accelerator but was unable to prevent the coll1sion. The left rear quarter panel of the All Corporate Transport vehicle struck the right front passenger Side bumper of the Shea Truckmg vehIcle and, as a result, the All Corporate Transport "spun 360 degrees" into the oncoming traffic and was impacted by the Universal Shielding vehicle. The defendant Roth further testified that the accident happened \.vithm seconds of him first observmg the All COlllorate Transport vehicle. The nonparty witness Leon Laroche testified at an examination before trial that he was tra'v'eIll1geastbound on Pll1e Airc Dnve and that the accident oeclIned behind his vehicle. Laroche testified that he looked into his rearvicw minor and observed the All Corporate Transport vehicle traveling on the shoulder ofthe road along the right side oft11e Shea Trucking vehicle, and that it was traveling very fast Laroche testified that prior to the accident's OCCUlTence ne-third of the AIl o Corporatc Transport vehicle had passed the front portion of the Shea Trucking vehicle, and that the accident OCCUlTed hen the All Corporate Transport vehicle's dnver "tried to cut in front ofthc w [Shea Truckmg vehicle]," in order to avoid hltting a telephone pole. Laroche further testified that prior to the <lceident's OCCUITencce did not hcar any homs blo\ving. h "Crossing a double yellow lmc into the opposing Jane oftrafIic, in violation ofVehlcle and Traffic L.\\.v 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's OWI1 makll1g" (Foster)' Sallchez, 17 AD3d 3] 2,313 [2"'1 Dept 2005]; see 8urbaruo{0 v DiFede, 73 AD3d 957 [2nd Dcpt 20 I0], Sulli)l{lJI V Mandato, 58 l\D3d 714 [2"J DCpl 2009]; Brow/l J! Castillo, 288 AD2d 415 [2'1<1 Dept 2001]). FurthemlOrc, a driver is not required to anticipate that an automobile going in the opposite direction will cross over into ol1comlllg traffic (see Bar!Jartioio v DiFede, 73 AD3d 957 [2"J Dept 2010]). * The evidence before this Court cstablishes thc dcfendant Thompson's prilllajclcic entitlement to judgment as a matter of la\v (see Winegra(/ v New York Unh'. Med. 01'.,64 NY2d 851 [1985]; see also Zuckermall I' City of Nell' York, 49 NY2d 557 [1980]). In opposition, ncither the plall1tiff nor any of the defendants have submItted evidence sufficient to raise a triable Issue of fact or to [* 6] Alcala v. Roth, £t al. Index No.: 1652312010 Pane 6 b demonstrate that any neglJgence on the part of the defendant Thompson caused the subject accident (see BOllgiovi v Hoffman, 18 AD3d 686 [2l1ll Dept 2005]). Accordingly, it is ORDERED that the motion by the defendant, Al1 Corporate Transport Inc. and the crossrnotions by the defendant, Karl E. Thompson, and the defendants, lsmacl Diaz and Umversal Shielding Inc., for an order awarding summary judgment dismIssing the plaintiff's complaint for failure to sustain a "serious ll1jury" within the meaning of the Insurance Law are del1led; and it is further ORDERED that the cross-motion by the defendant Karl E, Thompson for an order awarding summary j uclgmcnt in his favor 011 the Issue of liability dismissmg the plaintiff's complaint and all cross-clallns against him is granted. Dated' - ___ FINAL orSPOSlTlON x NON-FINAL DISPOSITION [* 7] RIDER Attomcv for Plaintiff: Steven C. Askll1as, Esq. 1991 Union Boulevard, Suite B JJay Shore, New York 11706 Attorney for Defendants William P. Roth and Shea Trucking Corp.: J-iammil1, O'Bnen, Crourier, Dempsey, Pender & Koehler, P.c. 6851 Jericho Tumpike, Suite 250 Syosset, New York 11791 Attomcv for Defendant All Corporate Transport: Baker, McEvoy, Morrissey & Moskovits, 330 West 34th Street, 7th Floor New York, New Vork 10001 Attornev for Defendants 'smael Dia7. and Universal Shielding: Bello & Larkin 150 Motor Parkway, Suite 405 Hauppauge, New York 11788 Attorney for Defendant Karl E. Thompson: Picciano & Scahill, P.c. 900 Merchants Concourse, Suite 310 Westbury, New York 11590 P.c.

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