Halas v Saucedo

[*1] Halas v Saucedo 2007 NY Slip Op 51306(U) [16 Misc 3d 129(A)] Decided on June 29, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-731 Q C.

Jan Halas, Appellant,

against

Alberto Saucedo and Steven Pasqualicchio, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered January 24, 2006. The order granted defendants' motion for summary judgment and denied as academic plaintiff's motion for summary judgment on the issue of liability.

Order reversed without costs, defendants' motion for summary judgment denied and plaintiff's motion for summary judgment on the issue of liability granted.

The defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The affirmed medical report submitted by defendants made out a prima facie case that plaintiff did not sustain
a serious injury in that it specified the range of motion of plaintiff's cervical and lumbar spine listing the degrees of range of motion and concluded that these ranges of motion were normal. This shifted the burden to plaintiff to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955 [1995]).

The plaintiff successfully opposed the motion. He submitted an affidavit from his treating chiropractor who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitation of his lumbar and cervical spine to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Pesce v Tillotson, 7 AD3d 597 [2004]).

Plaintiff's motion for summary judgment on the issue of liability should have been [*2]granted. It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the rear vehicle (Baron v Murray, 268 AD2d 495 [2000]). The presumption of negligence imposes a duty of explanation with respect to the operation of the rear vehicle (Levine v Taylor, 268 AD2d 566 [2000]). In order to rebut the presumption, the driver of the rear vehicle must submit a nonnegligent explanation for the collision (Leal v Wolff, 224 AD2d 392 [1996]). In the case at bar, defendants' vehicle struck three vehicles before it struck plaintiff's stopped vehicle in the rear. In instances where the driver of the rear vehicle alleges that the accident was caused by brake failure, the driver must present evidence demonstrating that the brake problem was unanticipated and that reasonable care had been exercised to keep the brakes in good working order (Reid v Rayamajhi, 17 AD3d 557 [2005]). Here, in response to plaintiff's motion for summary judgment on the issue of liability, both defendants, the driver and owner of the vehicle, respectively, failed to submit evidence sufficient to raise a triable issue of fact as to whether the alleged brake failure was unanticipated and whether there had been reasonable care to maintain the brakes in good working order (see Elgendy v Pilpel, 303 AD2d 446 [2003]).

Pesce, P.J., and Golia, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order in the following memorandum:

While I agree with the majority that defendants' submissions establish, prima facie, that plaintiff did not sustain a serious injury, I disagree with the majority's conclusion that plaintiff successfully opposed the motion. In opposition to defendants' motion for summary judgment, plaintiff submitted an affidavit from his treating chiropractor, stating, in relevant part:
"Range of motion in the lumbar spine indicated flexion and extension decreased by 20 degrees extension and 30 degrees flexion, left and right lateral flexion were also decreased by 15 degrees with pain indicated on all ranges of active and passive motion.

* * *
Re-examination of range of motion on final re-examination indicated the cervical spine to have restricted range of motion as follows: Flexion and extension were found to be decreased by 15 degrees, lateral left right flexion was decreased by 10 degrees. [*3]
In the lumbar spine, ranges of motion were still restricted at 10 degrees extension, 20 degrees flexion, and left and right lateral flexion were also decreased by 15 degrees with pain."

Although the chiropractor designated a numeric percentage of plaintiff's decreased range of motion of his lumbar and cervical spine, he clearly failed to compare these findings to the normal range of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Absent medical proof of plaintiff's restriction of motion, I would vote to affirm the order below.
Decision Date: June 29, 2007