Jebode v Golden Oldies, Ltd.

[*1] Jebode v Golden Oldies, Ltd. 2010 NY Slip Op 50436(U) [26 Misc 3d 1237(A)] Decided on March 16, 2010 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2010
Supreme Court, Queens County

Tirth Kumarie Jebode, Plaintiff,

against

Golden Oldies, Ltd., Defendant.



14321/08

Robert J. McDonald, J.

The underlying action involves alleged injuries resulting from an accident which occurred October 5, 2007 when the defendant's forklift rolled from its garage at 33rd Avenue in College Point and struck the rear of plaintiff's parked minivan.

In plaintiff's initial Cross-Motion he moves for summary judgment on the issue of liability. They attach copies of a deposition by Aaron Feinzig on behalf of Golden Oldies, Ltd taken of May 26, 2009.

Mr. Aaron Feinzig testified at a deposition held May 26, 2009. He stated that in October 2007 there was one forklift used for loading heavy merchandise [15]. The key to the fork lift was left in the ignition [18]. "Q. And if a forklift was necessary, it would take the items from inside the warehouse outside onto the bays and load them into the trucks? A. Yes."[27] Upon Feinzig's arrival at the scene he saw the forklift. "Q. Where did you observe the forklift? A. Parked in the street." [36] When Feinzig first saw the forklift it had been "reparked" [37]. "Q. When you say reparked, what do you mean by that? A. Someone had been using it and then parked it."[37] In response to the question as to whether the forklift was being operated by someone at the time of the accident Feinzig stated that it was not [37]. "Q. What did you learn through your investigation? A. I learned that the forklift rolled unoccupied hitting the rear of the car."[38] "Q. Did you ask him [Mr. Santana the person who had [*2]last used the forklift] how it came to be that the forklift was unoccupied and managed to proceed into the street? A. Yes. Q. What did he tell you ? A. That he brought the forklift into the bay area and he put the forklift in neutral and the rear wheels were not fully up and the incline and it rolled back down."[39,40] The police responded to the accident and there was a conversation between Feinzig and the police [45]. "Q. What was the sum and substance of what you responded to them? A. The forklift rolled down the bay, hit the rear of the parked car. Q. Did you fill out an accident report? A. No." [45] "Q. I think you mentioned there were two other occasions before October 5, 2007 where the forklift rolled without it being occupied; is that correct ? A. Yeah, but - - Yes." [48] "Q. The incline area, is it on the sidewalk or is it within the building? A. It's in the building." [51]

There is an affidavit from Richard S. Feinberg, the controller of Oldies, dated January 20, 2010. Mr. Feinberg stated that on October 5, 2007 the forklift had a VIN number and had a license plate 17799SC. He attaches the Certificate of Title dated September 7, 2004. The certificate of title states that the document is proof of ownership for this "vehicle, boat or manufactured home". Under "Type of Title" it indicates "VEHICLE". There is attached as Exhibit "D" the schedule of "covered autos" from Oldies insurance agency which lists among various automobiles and trucks a "TOYOTA FORKLIFT". Mr. Fienberg states that it is his belief that because the Forklift was driven "on the public roadways" and propelled by "propane gas" it is a "motor vehicle" and defined in VTL 125 and should therefore be governed by the New York State Insurance Law, specifically the "No Fault" provisions of the law.

Vehicle and Traffic Law §125 defines a motor vehicle as "[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power .... [t]he term motor vehicle shall exclude...all terrain type vehicles used exclusively for agricultural purposes, or for snow plowing ... self-propelled caterpillar or crawler-type equipment wile being operated on the contract site". Using this definition a Court has determined that a "bobcat" which is a "machine used for plowing snow or in connection with landscaping work", met the definition of a motor vehicle under New York law when "at the time of the accident the motor was running, and he was moving the machine on the sidewalk'" when it struck a car in which Winstead was a passenger(Matter of County of Westchester v Winstead, 231 AD2d 630). Like in Winstead, the fork lift in the instant case struck the plaintiff on a public street. Similarly, a truck, whose engine was not running, was being loaded and unloaded and the [*3]Court found that this transaction was sufficient to satisfy the requirements of "operating" a motor vehicle, likely because it was in the control of the defendants at the time of the accident(Frontuto v Ray Burgen Trucking Company, Inc, 78 NY2d 938).

In the Mangra case, the only New York case on point, a fork lift was found not to be a "motor vehicle" when the underlying accident occurred within the defendant's cargo building, and the fork lift was not owned by the airline company. (Mangra v China Airlines, Ltd, 7 Misc 3d 499 [Kohm, J]). This is distinguished from the case at bar because the fork lift in question was regularly used to load and unload trucks on a public street and was not solely confined to the defendant's building.

It is clear from the evidence represented that the defendant knew by registering the forklift with the Department of Motor Vehicles, getting license plates for it and insuring it, that it was to be operated on the public street. Accordingly, this Court finds that the fork lift in this particular case is a motor vehicle under § 125 of the Vehicle and Traffic Law.

The moving defendants assert that the plaintiff has not sustained a "serious injury" as a result of the accident.

In order to maintain an action for personal injury in an automobile case a plaintiff must establish, after the defendant has properly demonstrated that it is an issue, that the plaintiff has sustained a "serious injury" which is defined as follows:

"Serious Injury" Insurance Law §5102(d)

In order to maintain an action for personal injury in an automobile case a plaintiff must establish that he has sustained a "serious injury" which is defined as follows:

Serious injury means a personal injury which result in ... 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 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" (Toure v [*4]Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendant's motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury (Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).

Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

The defendant relies on the affirmation dated April 21, 2009 of Daniel J. Feuer, M.D., a Board Certified Neurologist. Dr. Feuer conducted an "Neurological Examination" of the plaintiff and found, without indicating whether the tests were subjective or objective, that her movement in her cervical spine was "normal", that with her lumbar spine flexion was restricted by 10 degrees, and lateral flexion was restricted by 15 degrees. There was also a difference in the diameter of the plaintiff's left calf as opposed to the right calf. The right measured 41.5 cm. while the left measured 40.5. Dr. Feuer noted that the plaintiff had "complained" "I have a lot of pain in my right knee." Dr. Feuer's diagnosis was "Normal neurological examination."

The defendant relies on the affirmation of Dr. Edward A. Toriello, M.D., a Board Certified Orthopaedic Surgeon, dated June 15, 2009. Dr. Toriello notes that the plaintiff "continues to complain of pain and swelling in her right knee and an inability to climb stairs." Dr. Toriello notes that based on his objective measurements that the plaintiff had normal measurements in her cervical spine, but notes "decreased bilateral rotation of 30 degrees (normal is 80 degrees)", normal readings of her right and left shoulder movement, normal readings of her right and left elbow, normal readings of her right wrist and hand and left wrist [*5]and hand. He noted that with regard to movement of her lumbosacral spine the examination "reveals decreased flexion of 70 degrees (normal is 90 degrees) limited by pain, however, other readings were normal. With regard to the plaintiff's right knee Dr. Toriello found "flexion of 0 to 30 degrees (normal is 0 to 135 degrees)limited by pain". Her left knee was normal. Dr. Toriello's impression was that the plaintiff "has evidence of pre-existing degenerative changes of her right knee which are not causally related to the accident. She has multiple inconsistencies in her physical examination."

The plaintiff's pre-trial deposition dated January 15th, 2009 reveal that prior to the accident she was employed at Winner Caps Headwear [17]. Since the accident she worked 21 days[18]. At the time of the accident she complained of injury to her right knee [71]. She went to New York Hospital in Flushing [76]. She complained of pain to her right foot "It's paining me. Because of the accident, it's feeling like numb inside, and heavy, and lots of pain in it." [77]. She also had pain in her head [79]. Her doctor prescribed a removable cast and crutches [81]. She had medicare [82]. When she saw Dr. Chakon she complained of right knee pain [90] She had never had prior back or knee pain before the accident [91]. She had acupuncture, ultasound, massage, physical therapy, and Chiropractic treatment for her knee [93,94]. She went for MRIs [96]. She saw a Dr. Manuel for treatment of her foot which was swollen and inflamed [110]. She also saw a Dr. Reymer, an orthopedist [116]. He performed surgery on her right knee [120, 121]. She couldn't work because of the accident [126]. Even after the surgery she complained of pain [133]. She still takes "painkiller"s [137]. A second surgery has been recommended [140].

Here the defendant has come forward with sufficient evidence to support their claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955).

To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration (Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (Dufel v Green, 84 NY2d 795). Upon examination of the papers and exhibits submitted this Court [*6]finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.

The plaintiff argues that the defendant has not met its burden of proof and thus, the plaintiff is not obligated to demonstrate that she had sustained a "serious injury".

The plaintiff argues that the defendant's doctors disagree on what a normal range of motion should be for the plaintiff when they examined the plaintiff on April 21, 2009 and June 15, 2009.

The plaintiff also submits a copy of the affirmation of Dr. Robert L. Michaels, M.D., a Board Certified Orthopedic Surgeon dated July 31, 2008, who examined the plaintiff for the plaintiff's "No-Fault" carrier Allstate Insurance. Dr. Michaels diagnosis is that the cervical sprain, right ankle sprain, and lumbar sprain had all been resolved. He notes that the plaintiff's complaint with regard to her left knee could not be substantiated and he notes with regard to the right knee "Status post right knee arthroscopy." He notes "Ms. Jebode requires not further physical therapy, orthopedic treatment or diagnostic testing." Dr. Michaels further stated "the claimant exhibits no disability. She may work and perform activities of daily living without restrictions."

The question presented as to the difference between the conflicting measurements of plaintiff's ability to move creates an issue of fact for the jury (Martinez v Pioneer Transportation Corp., 48 AD3d 306).

Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali, 24 AD3d 256 aff'd 6 NY2d 868).

The plaintiff has failed to demonstrate that she has a "medically determined" injury or impairment which has prevented her from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident. (Ayotte v Gervasio, 81 NY2d 1062; Johnson v Berger, 56 AD3d 725;Roman v Fast Lane Car Service, Inc., 46 AD3d 535).

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life (Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of [*7]"Permanency" is established by submission of a recent examination (Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828). The mere existence of a herniated disc even a tear in a tendon is not evidence of serious physical injury without other objective evidence (Sapienza v Ruggiero, 57 AD3d 643; Piperis v Wan, 49 AD3d 840). Merely referring to the plaintiff's "subjective quality of the plaintiff's pain does not fall within the objective definition of serious physical injury" (Saladino v Meury, 193 AD2d 727, see, Craft v Brantuk, 195 AD2d 438). Dr. Toriello's find that the plaintiff "has evidence of pre-existing degenerative changes of her right knee which are not causally related to the accident. She has multiple inconsistencies in her physical examination" is not contradicted by the plaintiff.

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation (Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" (Gaddy v Eyler, 79 NY2d 955). Once the question has been raised, in order for the plaintiff to sustain proof of permanency, she must demonstrate the existence of such injury through objective medical tests which demonstrate the duration and extent of the injuries alleged (Gobas v Dowigiallo, 287 AD2d 690). The plaintiff has been unable to demonstrate the permanency of her injuries as well as the duration and extent of her alleged injury.

The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration (Dufel v Green, 84 NY2d 795; Fung v Uddin, 60 AD3d 992; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383). The plaintiff has failed to meet her burden with regard to such proof.

This Court finds that the subject accident was one which is governed by the Vehicle and Traffic Law. It was appropriate for the defendant to question as whether the plaintiff suffered a "serious injury". Upon demonstrating that she did not suffer a "serious injury" it was her burden to demonstrate that she had suffered such injury as defined in Insurance Law 5102. The plaintiff has failed to submit a recent examination by an Orthopedist or other doctor, and has instead relied on the alleged differences between the defendant's medical reports. This Court finds that the medical reports submitted by the defendant establish that the plaintiff did not sustain a "serious injury" as a result of the accident on October 5, 2007. [*8]

Accordingly, the plaintiff's case is dismissed.

Dated: Long Island City, NY

March 16, 2010

______________________________

ROBERT J. MCDONALD

J.S.C.