Grier v Guinn

[*1] Grier v Guinn 2005 NY Slip Op 51638(U) [9 Misc 3d 1118(A)] Decided on October 7, 2005 Supreme Court, Nassau County Brennan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2005
Supreme Court, Nassau County

Tanika Grier, Plaintiff,

against

Lillian Guinn and Joseph Guinn, Defendants.



14138/03



Aaron C. Gross, Esq.

Bongiorno & Bongiorno, LLP

Attorneys for Plaintiff

250 Mineola Boulevard

Mineola, NY 11501

Picciano & Scahill, P.C.

Attorneys for Defendants

900 Merchants Concourse, Ste. 310

Westbury, NY 11590

Lawrence J. Brennan, J.

The motion by the defendants Lillian Guinn and Joseph Guinn for summary judgement pursuant to CPLR §3212 dismissing the plaintiff's complaint based upon the failure of the plaintiff to have sustained a "serious injury" within the meaning of Insurance Law §5102(d) is denied.

Cross-motion by Plaintiff Tanika Grier for summary judgment pursuant to PLR §3212 on the issue of liability is denied.

I. DEFENDANTS GUINN MOTION TO DISMISS

The underlying cause of action arose as a result of an automobile accident which occurred on September 26, 2001 in Babylon, New York. Plaintiff alleges that the vehicle that she was driving was struck by another vehicle operated by the Defendant Lillian Guinn and owned by Defendant [*2]Joseph Guinn. Plaintiff claims that as a result of said accident that she sustained a "serious injury" as contemplated by Insurance Law §5102(d) and can therefore maintain an action under Insurance Law §5104(a).

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. The party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact. Rebecchi v. Whitmore, 172 AD2d 600.

Further to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the Court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist. Barr v. County of Albany, 50 NY2d 247; Daliendo v. Johnson, 147 AD2d 312.

In addressing the issue as to the existence of a "serious injury" the court initially looks to the pleadings. Plaintiff, Tanika Grier, a female in her fifties, alleges in her Bill of Particulars Posterior disc bulges at the C4-5, C5-6, C6-7 levels; Myofascitis/spasms; left sided C5-6 nerve root irritation; left sided radiculopathy C5-6; derangement; pain radiating down the left upper extremity; intermittent numbness and tingling in the left arm; hyperflexion/extension injury; significantly decreased range of motion; pain and spasm in the left trapezius and supraspinatous, scalene, and bilateral paraspinal musculature; impingement by the acromion; bursal inflammation; rotator cuff abnormality; fluid outlining the structures of the anterior rotator interval; pain, discomfort, tenderness; numbness in the left arm and hand; decreased grip strength in the left hand; loss of mobility and strength hypesthetic to pin prick and light touch sensation over the dorsum and sole of the left foot; myofascitis and spasm; tenderness of the paraspinal musculature; antalgic gait; and difficulty in bending, kneeling, lifting, pushing and pulling

The instant application interposed by the defendant, seeking dismissal of the plaintiff's complaint, is supported by affirmed medical reports from Dr. Carl Weiss, Dr. Erik Entin, and Dr. Harvey Lefkowitz.

The defendant's independent examining neurologist, Dr. Erik Entin, conducted a physical examination, mental status examination, reviewed records cranial nerve examination, motor examination and a sensory examination of the plaintiff on February 15, 2005. Dr. Erik Entin concluded that there was no objective evidence of a neurological defect or disability.

Dr. Carl Weiss, the defendant's independent examining orthopedist, on February 9, 2005 conducted a bilateral shoulder exam, a thorasic spine exam, a cervical spine exam and a physical exam. He also reviewed emergency room records and MRIs dated July 18, 2001, October 16, 2001 and October 19, 2001. Dr. Weiss diagnosed the plaintiff as having sprains as to the lumbar and cervical areas from which she recovered and he recommended no further treatment. He concluded that the plaintiff exhibited no permanency of any symptoms.

Dr. Harvey J. Lefkowitz, a certified radiologist, examined the Magnetic Resonance Imaging films (hereinafter MRI) as to the plaintiff's left shoulder dated October 16, 2001. With respect to the MRI of the left shoulder, Dr. Lefkowitz concluded that there was no joint effusion, no tears identified, and no significant anatomic abnormality to suggest trauma or other sequella. Moreover, he found no evidence of an abnormality causally-related to the trauma.

Plaintiff's January 31, 2005 EBT is submitted wherein she notes that only her left shoulder [*3]was injured when it hit the steering wheel.

In a motion for summary judgment seeking to dismiss a cause of action, the defendant is required to establish a prima facie case that the plaintiff did not sustain a "serious injury" as contemplated by the New York State Insurance Law §5102(d). Gaddy v. Eyler, 79 NY2d 955. Upon such a showing, it becomes incumbent upon the plaintiff to come forward with sufficient evidence in admissible form to rase the factual issue as to whether a "serious injury" has been sustained. Licari v. Elliott, 57 NY2d 230 (1982)

Based upon the submission of the foregoing medical reports, this Court finds that the defendant has met her burden in establishing a prima facie case that the plaintiff did not sustain a "serious injury" within the purview of Insurance Law §5102(d). Chaplin v. Taylor, 273 AD2d 188. Thus, the burden now shifts to the plaintiff to rebut the case set forth by

the movant by the submission of proof in admissible form which demonstrates the existence of a triable issue of fact as to the existence of a "serious injury". Licari v. Elliott, supra.

In opposition plaintiff challenges defendant's medical reports based on examinations conducted over three years after the accident. These opinions are not dispositive on plaintiff's claim that she sustained a "serious injury" by way of a medically determined injury that impaired her daily life for 90 of the first 180 days following the accident

Additionally, the plaintiff has submitted the affirmed medical reports of Dr. Ghazanfar Haidery, dated October 4, 2001 and December 4, 2001 and January 15, 2002. Dr. Haidery conducted physical examinations of the plaintiff and computerized range of motion tests as to the plaintiff's cervical spine and left shoulder which showed a loss in the range of motion in the cervical area that decreased with time. He also concluded that the plaintiff

continues therapy for the chronic pain and discomfort causally related to the accident. The Court could not determine his area of specialization.

Plaintiff also submits the sworn statement of neurologist, Dr. Irving Friedman, who examined plaintiff and reviewed her October 19, 2001 MRI on August 31, 2004 for neck and low back pain. Dr. Friedman found the neuro-spinal deficits permanent in nature and causally related to the accident and instructed her in a home based exercise program for the chronic pain. In a sworn addendum written April 12, 2005, Dr. Friedman "reviewed" the October 18, 2001 MRI and indicates herniations at C4-C5 and C5-C6 and C6-C7 and cervical lordosis.

Also included is an affidavit of chiropractor, Dr. Roberta Peets, who treated the plaintiff on October 1, 2001, four days after the September 27, 2001 accident. Dr. Peets concluded the plaintiff sustained thoracic sprains, cervical dysfunction, shoulder sprain/strain and hyperflexion injury and recommended further treatments.

Soon after the September 27, 2001 accident, plaintiff went to see a neurologist, Dr. Edward Melman, on October 8, 2001 and November 13, 2001. His unsworn reports indicate past traumatic sprains and recommended continued chiropractic treatment. The unsworn electrodiagnostic testing report indicates cervical radiculopathy related to trauma. Plaintiff was also seen on February 18, 2002 by Dr. Gregorace, a pain management specialist. Her sworn report diagnosed left shoulder tendonitis and lumbar spine spasms with no mention of permanency and with minimal comment concerning causation.

On November 28, 2001, diagnostic testing by Dr. Degaetano reports 39% final whole person impairment. There were no reports or MRI's reviewed. [*4]

Plaintiff's medical reports, some of which are sworn and in admissible form, are based upon examinations contemporaneous with the date of the subject automobile accident and indicate initial range of motion restrictions. (Ifrach v. Neiman, 306A.D.2d380). Moreover, there is an explanation of the gap in treatment between the plaintiff's last examination of January 15, 2002 and the current medical examination in 2005. Pommels v. Perez, 4 NY3d 566 (2005); Constantinou v. Surinder, 8 AD3d 323 (2nd Dept. 2003).

Based upon the foregoing, the court finds that the plaintiff has met her burden of raising a triable issue of fact as to the existence of a "serious injury". Therefore, the defendant's motion for summary judgment dismissing the plaintiff's complaint is hereby denied.

II. PLAINTIFF GRIER'S CROSS-MOTION

With respect to the cross-motion by Plaintiff Tanika Grier for summary judgment pursuant to CPLR §3212 on the issue of liability, the motion is denied.

Plaintiff alleges that Defendant Lillian Guinn's violation of VTL § 1141, that is making a left turn directly into the path of an oncoming vehicle, was the sole proximate cause of the accident.

Plaintiff has shown by testimony and documents that would suggest the absence of any questions of fact regarding Defendant Lillian Guinn's liability for this accident. Plaintiff movant argues that her own sworn testimony indicates that Defendant Lillian Guinn's car had slowed down to make a left turn at the 27th Street intersection and that she did not see Plaintiff Tanika Grier's car due to a large truck obstructing Lillian Guinn's view of oncoming eastbound traffic.

Counsel for the plaintiff relies upon VTL §1141 in support of the cross-motion for summary judgment against the defendants on the issue of liability. However, equally significant in the assessment of any vehicle negligence case is the application of the statutory principles enunciated in both VTL §1180(a) and in Pattern Jury Instruction 2:77:

"It was the duty of each of the drivers to operate (his, her) automobile with reasonable care taking into account the actual and potential dangers existing from weather, road, traffic and other conditions.

Each of these drivers were under a duty:

To maintain a reasonably safe rate of speed.

To have (his, her) automobile under reasonable control.

To keep a proper lookout under the circumstances then existing to see and be aware of what was in (his, her) view.

To use reasonable care to avoid an accident."

The Court cannot anticipate the results of direct and cross examination of the parties and any witnesses at the trial of this action. Neither party has submitted an affidavit of merit concerning liability, although the plaintiff has attached copies of her signed January 31, [*5]2005 deposition transcript and the January 25, 2005 unsigned deposition transcript of the Defendant Tankia Grier [Plaintiff's May 23, 2005 Cross-Motion: Exhibits D and J].

Apparently, in reliance upon those depositions, the defendants Lillian Guinn and Joseph Guinn have submitted their June 21, 2005 Affirmation in Opposition wherein they argue general principles of law applicable to summary judgment motion. Absent, however, are page references to the parties' depositions wherein they cite specific testimonial facts in support of their opposition. Daliendo v. Johnson, 147 AD2d, 313, 317.

Nevertheless, the Court must search the record to determine if there are any facts which could arguably present a question which should be determined at a bench or jury trial. JMD Holding Corp. v. Cong. Fin. Corp. 4 NY3d (2005).

In the plaintiff's deposition, she testified that the two vehicle accident occurred at the uncontrolled intersection of Long Island Avenue with 27th Street in Wyandanch, New York on September 26, 2001 at approximately 12:15 P.M. The weather was clear and dry.

She stated that 27th Street stops at Long Island Avenue, thus creating a "T" intersection. Long Island Avenue has two eastbound travel lanes separated from the two westbound lanes by a double yellow line. She was familiar with this intersection. Her maximum speed had been 40 mph, the posted speed limit, for the ten minutes she had proceeded on Long Island Avenue.

She first saw the Defendant Guinn's vehicle when she was one and one-half blocks away from 27th Street. It was stopped and there were no obstructions to her view. She kept the defendants' car under view. The road was straight and level.

The plaintiff saw the defendants' car move when her vehicle was one block away from the intersection. She slowed down to 25 mph and took no other action. The impact occurred within 2 to 3 seconds. Her car came to rest in the middle of the intersection.

She testified that she told the responding police officer that she saw the defendant trying to make a left turn but was inching over. She saw the defendant's car stop, and "... So I figured she saw me, I proceeded to go ahead and that's when the accident happened." [Plaintiff Cross-Motion: Exhibit D (pp.19-32].

Plaintiff Tanika Grier's deposition testimony later changed when she testified that Long Island Avenue was only one lane eastbound as it entered the accident intersection. This was in response to counsel's inquiry about whether she attempted to maneuver around the defendant's car. She was unable to do so and her car skidded prior to impact.

Her deposition was silent as to whether she sounded her horn.

The defendant Lillian Guinn testified that she resides on the block where the accident happened. Immediately before the impact, she was traveling westbound on Long Island Avenue, intending to turn south on 27th Street.

She testified that she never saw the plaintiff's vehicle before the impact, due to a large truck parked in such a way as to block her view. At no time did she have a clear view of the eastbound lane of Long Island Avenue prior to the accident. She had slowed down to determine why this large truck was stopped but never came to a complete stop before turning [*6]into the intersection. She testified that "... I only proceeded because I thought there was nothing behind the truck, behind obstructing my passage." [Plaintiff's Cross-Motion: Exhibit J (Defendant Lillian Guinn's deposition at pp. 20-23-)]

Defendant Lillian Guinn's contention, as she recalled at her deposition, was that the plaintiff's car darted out and hit her, even though she thought she had cleared it and "had a clear voyage" for her to go ahead (Defendant Lillian Guinn's deposition at p. 31). At that time, her speed was 20 mph and her foot was already on the brake. The large truck was parked at such an angle that it obstructed her view. She never saw the plaintiff's car [Defendant Lillian Guinn's deposition at pp.40-42]

On the facts presented, that being the complete deposition transcripts of both the plaintiff and defendant, the Court cannot conclude that the defendant Lillian Guinn was solely negligent in the use and operation of her vehicle, and that this was the proximate cause of the accident with the plaintiff's vehicle as alleged in the complaint.

The Court, in searching this record, simply cannot conclude as a matter of law that the plaintiff's conduct in failing to use her horn, in skidding, and/or in taking other appropriate defensive action, in view of her testimony that she saw the defendant's vehicle one and one-half blocks before the accident, was not a potentially contributory or mitigating factor from which the trier of fact could assign some percentage of comparative fault.

The admitted fact that the plaintiff did slow her vehicle down is an acknowledgment that she perceived a potential danger or hazard as she approached the intersection. Tracy v. Liberty Lines Transit, Inc., 129 AD2d 576 (2nd Dept. 1987). Whether her deceleration was adequate, under the conditions then confronting her, is clearly a factual determination that precludes summary disposition.

Furthermore, the factor of her vehicle skidding may itself create a material question of fact. Proof by plaintiff's own testimony of skidding which causes her automobile to deviate from its course of travel creates a question of fact of the evidence as a whole. Pfaffenbach v. White Plains Express Corp., 17 NY2d 132 (1966); Donitz v. Mui, 247 AD2d 508 (2nd Dept. 1998). The record presented is inadequate to determine the direction, length and other relevant circumstances which may have caused the plaintiff's car to skid.

In addition, the Plaintiff Tanika Grier's deposition does not specify the amount of time which elapsed from when she first saw the defendant's vehicle until the impact occurred.

The papers in support of the motion are inadequate to grant the relief sought herein.

This shall constitute the Decision and Order of this Court.

E N T E R

HON. LAWRENCE J. BRENNAN

Acting Supreme Court Justice

DATED: October 7, 2005