Diaz v Santiago

[*1] Diaz v Santiago 2007 NY Slip Op 51206(U) [16 Misc 3d 1101(A)] Decided on June 5, 2007 Supreme Court, Queens County Weiss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2007
Supreme Court, Queens County

Lizette Diaz, Plaintiff

against

Haydee Santiago and Joel W. Witherspoon, Defendants.



6401/05

Allan B. Weiss, J.

The branch of the cross-motion of defendant, Witherspoon for summary judgment as to liability dismissing the complaint and all cross-claims insofar as they are asserted against him is granted and the remainder of the action is severed.

The motion and cross-motion to dismiss the complaint on the ground that the plaintiff has not sustained a serious injury within the meaning of the Insurance Law is denied.

This is an action to recover for personal injuries plaintiff allegedly sustained on April 27, 2002 when the vehicle owned and operated by the defendant Santiago, in which plaintiff was a passenger, was struck by the vehicle owned and operated by the co-defendant, Witherspoon, at the intersection of 89th Avenue and 175th Street in Queens County. Defendant, Witherspoon moves for summary judgment dismissing the complaint and the cross-claim insofar as they are asserted against him

Witherspoon established, prima facie, his entitlement to judgment as a matter of law by demonstrating that Santiago, traveling on 89th Avenue and faced with a stop sign, entered the intersection into the path of the Witherspoon's oncoming vehicle traveling on 175th Street without yielding the right of way in violation of Vehicle and Traffic Law § 1142(a) (see Gergis v. Miccio, 39 AD3d 468 [2007]; Odumbo v. Perera, 27 AD3d 709 [2006]). A driver is negligent where an accident occurs because she has failed to see that which through the proper use of her senses she should have seen (Breslin v. Rudden, 291 AD2d 471 [2002], lv denied 98 NY2d 605 [*2][2002] quoting Bolta v. Lohan, 242 AD2d 356 [1997]; Stiles v. County of Dutchess, 278 AD2d 304 [2000].

In opposition, Santiago and plaintiff failed to submit any evidence to raise a triable issue of fact as to Witherspoon's alleged comparative negligence in failing to avoid the accident (see Gonzalez v. Schupak, 19 AD3d 367 [2005]; Gillinder v. Hemmes, 298 AD2d 493 [2002]; Lupowitz v. Fogarty, 295 AD2d 576 [2002]; Stiles v. County of Dutchess, 278 AD2d 304 [2000]). Witherspoon, who had the right-of-way, was entitled to assume that Santiago would obey the traffic laws requiring her to yield the right of way (see Gergis v. Miccio, supra; Platt v. Wolman, 29 AD3d 663 [2006]; Dileo v. Barreca, 16 AD3d 366, 367-368 [2005]).

Defendants have submitted competent medical evidence including the affirmation of their examining orthopedist, neurologist and radiologist, the results of plaintiff's nerve conduction studies which were normal and the plaintiff's deposition testimony which establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see, Gaddy v. Eyler, 79 NY2d 955 [1992]; Jackson v. New York City Tr. Auth., 273 AD2d 200 [2000]; Greene v. Miranda, 272 AD2d 441 [2000]). Thus, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting competent medical proof (see, Gaddy v. Eyler, supra; Licari v. Elliott, 57 NY2d 230, 235 [1982]; Lopez v. Senatore, 65 NY2d 1017 [1985]).

In opposition, the plaintiff's competent medical evidence is sufficient to raise a triable issue of fact, inter alia, as to whether the left shoulder condition reflected on the MRI and the claimed pain and the range of motion limitations of the left shoulder constitutes a serious injury within the meaning of the Insurance Law.

Dated: June 5, 2007

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J.S.C.