Morgan v Vaglica
Annotate this CaseDecided on August 10, 2004
District Court of Nassau County, First District
PATRICIA MORGAN, Plaintiff(s)
against
LUCIA VAGLICA, PATRICIA VAGLICA, JEANNE BONNIC, PAUL BONNIC, DARRYL HAWKINS, and DARRYL COGGINS, Defendant(s).
035527/02
Andrew Hirschhorn, Esq.
Desena & Sweeney, LLP
Scalzi & Nofi, Esqs.
Martyn, Toher, Esposito, Martyn, Adler and Borsetti, Esqs
Steven M. Jaeger, J.
Before the Court are a plethora of motions, all of which seek summary judgment and dismissal of plaintiff's complaint. Defendants Darryl Hawkins and Darryl Coggins ("Hawkins" and "Coggins") move for summary judgment as to liability, and separately as to plaintiff's lack of "serious injury". The defendants Jeanne Bonnic and Paul Bonnic ("Bonnic defendants") also have two separate motions for this same relief. The defendants Lucia Vaglica and Patricia Vaglica ("Vaglica defendants") move for summary judgment on the "serious injury" theory only. For the reasons set forth herein, the three referenced motions seeking summary judgment on the "serious injury" theory are granted, while those motions seeking summary judgment as to liability are denied as moot.
FACTS
This matter involves a three car collision on an exit ramp of the southbound Meadowbrook Parkway. The Bonnic defendants were stopped in a line of traffic and just behind their vehicle was a vehicle owned by defendant Hawkins, operated by defendant Coggins and in which the plaintiff Morgan was a passenger. Most of the deposition testimony also indicated that the Hawkins/Coggins' vehicle was stopped when the collision occurred. All deposition testimony concurs that the collision was precipitated by the Vaglica vehicle striking the rear of [*2]the Hawkins/Coggins vehicle, which in turn was pushed into the Bonnic vehicle.
DECISION
The legal standard for summary judgment motions was articulated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (1994): "It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d 316; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923; Zuckerman v. City of New York, supra, 49 NY2d at 562, 427 NYS2d 595)".
In support of the motions, the defendants note that plaintiff's Bill of Particulars contains allegations of sprains and strains and are not indicative of a "serious injury" (Licari v. Elliott, 57 NY2d 230, 455 NYS2d 570 [1982]). Defendants also note that plaintiff testified that she was not admitted to the hospital and was told to see her own doctor (Morgan deposition p.52, l.20 to p.53, l.6); plaintiff was examined by her HIP doctor who performed a physical and referred her to a chiropractor (p.56, l.4-17; p.56, l.14 to p.57, l.13). Defendants also emphasize plaintiff's history of injury and injury causing activity, thereby bringing the element of causation into question. For example, the plaintiff boxed competitively for three years prior to the accident in question and was involved in a competitive boxing match just two days prior to the subject accident (p.109-112). Plaintiff also testified that she was involved in an accident in 1999 where her car hit a tree and flipped over (p.122-123); that she suffered from severe headaches prior to this accident (p.119-120); and that she underwent surgery to remove a cyst from her back in June, 2001 that her doctor "messed up" (p.120-121). Defendants also note that plaintiff has failed to substantiate any time she was out of work. In addition to suffering back and neck injuries in a prior 1999 accident, plaintiff
also was treated at Nassau County Medical Center in December, 2001 after suffering injuries to her head after a shelf fell on her head while working at Toys R' Us.
The plaintiff was examined on behalf of the defendants by Dr. Carl Weiss, an orthopedist and by Dr. Lawrence J. Robinson, a neurologist. The plaintiff told Dr. Weiss of her 1999 accident but would not provide the particulars of the incident, however, she denied being an [*3]amateur boxer even though she testified to this fact at her deposition. Dr. Weiss found no restriction of motion and indicated that the plaintiff reported no discomfort. He also reported that plaintiff had full range of motion in both shoulders, normal sensations and reactions to testing stimuli and proper circulation. Dr. Weiss concluded that plaintiff suffered a mild, short-term sprain to her back that is now fully healed and that this condition was contributed to by plaintiff's prior accidents, work injury and participation in boxing. Dr. Robinson's neurological examination was normal. He noted full range of motion of plaintiff's spine in all directions with no spasm or tenderness. The same was found to be true of the thoracic and lumbar regions of plaintiff's spine. Dr. Robinson concluded that the plaintiff had normal sensation in all of her extremities, normal reflexes and strength and that the plaintiff suffered no neurological problems resulting from the subject accident.
Based upon the foregoing, the Court finds that the defendants have sustained the burden of proof enunciated above, shifting the burden of proof to the plaintiff to demonstrate the existence of a material issue requiring resolution by trial. (Alvarez v. Prospect Hospital, supra).
In opposition to the "serious injury" motions, the plaintiff offers the affirmation of Naum Meyerovich, M.D., her treating physician. Dr. Meyerovich offers findings based upon testing done contemporaneously with the plaintiff's accident (Pajda v. Pedone, 303 AD2d 729, 757 NYS2d 454 [2003]) and testing performed as recently as May 7, 2004. He also offers an explanation for the three year gap in treatment and, although the movants do not embrace the doctors' theory that the plaintiff had reached a "plateau" in her treatment, it is sufficient for the purposes of this motion. (Ramos v. Dekhtyar, 301 AD2d 428, 753 NYS2d 489 [2003]). The range of motion testing performed by Dr. Meyerovich also relate his findings to the normal function, purpose and use of the affected body, organ, member, function or system. (Toure v. Avis Rent-A-Car, 98 NY2d 345, 746 NYS2d 865 [2002]). However, although Dr. Meyerovich acknowledges the plaintiff's automobile accident in 1999, he fails to acknowledge any awareness of her prior back surgery, the prior motor vehicle accident in September, 2000, her head injuries while working at Toys R' Us, or of the fact that the plaintiff boxes competitively and that she boxed just two days prior to the incident in question. As such, any theory expressed by Dr. Meyerovich as to the causation of plaintiff's current physical condition is mere speculation. (Kallicharian v. Sooknanan, 282 AD2d 573, 723 NYS2d 376 [2001]). In addition, the plaintiff makes no argument regarding the 90/180 category of "serious injury". Further, the affidavit of the plaintiff is unreliable. Plaintiff testified that she was seen by Dr. Sharma once for the injuries allegedly sustained in the subject accident, yet her affidavit states that she went to Dr. Sharma for almost two years, five to seven times per month. She testified that she returned to work after the accident, yet her affidavit states that she never returned. These inconsistencies, taken together with the other self-serving statements relating to her pain and discomfort, render the affidavit, clearly tailored to meet the statutory requirements, unreliable and insufficient to defeat the pending motions. (Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]).
Given the foregoing, the Court finds that plaintiff has failed to sustain her burden of proof and, therefore, the defendants are entitled to the summary relief sought and the complaint is [*4]dismissed as to all defendants.
The foregoing constitutes the Decision and Order of the Court.
So Ordered:
______________________
District Court Judge
Dated:August 10, 2004
cc:
Andrew Hirschhorn, Esq.
Desena & Sweeney, LLP
Scalzi & Nofi, Esqs.
Martyn, Toher, Esposito, Martyn, Adler and Borsetti, Esqs.
SMJ:kmh
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