Baudin v Batista

[*1] Baudin v Batista 2007 NY Slip Op 51621(U) [16 Misc 3d 1128(A)] Decided on June 14, 2007 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2007
Supreme Court, Bronx County

Berenice Baudin and Dulce Carboner, Plaintiffs

against

Tony Batista, American Radio Dispatcher, and Lovelace A. Bensaah, Defendants



22609/2005



APPEARANCES:

For Plaintiffs

William J. Loyd Esq.

Valdebenito & Ardito

1399 Franklin Avenue, Garden City, NY 11530

For Defendants Batista and American Radio Dispatcher

Nishi Rajan Esq.

Baker, McEvoy, Morrissey & Moskovits P.C.

330 West 34th Street, New York, NY 10001

For Defendant Bensaah

Gary P. Asher Esq.

Cohen, Kuhn & Associates

2 Park Avenue, New York, NY 10016

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for personal injuries sustained April 29, 2004, in a collision between a vehicle owned and operated by defendant Bensaah and a vehicle approaching behind Bensaah, owned by defendant American Radio Dispatcher, and operated by defendant Batista, in which plaintiffs were passengers. Defendants Batista and American Radio Dispatcher move, and defendant Bensaah cross-moves, for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiffs have not sustained a "serious injury" entitling them to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). Bensaah also seeks dismissal of all claims and cross-claims against him based on his nonliability for the collision. The court grants Bensaah's cross-motion and dismisses him from this action, C.P.L.R. § 3212(b), and grants the other defendants' motion as to plaintiff Baudin, but denies it as to plaintiff Carboner. C.P.L.R. § 3212(b) and (e).

II.SUMMARY JUDGMENT ON SERIOUS INJURY

To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact that they caused plaintiffs to sustain a "serious injury" as defined in Insurance Law § 5102(d). C.P.L.R. § 3212(b); Shaw v. Looking Glass Assoc. LP, 8 AD3d 100, 102 (1st Dep't 2004); Chatah v. Iglesias, 5 AD3d 160 (1st Dep't 2004); Shinn v. Catanzaro, 1 AD3d 195, 197 (1st Dep't 2003). Only if defendants satisfy this standard, does the burden shift to plaintiffs to rebut defendants' prima facie showing, by producing admissible evidence sufficient to require a [*2]trial of material factual issues as to whether plaintiffs sustained a serious injury. Knoll v. Seafood Express, 5 NY3d 817, 818 (2005); Franchini v. Palmieri, 1 NY3d 536, 537 (2003); Shaw v. Looking Glass Assoc. LP, 8 AD3d at 102; Martin v. Schwartz, 308 AD2d 318, 319 (1st Dep't 2003). The court must deny summary judgment if defendants fail to meet this standard, regardless of any insufficiency in plaintiffs' opposition. Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005); Diaz v. Nunez, 5 AD3d 302 (1st Dep't 2004); Lichtman v. Heit, 300 AD2d 242, 243 (1st Dep't 2002); Pisasale v. Buckhorn Carriers, 249 AD2d 157, 158 (1st Dep't 1998).

A.Plaintiff Baudin

Defendants' physicians, Howard V. Katz M.D. and Iqbal Merchant M.D., based on their examinations of Baudin, found no orthopedic or neurological abnormalities in her cervical or lumbosacral spine. Dr. Katz made similar findings regarding her right knee. Defendants thus demonstrate that she did not sustain a permanent or significant limitation of functioning in any area where she claims an injury. Thompson v. Abbasi, 15 AD3d 95, 96 (1st Dep't 2005); Bent v. Jackson, 15 AD3d 46, 47 (1st Dep't 2005); Brown v. Achy, 9 AD3d 30, 31 (1st Dep't 2004). Since both physicians found no abnormal functioning, their failure to comment on magnetic resonance imaging (MRI) reports of Baudin's spine does not undermine the physicians' conclusions that Baudin did not sustain a serious injury. Servones v. Toribio, 20 AD3d 330 (1st Dep't 2005); Meely v. 4 G's Truck Renting Co., Inc., 16 AD3d 26, 30 (1st Dep't 2005). Her admission at her deposition that she was homebound and bedridden for approximately three weeks demonstrates that she did not sustain a medically determined injury or impairment that prevented her from performing substantially all her daily activities for 90 of the 180 days following the collision. Thompson v. Abbasi, 15 AD3d at 101; Flores v. Singh, 13 AD3d 203, 204 (1st Dep't 2004); Copeland v. Kasalica, 6 AD3d 253, 254 (1st Dep't 2004); Nelson v. Distant, 308 AD2d 338, 339 (1st Dep't 2003).

The only admissible evidence Baudin presents in opposition is the affidavit of Michael Neely D.O., based on his examination of her November 28, 2006, more than two years after the collision. Reports evincing Dr. Neely's examination of her shortly after the collision are not in admissible form. C.P.L.R. §§ 3122-a(a) and (b), 4518(a); People v. Mertz, 68 NY2d 136, 147 (1986); Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 (1st Dep't 2003); People v. Lewis, 284 AD2d 172, 173 (1st Dep't 2001); Kane v. Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 (2d Dep't 2004). See People v. Cratsley, 86 NY2d 81, 89-90 (1995); Kupferle v. Deidra Trans, 300 AD2d 192 (1st Dep't 2002). Dr. Neely's affidavit does not incorporate or refer to his findings in those examinations, which, in any event, neither indicated any abnormalities, nor specified losses in range of motion. Beaubrun v. New York City Tr. Auth., 9 AD3d 258, 259 (1st Dep't 2004); Marte v. New York City. Tr. Auth., 253 AD2d 519, 520 (2d Dep't 1998).

Baudin thus fails to present medical evidence contemporaneous with the April 2004 collision, as is necessary to raise factual issues of a significant or permanent consequential limitation from that collision. Petinrin v. Levering, 17 AD3d 173, 174 (1st Dep't 2005); Bent v. Jackson, 15 AD3d at 48; Thompson v. Abbasi, 15 AD3d at 98; Toulson v. v. Young Han Pae, 13 AD3d 317, 319 (1st Dep't 2004). Since Dr. Neely's findings quantifying significant range of motion restrictions were more than two years after the collision, these findings do not demonstrate Baudin's inability to perform daily activities during the 180 days following the collision. Toussaint v. Claudio, 23 AD3d 268 (1st Dep't 2005); Webb v. Johnson, 13 AD3d 54, 55 (1st Dep't 2004).

B.Plaintiff Carboner

Each of defendants' physicians concluded that his examination of Carboner revealed normal ranges of motion in her cervical and lumbosacral spine when compared to his specified normal ranges. Dr. Merchant specified that the normal ranges of motion in her cervical spine were 50 degrees in flexion, 60 degrees in extension, and 80 degrees in rotation and in her lumbosacral spine 90 degrees in flexion and 30 degrees in extension. Dr. Katz, in contrast, specified her normal ranges as 45 degrees in cervical flexion and extension, 60 degrees in [*3]cervical rotation, 85 degrees in lumbosacral flexion, and 25 degrees in lumbosacral extension.

The court must view this evidence in the light most favorable to Carboner. Toure v. Avis Rent A Car Sys., 98 NY2d 345, 353 (2002). Comparing Dr. Katz's range of motion findings for Carboner to Dr. Merchant's normal ranges reveals restrictions of motion in her cervical spine from 10 to 25 percent in various planes and in her lumbosacral spine from 5 to 16 percent, which show significant limitations. Garner v. Tong, 27 AD3d 401 (1st Dep't 2006); Campbell v. Cloverleaf Transp., 5 AD3d 169, 170 (1st Dep't 2004); Pagan v. Gondola Cab Corp., 235 AD2d 251, 252 (1st Dep't 1997); Mazo v. Wolofsky, 9 AD3d 452, 453 (2d Dep't 2004). See Negrette v. Hernandez, 2 AD3d 511, 512 (2d Dep't 2003); Livai v. Amoroso, 239 AD2d 565 (2d Dep't 1997).

As set forth above, an admission that customary activities were restricted for less than 90 days following the collision or were unrestricted during those 90 days would demonstrate the absence of an injury or impairment that prevented substantially all daily activities during that period. Thompson v. Abbasi, 15 AD3d at 101; Flores v. Singh, 13 AD3d at 204; Copeland v. Kasalica, 6 AD3d at 254; Nelson v. Distant, 308 AD2d at 339. The testimony of Carboner, however, that she was bedridden for three months and homebound for five months does not constitute such admission. Thus defendants failed to meet their initial burden to demonstrate that Carboner did not sustain a serious injury.

III.SUMMARY JUDGMENT ON LIABILITY FOR THE COLLISION

A rear end collision with a vehicle travelling or stopped ahead establishes a prima facie claim of negligence against the owner and driver of the vehicle travelling behind. Woodley v. Ramirez, 25 AD3d 451, 452 (1st Dep't 2006); Garcia v. Bakemark Ingredients (E.) Inc., 19 AD3d 224 (1st Dep't 2005); De La Cruz v. Ock Wee Leong, 16 AD3d 199, 200 (1st Dep't 2004); Grimes-Carrion v. Carroll, 13 AD3d 125, 126 (1st Dep't 2004). To rebut the presumption of negligence, Batista and American Radio Dispatcher, as the operator and owner of the rear vehicle, bear the burden to present a reasonable explanation for the failure to maintain a safe distance behind the front vehicle other than Batista's negligence. Woodley v. Ramirez, 25 AD3d at 452; Mullen v. Rigor, 8 AD3d 104 (1st Dep't 2004); Jean v. Zong Hai Xu, 288 AD2d 62 (1st Dep't 2001); Moustapha v. Riteway Intl. Removal, 283 A.D.2 175 (1st Dep't 2001).

Here, the only rebuttal is Batista's testimony that Bensaah's vehicle "stopped abruptly to make a left turn, and then I hit it." Aff. of Gary P. Asher, Ex. I at 17. Even accepting this version of facts as true, it does not support a non-negligent explanation for the rear end collision by the other defendants' vehicle.

A driver travelling behind another vehicle has a duty to maintain a safe distance behind the front vehicle, whether it is moving or stopped, to avoid a rear end collision in the event the front vehicle slows down or stops, even suddenly. NY Veh. & Traf. Law (VTL) § 1129(a); Woodley v. Ramirez, 25 AD3d at 452; Mullen v. Rigor, 8 AD3d 104; Malone v. Morillo, 6 AD3d 324, 325 (1st Dep't 2004); Figueroa v. Luna, 281 AD2d 204, 206 (1st Dep't 2001). That duty includes taking account of the discernible traffic and street conditions. In fact, Batista also testified that he observed Bensaah's vehicle in front about a minute before hitting the vehicle. Therefore Batista had ample time to maintain a safe distance behind and avoid hitting Bensaah's vehicle, whether it was moving or stopped in front. The conflict between Bensaah's testimony that Bensaah was moving and Batista's testimony that Bensaah was stopped when the collision occurred is irrelevant and therefore does not raise factual issues regarding Bensaah's negligence. Mariano v. New York City Tr. Auth., 38 AD3d 236, 237 (1st Dep't 2007).

Further, the fact that Bensaah stopped short is an insufficient explanation to raise a question as to either Bensaah's negligence or Batista's nonnegligence that would require a trial on negligence. Woodley v. Ramirez, 25 AD3d at 452-53; Mullen v. Rigor, 8 AD3d 104. VTL § 1163(c) prohibits stopping a vehicle or suddenly decreasing its speed, "without first giving an appropriate signal." While Bensaah's violation of § 1163(c) would establish his negligence and potentially explain Batista's failure to maintain a safe distance behind, Batista admitted observing Bensaah signal a left turn when he was ten feet ahead, and no evidence indicates a failure of his [*4]brake lights.

IV.CONCLUSION

Consequently, the court grants defendant Bensaah's cross-motion for summary judgment dismissing the complaint and cross-claims against him based on his nonliability for the collision. The court also grants the motion by defendants Batista and American Radio Dispatch for summary judgment to the extent of

dismissing plaintiff Baudin's claims, but denies the motion regarding plaintiff Carboner's claims.

DATED: June 14, 2007

_____________________________

LUCY BILLINGS, J.S.C.