Auguste v Hernandez

[*1] Auguste v Hernandez 2015 NY Slip Op 50639(U) Decided on April 27, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2015
Supreme Court, Queens County

Daniel Auguste, Plaintiff,

against

Juan D. Hernandez and D'ANGELO CORP., Defendant.



23799/2012
Robert J. McDonald, J.

The following papers numbered 1 to 15 were read on this motion by defendants, Juan D. Hernandez and D'Angelo Corp., for an order pursuant to CPLR 3212 granting summary judgment in favor of the defendants and dismissing the complaint of plaintiff, Daniel Auguste, 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 the plaintiff for an order granting partial summary judgment on the issue of liability:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits-Memorandum of Law...1 - 5

Cross-Motion-Affirmation in Opposition-

Affidavits-Exhibits.................................6 - 11

Reply Affirmation.......................................12 - 15

This is a personal injury action in which plaintiff, Daniel August, seeks to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred [*2]on September 8, 2011, on 130th Street between 135th and 133rd Avenue, Queens County, New York. Plaintiff was riding a bicycle at that time and alleges that a Lincoln Town Car owned by D'Angelo Corp., and operated by defendant, Juan D. Hernandez, sideswiped him causing him to be pushed into a parked car.

The plaintiff commenced this action by filing a summons and complaint on November 29, 2012. Issue was joined by service of the defendant's verified answer dated February 1, 2013. The plaintiff filed a Note of Issue on November 12, 2014. The matter is presently on the calendar in the Trial Scheduling Part for June 8, 2015.

Defendants 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. Plaintiff opposes the motion and cross-moves for an order granting partial summary judgment on the issue of liability and setting the matter down for a trial on serious injury and damages only.

In support of the motion, defendants submit an affirmation from counsel, Kevin Burke, Esq; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; a copy of the transcript of Daniel August's examination before trial; uncertified hospital records from the plaintiff's admission to the emergency room at Jamaica Hospital Center; unaffirmed radiological reports regarding the MRI studies of the plaintiff's right knee and right ankle; unaffirmed operative report regarding the plaintiff's arthroscopic surgery to repair a meniscal tear of the right knee performed by Dr. Arnold Goldman; the affirmed medical report of Dr. Ronald A. Paynter, board certified in Emergency Medicine; the affirmed medical report of orthopedist, Dr. Christopher Cassels; and the affirmed radiological reports of Dr. Audrey Eisenstadt with regard to the MRIs of the plaintiff's right knee and cervical spine.

Daniel Auguste, age 31, contends that as a result of the accident he sustained, inter alia, a tear of the posterior horn of the medial meniscus of the right knee requiring arthroscopic surgery; and bulging discs at C5-C6; C6-C7 and C7 - T1.

Plaintiff asserts that he sustained a serious injury as defined in Insurance Law § 5102(d) in that he sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or [*3]system; significant disfigurement; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his 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.

In his examination before trial taken on April 4, 2014, plaintiff, a resident of Charleston, North Carolina and an employee of a rental car company, states that he was involved in an accident in Queens County, New York on September 8, 2011. At the time he lived in New York and was coming from his job at JFK Airport. He was riding his bicycle in the right lane of 130th Street in the direction of the flow of traffic. He testified that he had just passed the intersection with 135th Avenue when he first observed the defendants' taxi. He states that the taxi was moving and was five car lengths ahead of him on his left. When he approached the taxi he yelled out that he was going to overtake the taxi on its right side. As he was next to the right side of taxi there was contact between the taxi and his bicycle. The impact caused him to become dislodged from the bike and to hit the mirror on a van parked on his right side.

After the accident he felt pain to his right knee and right arm. His bicycle was only slightly damaged so he was able to leave the scene on his bicycle. He did not request the police nor an ambulance to come to the scene of the accident. However, the following day he went to the precinct to fill out an accident report. He told the police that he was struck by a taxi as he was proceeding on 130th Street. The plaintiff also went to the emergency room at Jamaica Hospital the day following the accident because he was suffering from neck, right knee, and right ankle pain. X-rays taken at the emergency room were negative and the plaintiff was discharged the same day. A few weeks later he still had pain in his right knee, right ankle, and neck, so he began a course of physical therapy at Fernando Suarez Physical Therapy. He was also referred for MRIs of his neck, right knee, and right ankle. He was also referred to orthopedist, Dr. Goldman who performed arthroscopic surgery on his right knee on November 25, 2011.

After the surgery he continued with physical therapy until March of 2012 when he moved to North Carolina. He did not have any other medical treatment for the injuries sustained in the accident after that time. He states that he still has occasional pain in he right knee and right ankle. He states that in the summer of 2012 he had a bicycle accident with a motor vehicle in [*4]Charlotte, North Carolina, in which he injured his lower back. He also had two subsequent motor vehicle accidents, both in September 2013 when he was working for Enterprise Rental Cars. One was job related in which he injured his left ankle and neck, and the other occurred when he was a passenger on a bus. He states that he is not sure whether the pain in his neck is from the subject accident or a subsequent accident.

The MRI results for the plaintiff's right knee taken at Rockville Centre Diagnostic Imaging on October 24, 2011 show a complex acute tear of the posterior horn of the medial meniscus. The MRI of the right ankle showed no tears or fractures.

Dr. Christopher J. Cassels, an orthopedist retained by the defendants, examined the plaintiff on July 8, 2014. Plaintiff told the doctor that a motor vehicle turned into him partially knocking him over. He initially felt pain in his right ankle, neck, and right knee. The plaintiff presented with no pain in his neck despite having undergone a posterior fusion two years prior to the bicycle accident. He stated that he still has pain in his knee despite having surgery but he is still is able to ride his bicycle. He also still feels pain in the right ankle. Range of motion testing was performed by Dr. Cassels with all measurements objectively determined by the use of a goniometer. Dr. Cassels states that he found no loss of range of motion in the cervical spine, left knee, and right ankle. Dr. Cassels states that the plaintiff showed no clinical findings which substantiate an injury to the cervical spine. He states that the plaintiff had full range of motion of the left knee. He also finds full range of motion of the right ankle. Dr. Cassels states in his summary that there is no objective evidence of a permanent disability and no significant objective abnormal findings of note on clinical examination. He states that in his opinion the plaintiff has no functional disability, no permanency and is fully functional to perform all normal daily activities including work without restrictions.

Dr. Audrey Eisenstadt, a radiologist, reviewed the MRI studies of the plaintiff's right knee and cervical spine. She states that she observed a tear of the posterior horn of the medial meniscus of the right knee which, she states, is not causally related to the subject accident. With respect to the MRI of the plaintiff's cervical spine she observed a prior surgical procedure and she also observed minimal disc bulging which, she states, is not a result of traumatic process and is degenerative in origin. In summary, she found no traumatic injury related to the accident of September 8, 2011 and states that the plaintiff had pre-existing cervical abnormalities.

Defendants also submit a report from Dr. Ronald Paynter, a physician, board certified in Emergency Medicine. Dr. Paynter did not examine the plaintiff but reviewed his emergency room records. He states that his review shows that the plaintiff had no complaints of pain to the head, right ankle, or right knee and had full range of motion of the cervical spine and right shoulder. He states that the emergency room records are inconsistent with the injuries alleged in the bill of particulars and show that the claimed injuries do not have an acute traumatic origin and could not be causally related to the subject accident. Dr. Paynter finds that the records demonstrate that there was no indication of significant traumatic injury to the plaintiff as a result of the motor vehicle accident.

Defendants' counsel contends that the medical reports of Drs. Cassels, Paynter and Eisenstadt, together with the plaintiff's own medical records and his testimony at his examination before trial are sufficient to demonstrate 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 his 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.

In opposition, plaintiff's attorney, Cheryl Kitton, Esq., submits her own affirmation as well the affirmed medical report of Dr. Arnold Goldman, and a copy of the police accident report.

In his affirmed report, Dr. Goldman states that he performed surgery on the plaintiff on November 25, 2011. He initially examined the plaintiff on Ocober 13, 2011 approximately one month after the accident at which time the plaintiff was complaining of pain to his neck, right elbow, right knee and right ankle. He recommended a program of physical therapy. He performed arthroscopic surgery on the plaintiff's right knee on November 25, 2011. He also re-examined the plaintiff on March 31, 2012 at which time he found plaintiff's range of motion immproving.

Plaintiff's counsel asserts that Dr Goldman's report contains objective quantitative evidence showing that the plaintiff suffers from a diminished range of motion. Further, counsel points out that Dr. Cassels report contains many inaccurate statements with respect to the body part which was claimed to have been injured in the accident. With respect to liability, the plaintiff's counsel asserts that the defendant [*5]failed to appear for a deposition and as such has not put forth a non-negligent explanation for the the accident.

In opposition to the cross-motion, the defendants assert that the plaintiff's deposition testimony has not shown that the plaintiff was free from comparative negligence. Counsel asserts that there is an issue as to whether the plaintiff, a bicyclist, used reasonable care for his own saffety to avoid placing himself in a dangerous position see Gee v Malik, 116 AD3d 918 [2d dept. 2014]).

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v Gruz, 35 AD3d 258 [1st Dept. 2006]). "A defendant can establish that a plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendant's 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 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]).

Here, the defendants failed to meet their prima facie burden of showing 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]). Defendants failed to establish, prima facie, that plaintiff did not sustain a serious injury under the permanent loss of use, permanent consequential limitation of use or significant limitation of use categories as a result of the accident (see Insurance Law § 5102 [d]).

As stated above, in his affirmed medical report, Dr. Cassels, an orthopedist and the defendant's only examining physician, alternates right knee and left knee in his report and states that he examined the plaintiff's left knee despite the fact that the plaintiff had surgery in his right knee for a torn meniscus. The plaintiff's bill of particulars and the operative report clearly state that the plaintiff complained of pain in his right knee following the accident. Thus, there is a question as to whether the physician examined the correct knee. The physician's report states that his clinical examination of the left knee reveals full range of motion and no injury of ligament injury. He also states that the MRI of the left knee is not consistent with an acute injury although the plaintiff only had an MRI of the right knee. Dr. Cassels also states that he examined the left ankle despite the fact that the plaintiff only complained of pain to the right ankle. Therefore, because it is not clear what body parts were examined by the defendant's examining physician, the report of this doctor has no probative value for purposes of the within motion for summary judgment. Without the report the defendant is not able to demonstrate that the plaintiff did not sustain serious injuries to his right knee and right ankle as a result of the subject accident.

As the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition are sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]; Held v Heideman, 63 AD3d 1105 [2d Dept. 2009]; Landman v Sarcona, 63 AD3d 690 [2d Dept. 2009]; Alam v Karim, 61 AD3d 904 [2d Dept. 2009]; Liautaud v Joseph, 59 AD3d 394 [2d Dept. 2009]).

The plaintiff's cross-motion for partial summary judgment on the issue of liability is likewise denied. The plaintiff asserts that he attempted to pass the moving taxi cab on the right in a narrow space between the moving taxi and a row of parked vehicle at which time there was contact between the bicycle and the cab. Although the plaintiff asserts that he was struck by the taxi cab there is a question of fact as to whether the bicyclist in passing the vehicle in a narrow space on the right side of the vehicle was free from comparative negligence. There is a question of fact as to whether the plaintiff used reasonable care for his own safety so as to avoid placing himself in a dangerous position and as to whether the injured plaintiff acted with reasonable care given all the circumstances. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably [*6]vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position (see Vehicle and Traffic Law § 1146; Palma v. Sherman, 55 AD3d 891 [2d dept. 2008]).

The Courts have held in this regard that there can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question for the jury to decide (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Myles v Blain, 81 AD3d 798 [2d Dept. 2011]; Goldenberg v Palewicz, 65 AD3d 518 [2d Dept. 2008]; Sokolovsky v Mucip, Inc., 32 AD3d 1011 [2d Dept. 2006]; Cox v Nunez, 23 AD3d 427 [2d Dept. 2005]).

Accordingly, this Court finds that there is a question of fact as to whether the plaintiff by his actions could have avoided the accident by the use of reasonable care and whether he was partially at fault for causing the accident. Therefore, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law as the record fails to establish plaintiff's freedom from comparative negligence (see Roman v. A1 Limousine, Inc.,76 AD3d 552[2d Dept. 2010]; Lum v Wallace, 70 AD3d 1013 [2d Dept. 2010]; Lopez v Reyes-Flores, 52 AD3d 785 [2d Dept. 2008]; Scibelli v Hopchick, 27 AD3d 720[2d Dept. 2006]).

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that plaintiff's cross- motion for partial summary judgment on the issue of liability is denied, and it is further,

ORDERED, that the defendant's motion for an order dismissing the plaintiff's complaint on the ground of serious physical injury is denied.

Dated: April 27, 2015

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.