Browne v Covington

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Browne v Covington 2010 NY Slip Op 33898(U) July 2, 2010 Supreme Court, Bronx County Docket Number: 0302400/2007 Judge: Mary Ann Brigantti-Hughes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED J 6 2010 Bronx County Clerk \_.W! RECEIVED REME COURT STATE OF NEW YORK UNTY OF BRONX TRIAL TERM-PART BRONX COUNTY r; rn ¢, ..; OFFICf JUL 1 51010 sent: Honorable Mary Ann Brigantti-Hughes PAD NOOE£ LORES BROWNE, DOREEN FRIDAY & VERNE BROWNE, DECISION/ORDER Plaintiffs, . -againstJ Index No.: 0302400/2007 EPH A. COVINGTON, Defendant, following papers numbered 1 to 9 read on this Motion noticed on September 25, 2009 and on the Motion ndar of March 10, 2010 of Part 1Al5. pers Submitted tice of Motion, Affirmation & Exhibits ss-Motion, Affirmation in Opposition ss-Motion, Affirmation ation in Opposition to Cross-Motion ly Affirmation Numbered 1,2 3,4 6,7 8 9 I Upon the foregoing papers, the following motions are before the Court: (I) PlaintiffDelores wne (hereinafter "D. Browne")'s motion for Summary Judgment, dismissing the counterclaim efendant Joseph A. Covington (hereinafter the "Defendant"); (2) Defendant's Cross-Motion for mary Judgment, dismissing the complaint of plaintiff Laverne Browne (hereinafter "L. wne") for failure to satisfy the "serious injury" threshold ofNew York Insurance Law Sec. 5102; (3) Plaintiffs D. Browne, L. Browne, and Doreen Friday (collectively the "Plaintiffs")'s crosstion for Summary Judgment against Defendant on the issue of liability. The within action arises from a motor vehicle accident occurring on May 11, 2007, in which ·ntiffs alleges that they sustained injuries. D. Browne moves for summary judgment, dismissing counterclaim filed by Defendant, which alleges that D. Browne's negligence in the operation of vehicle was the cause of the accident. Contemporaneously, all Plaintiffs cross-move for 1 [* 2]FILED Jul 16 2010 Bronx County Clerk s mary judgment against Defendant on the issue of liability. For the reasons set for herein, both m tions are granted. The courts filnction on a motion for summary judgment is issue finding rather than issue d ermination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d_395 (1957). Since summary ju gment is a drastic remedy, it should ·not be granted where there is any doubt as to the existence o a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). The movant must come ward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a tter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Thus, when the c ·stence of an issue of fact is even arguable or debatable, summary judgment should be denied. ne v. Goodson, 8 N.Y.2d 8, (1960); Sillman v. Twentieth Century Fox Film Corp., supra. With regard to the motions filed by Plaintiffs in the present action, it is well-settled that a r . r-end collision with a stopped vehicle creates the presumption that the operator of the moving v hicle was negligent. Dominga Agramonte, et al. v. City of New York, et al., 288 A.D.2d 75 (l" pl. 2001 ). Drivers must maintain safe distances between their cars and cars in front of them (see hicle and Traffic Law Sec. 1J29(a)), a rule which imposes on drivers a duty to be aware of all · ffic conditions, including sudden vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269 (l" Dept. 1 99), citing Sass v. Amhu Trans. Inc., 238 A.D.2d 570). The Appellate Division has declared that d ivers have a "duty to see what should be seen and to exercise reasonable care under the c cumstances to avoid an accident." Id., citing DeAngelis v. Kirschner, 171A.D.2d593, 595 (l" pl. 1991). The presumption of negligence as to the rear driver in rear-end collisions has been applied hen the front vehicle stops suddenly in slow-moving traffic, even if the stop is repetitive; in stopd-go traffic, when the front vehicle stopped while crossing an intersection; and when the front hick stopped after changing lanes. Id., citing Mascitti v. Greene, 250 A. D.2d 821 (2"d Dept. 1998); al v. Wolff 224 A.D.2d 392 (2"d Dept. 1996); Barbra v. Best Sec. Corp., 235 A.D.2d 381 (2"" ept. 1997); and Cohen v. Teerane/la, 112 A.D.2d 264 (2"d Dept. 1985). When such a collision curs, the occupants of the front vehicle are entitled to summary judgment on liability, unless the iver of the rear vehicle can provide a non-negligent explanation, in evidentiary form, for the llision. Id. citing Leal v. Wolff, supra. An explanation that the plaintiffs vehicle came to an 2 [* 3] FILED Jul 16 2010 Bronx County Clerk a upt or sudden stop in traffic, however, is insufficient to rebut the inference of negligence. Dickie v. ei Xiang Shi et al, 304 A.D.2d 786 (2nd Dept. 2003). is matter involves a rear-end collision wherein Defendant's vehicle struck Plaintiffs' vehicle as it vas merging onto highway traffic. While Plaintiffs' vehicle was not completely stopped, it was m ving slowly in anticipation of the merge. (See D. Browne's Deposition Transcript, at 18:9-10). ' P intifftestified that she observed Defendant's vehicle traveling at 25-30 miles per hour in her rear vi w mirror moments before the impact. (Id. at 20:18-20). Defendant's vehicle struck Plaintiffs ri ht rear bumper and passenger side rear. (Id. at 21: 15:22). Plaintiffs include a report drafted by a re ponding police officer. In his report. Officer Kastrinos notes that Plaintiffs' vehicle was struck fr m behind on the highway on-ramp, and includes a diagram of the vehicles following the impact. T e report notes that Defendant stated the front vehicle "stopped suddenly." In opposition to D. Browne's motion to dismiss the counterclaim and Plaintiffs' motion as to,liability, counsel for Defendant argues that they have been unable to locate their client for several m nths. Consequently, he failed to appear for a deposition and, to date, is missing despite counsel's of a private investigative service to track him down. Essentially, Defendant argues that there is o !standing discovery in this matter, specifically the deposition ofDefendant, which should preclude entry of summary judgment. As stated earlier, it is Defendants' duty in a rear-end collision to come forward with an a quate non-negligent explanation for the accident. Emil Norsic & Son v. LP Tramportation, Inc., 3 A. D.3d 368 (2"d Dept. 2006). Plaintiff sustained its burden of establishing a prima facic case for n ligencc by submitting the police report of the responding officer, as well as her own deposition te timonywhichdemonstrates that Plaintiffs vehicle was struck in the rear by Defendant's vehicle. D fendant has come forward with no evidence in rebuttal, and certainly no evidence that D. B owne's actions in any way contributed to this accident. Defendant's claims of outstanding discovery will not preclude entry of summary judgment w ere it is Defendant himself who .has personal knowledge of the relevant facts surrounding the a ident. Emil Norsic, supra. A purported need to conduct discovery does not does not warrant ial of summary judgment where the opponents of the motion have personal knowledge of the re.evant facts, and the lack of disclosure does not excuse the failure of a party with personal 3 [* 4] FILED Jul 16 2010 Bronx County Clerk k wledge to submit an aflidavit in opposition to the motion. Ranford v Sung Han, et al. 18A.D.3d 6 8 (2"' Dept. 2005) citing Niyazou v. Bradford, 13 A.D.3d 501 (2"' Dept. 2004). Further, D fendant offers only speculation and the mere hope that evidence uncovered during Defendant's d · osition would support his claim or adequately rebut the presumption of Defendant's negligence in his matter. Such speculation of evidence is insufficient to warrant denial of the instant motions, es ecially considering the fact that the record contains no indication whatsoever that the plaintiff ver contributed to this accident. Kaufman v. Citi Corp. Mortgage Inc, 272 A.D.2d 379 (2"' D pt. 2000). Accordingly, Defendant has not satisfied his burden of rebutting the presumption of n ligencc in this rear-end collision. The motion ofD. Browne on Defendant's counter-claims, and th motions of all Plaintiffs herein are granted. With regard to Defendant's motion as to plaintiffL. Browne's injuries, the burden is his to blish, by the submission of evidentiary proof in admissible form, that the plaintiff has not s fered a serious injury. Lowe v. Bennett, 511N.Y.S.2d603 (l" Dept. 1986), aff'd, 69 N.Y.2d 701 86). When a defendant's motion is su11icient to raise the issue of whether a "serious injury" has n sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie e dence in admissible form to support the claim of serious injury. Licari v. Elliot, 57 N.Y.2d 230 (1 82); Lopez v. Senatore, 65 N. Y.2d 1017 (1985). When a claim is raised under the "permanent c · sequential limitation of use of a body organ or member," "significant limitation of use of a body ction or system," or "a medically determined injury or impairment of a non-permanent nature ich prevents the injured person from performing substantially all of the material acts which stitute such person's usual and customary daily activities for not less than ninety days during the o -hundred eighty days immediately following the occurrence ofthc injury or impairment," in order rove the extent or degree of physical limitation, an expert's designation of a numeric percentage plaintiffs loss of range of motion is acceptable. Toure v. Avis Rent-A-Car Systems, Inc., 98 .2d 345 (2002). In addition, an expert's qualitative assessment of a plaintiffs condition is also probative, pr vided that: (I) the evaluation has an objective basis and, (2) the evaluation compares the pl inti ff s limitations to normal function, purpose and use of the affected body organ, member, 4 [* 5] FILED Jul 16 2010 Bronx County Clerk ction or system. Toure, supra. 1 Plaintiff must demonstrate more than "a mild, minor or slight itation of use" and is required to provide objective medical evidence of the extent or degree of itation and its duration. Booker v. Miller, 258 A.D.2d 783 (3'd Dept. 1999). Resolution of the is ue of whether "serious injury" has been sustained involves a comparative determination of the d grce or qualitative nature of an injury based on the normal function, purpose and use of the body t. Dufel v. Green, 84 N.Y.2d 795 (1995). The "significant limitation of use of a body function o system" requires proof of the significance of the limitation, as well as its duration. Id Following the accident, was treated and released from St. Joseph's Hospital. Unsworn m dical records from this visit arc included in plaintiffs opposition papers. On May 16, 2007, she c menced treatment with Dr. Osafradu Opam of Grand Concourse Chiropractors. An affidavit of D . Opam, along with the plaintiffs relevant medical records, are attached to plaintiffs opposition. 0 ly the records from Dr. Opam's office are sworn, and thus in admissible form for the motion According to Dr. Opam, L. Browne presented with complaints of pain in her neck, mid-back, er back and right shoulder. On May 18, 2007, Dr. Opam performed objective range of motion te ·ting on the cervical spine, lumbar spine, and both shoulders. Cervical flexion revealed a 33% loss o motion, extension revealed a 50% loss of motion, lateral bending revealed 75% loss of motion, lateral rotation similarly revealed 25-50% loss of motion on the right and left sides. Upon e minationofthc right shoulder, Dr. Opam found positive impingement signs and joint tenderness, ng with restricted range of motion upon flexion, extension, abduction, internal and external tion. Examination of the plaintiffs lumbar spine likewise revealed losses of motion of 22% u n flexion, 50% upon extension, 50% upon lateral bending to the left and right. Straight-leg · ing was "positive" on both the left and right sides. Additional objective testing of plaintiffs left le revealed similar restrictions. T e Toure decision appears to indicate that claims of neck or back injury resulting from bulging or erniated discs may be considered either under the category of a "permanent consequential li itation of use of a body organ or member" or a "significant limitation of use of a body f ction or system," as well as the 901180 day category (Toure v. Avis Rent A Car Systems. Inc., 9 N Y.2d 345 (2002)). 5 [* 6] FILED Jul 16 2010 Bronx County Clerk Ultimately, Dr. Opani diagnosed the 'plaintiff with, among other things, vertebral angemenl due to acceleration/deceleration injury, internal derangement of the right shoulder, and a . te traumatic sprain/strain to the cervical, dorsal, and lumbar spine. The plaintiff was considered " . lly incapacitated." Dr. Opam referred the plaintiff for MRI exams. On May 29, 2007, Dr. Opam directed the plaintiff to undergo an MRI examination of the ri ht shoulder, cervical spine and left ankle. The MRI of the right shoulder revealed a tear of the s raspinatus tendon. The MRI of the cervical spine revealed a disc bulge at C5 C6 and muscle On June 11 and June 25, 2007, the plaintiff was referred to orthopedic consults conducted b Dr. Remer. Dr. Remer classifies the plaintiff as "diabled." The reports, although attached to Dr. 0 arn's afiidavit, are unsworn. Dr. Opam again examined the plaintiff on June 27, 2007. Again, upon administration of o ·ective range-of-motion testing, she was found to have significant restrictions. L. Browne was th rafter referred to East Tremont Medical Center for steroid injection to the right shoulder, which w s performed on July 19, 2007. A follow-up with Dr. Opam on August I 0, 2007 revealed that the pl intiff still had restricted movement of the cervical spine. She was referred to physical therapy, re ords of which are attached to Dr. Opam's affidavit. On January 15, 2010, Dr. Opam examined the plaintiff, and concluded that her injuries were th result of her May 11, 2007 auto accident. He further opined that the injuries substantially p vented plaintiff from performing customary daily activities for 90 days during the immediate 180 d s following the accident. In opposition, Defendant includes the reports of two (2) iiidependcnt medical examinations o he plaintiff. The first was performed on July24, 2007 by Dr. Julio Westerbrand, an orthopedist. In, n affirmed report, and upon administration of objective testing, Dr. Westerbrand found full range o motion "with pain" in the plaintiffs cervical spine, shoulders, wrists, and ankles. Plaintiff erwent another independent medical examination conducted by Dr. Robert Israel on June 24, , 9, over two years from the date of the accident. Dr. Israel concluded that the plaintiffhad a "resolved sprain of the cervical and lumbar spine, n t shoulder, and left ankle" in his affirmed report. Defendant also includes an afiirrned report 6 [* 7] FILED Jul 16 2010 Bronx County Clerk m Dr. Jessica F. Berkowitz, who examined the plaintiffs May 29, 2007 MRI of the right s ouldcr. In her report. Dr. Berkowitz opines that "there is no evidence of acute traumatic injury to shoulder such as fracture, bone marrow endema" or muscular tear, and whatever tear was evident . s a product of natural degeneration and not a result of the incident herein. These findings, as well those of Drs. Westerbrand and Israel, are disputed by Dr. Opam. Defendant's motion for summary judgment is denied. Plaintiff L.Browne has submitted e idcnce in admissible form which raises the question of whether she has sustained a serious injury. intiff produced objective, contemporaneous and qualitative medical evidence regarding her uries. See Blackman v. Dinstuhi, 810 N.Y.2d 79 (I" Dept. 2006); Jimenez v. Rojas, 26 A.D.3d 6 (I" Dept. 2006). The objective range-of~motion testing in the record indicates that plaintiff s fercd from mild to significant restrictions in her spine and shoulder. Diagnostic testing of the ht shoulder revealed some evidence of tearing. Though the source of this injury is disputed, such o ·ective testing is sufficient to create an issue of fact as to the existence of a serious injury. Toure, s ra; Brown v. Achy, 776 N.Y.S.2d 56 (!"Dept. 2004). Plaintiffs treating physician set forth the nature of her limited ranges of motion by a igning percentages to the limitations and identifying the objective tests performed in deriving sc measurements. Rivera v. Benaroti, 815 N.Y.S.2d 44 (1" Dept. 2006). Accordingly, the issible records submitted in opposition create an issue as to whether L.Browne suffered an injury w ich prevented her from "performing substantially all of the material acts which constitute such son's usual and customary daily activities for not less than ninety days during the one hundred e1 hty days" immediately following the accident. Further, the conflicting affidavits and a11irmed re orts submitted establish the issues exist as to whether the plaintiffs injuries were causally related to he accident as well as the nature and extent of said injuries. See, Ins. Law Sec. 5)02(d), Toure, s ra.. For the reasons set forth herein, the defendant Joseph A: Covington's motion for summary JU gmcnt is denied . .This constitutes the decision and order of this Court. D ted: July 2, 2010 \,,,~ p/~~ i 'k--- Hon. Mai;, Ann ~rigantti-Hughes 7

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