Mills v King

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Mills v King 2017 NY Slip Op 31805(U) July 12, 2017 Supreme Court, Queens County Docket Number: 4637/2015 Judge: Marguerite A. Grays Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 4637/2015 ORDER SIGNED SEQUENCE 1 12 Page 1 of 4 .. OJ Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE MARGUERITE A.GRAYS Justice IAS PART 1 -----------------------------------------------------------------x Index No.: 4637/2015 RODNEY MILLS and SHARON BASS, pttlttttst,---------Motion FILED Date: April 3, 2017 -against- JUL 2 4 2017 DOMINIQUE KING, JANIS SERGIO LAURENT. ODERIOJO~mtcLeRK Motion Cal. No. : 122 °QUEENS COUNTY Defendant(s). Motion Seq. No.: 12 -----------------------------------------------------------------x The following papers numbered 1-6 read on this motion for an Order: ( l) pursuant to CPLR §3212, granting summary judgment to defendant Sergio Laurent, dismissing the complaint and all cross-claims, on the basis that there is no material issue of fact regarding the liability of this defendant and (2) pursuant to CPLR §3212, granting summary judgment in favor of defendant, Sergio Laurent dismissing the complaint of the plaintiffs for personal injuries, on the ground that the injuries allegedly sustained by plaintiffs do not satisfy the "serious injury" threshold requirement of §5 102(d) of the Insurance Law. Notice of Motion - Affid.-Exhibits...... ................ ........... Answering Affidavits - Exhibits .. .... ... ................ .... ....... Reply Affidavits - Exhibits ....... ... ..... .... ................. ..... .. . PAPERS NUMBERED 1- 4 5 6 Upon the foregoing papers it is ordered that this motion by defendant Sergio Laurent is determined as follows: Plaintiff commenced the instant action for personal injuries allegedly sustained by plaintiffRodney Mills ("Mills") as a result ofa three-car automobile accident which occurred on May 2, 2015, at the intersection of Wood Street and Ill ion Avenue, in Queens, New York. Pnrled 81241201 7 [* 2] 4637/2015 ORDER SIGNED SEQUENCE 112 Pl(le 2 ol • Defendant Laurent moves herein for summary judgment on the issue of liability and upon the ground that plaintiff Mills' alleged injuries do not satisfy. the "serious injury" threshold requirement of Insurance Law §5102(d). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence sufficient to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 {1986}: Viviane Etienne Medical Care, P.C v. Country-Wide Insurance Co., 25 NY3d 498 [2015}). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce admissible evidentiary proof sufficient to establish the existence of a material issue of fact which requires a trial of the action (see, Zuckerman v. City of New York, 49 NY2d 557 [1980],· Alvarez v. Prospect Hosp., supra; Leto v. Feld, 131AD3d590 [2015]). Upon review of the papers submitted, defendant Laurent has failed to meet his initial burden of demonstrating entitlement to judgment as a matter of law on the issue of liability. In support ofhis motion, defendant Laurent submitted the deposition transcripts of the parties herein. At his deposition, defendant Laurent testified, in relevant part, that he was traveling on Wood Street, which is a two-way street, heading in the direction of its intersection with Ill ion Avenue ("the intersection"); he did not reach the intersection of Wood Street and Illian A venue before the accident occurred; Laurent was approximately four or five car lengths from the intersection when the accident occurred; there is no stop sign on Wood Street, but there is a stop sign on Ill ion A venue; defendant King was traveling on Illian A venue and did not stop at the stop sign facing her direction of travel (" ...she went right through the stop sign."); plaintiffs vehicle was traveling on Wood Street in the opposite direction of Laurent's vehicle; the King vehicle hit the back of plaintiff Mills' vehicle on the driver's side in the intersection, causing plaintiffs vehicle to loose control, spin around and strike the driver's side door of Laurent's vehicle; and Laurent applied his brakes an stopped his vehicle when he saw plaintiffs car moving toward his car. Defendant King testified, in relevant part, at her deposition that there was a stop sign on Ill ion Avenue for her direction of traffic, but no stop sign for either direction on Wood Street; as she approached Wood Street she could see to the left and right on Wood Street, and the view was not obstructed; as King approached the intersection, she saw plaintiff Mills' vehicle driving on Wood Street approximately one block away; King stopped at the stop sign at the intersection for ten to thirty seconds; when she drove past the stop sign she collided with the rear bumper on the driver's side of plaintiff Mills' vehicle; when King drove off from the stop sign, Mills ' vehicle was already driving through the intersection, in front of King's car~ when King's vehicle struck Mills' vehicle, the plaintiffs car "swerved to the right going almost at a complete circle" ; and plaintiffs car spun around and entered the oncoming land of traffic on Wood Street, and was struck by Laurent's car. 2 [* 3] <637121l15 ORDER SIGNED SEQUENCE #12 P<tge3of4 Plaintiff Mills testified, in relevant part, that there is a stop sign on Illion Avenue at its intersection with Wood Street; when the accident occurred with the King vehicle, the rear part of plaintiffs car was in the intersection, and plaintiffs vehicle had almost past the . intersection; Mills did not see defendant King' s vehicle on Illion Avenue before the accident happened; the first impact was to the rear driver quarter panel on plaintiffs car; the second impact to plaintiffs vehicle was in the middle of the passenger side; the first impact with the King vehicle sent plaintiffs car into a spin, and the front of plaintiffs car crossed over the double yellow lines on Wood Street; after the first impact but before the second impact, plaintiff did not do anything with the steering wheel, nor press the gas or brake pedals; the entire front end of plaintiffs car past the front doors was over the double yellow lines in the opposite directional lane on Wood Street at the moment the second impact occurred; plaintiff Mills could not recall if his vehicle and defendant Laurent's vehiCles were stopped or moving at the second impact occurred; plaintiff Mills did not see the Laurent vehicle cross over the double yellow lines; Defendant Laurent argues that the deposition testimonies of the parties demonstrate that he was faced with an emergency situation, not of his own making, when the Mills' vehicle lost control after having been hit by the King vehicle, and crossed over the double yellow lines coming into contact with Laurent' s vehicle. Under the emergency doctrine, a person faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency (Paw/ukiewicz v. Boisson, 275 AD2d 446; Bello v. Tr_ansit Authority ofNew York City, 12 AD3d 58; Rivera v. New York City Transit Authority, 77 NY2d 322). However, defendant Laurent' s Notice of Appearance and Answer with Counterclaim and Cross-Claim dated May 10, 2016 fails to assert the emergency doctrine as an affinnative defense'. Accordingly, based on the absence of an emergency doctrine affinnative defense in defendant Laurent's answer, and the conflicting deposition testimonies of the parties regarding whether or not defendant Laurent's vehicle struck plaintiffs vehicle or was stopped at the time of impact between the Laurent and Mills vehicles (Barresi v. Chou, 293 A.D.2d 63 7 [2002]; Magnavita v. County ofNassau, 282 A.D.2d 658 {2001]; Alexandre v. Dweck, 44 AD3d 597 {2007]; Ricciuti v. Village of Tuckahoe, 202 A.D.2d 488[1994}), the branch of defendant Laurent's motion for summary judgment on the issue of liability is denied. 1 Defendant Laurent's motion (sequence number " 11 ")for leave to amend hi s answer to assert the emergency doctrine as an affirmative defense was denied by Order of this Court dated June 29, 2017. 3 Punted 812412017 [* 4] 4637/2015 ORDER SIGNED SEQUENCE t 12 • Page 4 of 4 The branch of defendant Laurent's instant motion for summary judgment dismissing the complaint upon the ground that plaintiff failed to sustain a serious injury within the meaning of Insurance Law §5102(b ), is denied. With regard to plaintiff Rodney Mills, the conflicting reports of the parties' respective orthopedists regarding, inter alia, the range of motion of plaintiff Mills' right and left shoulders, present issues of fact warranting denial of summary judgment and requiring a trial (Kanic Realty Association, Inc. v. Suffolk County Water Authority, l 30AD3d876 [2015}; Torresv. CityofNew York, 127 AD3d ll63 [2015],· Patel v. MBG Development, Inc., 7 AD3d 498 [2004],· Halkias v. Otolaryngology-Facial Plastic Surgery Associates, P.C. , 282 AD2d 650 [2001)). It is well settled that conflicting expert affirmations creates a credibility issue that is a matter particularly within the province of a jury (People v. Gardella, 5 AD3d 695; Gleeson-Casey v. Otis Elevator Company, 268 AD2d 406). With regard to plaintiff Sharon Bass, defendant Laurent failed to sustain his initial burden of demonstrating entitlement to judgment as a matter oflaw as to plaintiff Bass inasmuch as .the report of Dr. Gregory Chiaramonte, the orthopedic surgeon who conducted an independent medical examination of Bass on December 30, 2015, found limitations in the range of motion ofBass' right shoulder and right hip (defendants Exhibit "J"). Furthermore, contrary to defendant's claim that plaintiff Bass did not claim an injury to her right hip as a result of the subject accident, paragraph 9 of plaintiffs' Verified Bill of Particulars dated July 15, 2016 does, in fact, state that Bass sustained "Trauma, injury and damage to the right hip ... " . Accordingly, defendant Laurent's motion is denied in its entirety. Dated: FILED JUL 2 4 2017 COUNTY CLERK QUEENS COUNTY 4 Pnrled &'2<'2011

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