Decoursey v Castillo

[*1] Decoursey v Castillo 2017 NY Slip Op 50355(U) Decided on March 20, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2017
Supreme Court, Queens County

John Decoursey, Plaintiff,

against

Merlin Castillo and NOSOTROS TRANSPORT LLC, Defendants.



3937/2015
Robert J. McDonald, J.

The following papers numbered 1 to 12 read on this motion by plaintiff for an Order granting summary judgment on the issue of liability against defendants and determining that plaintiff has sustained a serious injury pursuant to Insurance Law § 5102:

Papers/Numbered

Notice of Motion-Affidavits-Exhibits 1 - 6

Affirmation in Opposition-Exhibits 7 - 9

Reply Affirmation-Exhibit 10 - 12

This is a personal injury action in which plaintiff seeks to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on May 30, 2014 on the Bruckner Expressway at or near its intersection with Pelham Parkway, in Bronx County, New York.

Plaintiff commenced this action by filing a summons and complaint on April 1, 2015. Issue was joined by service of defendants' answer dated July 9, 2015. Plaintiff now moves for summary judgment on the issue of liability and on the issue of serious injury.

In support of that branch of the motion seeking summary judgment on the issue of liability, plaintiff submits his own affidavit dated December 13, 2016. He affirms that he was traveling southbound on the Bruckner Expressway near the Pelham Parkway exit when his vehicle was rear ended by another vehicle.

Defendant driver, Merlin Castillo, appeared for an examination before trial on May 24, 2016. Mr. Castillo testified that the accident occurred in the middle lane. Plaintiff's vehicle was stopped for approximately two seconds before the impact. When he first saw plaintiff's vehicle stop, his vehicle was 10 to 15 feet from plaintiff's vehicle. He further testified that prior to the accident, he was already slowing down his vehicle for traffic when plaintiff's vehicle changed lanes in front of his vehicle.

In the accident description portion of the police accident report, the responding officer notes:

"At T/P/O Driver No.1 (defendant) state the vehicle (#2)(plaintiff) stopped suddenly and caused him strike vehicle #2 in rear bumper. Driver #2 he stopped in traffic and Vehicle #1 slammed into him and caused him hit Vehicle #3 (non-party). Vehicle #3 states he stopped in traffic and Vehicle #2 hit him in rear."

Counsel for plaintiff, Anthony C. Crasto, Esq., contends that based on plaintiff's affidavit, defendant's deposition testimony, and the police accident report, the accident was caused solely by defendants' negligence in that defendant driver failed to maintain a safe distance between his vehicle and the vehicle in front of him in violation of VTL § 1129(a), and failed to avoid striking the plaintiff's vehicle in the rear.

In opposition to the motion, defendants' counsel, Steven F, Granville, Esq., argues that there are issues of fact for a jury to decide. Counsel contends that as there are conflicting accounts of how the accident happened, triable issue of fact exist that preclude the granting of summary judgment. Specifically, defendant driver's testimony contradicts plaintiff's affidavit in that defendant driver testified that plaintiff's vehicle cut him off when it simultaneously moved into the middle lane and came to a sudden stop. Based on such, defendants contend that plaintiff failed to establish that he was free from comparative fault.

The proponent of a summary judgment motion must tender [*2]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 or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]). "A court deciding a motion for summary judgment is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and proof submitted by the parties in favor of the opponent to the motion" (Myers v Fir Cab Corp., 64 NY2d 806 [1985]).

Viewing the evidence submitted in the light most favorable to the nonmoving party, defendant driver's testimony that he was already slowing down to stop when plaintiff changed lanes in front of him and then abruptly stopped is sufficient to raise a triable issue of fact as to the proximate cause of the subject accident and is sufficient to provide a non-negligent explanation for the rear-end collision (see Ortiz v Hub Truck Rental Corp., 82 AD3d 725 [2d Dept. 2011][finding that evidence that a plaintiff's vehicle made a sudden lane change directly in front of a defendant's vehicle, forcing that defendant to stop suddenly, is sufficient to rebut the inference of negligence]; Reitz v Seagate Trucking, Inc., 71 AD3d 975 [2d Dept. 2010][finding that the defendants rebutted the inference of negligence by adducing evidence that the plaintiffs' vehicle suddenly changed lanes directly in front of their vehicle, forcing the defendant to stop suddenly]; Oguzturk v General Elec. Co., 65 AD3d 1110 [2d Dept. 2009][finding that defendant's explanation, that the accident occurred after the plaintiff's vehicle suddenly, and without signaling, moved from the center lane into the left lane directly in front of defendant's path and then slowed down, raised a triable issue of fact sufficient to defeat the plaintiff's motion]). Moreover, plaintiff's affidavit is insufficient to establish, prima facie, that defendant driver's negligence was the sole proximate cause of the accident, and that he was free from comparative fault (see Kanfer v Wong, 145 AD3d 985 [2d Dept. 2016]; Jones v Pinto, 133 AD3d 634 [2d Dept. 2015]). Plaintiff's affidavit does not set forth any relevant circumstances surrounding the accident, including the rate of speed he was traveling, how long he was traveling in the middle lane prior to the impact to the rear of his vehicle, whether his vehicle was stopped at the time of the accident, or even whether his vehicle first hit the non-party's vehicle prior to defendants' vehicle rear ending his vehicle.

Moreover, the stark differences in the parties' accounts of [*3]the accident, mainly whether plaintiff driver simultaneously changed lanes and abruptly stopped, create issues of fact and credibility that preclude summary judgment (see Sillman v Twentieth Century Fox F. Corp., 3 NY2d 395, 404 [1957]; Malak v Wynder, 56 AD3d 622, 623-24 [2d Dept. 2008]; Kolivas v Kirchoff, 14 AD3d 493 [2d Dept. 2005]).

Turning to that branch of the motion for summary judgment on the issue of serious injury, plaintiff affirms in his affidavit that he was transported by ambulance from the scene of the accident to Jacobi Hospital where he complained of pain in his neck, left shoulder, and mid-back. On June 6, 2014, he began treating with Dr. Joseph Lezamiz, a chiropractor. Dr. Lezamiz referred him to Dr. Glen Goldstein. He had an x-ray of his left shoulder, and MRIs of his left shoulder and cervical spine. He received multiple trigger point injections in his left shoulder and an epidural steroid injection shot in his cervical spine. He received chiropractic treatment from Dr. Lezamiz and physical therapy treatment at New York Spine & Management until October 22, 2014. At the time of the accident, he was self-employed as a delivery driver. His duties required extensive driving of his van, lifting, carrying, and pushing merchandise. As a result of the accident, he was unable to work from May 30, 2014 until October of 2014 because he was unable to perform the duties of his employment as a delivery driver. He previously injured his neck and low back in an accident in 2006, but only received treatment to his neck for a few months following the prior accident. He did not injure his left shoulder in the prior accident. He continues to experience pain, discomfort, and restriction in the use of his neck and left shoulder.

Dr. Lezamiz submits an affidavit stating that he initially examined plaintiff on June 6, 2014. He performed range of motion testing and found impaired range of motion in the cervical spine. He determined that plaintiff should refrain from work and recommended continued chiropractic treatment. Thereafter, he examined plaintiff on July 7, 2014, August 6, 2014, and September 3, 2014, and determined that plaintiff should continue to refrain from work. He last examined plaintiff on October 22, 2014. Plaintiff had recently returned to work. Dr. Lezamiz examined found that plaintiff continued to have limitations of motion in his neck and left shoulder. He further determined that plaintiff had reached maximum medical improvement and should continue with a home exercise program. Dr. Lezamiz opines that the subject accident was the cause of plaintiff's injuries, and that plaintiff was disabled for over four months following the subject accident.

The MRI taken on July 5, 2014, revealed a partial articular surface tear of the distal supraspinatus tendon and possible biceps tenosynovitis. The MRI of the cervical spine revealed disc herniations at C5-C6 and C6-C7.

On August 28, 2014, 91 days after the subject accident, plaintiff was examined by Dr. Anthony J. Spaturo, at the request of the No-Fault carrier. Dr. Spaturo diagnosed plaintiff with sprain of the cervical spine and sprain of the left shoulder, unresolved. He found that the injuries are causally related to the accident. Dr. Spaturo also noted that plaintiff was unable to work at the present time.

Dr. Jean-Robert Desrouleaux performed an independent neurological examination on plaintiff on July 14, 2016. He found decreased ranges of motion in plaintiff's cervical spine and diagnosed plaintiff with cervical myofascitis, unresolved. He further opined that plaintiff is capable of performing all tasks of daily working with causally related restriction of no lifting objects above the head.

Based on plaintiff's own affidavit, and the affidavits of Drs. Lezamiz and Spaturo, plaintiff contends that he was unable to work for over 90 days immediately following the subject accident because of injuries sustained and his resulting physical pain and limitations.

As the proponent of the summary judgment motion, the plaintiff has the burden of making a prima face showing that the plaintiff suffered a serious injury pursuant to Insurance Law 5102(d) and that such injury was causally related to the accident (see Elshaarawy v U-Haul Co. of Mississippi, 72 AD3d 878 [2d Dept. 2010]; Autiello v Cummins, 66 AD3d 1072 [3d Dept. 2009]; McHugh v Marfoglia, 65 AD3d 828 [4th Dept. 2009]). Under Insurance Law 5102(d), an injury must be medically determined to qualify under the 90/180 category, meaning that the condition must be substantiated by a physician (see Ryan v Xuda, 243 AD2d 457 [2d Dept. 1997]; Schaefer v Pierce, 205 AD2d 521 [2d Dept. 1994]; Traugott v Konig, 184 AD2d 765 [2d Dept. 1992]).

This Court finds that plaintiff established his prima facie burden as to his 90/180 claim by submitting the affirmed medical reports finding that plaintiff was unable to work during the relevant statutory period (see Refuse v Magloire, 83 AD3d 685 [2d Dept. 2011]; Rasporskaya v New York City Tr. Auth., 73 AD3d 727 [2d Dept. 2010]; Jean-Louis v Gueye, 94 AD3d 504 [1st Dept. 2012]).

In opposition, defendants submit a corrected report from Dr. Desrouleaux. The corrected report diagnoses plaintiff with cervical myofascitis, resolved, and states that plaintiff is capable of performing all the tasks of daily living and work with no causally related restrictions. Lastly, Dr. Desrouleaux determined that plaintiff has pre-existing degenerative disc disease.

Plaintiff also presented to Dr. Jay Eneman for an independent medical examination on July 7, 2016. Dr. Eneman diagnosed plaintiff with cervical spine sprain/strain, resolved, left shoulder sprain/strain, resolved, and left wrist sprain/strain resolved. He concludes that plaintiff is able to perform all tasks of daily living and maintaining full employment with no causally related restrictions.

Here, although defendants' experts affirmed that plaintiff was capable of performing all tasks of daily living and maintaining full employment at the time of the examinations, they failed to address whether plaintiff was disabled during the first 90 days following the accident. Thus, defendants' experts failed to relate their findings to plaintiff's 90/180 serious injury claim (see Refuse v Magliore, 83 AD3d 685 [2d Dept. 2011]; Kapeleris v Riordan, 89 AD3d 903 [2d Dept. 2011]).

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

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

ORDERED, that the branch of plaintiff's motion for summary judgment on the issue of serious injury is granted.

Dated: March 20, 2017

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.