Morrow v Schoenfeld

[*1] Morrow v Schoenfeld 2005 NY Slip Op 52193(U) [10 Misc 3d 1069(A)] Decided on November 16, 2005 Supreme Court, Suffolk County Jones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2005
Supreme Court, Suffolk County

Janis Morrow and REID MORROW, Plaintiffs,

against

Harris Schoenfeld, Defendant



009137/2003



ARYE LUSTIG & SASSOWER, PC

By: Robert Fiala, Esq.

Attys. for Plaintiffs

20 Vesey Street

New York, NY 10007

ABAMONT & ASSOCIATES

By: John M. McCormack, Esq.

Attys. for Defendant

200 Garden City Plaza, Suite 400

P.O. Box 9250

Garden City, NY 11530

John J.J. Jones, J.

ORDERED that this motion by plaintiffs, Janis Morrow and Reid Morrow, for an order granting partial summary judgment in their favor on the issue of liability is granted; and it is further

ORDERED that the motion by defendant, Harris Shoenfeld, deemed herein to be a cross-motion, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Janis Morrow, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) is denied.

Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by Janis Morrow as the result of a motor vehicle accident which occurred on July 9, 2002, when the Ford Excursion she was operating was stopped on a parkway exit ramp by Commack Road, Suffolk County, and was struck in the rear by a Mercedes Benz owned and operated by the defendant. The defendant testified at his deposition that plaintiff stopped at a stop sign at the end of the exit ramp, and that he stopped his car behind her. Traffic along Commack Road was moderate to heavy, and plaintiff proceeded slowly forward past the stop sign. Defendant also moved forward, but as he looked at the traffic on Commack Road, his vehicle struck the rear of plaintiff's stopped vehicle. Defendant described the impact as "moderate, medium."

It is well-settled that where a vehicle is lawfully stopped, there is a duty imposed upon the operators of vehicles traveling behind it in the same direction to come to a timely halt (Parise v Meltzer, 204 AD2d 295, 611 NYS2d 291, 292 [2d Dept 1994]). A rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle and imposes a duty of explanation on that operator (Belitsis v Airborne Express Freight Corp., 306 AD2d 507, 761 NYS2d 329 [2d Dept 2003], citing Sekuler v Limnos Taxi, 264 AD2d 389, 694 NYS2d 100 [1999]). Accordingly, plaintiffs established their entitlement to partial summary judgment on the issue of liability, and defendant failed to raise a triable issue of fact.

In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [1982]; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 [2d Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed (Licari v Elliott, supra , at 57 NY2d 238; Velez v Cohan, 203 AD2d 156, 610 NYS2d 257 [1st Dept 1994]). A "serious injury" is defined as a personal injury which "results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]).

Following the accident, plaintiff declined to leave the scene of the accident in an ambulance, choosing instead to drive her vehicle home. She sought no emergency room treatment, but sought chiropractic care two days later, complaining of pain in her neck, back and right knee. Plaintiff testified at her deposition that she was involved in a prior accident on September 8, 2001, when she injured her neck and lower back, and was treated by Dr. Wolfson, a chiropractor, Dr. Green, an orthopedist, and Dr. Pearl, a neurologist. Plaintiff also testified that at the time of the accident that is the subject of this action, she was a self-employed paralegal and lost approximately six weeks of work, plus another six weeks following surgery.

In support of the defendant's application on the threshold issue, the defendant submitted the affirmed medical report of Dr. Ordway, an orthopedic surgeon who examined plaintiff on September 29, 2004. At that time, the plaintiff admitted to having sustained injuries to her neck and back in the earlier accident, and it was noted that her medical records referred to an additional accident in May 1997 when plaintiff reportedly fell and injured her neck and both knees. It was noted that plaintiff saw her primary care physician on October 1, 2002, three months after the accident, and complained of pain in her right knee with swelling for two to three months. On the day of the examination, plaintiff complained of pain in her neck and back without radiation. She also complained of constant pain and swelling in her right knee over the lateral aspect, and swelling behind the knee joint. Upon examination, plaintiff was noted to have "full and unimpeded range of motion" about her cervical spine, with no spasm and limitation of motion of any joint in the upper extremities. Examination of the middle and lower back showed forward bending and right and left lateral bending were unimpeded and without spasm. There was a surgical scar over the lateral aspect of the right knee that was healed. There was no effusion with in the knee joint, and no instability to valgus-varus or anterior-posterior stress testing. There was, however, some crepitus beneath the patella which was equal to the contralateral side, and pain to deep palpitation over the lateral aspect of the knee was reported. There was a "localized cystic swelling at the tip of the fibula." The remainder of the joints in the lower extremities enjoyed full range of motion without instability. The orthopedist concluded that there was no evidence of decreased function or impairment, and no need for care of the neck or back. The doctor also indicated that there was a lateral meniscal cyst that was "secondary to a longstanding degenerative process" as evidenced by the description of the degenerative changes in the lateral compartment by MRI. The doctor concluded that there was "no evidence through the contemporaneous record that the incident of 7/9/02 had any effect on this condition whatsoever."

In opposition to defendant's application, plaintiffs submitted the affirmed report of Dr. Scarpinato, an orthopedic surgeon whose report of an examination conducted on January 30, 2003 indicates that the plaintiff presented with a soft tissue mass along the lateral aspect of the right knee which was not tender to palpation. While it is stated in the report that an MRI of the knee that was "done previously" showed a lesion that was "consistent with ganglion cyst," the date that the test was performed is not indicated, nor is it noted whether the findings related to a third-party report of the MRI or a review of the films. The operative report relative to the cyst excision surgery performed on plaintiff's right knee on May 8, 2003 was also submitted. In addition, there is a report dated February 11, 2004, which indicates that an examination of the right knee showed the scar was well-healed, no soft tissue masses were palpable and, while there was some tenderness reported over the joint line, there was "excellent range of motion" as well as "no swelling, no instability." While the doctor's impression was "status post excision of ganglion cyst right knee with possible lateral meniscal tear" as well as "chondromalacia patella left knee," no objective testing is indicated to have been performed.

Plaintiff also submitted the affirmation of Dr. Alpert, an orthopedic surgeon who performed a right knee arthroscopy with partial lateral meniscectomy and an open meniscal cyst excision on October 12, 2004. It is noted in the operative report that the "lateral compartment revealed a complex tear of the midbody and posterior horn of the lateral miniscus." An examination conducted on March 21, 2005 showed full range of motion of the right knee, but there was a "trace effusion in the knee" with evidence of cyst fluid. In the opinion of the doctor, "the motor vehicle accident was the cause of her torn lateral meniscus and large lateral meniscal cyst that has required two surgical procedures and a cortisone injection into the right knee."

Notwithstanding the conflicting opinions of plaintiffs' and defendant's experts,

issues of fact as to whether plaintiff sustained serious injuries are raised by evidence of, inter alia, a torn meniscus requiring surgery (see Noriega v Sauerhaft, 5 AD3d 121, 771 NYS2d 895 [1st Dept 2004], citing Rangel-Vargas v Vurchio, 289 AD.d 92, 735 NYS2d 76 [2001]).

DATED:

HON. JOHN J.J. JONES, JR.

J.S.C.

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