Valentino v Federal Express Corp.

[*1] Valentino v Federal Express Corp. 2007 NY Slip Op 52172(U) [17 Misc 3d 1127(A)] Decided on October 19, 2007 Supreme Court, New York County Kaplan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2007
Supreme Court, New York County

James Valentino and Marisela Santiago, Plaintiffs,

against

Federal Express Corp. and Felix Rivera, Defendants.



105445/05

Deborah A. Kaplan, J.

I.Factual and Procedural Background

This is an action for personal injuries arising from a motor vehicle accident wherein a 2004 Acura operated by plaintiff James Valentino was struck by a tractor-trailer owned by defendant Federal Express Corp. (Fed Ex) and operated by defendant Felix Rivera near the intersection of Eleventh Avenue and West 41st Street in Manhattan. The Acura, in which plaintiff Marisella Santiago was a passenger, was stopped on the street and the truck was attempting to back into a garage by "jack-knifing." According to plaintiffs' bill of particulars, Valentino sustained injuries to his right knee, left shoulder and back and Santiago sustained injuries to her head and back.

Defendants Fed Ex and Rivera now move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted against them on the ground that the plaintiffs did not sustain any "serious injury" as defined by Insurance Law § 5102(d). Plaintiff Valentino cross-moves (1) to dismiss Santiago's cross-claim against him, joining in the defendants' motion as it concerns co-plaintiff Santiago and adopting their arguments and (2) for summary judgment on the counterclaim asserted against him by the defendants on the issue of liability.

II. Defendants' Motion for Summary Judgment

on the Issue of "Serious Injury" (Insurance Law § 5102[d])

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once a prima facie showing has been made, the burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists, warranting a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The issue of whether the injuries allegedly sustained by plaintiffs fall within the [*2]definition of a "serious injury" in the first instance, must be decided by the court (see Licari v Elliott, 57 NY2d 230 [1982]). In order for a summary judgment motion to be granted by this court, defendants must establish a prima facie case that plaintiffs did not sustain a "serious injury" as contemplated by the New York State Insurance Law § 5102 (d) (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; see also Gaddy v Eyler, 79 NY2d 955 [1992]).

When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of its own medical witness, those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports (see Sanchez v Romano, 292 AD2d 202 [1st Dept. 2002]; Pagano v Kingsbury, 182 AD2d 268 [2d Dept 1992]). A defendant may also establish entitlement to summary judgment using plaintiff's deposition testimony and records prepared by plaintiff's own physicians (Fragale v Geiger, 288 AD2d 431 [2d Dept 2001]).

Insurance Law § 5102 (d) defines "serious injury" as follows:

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 constitute 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.

As accurately observed by defendants, the personal injuries alleged by the plaintiffs do not constitute any claim of serious injury due to death, dismemberment, significant disfigurement, a fracture or a loss of fetus. Additionally, defendants contend that their supporting papers demonstrate that plaintiffs did not sustain a serious injury under the remaining categories of Insurance Law § 5102 (d).

As to both plaintiffs - In support of their argument, defendants submit, inter alia, copies of the pleadings, transcripts of the parties' deposition testimony and unsworn medical reports prepared by defendants' neurological expert, Michael Rubin, M.D. Defendants also provide copies of unsworn medical reports and records relating to each plaintiff.

Since the reports of defendants' expert, Dr. Rubin, as to both plaintiffs are unsworn, they are not in admissible form (see Grasso v Angerami, 79 NY2d 813 [1991]; Stamm v PHH Vehicle Services LLC, 32 AD3d 784 [1st Dept. 2006]; Copeland v Kasalica, 6 AD3d 253 [1st Dept. 2004], and thus may not be considered by this court in its determination of defendants' summary judgment motion (see Pagano v Kingsbury, supra). However, the unsworn medical reports and records that were supplied by plaintiffs may be used to satisfy defendants' initial burden (Newton v Drayton, 305 AD2d 303 [1st Dept 2003]; McNair by McNair v Ofori, 198 AD2d 47 [1st Dept. 1993]).

As to Valentino only - The report by Dr. Ali E. Guy, M.D., Valentino's treating physician, and the emergency room records from the NYU Downtown Hospital concern injuries sustained by Valentino in a slip and fall accident on June 29, 2004, approximately one month prior to the subject accident (see, defendants' Exhibit J, report of Ali E. Guy, M.D. dated 7/7/04; defendants' Exhibit K, emergency room records from NYU Downtown Hospital dated 6/29/04). [*3]While the aforementioned records may demonstrate that Valentino had pre-existing injuries, they, alone, do not satisfy defendants' burden of demonstrating that the injuries he alleges in the instant action were not sustained in the the subject accident and do not satisfy the serious injury threshold of Insurance Law § 5102(d).

Further, according to his report, Eric A. Crone, D. O., an orthopedic surgeon, found, based on his review of Valentino's MRI films and report of November 2, 2004, the following arising from the subject motor vehicle accident:

there appears to be articular cartilage defect near full extension of the femoral aspect of patello-femoral joint ... . ACL appears intact although there are some signal changes consistent with a partial tear. ... Posterior horn lateral meniscus with dishomogenity on 2 cuts posterior horn medical meniscus with vertical cleavage line. Changes through 3 cuts. T2 images do show some increased signal changes of sub-chronal bone of patello-femoral joint of the femoral aspect near the superior aspect of the sulcus (Defendants' Exhibit L, Report of Eric A. Crone, D. O. dated 5/11/05).

Dr. Crone also performed a physical examination of Valentino and his impression was "patello-femoral chondral injury right knee with persistent pain" (id.). There is no indication in Dr. Crone's report that this injury was not of a serious nature, or was resolved. Further, the report is devoid of any discussion regarding the injuries sustained by Valentino in his prior accident as distinguished from the injuries sustained in the instant accident. Thus, this report fails to support the defendants' contention that the injuries alleged by Valentino resulted from his prior accident. While defendants may also rely on excerpts of deposition testimony by Valentino to demonstrate that he did not sustain a serious injury (see Troche v New York City Transit Authority, 16 AD3d 407, supra), these excerpts and the scant medical reports and records submitted by them fail to demonstrate the lack of a serious injury sustained by Valentino.

Since defendants fail to satisfy their initial burden of establishing a prima facie case as to Valentino, it is unnecessary to reach the question of whether plaintiffs' opposition papers were sufficient to raise a triable issue of fact in connection with defendants' motion (see Madatova v Madatov, 27 AD3d 531 [2nd Dept 2006]).

As to Santiago only - With regard to Santiago, defendants submit the emergency room records of Bellevue Medical Center, where Santiago was taken after the accident, and the records and report dated September 13, 2004, of Ali E. Guy, M.D. The emergency room records show that Santiago complained of severe headaches, double vision, vomiting, and pain in her left side and back (Bellevue Medical Center emergency room records dated 7/23/04). Dr. Guy's report indicates that EMG studies of Santiago's lower extremities were performed on September 13, 2004, and revealed "electrical evidence of left L4-L5 radiculopathy" (Defendants' Exhibit O, Dr. Guy's report dated 9/13/04). Dr. Guy's assessment of Santiago's condition was as follows: "L4-L5 disc bulge; left L4-L5 radiculopathy; and traumatic myofascial pain syndrome" (id.). This report is devoid of any indication that these injuries are not of a serious nature or resolved.

Further, defendants also rely on excerpts of deposition testimony by Santiago to demonstrate that Santiago did not sustain a serious injury (see Troche v New York City Transit Authority, 16 AD3d 407, supra). However, these excerpts fail to demonstrate the lack of a serious injury sustained by Santiago.

Since defendants fail to satisfy their initial burden of establishing a prima facie case [*4]regarding Santiago, it is also unnecessary to reach the question of whether plaintiffs' opposition papers were sufficient to raise a triable issue of fact in connection with defendants' application (see Madatova v Madatov, supra).

Additionally, defendants, by way of a reply affidavit, belatedly attempt to make a prima facie showing of entitlement to judgment as a matter of law through the inclusion of reports of their orthopedic expert, Edward C. Yang, M.D., as to plaintiffs' alleged failure to sustain a serious injury. The function of a reply affidavit is to address the arguments made in opposition to the motion and not to permit the introduction of new arguments in support (see Ritt v Lenox Hill Hospital, 182 AD2d 560 [1st Dept 1992]). Further, it does not avail defendants to shift to plaintiffs, by way of a reply affidavit, the burden to demonstrate a material issue of fact at a time when plaintiffs have neither the obligation nor the opportunity to respond absent leave of court (id.). Thus, defendants' belated attempt is unavailing.

In light of the foregoing, defendants' motion, pursuant to CPLR 3212, for summary judgment dismissing the complaint is denied in its entirety, and that branch of the cross-motion of plaintiff James Valentino which requested the same relief as against co-plaintiff Marisela Santiago is denied.

III. Plaintiff Valentino's Cross-Motion

for Summary Judgment on the Issue of Liability

Valentino cross-moves for an order granting him summary judgment on the issue of liability and dismissing defendants' counterclaim. In support of his application, Valentino proffers the parties' deposition testimony to demonstrate that the motor vehicle he was operating was at a complete stop on West 41st Street when the tractor-trailer driven by Rivera drove in reverse and made contact with the front of his vehicle. Valentino claims that defendants' negligence is established as a matter of law, since they failed to take the proper precautions required by Vehicle and Traffic Law § 1211 (a).

Pursuant to Vehicle and Traffic Law § 1211 (a), "[t]he driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." A defendant's negligence can be established as a matter of law when the defendant backs up into a plaintiff's stopped vehicle without taking adequate precautions (see Garcia v Verizon New York, Inc., 10 AD3d 339 [1st Dept 2004]; see also Plaut v Allright Parking Management, Inc., 18 AD3d 396 [1st Dept 2005]). Moreover, an unexcused violation of a statutory standard of care constitutes negligence per se (see Martin v Herzog, 228 NY 164 [1920]; Holleman v Miner, 267 AD2d 867 [3rd Dept. 1999]; Cordero v City of New York, 112 AD2d 914 [2nd Dept. 1985]; PJI 3d 2:26 [1999]).

There is undisputed testimony from Valentino that at the time of the impact, his vehicle was at a "dead stop" on 41st Street (Valentino's deposition taken on 6/27/06, at 36). Rivera testified, inter alia, that, prior to the impact, he was backing into a work facility (Rivera's deposition taken on 10/13/06, at 33); that he did not ask anyone to assist him in backing into the facility, although there were several employees nearby (id. at 34-35); that, while he blew his horn several times prior to reversing the tractor-trailer, the horn sounded exclusively on the front of the truck (id. at 42-43); that the tractor-trailer does not make any "beeping sound" or any "automatic or pre-programmed sound" when it is in reverse (id. at 43); that he looked at his [*5]mirrors before backing up, but did not see anything (id. at 42); and that, once he began backing the tractor-trailer to swing into the garage, and prior to the impact, he did not come to a stop, but only slowed down to make an adjustment (id. at 44).

The parties' deposition testimony is sufficient to demonstrate a prima facie showing of Rivera's negligence in the operation of the tractor-trailer (see Garcia v Verizon New York, Inc., supra). Thus, in satisfying its initial burden on the issue of Rivera's negligence in the operation of the tractor-trailer, the burden was thereby shifted to defendants (State Farm Mutual Automobile Ins. Co. v Crete Carrier Corp., 12 Misc 3dd 138[a] [App Term, 9th & 10th Jud Dists 2006]).

In their opposition papers, defendants attempt to raise an issue of fact by alleging that Valentino was negligent in his failure to take evasive action to avoid the collision, in that he did not move out of the way of the truck. They rely on Valentino's deposition, where he admitted that he did not move his vehicle backwards, and when asked "[if] fear crippled [him] from moving [his] vehicle backwards," he replied "I would have to say yes" (Valentino deposition taken on 6/27/06, at 48-49).

Initially, defendants fail to demonstrate that it was possible for Valentino to take evasive action, i.e., that there was no other vehicle behind Valentino at the time of the impact and that he had sufficient room to move. Further, even assuming that the street behind Valentino was devoid of any other vehicular traffic, defendants do not establish that Valentino was negligent in failing to back out of the tractor-trailer's way. A review of Valentino's deposition discloses that he testified that, prior to the impact, he "had no clue where [the tractor-trailer] was backing into" (Valentino deposition taken on 6/27/06, at 40-41); that the tractor-trailer was on his right and swung left (id. at 41); and when asked "for what period of time [he was] actually stopped before the accident happened," he replied, "I don't really know exact time, anywhere between five and five seconds and twenty-five seconds" (id. at 42). Thus, Valentino's deposition testimony establishes that he was unaware of the direction the tractor-trailer intended to move and that there was only a very brief period of time in which he could have moved his vehicle.

Furthermore, it has been held that where a truck suddenly and unexpectedly backs up and travels only a short distance before striking a plaintiff's automobile, and there is only a brief period of time for the plaintiff to react, any purported error in judgment on the plaintiff's part does not constitute negligence and is not a proximate cause of the accident (see Garcia v Verizon New York, Inc., supra; Pressner v Serrano, 260 AD2d 458 [2d Dept 1999]; see also Flanel v Maglione Italian Ices, 266 AD2d 505 [2nd Dept. 1999]).

Defendants also attempt to raise an issue of fact by their submission of four photographs purportedly taken immediately prior to and subsequent to the subject accident. However, these photographs cannot be considered by this court without any evidentiary foundation. Defendants' opposing papers are devoid of an affidavit from any competent witness with knowledge identifying the subject of the photographs and confirming that they "accurately represent[ed] the subject matter depicted" (Cubeta v York Intl. Corp., 30 AD3d 557, 561 [2d Dept 2006]; see also Kartychak v Consolidated Edison of New York, 304 AD2d 487 [1st Dept 2003]). Even if this court considered these photographs, they, in and of themselves, do not demonstrate any negligence on Valentino's part.

Therefore, that branch of Valentino's motion for summary judgment on the counterclaim asserted against him by defendants Rivera and Fed Ex on the issue of liability is granted. [*6]

IV. Conclusion

Accordingly, it is

ORDERED that defendants' motion for summary judgment is denied in its entirety; and it is further

ORDERED that the cross-motion of plaintiff James Valentino for summary judgment on the issue of liability is granted and the counterclaim asserted against him by defendants Felix Rivera and Federal Express Corp. is dismissed, and his motion is otherwise denied.

Dated: October 19, 2007

ENTER:

_______________________

J. S. C.