Ogunbadejo v Mitchell

[*1] Ogunbadejo v Mitchell 2012 NY Slip Op 52301(U) Decided on December 10, 2012 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2012
Supreme Court, Queens County

Morufat A. Ogunbadejo, Plaintiff,

against

Sharon Mitchell, PETER MITCHELL, JOHN MANCINO and "JOHN DOE," said name being fictitious and intended to be the name of the driver, Defendants.



16265/2010

Robert J. McDonald, J.

The following papers numbered 1 to 39 were read on this motion by defendant, JOHN MANCINO, and cross-motion of defendants SHARON MITCHELL and PETER MITCHELL, both for an order granting defendants summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104; and the cross-motion of defendants SHARON MITCHELL and PETER MITCHELL for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability and dismissing the plaintiff's complaint and all cross-claims against them:

Papers

Numbered

MANCINO Notice of Motion-Affidavits-Exhibits.........1 - 8

MITCHELL Cross Motion on Liability...................9 - 13

MITCHELL Cross-Motion on Threshold..................14 - 20

PLAINTIFF's Affirmation in Opposition...............21 - 29

MITCHELL Reply Affirmations(2)......................30 - 36

MANCINO Reply Affirmation...........................37 - 39

_________________________________________________________________ [*2]

This is a personal injury action in which plaintiff, MORUFAT OGUNBADEJO ("plaintiff"), seeks to recover damages for injuries she sustained as a result of a three car chain reaction motor vehicle accident that occurred on July 5, 2009, on the westbound lanes of the Belt Parkway near the intersection with Farmer's Boulevard, Queens County, New York. The plaintiff alleges that at the time of the accident, her vehicle was stopped in heavy traffic and was struck in the rear by the vehicle operated by Peter Mitchell. Mitchell's vehicle had been pushed into plaintiff's vehicle as a result of being struck in the rear by the vehicle owned and operated by defendant John Mancino.

Defendant Mancino now moves for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102. The Mitchell defendants cross-move for an order pursuant to CPLR 3212(b), granting summary judgment on both the issue of liability and threshold and dismissing the plaintiff's complaint.

In support of the motion, Mr. Mancino submits an affidavit from counsel, Richard C. Mule, Esq., a copy of the pleadings, a copy of plaintiff's verified bill of particulars, a copy of the transcript of plaintiff's examination before trial, and a copy of the affirmed medical report of board certified orthopedic surgeon Dr. Robert Israel.

In her examination before trial, taken on October 26, 2011, the plaintiff, Morufat A. Ogunbadejo, age 32, testified that the accident in question took place on July 5, 2009 at approximately 12:30 p.m. on the westbound lanes of the Belt Parkway at or near its intersection with Farmers Boulevard. At that time she was the operator of a 2004 Range Rover. She stated that her two children ages 5 and 2 were seated behind her in child restraint seats. She stated that she was coming from her home and going to church in Brooklyn via the Belt Parkway. She stated that she was driving in the right lane when she stopped her vehicle as a result of heavy traffic in front of her. After being completely stopped for approximately 30 seconds she felt an impact to the rear of her vehicle. The operator of the vehicle behind her, Peter Mitchell, got out of his vehicle and stated to the plaintiff that he was sorry he hit her car but he stated that his car was pushed into hers by the vehicle which had struck his vehicle in the rear. She observed a third vehicle behind Mitchell's vehicle that was stopped on the highway behind the Mitchell vehicle. The last vehicle left the scene of the accident before the police arrived on the scene but she was able to write down the license plate number before he left. She stated that upon impact, she injured [*3]her neck, left shoulder and lower back. She left the scene of the accident in an ambulance and was transported to the emergency room at Queens Hospital. She was treated and released the same day. She testified that a few days later she went to Yellowstone Rehabilitation Center where she received physical therapy treatments. She continued treatments at Yellowstone for approximately five months Yellowstone had referred her to Lukev Interventional Pain Management where was seen on two occasions for treatment to her lower back, left shoulder and her neck. She stated that after the accident she was confined to her home for approximately two weeks.

In her verified bill of particulars plaintiff states that as a result of the accident she sustained a partial tear of the rotator cuff of the left shoulder as well as bulging discs at C2-C3, C3-C4, C4-C5, C5-C6, L4-L5 and L5-S1.

THRESHOLD - SERIOUS INJURY

Dr. Robert Israel, an orthopedic surgeon, retained by the defendant, examined plaintiff on December 6, 2011. She presented to Dr. Israel with injuries to her lower back and right shoulder. Dr. Israel performed quantified and comparative range of motion tests. He found that the plaintiff had no limitations of range of motion in cervical spine, lumbar spine, right and left shoulder. He diagnosed the plaintiff with resolved sprain of the cervical spine, resolved sprain of the lumbar spine, and resolved sprain of the left and right shoulder. He states that based upon his examination, from an orthopedic point of view, the plaintiff has no disability as a result of the accident.

Defendant's counsel contends that the medical report of Dr. Israel, as well as the transcript of the plaintiff's examination before trial are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her 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.

The Mitchell defendants also cross-move to dismiss on the same grounds and submit the same evidence as defendant Mancino in support of their motion.

In opposition to the motion and cross-motion plaintiff's [*4]counsel, Marc J. Musman, Esq., submits his own affirmation as well as the affirmed medical report of Dr. John J. McGee, unaffirmed records from Yellowstone Medical, unaffirmed records from Dr. Davy, unaffirmed records from Roosevelt Acupuncture, uncertified records from the emergency room at Queens Hospital Center and unaffirmed MRI reports from Diagnostic Plus Medical.

In his affirmed report dated July 11, 2012, Dr. McGee from Yellowstone Medical, states that when the plaintiff first presented on July 15, 2009, she complained of pain in her neck as well as her middle and lower back, left shoulder pain, and headaches, dizziness, insomnia and hearing disturbance. His examination that day showed limitations of range of motion of the cervical spine, lumbosacral spine and left shoulder. He states that at that time he believed that there was a direct causal relationship between the motor vehicle accident and the plaintiff's symptoms and injuries. She was then sent for acupuncture treatments, chiropractic treatments and physical therapy. Her physical therapy treatments ended in December 2009. On June 4, 2012 the plaintiff was re-evaluated by Dr. Mcgee. After conducting a physical examination he stated that the plaintiff still exhibited loss of range of motion of the cervical spine and, lumbosacral spine. He diagnosis the plaintiff with bulging discs in the cervical and lumbar spine and cervical sprain/strain, thoracic sprain/strain, lumbar sprain/strain, left rotator cuff tear and shoulder sprain/strain. He concludes that "the patient's complaints and symptoms correlate to the mechanism of the injuries described."

Counsel contends that the report and records of Dr. McGee as well as the plaintiff's examination before trial are sufficient to raise a triable issue of fact regarding the nature of the plaintiff's injuries.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, it is defendant's initial obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the [*5]existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v. Eyler, 79 NY2d 955 [1992]; Zuckerman v. City of New York, 49 NY2d 557[1980]; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

This Court finds that the proof submitted by the defendants, including the affirmed medical report of Dr. Israel was sufficient to meet defendants' prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]).

However, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical report of Dr. McGee, attesting to the fact that after a qualitative and quantitative examinations, the plaintiff had substantiated injuries contemporaneous to the accident and had significant limitations in range of motion at a recent examination, and concluding that the plaintiff's injuries from which she still suffered from pain and limitations three years after the accident resulted from trauma related to the accident. As such, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091[2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

LIABILITY

The Mitchell defendants also cross-move for an order pursuant to CPLR 3212(b), dismissing the plaintiff's complaint against them on the ground their vehicle, which was owned by Susan Mitchell and operated by defendant, Peter Mitchell, was stopped in traffic on the Belt Parkway when it was struck in the rear by the vehicle driven by John Mancino propelling the Mitchell vehicle into the rear of the plaintiff's stopped vehicle.

In support of the cross-motion for summary judgment, defendant Mitchell submits an affidavit from counsel, Andrea E. Ferrucci, Esq., a copy of the pleadings; a copy of the police accident report; and copies of the transcripts of the deposition testimony of Ms. Ogunbadejo, Peter Mitchell and John Mancino. [*6]

In his examination before trial, taken on January 9, 2012, the defendant, Peter Mitchell, an assistant teacher for the New York City Board of Education, stated that he was driving his mother's car on July 5, 2009 in the right lane of the westbound Belt Parkway near the Farmers Boulevard exit. He stated that he was coming from his home and heading towards his church on Foch Boulevard in South Ozone Park. His brother, age 18, was seated in the front passenger seat. He stated that due to heavy traffic he stopped his vehicle behind a Range Rover that was stopped in front of him in the right lane. He stated that he stopped quickly because the vehicle in front of his also stopped quickly. After stopping behind the plaintiff's vehicle, his vehicle was hit in the rear by the vehicle operated by defendant Mancino. Mitchell stated that his vehicle was struck less than 5 seconds after stopping. As a result of the impact to the rear of his vehicle, his vehicle was propelled into the plaintiff's vehicle in front of him. He stated that after the accident, Mancino approached him to see if he was alright. After Mitchell stated to him that he thought they should call the police, Mancino entered his vehicle and drove off. When the police arrived on the scene, Mitchell told them that his vehicle was hit in the rear and that his vehicle was pushed into the vehicle in front of his as a result.

John Mancino testified at his examination before trial held on October 26, 2011 that he works as a mechanic for Kalitta Air at both Newark and JFK Airports. He stated that on the date of the accident he was driving a Ford Mustang and was coming from his home and traveling to Brooklyn to visit his sister. He was proceeding on the Belt Parkway when his vehicle hit into the rear of the vehicle in front of his. He stated that prior to the impact he observed the vehicle in front of his come to a stop. It was stopped for one or two seconds before his vehicle came into contact with it. He testified that after the impact, he exited his vehicle to see if the driver was alright and Mancino asked if they could move their vehicle over to the side. Mancino went back to his car pulled his vehicle off the road to the Farmers Boulevard exit. He stated that afer 30 minutes he went back to the scene of the accident but all the other vehicles had left the scene. He stated that he did not call the police because he believed the accident was not sufficient to warrant a police car.

Counsel for Mitchell contends that the evidence submitted in support of the motion for summary judgment demonstrates that the Mitchell vehicle, the middle vehicle of the three cars, was lawfully stopped in traffic when his car was rear-ended by the Mancino vehicle which propelled his vehicle into the plaintiff's vehicle. Counsel contends that summary judgment should be awarded to Mitchell, dismissing the plaintiff's complaint and all [*7]cross-claims against him because the evidence showed that Mitchell was completely stopped in traffic behind the plaintiff's vehicle at the time of the accident and the sole proximate cause of the accident was the negligence of co-defendant Mancino in rear-ending his vehicle and further, there is no evidence in the record that Mitchell was negligent in any manner. Mitchell contends that it is clear that Mancino, in the moving vehicle, failed to maintain a proper lookout, failed to maintain a proper speed and a safe distance from the vehicle in front of him.

As Mitchell, in the middle vehicle, was stopped and propelled into the plaintiffs' vehicle, counsel contends that the proof submitted shows that the complaint should be dismissed against Mitchell as Mitchell could not be liable for any of the injuries claimed by the plaintiff (see Ferguson v Honda, 34 AD3d 356 [1st Dept. 2006]; Mustafaj v Driscoll, 5 AD3d 139 [1st Dept. 2004]; McNulty v DePetro, 298 AD2d 566 [2d Dept. 2002]; Harris v Ryder, 292 AD2d 499 [2d Dept. 2002]; Cerda v Paisley, 273 AD2d 339 [2d Dept. 2000]).

In opposition, plaintiff's counsel contends that based upon the deposition testimony of the parties, that there is a question of fact as to whether defendant Peter Mitchell brought his vehicle to a stop too close to the rear of the plaintiff's vehicle and thereby contributed to the accident. He states that Mitchell testified that his vehicle was stopped "very close" to the plaintiff's vehicle in front of him. Plaintiff asserts that stopping a vehicle within 2 feet from another vehicle on a major highway like the Belt Parkway raises a question of fact with regard to the proximate cause of the rear-end chain reaction accident.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Reed v New York City Transit Authority, 299 AD2 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d [*8]Dept. 2004].

Here, Mitchell testified that his vehicle was at a complete stop when Mancino's vehicle struck his vehicle in the rear causing the chain reaction accident. "The rearmost driver in a chain-reaction collision bears a presumption of responsibility" (Ferguson v Honda Lease Trust, 34 AD3d 356 [1st Dept. 2006], quoting De La Cruz v Ock Wee Leong, 16 AD3d 199[1st Dept. 2005]). Evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation (see Franco v. Breceus,70 AD3d 767 [2d Dept. 2010]; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]). In multiple-car, chain-reaction accidents the courts have recognized that the operator of a vehicle which has come to a complete stop and is propelled into the vehicle in front of it, as a result of being struck from behind, is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision (see Mohamed v Town of Niskayuna, 267 AD2d 909 [3rd Dept. 1999]). Here, Mitchell, who was stopped at the time of the impact, demonstrated that his conduct was not a proximate cause of the rear-end collision between his vehicle and the plaintiff's vehicle in front of him (see Abrahamian v Tak Chan, 33 AD3d 947 [2d Dept. 2006]; Calabrese v Kennedy, 8 AD3d 505 [2d Dept. 2006]; Ratner v Petruso, 274 AD2d 566 [2d Dept. 2000]). Thus, defendant Mitchell satisfied his prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that his vehicle was completely stopped at the time it was struck in the rear and propelled into the plaintiff's vehicle in front of his in a chain reaction which was commenced by defendant Mancino.

Having made the requisite prima facie showing of his entitlement to summary judgment, the burden then shifted to the plaintiff or co-defendant Mancino to raise a non-negligent explanation for the rear end collision or a triable issue of fact as to whether Mitchell was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Gambians v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).

In opposition to Mitchell's cross-motion neither plaintiff nor co-defendant Mancino submitted any evidence sufficient to raise a triable issue of fact (see Arias v Rosario, 52 AD3d 551 [2d Dept. 2008]; Smith v Seskin, 49 AD3d 628 [2d Dept.2008]; Campbell v City of Yonkers, 37 AD3d 750 [2d Dept. 2007]; Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference [*9]of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736 [2d Dept. 2007]).The evidence demonstrated that Mitchell operated his vehicle in a nonnegligent manner, and no evidence was presented to show that he contributed to the happening of the injury-producing event (see Aikens-Hobson v. Bruno, 2012 NY Slip Op 5604 [2d Dept. 2012]; Daramboukas v Samlidis, 84 AD3d 719 [2d Dept. 2011]; Franco v Breceus, 70 AD3d 767[2d Dept. 2010]; Shirman v Lawal, 69 AD3d 838 [2d Dept. 2010]; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]).

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that defendant Mancino's motion for summary judgment and defendant's Mitchell's cross-motion for summary judgment dismissing the plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104 are denied and it is further,

ORDERED, the cross-motion by the Mitchell defendants for summary judgment dismissing the complaint and all cross-claims against them on the issue of liability is granted, and it is further,

ORDERED, that the Clerk of Court is authorized to enter judgment accordingly

Dated December 10, 2012

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.