Svendsen-Beebe v Rottach

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Svendsen-Beebe v Rottach 2011 NY Slip Op 32625(U) October 3, 2011 Supreme Court, Suffolk County Docket Number: 09-44825 Judge: John J.J. Jones Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX NO. 09-44825 CAL. NO. 11-00154MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 10 - SUFFOLK COUNTY PRESENT: Hon. JOHN J.J. JONES, JR. Justice of the Supreme Court MOTION DATE 4-6-1 1 ADJ. DATE 6-8-1 1 Mot. Seq. # 001 - MotD AMIDE0 NICHOLAS GUZZONE, et al. Attorney for Plaintiff 2450 Middle Country Road Centereach, New York 1I720 Plaintiff, -againstSTEVEN J. ROTTACH, ELRAC, LLC and ENTERPRISE HOLDINGS, INC., d/b/a ENTERPRISE RENT-A-CAR, Defendants. ............................................................... ) : BRAND GLICK & BRAND, P.C. Attorney for Defendants 600 Old Country Road, Suite 440 Garden City, New York 1 1530 X Upon the following papers numbered 1 to 3 read on this motion for dismissal and summary iudgment ; Notice of 0 Motion/ Order to Show Cause and supporting papers 1 - 17 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 18 - 27 ;Replying Affidavits and supporting papers 28 - 30 ; Other -; (an&rkrma < it is, ORDERED that the motion by the defendants for dismissal pursuant to CPLR 32 1 1 (a)(7) and for summary judgment dismissing the complaint is determined herein. This is an action to recover damages for injuries allegedly sustained by the plaintiff on July 4, 2009 when her vehicle was struck by a vehicle owned and leased by the defendant ELRAC, Inc. d/b/a Enterprise (ELRAC), incorrectly sued herein as ELRAC, LLC and Enterprise Holdings, Inc. d/b/a Enterprise Rent-A-Car, and operated by the defendant Steven J. Rottach (Rottach). The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4,2009 until September 29,2009 and [* 2] Svendsen-Beebe v Rottach Index No. 09-44825 Page No. 2 intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations at The Bristol, an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29,2009, from December 5.2009 until December 9,2009, and from December 30,2009 until January 6,2010. The defendant ELRAC now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC 3 30106 (the Graves Amendment). ELlRAC submits a faxed copy of an affidavit dated February 11,201 1 of its employee, Daniel Madden, that lacks an original signature. The Court considers said affidavit despite its defect (see CPLR 2 101 [e], [fl; Bi//ingy v Blagrove, 84 AD3d 848, 922 NYS2d 565 [2d Dept 201 11). Mr. Madden indicates in his affidavit that he is a regional risk supervisor for ELRAC, and that the day before the subject accident, ELRAC rented its vehicle, a Chevy vehicle with a New York license plate EST6633, to Rottach who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that Rottach >was not employed by ELRAC on the date of the accident. On August 10,2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law (Graham v Dunkley, 50 AD3d 55, 57-58, 852 NYS2d 169 [2d Dept 20081, appeal dismissed 10 NY3d 835,859 NYS2d 607 [2008]). The Act is now codified at 49 USC 5 30106 (see Graham v Dunkley, 50 AD3d at 58). The section is entitled Rented or leased motor vehicle safety and responsibility and provides: (a) In general. An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). (see 49 USC 9 30106 [a]). The section applies to all actions commenced on or after August 10,2005 (see 49 USC 8 30106 [c]), and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law 5 388 (Gralzam v Dunkley, 50 AD3d at 58). Here, ELRAC established that it is an owner (or an affiliate of the owner) ... engaged in the trade or business of renting or leasing motor vehicles (see 49 USC 6 30106; Gluck v Nebgen, 72 AD3d 1023, 898 NYS2d 881 [2d Dept 20101; Graham v Dunkley, 50 AD3d at 57-58). In addition, Mr. Madden demonstrated through his affidavit that the plaintiffs allegations of failing to maintain the vehicle in a [* 3] Svendsen-Beebe v Rottach Index No. 09-44825 Page No. 3 proper state of repair and respondeat superior are unfounded such that there is no negligence or wrongdoing on the part of ELRAC (see id.). Moreover, the plaintiff s vicarious liability claims pursuant to Vehicle and Traffic Law 0 388 as against ELRAC are barred by 49 USC 3 30106 (see Hall v ELRAC, Inc., 52 AD3d 262, 859 NYS2d 641 [lstDept 20081). The plaintiff failed to raise any opposition warranting the denial of ELRAC s request. Therefore, ELRAC is entitled to dismissal of the complaint as against it (see 49 USC 9 30106; Gluck v Nebgen, 72 AD3d at 1023-1024; Hall v ELRAC, Inc., 52 AD3d at 262-263; Graham v Dunkley, 50 AD3d at 57-58). The defendant Rottach seeks summary judgment in his favor dismissing the complaint as against him on the ground that the plaintiff failed to sustain a serious injury as defined in Insurance Law 6 5 102 (d) as a result of the subject accident. On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law fj 51 02 (d) (see Caddy v Eyler, 79 NY2d 955,582 NYS2d 990 [1992]; Aklztar vSantos, 57 AD3d 593,869 NYS2d 220 [2d Dept 20081). The defendant may satisfy this burden by submitting the plaintiffs own deposition testimony and the affirmed medical report of the defendant s own examining physician (see Moore v Edison, 25 AD3d 672, 8 11 NYS2d 724 [2d Dept 20061; Farozes v Kamran, 22 AD3d 458, 802 NYS2d 706 [2d Dept 20051). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med Ctr., 64 NY2d 85 1,853,487 NYS2d 3 16 [ 19851; Boone v New York City Trans. Autlz., 263 AD2d 463,692 NYS2d 731 [2d Dept 19991). Insurance Law 4 5 102 (d) defines serious injury as 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. It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified, compared to the norms, and based upon identified objective tests (Per1 v Melzer, 74 AD3d 930, 93 1, 902 NYS2d 632 [2d Dept 2010][internal citations omitted]). These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment (id.).The defendants must submit admissible medical evidence demonstrating that the plaintiffs range of motion was not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height (see Frey v Fedorciuc, 36 AD3d 587,588,828 NYS2d 454 [2d Dept 20071; Powell vAlade, 31 AD3d 523,818 NYS2d 600 [2d Dept 20061). For a plaintiff to recover under the permanent loss of use category, he or she must demonstrate a [* 4] Svendsen-Beebe v Rottach Index No. 09-44825 Page No. 4 total loss of use of a body organ, member, function or system (see Oberly v Bangs Ambulance Inc., 96 NY2d 295, 727 NYS2d 378 [2001]). To prove the extent or degree of physical limitation with respect to the permanent consequential limitation of use of a body organ or member or significant limitation of use of a body function or system categories, the plaintiff must provide either objective evidence of the limitation or loss of range of motion and its duration based on findings from an examination contemporaneous to the accident and a recent examination or the plaintiff must provide a sufficient description of the qualitative nature of his or her limitations, with an objective basis, correlating thie plaintiffs limitations to the normal function, purpose and use of the body part (see Toure v Avis R m t A Car System, Inc., 98 NY2d 345, 746 NYS2d 865 [2000]; Mejia v DeRose, 35 AD3d 407,825 NYS2d 722 [2d Dept 20061; see also Perl v Melzer, 74 AD3d at 93 1). The defendant Rottach relies on the affirmed medical reports of the defendants examining orthopedic surgeon, Edward A. Toriello, M.D., and examining neurologist, Mark J. Zuckerman, MI). The report dated November 9, 20 10 of Dr. Toriello indicates that he examined the plaintiff on said date and performed range of motion testing of her cervical spine, right and left shoulders, right and left ellbows, right and left wrist and hand, lumbosacral spine, and right and left ankle and foot using a goniometer. Dr. Toriello s findings with respect to the cervical spine revealed decreased bilateral rotation of 30 degrees (normal 80 degrees), flexion of 10 degrees (normal 50 degrees), and extension of 10 degrees (normal 60 degrees), with no evidence of paracervical muscle spasm or atrophy. His findings regarding range of motion of the plaintiffs lumbosacral spine revealed decreased flexion of 30 degrees (normal 60 degrees) limited by pain, and normal extension, bilateral lateral bending and bilateral rotation but with complaints of pain at the extremes of motion. Dr. Toriello stated that the plaintiff has evidence of symptom magnification based on her complaints of pain in her lumbar spine when he lightly touched the skin overlying her paralumbar muscles, her complaints of pain in her lumbar spine when he rotated her body at the hips while maintaining her lumbar spine completely stable, and her complaints of pain radiating from her head to her lower back when he tapped the top of her head. Dr. Toriello noted that there was no paralumbar muscle spasm or loss of normal lumbar lordosis and that straight leg raising was bilaterally full and pain free. In conclusion, Dr. Toriello opined that the plaintiff showed evidence of a resolved cervical hyperextension injury, resolved left foot contusion, resolved right shoulder strain, and resolved low back strain. He also opined that she had evidence of symptom magnification and noted that the range of motion examination is a subjective test under the voluntary control of the individual being tested. Dr. Toriello concluded that the injuries appeared to be causally related to the subject accident, that the plaintiff had no pre-existing conditions affecting her recovery, and that she was presently able to perfom the duties of her occupation. Dr. Zuckerman indicated in his report that he examined the plaintiff on November 8,20 I O arid found a normal neurological examination. However, he reported that the plaintiffs spinal range of motion testing with a goniometer revealed lumbar flexion to 20 degrees (60 to 90 degrees normal), cervical flexion to 20 degrees (50 to 60 degrees normal), cervical extension to 20 degrees (40 to 60 degrees normal), and cervical lateral flexion to the left was 20 degrees (45 degrees normal) and cervical lateral flexion to the right was 25 degrees (45 degrees normal). Dr. Zuckerman also reported that the plaintiff needed effort to rotate to the left and rotated to the right 20 out of the maximum 80 degrees. He concluded his report by diagnosing cervical sprain injury superimposed upon cervical degenerative disc [* 5] Svendsen-Beebe v Rottach Index No. 09-44825 PageNo. 5 disease, ossified ligaments and congenitally narrowed spinal canal, and subjective headaches, cervically mediated from spondylosis and spraidstrain. Dr. Zuckerman opined that there was no evidence of cervical radiculopathy, lumbosacral radiculopathy, or central or peripheral nervous system dysfunction and that the plaintiffs reduced range of motion was secondary to spondylitic disease and diminished effort. He further opined that there was no causally related neurologic injury or impairment but that the cervical sprain appeared to be causally related to the subject accident, superimposed upon pre-existing degenerative changes, and that her lumbar condition appeared to be an entirely pre-existing condition. Here, the defendant Rottach failed to meet his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insuran ce Law 9 5 102 (d) as a result of the subject accident (see Reitz v Seagate Trucking, Inc., 71 AD3d 975, 898 NYS2d 173 [2d Dept 201 01). Dr. Toriello reported the existence of significant limitations in the plaintiffs cervical and lumbosacral spine range of motion more than a year after the subject accident ( s e e d a m v Karim, 61 AD3d 904,879 NYS2d 151 [2d Dept 20091). Although he stated that the plaintiff had evidence of symptom magnification and that range of motion testing is subjective, he failed to substantiate those conclusions with objective medical evidence (see Tavaras Y Herkimer Taxi Corp., 78 AD3d 1162,911 NYS2d 672 [2d Dept 20101). In addition, it appears that Dr. Zuckerman also found significant limitations in range of motion of the plaintiffs cervical and lumbar spine, the extent of which is difficult to determine. Dr. Zuckerman reported ranges of motion for the plaintiffs lumbar Ilexion, cervical flexion, and cervical extension that were expressed in certain or definitive numerical degrees but he failed to provide the corresponding certain or definitive normal values and instead gave ranges or spectrums of degrees spanning 10 to 30 degrees for his normal standards of comparison (compare Spencer v Golden Eagle, Inc., 82 AD3d 589, 920 NYS2d 24 [lst Dept 201 13; see Lee Y M & MAuto Coach, Ltd., 201 1 NY Slip Op 30667U, 201 1 NY Misc Lexis 1 131 [Sup Ct, Nassau County 201 11). When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate (see Sainnoval v Sallick, 78 AD3d 922, 923,911 NYS2d 429 [2d Dept 20101; see also Lee v M & MAuto Coaclz, Ltd., 201 1 NY Slip Op 30667U, 201 1 NY Misc Lexis 1131 [Sup Ct, Nassau County 201 11). Moreover, Dr. Zuckerman noted that the plaintiff had a pre-existing lumbar condition but failed to address her allegation in her bill of particulars that the subject accident caused an aggravation of pre-existing injury to her lumbar spine (see Pero v Transervice Logistics, Inc., 83 AD3d 681,920 NYS2d 364 [2d Dept 201 11). Furthermore, both physicians failed to address the plaintiffs claim, as set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her fiom performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident (see Aslam v Hussain, 83 AD3d 749, 920 NYS2d 674 [2d Dept 201 13). Neither physician related his findings to this category of serious injury for the period of time immediately following the subject accident (see Delayhaye v Caledonia Limo & Car Service, Irzc., 61 AD3d 814, 877 NYS2d 438 [2d Dept 20091). Inasmuch as the defendant Rottach failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs papers submitted in opposition to his motion for summary judgment were sufficient to raise a triable issue of fact (see Bengaly v Singh, 68 AD3d 1030, 103 1, 890 NYS;!d 352 [2d Dept 20091). [* 6] Svendsen-Beebe v Rottach Index No. 09-44825 Page No. 6 Accordingly, the motion is granted solely as to the defendant ELRAC, Inc. d/b/a Enterprise and the action is severed and continued as against the defendant Steven J. Rottach. FINAL DISPOSITION X NON-FINAL DISPOSITION

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