Johnson v Burkey-Kelly

[*1] Johnson v Burkey-Kelly 2007 NY Slip Op 52531(U) [18 Misc 3d 1126(A)] Decided on June 7, 2007 Supreme Court, Monroe County Frazee, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
Supreme Court, Monroe County

Angelette Johnson, Plaintiff,

against

C. Burkey-Kelly and Jeffrey Kelly, Defendants.



2005/02733



The Barnes Firm, P.C.

16 West Main Street, 6th Floor

Rochester, New York 14614

Appearing on behalf of the plaintiff

By: Richard P. Amico, Esq., of Counsel

Egger & Leegant

134 South Fitzhugh Street

Rochester, New York 14608

Appearing on behalf of the defendants

By: Jan P. Egger, Esq., of Counsel

Evelyn Frazee, J.

Plaintiff commenced this action seeking damages for injuries she allegedly sustained as a result of a three car automobile accident that occurred in the City of Rochester on November 3, 2004. At the time of the accident, plaintiff was a passenger in an automobile owned and operated by her sister, Christine Johnson. Plaintiff's vehicle was allegedly stopped when it was struck from behind by a second vehicle which, in turn, had been struck in the rear by a third vehicle owned by defendant Jeffrey Kelly and operated by defendant C. Burkey-Kelly. Defendants move for summary judgment on the ground that plaintiff did not sustain a serious injury. Plaintiff cross-moves for partial summary judgment on the issue of negligence.

In her bill of particulars, plaintiff alleges that she sustained an activation and aggravation of degenerative changes including reversal of the normal lordosis of the cervical spine; C1-C2 [*2]bilateral accessory spinous ligamentous instability; effacement of the anterior subarachnoid space and impingement of the ventral spinal cord at the mid-cervical spine level. Plaintiff's bill of particulars alleges that plaintiff sustained a permanent consequential limitation of her cervical spine, a significant limitation of use of her cervical spine and the 90/180 day category of serious injury.

In support of their motion for summary judgment, the defendants submitted an affirmed report of Dr. Jeffrey C. Gundel, an orthopaedic surgeon, dated March 10, 2007. Dr. Gundel reviewed the plaintiff's medical records and conducted his own independent medical examination. In his report, Dr. Gundel stated as follows:

The plaintiff has had an essentially normal x-ray and MRI of the cervical spine without disc disease. She had straightening of the spine, most likely due to muscle spasm. She has an essentially normal physical exam with very minimal limitation. Her subjective complaints are out of proportion and not supported by objective findings.

The plaintiff complains of low back pain but the chiropractor never addressed any complaints of low back pain on any of his reports. In fact, he crossed out the lumbar section on each of the reports for his entire treatment period. I do not feel that the current low back complaints are even casually related to the accident of record. I do not find any reasonable medical indication that the plaintiff needed to be out of work for seven months after the injury. I further do not feel that the plaintiff has sustained any permanent loss of function of any body system as a result of the motor vehicle accident of 11/3/04.

In opposition to defendants' motion, plaintiff relies on her deposition testimony and an affidavit of her treating chiropractor, Dr. Steven Ess, D.C. Dr. Ess states that he began treating plaintiff on November 12, 2004 for severe pain in her cervical spine. On November 16, 2004, she was positive for paraspinal muscle spasm in the sub-occipital region on the right; the trapezius muscles on the right and left; and the scapular muscles on the right and left; she had 33% reduced range of motion on flexion; 20% reduced range of motion on extension; 40% reduced range of motion on right lateral flexion; 25% reduced range of motion on left lateral flexion and slightly reduced range of motion on right and left rotation. Dr. Ess further states that plaintiff was also positive for the Soto-Hall and Foraminal distraction orthopaedic testing and that he instituted a treatment regimen that included heat, massage and chiropractic adjustment three times per week. Plain film x-rays demonstrated no gross instability or fracture.

On December 15, 2004, Dr. Ess ordered digital motion x-rays and an MRI because plaintiff was not responding well to treatment. He states that plaintiff's subjective complaints of pain and significantly limited range of motion correlated to muscle spasm that was palpated on each visit. On January 21, 2005, Dr. Ess reviewed the results of the diagnostic testing. The digital motion x-ray [*3]demonstrated segmental instability in her cervical spine as well as a prominent reversal of lordotic curve which impinged on the spinal cord, according to Dr. Ess. He further states that the prominent reversal of lordotic curve is a serious condition that was secondary to paraspinal muscle spasm and that the diagnostic findings correlate with the subjective complaints of pain, reduced range of motion, as well as disabling her from substantially all of her usual and daily activities that involved working, lifting, using her arms for cooking, cleaning, dressing or carrying objects.

Dr. Ess continued to treat plaintiff three times per week in January and February. Plaintiff continued to have muscle spasm and reduced range of motion. Dr. Ess continued to keep her out of work until March 1, 2005. Dr. Ess states that her symptoms began to slowly resolve in March and April.

On March 9, 2005, the plaintiff underwent a chiropractic examination by Frank R. Pignatelli, D.C at defendants' request. According to Dr. Ess, Dr. Pignatelli opined that:

some of the orthopaedic testing on March 9, 2005 was positive;

the type, intensity, frequency, and duration of my treatment was consistent with the severity of the documented injuries;

based on the positive objective testing, he recommended continued chiropractic care for an additional six to eight weeks;

the claimant can return to pre-injury activities within six to eight weeks;

the claimant's injuries were caused by the motor vehicle crash.

On June 7, 2005, Dr. Ess re-evaluated plaintiff. He states she was positive for muscle spasms in the sub-occipital region on the right and left side; spasm in the trapezius muscle group on the right and left side; rhomboid muscle group on the left side and spasm in the paraspinal muscles of the thoracic spine at the T-1 through T-3 levels. Her range of motion in the cervical spine was restored to normal limits with pain on flexion and extension. Dr. Ess released her to return to work on June 13, 2005, without restrictions.

Dr. Ess opined that:

"The plaintiff was disabled from substantially all of the usual and daily activities of daily living for more than 90 of the 180 days following the crash. Contrary to the defendant's examiner, there were numerous objective medical findings that required the plaintiff to be restricted from work. The plaintiff consistently demonstrated spasm in the paraspinal muscles of her cervical spine [*4]throughout my eight months of care. The plaintiff's range of motion was significantly limited on most planes of cervical motion. The diagnostic studies confirmed a flexion and extension injury to the cervical spine caused by the crash, and demonstrated by the prominent reversal of lordotic curve in the cervical spine secondary to muscle spasm. My findings and conclusions were consistent with those of Dr. Frank Pignatelli, who examined the plaintiff on behalf of State Farm Insurance Company."

Plaintiff also testified to a list of activities [FN1] that constituted her usual and customary activities that she was unable to perform for more than five months after the accident.

DISCUSSION

Defendants met their initial burden with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury alleged by plaintiff and plaintiff failed to raise an issue of fact with respect to those categories (see, Downs v Kehoe, 2207 WL 1168469 [4th Dept, 2007]).

Even assuming defendants met their initial burden of establishing their entitlement to judgment as a matter of law with respect to the 90/180 category of serious injury, plaintiff raised a triable issue of fact whether her injuries qualify under this category (see, Brannan v Brownsell, 23 AD3d 1106 [4th Dept, 2005]). Plaintiff testified her injury substantially prevented her from performing her usual and customary activities for over 90 days following the accident and specified those activities which included work. Moreover, plaintiff's treating chiropractor stated that plaintiff's injury was shown by objective evidence, including spasms, and diagnostic studies and that she was disabled for working for seven months after the accident.

Defendants' motion for summary judgment dismissing the plaintiff's 90/180 category of serious injury is denied.

With respect to plaintiff's cross-motion for summary judgment with regard to negligence, plaintiff relies upon her deposition testimony and the deposition testimony of defendant C. Burkey-Kelly. Plaintiff testified that on November 3, 2004, she was a belted passenger in a vehicle that was travelling southbound on Mt. Hope Avenue in the City of Rochester. Further, that her vehicle had just passed Elmwood Avenue and was attempting to make a left turn into a CVS Store. Plaintiff stated that her vehicle was stopped about a minute trying to make the left-hand turn when it was struck from the rear by a second vehicle. [*5]

The defendant C. Burkey-Kelly testified that her vehicle struck the rear of the second vehicle, which was stopped, and the second vehicle in turn struck plaintiff's vehicle. She further testified that she saw the second vehicle was stopped a few seconds before the impact.

The Appellate Division, Fourth Department in Shulga v Ashcraft, 11 AD3d 93 (2004), recently restated the well-settled principle that

"It is well established that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . [and that, i]n order to rebut the presumption, the driver of the rear vehicle must submit a [nonnegligent] explanation for the collision (Pitchure v. Kandefer Plumbing & Heating, 273 AD2d 790, 710 NYS2d 259; see Leal v. Wolff, 224 AD2d 392, 393, 638 NYS2d 110; see also Suitor v. Boivin, 219 AD2d 799, 800, 631 NYS2d 960)."

Here, the defendant C. Burkey-Kelly failed to maintain a safe distance between her vehicle and the second vehicle in front of her causing the second vehicle to rear end plaintiff's vehicle. Defendants have not submitted a sufficient nonnegligent explanation for the collision (see, Woodley v Ramirez, 25 AD3d 451 [1st Dept, 2006]; Newton v Perugini, 16 AD3d 1087 [4th Dept, 2005]; Kress v Allen, 11 AD3d 985 [4th Dept, 2004]; Ruzycki v Baher, 301 AD2d 48 [4th Dept, 2002]; Danza v Longieliere, 256 AD2d 434 [2nd Dept, 1998] lv to appeal denied 93 NY2d 957 [1999]). Plaintiff has also established that she was not negligent.

Plaintiff's cross-motion for summary judgment on the issue of negligence is granted.

Submit order.

Dated at Rochester, New York

this 7th day of June, 2007.



Honorable Evelyn Frazee

Justice Supreme Court Footnotes

Footnote 1:These were: clean; sweep; mop; dishes; laundry; sit (more than 30 minutes); stand (more than 30 minutes); read (more than 30 minutes); drive; change child; carry child; could not bathe well; hobbies (bingo, shopping, etc.); daily grooming; enjoy playing with kids; cook; intercourse with husband; exercise; sleep well; watch TV.