Taylor v Cameli

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Taylor v Cameli 2017 NY Slip Op 32472(U) October 27, 2017 Supreme Court, Suffolk County Docket Number: 13489-14 Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] COPY Index No.: 13489-14 SUPREME COURT- STATE OF NEW YORK l .A.S. Part 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA. Justice CASE DISPOSED: NO ANGELA TAYLOR, MOTlON RID: Plaintiff, 4/8/16 SUBMISSION DATE: 5/12/17 MOTION SEQUENCE No.: 00 l MD - against ANNA M. CAMELI, SUFFOLK COACH INC., and FOUR ONES ENTERPRJSES LLC, Defendants. ATTORNEY FOR PLAINTIFF Civardi & Obiol, PC Freeport Legal Plaza 23 South Main Street, Suite 30 Freeport, New York I 1520 ATTORNEYS FOR DEFENDANT Goldberg Segalla LLP 200 Garden City Plaza, Suite 520 G<irden City, New York 11530 Upon the following papers filed and considered relative to this matter: Notice of Motion dated March 8, 2016; Affirmation in Support dated March 8, 2016; Exhibits A through L annexed thereto; Affirmation in Opposition dated May 24, 2016; Exhibits A through l annexed thereto; Reply Affirmation dated June 10, 2016; Exhibit A annexed thereto; and upon due deliberation; it is ORDERED, that the motion by defendants, pursuant to CPLR 3212, for an Order directing the entry of summary judgment in favor of defendants and dismissing the Complaint, is denied. The underlying action was brought for personal injuries allegedly sustained by the plaintiff in a one car accident on October 16, 2012. At the time of the accident, the plaintiff was a backseat passenger in a taxi cab owned by defendants, Suffolk Coach Inc., and Four Ones Enterprises LLC. and operated by defendant Anna Cameli. As the taxi proceeded southbound on County Road 5 I, a deer entered the roadway and was struck by the taxi. As a result of the accident. the plaintiff has alleged that she sustained personal injuries. At her deposition. the plaintiff. Angela Taylor, testified that while traveling in the 1 ~ (2SJ [* 2] del\:ndancs· ta)..i. in the southbound left lane of County Road 5 l a deer entered the roadway from the left and \\as struck by the from end of the taxi. Plaintiff described the area as being dark enough chm she could 1101 sec the lanes of travel on the northbound side across the median that separated the 11orthbounJ and southhound lanes of Coumy Road 51. Taylor was unaware of the taxi·" speed al thc time of che accident and sratcd that she did nor si.:e th..: deer prior to the impact. l"hc pJ;1i111i ff did not Sl!ek immediate medical auention after the accident and \\as driven to her home by another taxi. J"aylor also testified that on October I 0. ::w 12 . less than one \\'eek. prior to the subject accident. she had been involved in a similar motor vehicle accident on the same roadway, also in which a ta:-;i owned by the defendants had struck a deer. The prior accident was also the result of the ta:xi hitti11g a deer that had run into the road Crom the lcll side of County Road S l. Taylor estimated that the laxi in lhe earlier accident was proceeding at 55 miles per hour at rhc time it struck the deer. J>lainti ff stated that she was not injured and did not seek medical treatment as a result of the Oc tober 10, 20 12 accident. rfowcver, as a result of hl.!r experience from the fast deer-taxi collision. Tuylor testified that she asked Cameli to slow the speed of the taxi just prior w the subject accident, and had warned Cameli to ··watch out for the deer" immediately prior to the taxi·s striking of the deer. Defendant Anna Camel i testified that County Road 51 does not provide street lighting and that ut the time of the accident. the area was very dark and there was nu other traffic on the road. She estimated that she was traveling at between 40 and 45 mph on the 55 mph roadway. and was in the process of coascing to a stop at a red lighted intersection at the time of impact with the t.ecr. She testified that she did not sec the deer prior to impact. Cameli was very familiar with the :•••t..; • ... . 11 • ..... J ·h~· ..... "' __ " !"~-- ..J.-.- .... =- •J.. - --.... ""':. c;:J....... ...,,...t .... ..J tt...., • ..... ,..._,... ·1•f" r"... ~!1 ..'>Ul)•l ""''··d t..11\.:u ""'"·' """l ..1 "'""'·""" ' ' ""-' '''-"'"-"' """''- v ............. ,. .a.1.a. .... ,"" "''""'"'• ~,,...,. a..v .. - - ";l.,,.." .. , ............... •v ..... v ............. ..... ... . O•H O••oo:• •\ t:"\r.:-i<;: ..! O ':.O.,HO"'\ .a.\,.. •• ho th sides of the road. that hunting season was in progress, and that there were signs indicating the presence of deer all along the highway. She stated that she was unaware of plaintiffs prior accident. The defendants contend that the circumstances warrant the application of the emergency doctrine in fovor of the defondants and have moved for summary judgment to dismiss the Complaint. Detendants maintain the Cameli was traveling at a safe nne of speed below the speed limit, with her high beams illumi nated, when a deer unexpectedly ran into the road and impacted wi th her vehicle. l.!.ivinu her less than one second lo react to the situation . '-' - or {)cf~nda111s · contcntio11s to the contrary, questions fact exist which woulJ pn.:cludc :H?tlllllatic :1ppl ication or the emergency doctrine in favor 0 r defendants and a dismissal of the <·om plaint. l"l1e dd~ndant dri\·er testiticd that she \\.as familiar \VLth lra\'d on County Road 51. \\"as aware o!"thl' deer population in lhe area. and \\·as aware of the possibility of a deer entering i1Lo the roathHty. \Vhilc Camdi stated that she was travcling at or bclO\\ the posted speed limit and was dri\·in~ \\ ith her high beams on. it cannot be ddiniti\dy determined at this juncture \\ :1cthcr her driving c ffons \\ere suniciently reasonable and prudent considering h~r general and :1cual hill'\\ kdgc or th..: su~ject n1ad\\U}. the presence of deer in the area. the chance that a dl'cr m1ulJ enter int~i the r<H1d\' ay. anti the plaintifr :i testimon: that she asked the defendant lo slO\\ th1.· speed ul thc ,·ehick just prior w the collision. Lvt:n if a qualif\:inµ. enH.:rgency \\·ert: 2 [* 3] dckn11i11ed io e:-;ist herein. decisions as to whether th~ defendant" s actions arc reasonable in Iight of that emergency arc best rcsc1Ted for determination by the jury. :\lier the sut~jccr accident. the plaintiff initially trc~Hcd al Peconic I3ay (\ kdical Cc;Hcr on Octohl·r 19. 2012. compl.1ini11g or neck amJ back pain. She informed the attending physicians th11t she had been involved in two motor vehicle accidents a fe\\ days prior. although she did not diffi.:rcnliale with regard w \Vhich accident caused her injuries. Taylor also treated at Island Musculoskelctal Care. ivl.D .. P.C., for shoulder and neck complaints. With regard to plaintiffs cervical spine, Breu Si!vl:rman, 0.0 .. at Island Musculoskdctal Care fo und that she had ..mil<l restricted range of motion" and that with regard to her left s hould~r. Taylor had "mi ld restricted internal rotation. Mild restricted abduction:· Plaintiff suhm ittcd to an independent medical ex nm conducted by Orthopedist John r. Waller. M.D., on October 8. 2015. Dr. Waller found mild loss of range of motion in Taylor's cervical spine. and rul l range of motion in her left shoulder. Waller found ··no evidence of an orthopedic disability'' and opined that Taylor was ··capable of performing her activities of daily living without limitation.'' On October 8, 2015. the plaintiff also submitted to a neurological exam conducted by Richard Lechtenbcrg. M.D.. who stated '·this woman had no object ive, clinical, neurological ddicits on my examination. From a neurological standpoint she is not disabled and can work m .rny job for which she is qualified." fn reviewing the plaintiff's Bill of Particulars alleging i 1~juries to her lefi shoulder, cervical spine, and lumbar spine, Lcchtenberg opined that there was "110 objective, clinical, neurological deficits on my examination .substantiating these claims.·· Orthopedist Bruce P. Meinhard , M.O., examined Taylor on October 13, 20 I 5, fi nd ing her to have essentially full range of motion in her cervical spine and mild restriction of range of motion in her left shoulder. rfc diagnosed her with a cervical spi nc sprain, exacerbation of a preexisting lumbar spine injury. exacerbation of preexisting left shoulder rotator cuff pathology, and found hi:r to have .. nonorganic findings on e-xamination. indicating thal ht:r symptoms did not comport with Meinhard·s objective clinical lindings. Basl!J on thl! foregoing med ical reports, the defendan ts contend that the plaintiff has primarily suffered "soil tissue" injuries and foiled to demonstralc that she sustained a ..serious injur} .. as defined by Insurance Law ~5 I 02(d}. thereby entitling them to summary j udgmcnt and a Jismissal of the Complaint. In opposition to the mot ion. the plaintiff has subm itted copies o!' her Verified Bill or deposition tcsli111011y. and the records of her treating physicians. Wh ile the deknd.mt" contend that the plaintiffs inj uries may h;l\'e cmanatt:d from the Oct<,hcr 12. 2012 accidl.'111. the plaintiff has consistently testified that she did not sutler ~my injurie-. in her first acci<lL'lll and that lier complaints onl) began after the October I (l. 2012 accident that is the '>llbjL'LI of the instant litigation. J>~irticubrs. Th~ plain1ifft1.:s1ilied 1h:-it shi.: began to ~ufler 11ernH1sncss and tonfu~ion 1>11 the c\·ening [* 4] of the accident. ckvdoping pain in her neck and left arm/hand oYcr the next two days. After consulting with her primary care physician two days after the subject accident. t 1c plaintiff was din.:ch.:d to the emcrgcm:y room at Pcconic Bay Medical Center \.\·here she complained of neck and kit shnuld-:r pain. Following the taking of x-rays. the plaintiff was prescribed Toradol, R<)ba:x in and Naprosyn. M Rls revealed a partial thickness tear rhe rotator cuff as well as herniated disc with fornmimil encroachmcni at C6-7 and a bulge at C4-5. Taylor was also di~1g11oscd \\"ith a disc bulge at L4-5 with extruded material and L5-S I by way or MRI on January 8. 2013 . Plaintiff altemkd physical therapy at 1 orth Fork PT from Decemher 3 1, 2012 until June 2~. 20 I :l. Sb<.: n.:Cl'i\ ed a sh.:rnid injection to her shoulder on Januar1 2. 2013. Taylor continued to li..1lh1\\·-up with her physicians. presenting consistent complaints and being treateJ primarily with 111-:dicatiu11s. Mon: recent EMG resting resulted in Jindings or C7 and CS-6 ra<liculopathies, and the plaintiff underwent surgery t0 repair hc.:r left rotator cuff on February 17. 2016. or The plaintiff notes that the Waller orthopedic report foils to address the findings of the plaintifrs cervical anJ shoulder MRrs, and furth<..!r notes that Waller found cervical limitations ol motion of.. 'flexation -W degrees (50 degrees normal)"; "extension to ~5 degrees (60 degrees normal)": ··right lateral llcxion ~o 30 degrees (45 degrees normal}"'; and ··right rotation to 50 degrees (80 degrees normal) and kft rotation to 50 degrees (80 degrees normal)''. Jn addition, the plain ti ff note::> that V.'aller reforrcd plaintiff to a pain management specialist and affirmatively found that .. [b]ased upon the history provided by M.s. Taylor and review of submitted medical records, there is a causal relationship between the accident ol ri::cord and her reported cer\'ical spine and left shoulder injuries." The Lcchtenbcrg neurological report founJ ..20 degrees extension (60 normal)" for a 66% 1: ••• : , _ ,: 0 .. ,.~· .• 1-: ••• :1'1",. - -····=--1 - •• : •• ,. -- ···-11 -- ·· 1 1 A..!,.~---- 1;-.tlll(Jli /Jj VI }JIUUJUIJ.) \.'-'J VJ\,oU.J .)f-'lU\.. lt.> VY'--11 U.> I I V -'1,..,,.,:,.,. f l OA _ ,. •• ,.....,., I\ .. -n 1 l "1 ! A YVt)-'"'""..> l.J'-'A-"4UVU \ • V V &•V • UH.J.1 j ul1'"" • i.v degrees abduction (180 normal)", constituting a 39% limitation of Taylor's shoulders. Similarly, the kinhard examination and report opined up to a 50% limitation of the left shoulder and I 0% limitation of the cervical spine. while opining that ··[i]f the history, as it was described is correct, th-: above diagnoses arc causally related to the event alleged on October 16, 20 l :2 .., Although the plaintiff testi fied that she had been involved in a prior accident. she has lcsti lied that she did not su ffcr any inj uries in the first accident and that her complaints only began an~r the secoml accident. Even ii' the defendants' contenti on that the initial accident precluded the instant action. there is no evidence that the plai ntiff presented for any treatment or diagnosis prior to 1he second accident. Where two torts exist and the injuries arc incapable of prnc1icabk allocation. joint and several liability may be implicated. Reillcv v. Fulmer. 9 J\.D.3d 81 ':. 819. 780 !\. Y.S .::!d ~no. ~n I: Ra\·o v. Ro!!atnick. 70 N. Y.:?d 305, .110. 520 .. Y.S.2d 533. 1\crnrdingl~'· c,·cn if then.: was e\·idcnce of injury prior to the second accident. the defendants o.;ti ll \\Ould uol ha\'e d<.:rnonstrmed sunicicnl grounds for dismissal. With respect to Ilic iss ue of damages. the dcrend~ n ls hm·c foiled to make Olli a prima facic case or cn titkmcul to .i udgmcnt as a matter of law. l"he plaintiff hcis submitted tile ml.!clica l repnns of her treating physicians who ha\·c opined that the plaintiff has sustained significant and pcrm:inc11i injuries that arc causal!) related to the suhjccL accidcm. Deti.:mlants· O\\ll examining ph~ sici:m found causa 11 y rd::itcd range of motion restrictions in the ccr"icnl and Iunbar spine. ti [* 5] whik failing to address aspects of the plaintiffs MRI reports. Assuming argucndo that ddendnnts' submissions an.: sufficient. the medical testimony and tile alfala\·its t>f plaintiffs treating physicians raise issues or fact as(() whether the plaintiffs injuril's \\·ere significant and permanent. and causally related to the subject accident, or a prior <llTicknt. as suggested by the d<:fcndantS. /\ccOrdingJy. the plaintiff has met her burden of dcmonstra1ing the l!Xistcnce of a triable issue of fact as to \\·herhcr .she suffered a seri ous injury \\ithin thc meaning oflnsurancl! Law section 510.:?.(d) (sec. To ure v. A\·is Rent A Car S's~. 98 N. Y.2d 3-+5) lh:: fore~oing wnstitutes the Order of this Court. Dak·d: October 27. 2017 HO 5 1. DENTSE F. MOLIA A..l.S.C.

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