Fitzgerald v Czubek

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Fitzgerald v Czubek 2011 NY Slip Op 33561(U) December 21, 2011 Supreme Court, Suffolk County Docket Number: 29640/2009 Judge: William B. Rebolini 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] Shurt Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM E. llliEOLlN! Justice Nicola Fitzgerald and Alan Fitzgerald, Index No.: 2964012009 Plaintiff, -againstChlistine Czubek, Defendant. Motion Sequence No.: 001; MG Motion Date: 8/29/11 Submltted: lOIS/II Motion Sequence No.: 002; XMD Motion Date: 8/29/11 Submitted: 10/5/11 Attorney for Plaintiffs: Clerk of the Court Jacoby & Jacoby 1737 North Ocean Avenue Medford, NY 11763 Attorney for Defendant: Richard T. Lau & Associates P.O. Box 9040 Jelicho, NY lJ 753-9040 Upon the followmg papers numbered I to 32 read upon this motion and cross motion for sun1n1u1(' jLl~lgmen( Notice or Motion and supportm~.rap?rs, 1 - 11; 17 - ~5; Answering Allidavlts and supportIng papers, 12 - 14; 26 - 30; Replymg Afhdavlts and sUppOrll11g papers, IS - 16. This IS an aCLion to recover damages for injuries allegedly sustained by plaintiff Nicola Fitzgerald ("plaintiff') as a result of a motor vehicle accident that occulTed at the intersection of Montauk Highway and Hagerman A venue in the Town of Brookhaven, New York, on June I I, 2009. The accident allegedly oCCUlTed when plaintiff's vehicle, which was coming to a stop for a red light, was struck in the rear by the vehicle owned and operated by defendant Christine Czubck. It is alleged that as a result of the Impact between the Fitzgerald and Czubek vehicles, [he fitzgerald vehIcle slruck the rear of the vehIcle In front of It. Plaintiff, by her bill of particulars, alleges thai [* 2] Fitzgerald \'. Czuhek Index No.: 29640/2009 Pagl' 2 sht' sustained vanou::; personal inJulies as a result of the subjecl accident including disc hulgcs at level C(l/e7, levels L2 through S 1 and levels T9 through T 1.2;dl:::iC hermations ~lr levels C2 through C6 and level "l'II/Tl2: ccphalgia; myofascll'is and lumbarradicuJillS. Plaintiff alleges that she was confined to her hnme for approximately five days and thell she was incapacitated from her cmploymelll as a sWllchbourd operator at Brookhaven Memorial Hospltal for upproximately lWO months as il result of the Injuries she sustained in the accident. Plaintiff's hushand, Alan Fitzger:dd, IllstitUled a derivatIve claim for loss of services. Plaintiffs move for summary judgment on the issue of liability arguing that dcfendant"s negligent operation of her vehicle is the sole proximate cause of the subject accident. In SUPPOI1of the motion. plamtlffs submit copies of the pleadings, the parties' deposlIion transcripts and an uncertified copy of the police accident repon. Defendant opposes the motion on the assel1ed basis that there arc matenallssucs of fact and credibi lity that preclude the granting of summary judgment In pL.1I1111Ils' favor on the Issue of liability. In opposition to the motion, defendant submIts a copy of the police aCCIdent report, witness statements and the transcript of hcr own deposition. To establIsh prima facie entitlement LO judgmclll as a matter of law, ~l movant must submil eVH.lentlary proof 11ladmIssible form demonstrating the absence of any material issues of fact (~.IT, Alvarez v. Prospect Hosp., 68 NY2d 320 [19861; Sillman v. Twentieth Centurv Fox Film Com., 3 NY2d 395 [1957])_ The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (sec, WineQ:rad v. Ncw York Univ. Med. Clr., 64 NY2d 851 f 19851. Once the movant makes such a showing, the opposing party must come forward with evidentiary proof in admissible form sufficient 10 r~use a triable issuc offuct (see, Zuckerman v. City of New York, 49 NY2d 557 (1980]; Flomenbaum v. New York Univ., 14 NY3d 901,903 NYS2d 339 [20 I0 I). A rear-cnd colliSion with a stopped vehicle creates apmlla/aue case of I\cgligcncc ~lgaillst IIll: uper;\IOr of the mllving vchicle, thereby reqUIring thaI operator to rebut the lllference or negligence hy providing a non-negligent explanation for the collision (see, Cortes v. Whelan, 83 I\D3d 763 12,,<1 ept.,201 I I; Ramirez v. Konstunzer, 61 AD3d 837 [2nJ Dept.,2009J: Hakaklan v. D McCabe, 38 AD3d 493 f2"J Dept.,2007]). However, the lead vehicle also has a duty not to stop suddenly or slow down without proper SIgnaling so as to avoid a collision (~, Chepcl v. Mevers, 306 AD:?d 235, 237 (2'1l.l Dept.,2003J; sec. Carhuavano v. J&R Hackine, 28 AD3d 413 [2'1l.l DcpL.'20061: Gacta v. Carter, 6 AD3d 576 (2"J Dept.,2004]: Purcell v_ Axelsen. 2R6 AD2d 379 r'2'1lJ Depr..2001 I: Colonna v. Suarez. 278 AD2d 355 [2".1 Dcpt..2000]: see also Vehicle and Traffic Law I 163 l. 1\ non-negligent explanalion for the collision, such as mechanical failure or the sudden and ahrupt SlOp the vehiclc ahead, is sufficlctltto overcome the inference of negligencc and preclude an award summary Judgmcnt (see, Danner v, Campbell, 302 AD2d 859, 850 [4'" Dept.,20W.!; see, DaVidoff v. Mul.lokandov, 74 AD3d 862 [2",1 Oept.,201OJ; Carhuayano v. J&R flacklllg, 18 AD3d -"-l-1J 12'1<1 Dept.,2006J); Rodnrwez-Johnson v. Hunt, 279 AD2d 781 [3,·J Dept., 20011). * nr or Here. plainlltl's testimony at her deposition demonstrares that, prior to belllg strucK in the rear by defendant's vehicle, her vehicle was comlllg to a stop at a red light behind anothcr vehicle. [* 3] Filzg<'ntld v. Czuhek Index No.: 2964012009 Page J Based on this evidence, plaintiffs established prilllafacie that plainli 1'1' not the proximate cause was of the subject accident (sec. Cones v. Whelan, 83 .A.D3d763 [2"dDcpt.,2011]: Hauser v. Adamov, 74 AD3d 1014 fl,lJ DepL,10101; Hveon Bee Park v. Hi Taek Kim, 37 AD3d416 fl,lJ DepL,2007]: Boumazos v. Malfit.l.no, 275 AD2d 437 l2"d Depr.. 1000], Smith v. Cafiero, 203 ADld 355 [2nd DepL. I994]). In opposition to plamtiffs' pri/lla facie showing, defendant railed to comc forward WIth a non-negligent explanation for the collision to overcome the inference of negligence and prc<.:ludean award of summary judgment (see, Blasso v. Parente, 79 AD3d 923 l2,KlDept.,lOIOI; Franco v. Breceus, 70 AD3J 767ll"d Dept.,2010]; Vespe v. Kazi, 62 AD3d 408 [1'1 Depl.,2009j) or to show that any negligence on the part of plaintiff contributed to the ac<.:ident's happel1lng (see. K,lstritslOs v. Marcello, 84 AD3d 1174 [lnd Dept.,lOII); Ramirez v. Konstanzer, 61 AD3rJ s:n [2"" Dept.,2009]; Smith v. Seskin, 49 AD3d 628 [2,m Dept.,2008]). Contrary to defendant's contention that the vehicle ahead of plaintiff's vehicle '·suddenly sropped short," causing both her and plaintiff to veer theIr vehicles to the right in an attempt ro avoid a colhsion, defendant, as the operator of a mowr vehicle, was required to see "that which through proper use of [her] senses Ishe] should have secn" (Goemans v. Countv of Suffolk, 57 AD3d 478, 479 [2"0.1 Dept.,l008] quoting Bon!!iovi v. Hoffman, 18 AD3d 686, 687 l2"d Dept.,200S]; see, Dominguez v. CCM Computers. Inc., 74 AD3d 728,902 NYS2d 163 [2'1<J Dept.,2010J; Yelder v. WalLers, 64 AD3d 762 [lilc..l Dept.,2009]). At her dcposition, defendant admitted that she struck the rear of plainti ff's slowing vehIcle and that the hll C<ll1sed plaintiff's vehicle to strike the vehlcle ahead or it. Defendant also acknowledged that she neilher was able to see nor did she see the traffic l1ght at the intersection prior to the accldent·s occurrence_ Under these circumstances, the sole proximate cause of the accident was defendant's failure to dlive at a safe speed and to maintain a safe distance behind plaintiff's vehicle (see, Blasso v. Parente, 79 AD3d 923 [2ruJ Dept.,201OJ; Mandel v. Benn, 67 AD3d 746 [2",1 Dept.,2009]: Cuccio v, Ciotkosz, 43 AD3d S50 [2nd Dept.,2007]: Mankiewicz v. Excellent 25 AD3d 591 [2"d Dept.,2006 J). Accordingly, plaintiffs' motion forpmtial summary judgment on the issue of ilabi lity is granted. Defendant <.:ross-moves for summary.! udgment on the asserted baSISthat the rnjuries alleged have been susta1lled by plailltiff 111 subject accident do not come WIthin the mealllllg of the the "serious Injury" threshold requirement of Insurance Law §5 J 02(d). In supp011 of the cross motion. defendant submits copies of the pleadings, plaintiff's deposition transcnpt, an uneertified copy of plaillliff's employment record and the swom medical report of Michael Katz. M.D. At derendalll·s request, Dr. Katz wnducted an independent 011hopedic examination of plaintIff on Augusl14, 20 IO. Plainti IT npposes the cross motion on the ground that defendant fallee! [0 make a pnlllaj(lcie showing that she did nOl sustain a serious injury us reqUIred by Insurance Law ~5102(J). In panil.:ular. plailltlll asscrts that she sustained an Injury within the "lllTlltation of use" c<ltcgorics and the '·')01 180" category of the Insurance Law as i.l result of the subJcct aCCIdent. In opposition, plaintIff suhmits her own allidavlt, the affidavit and treatment notes of Dr. Mich;;cl Campo, copies of her tn:atmenl records from Brookhaven Memorial Center and the unsworn medical reports of David Dynorr, M.D, and Steven Winter, M.D. 10 II has long been established that [he "legislative Inlent underlying the No-f7ault Law was to weed out fn volous claims and limit recovery to sigmficant injuries" (Dufel v. Grecn, 84 NYld 795 [* 4] Fitzgerald v. C7.uhek Index No.: 29640/2009 Page -J [199:'\]: see also, Tourc v. Avis Rent A Car Svs., 98 NY2d 345 [2002]). Therefore, thedctcrminatioll or whether or not a plaintiff has sustained a "senous injury" is to be made by the court 10 the first instance (see, Licari v. Elliott, 57 NY2d 230 [.l982J; Porcano v. Lehman, 255 AD2d 430 [2"c1 Dept., 1988]; Nolan v. Ford, 100 AD2d 579 [2"" Dcp!., 1984]; aWd 64 NY2d 681 [198411 Insurance Law *5 W2 (d) defines a "serious lI1jury" as "a personal lI1JuryWhH.:h results III 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 dctennlned injury or Impairment of a non-permanent nature which prevents the injured person from perfonning 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 occuncncc of the injury or impairment." 1\ defendant seeking summary judgment on the ground that a plmnli IT' SneglIgence claim i~ barred under the No-Fault Insurance Law bears the initial burden of establishing a prilllafacie case that the plaintiff did not sustain u "senous injury" (see, Toure v. Avis Rent A Car Svs., 98 NY2d 345 [2002]: Gaddv v. Evler, 79 NY2d 955 [1992]). When a defendunt seekmg summary Judgment based on the lack of selious injury relies on the findings of the defendant's own witnesscs, "those findings must be in admissible form, [such as], affidavits and affirmations, and not unSWOlTl eports" to r demonstra{'c entitlement to judgment as a muHer of law (see, Pagano v. Kingsburv, 182 AD2d 268, 270 [2nJDept., 1992]). A defendant may also estabhsh entItlement to summary judgment uSing the plaintiff's deposition lestimony and medical repolts and records prepared by the plaintiff's own physicians (~, Fragale v. Geiger, 288 AD2d 431 C2"J Dept.,200 [I; Grossman v. WriQht, 268 AD2d 79 [2",1 DcpL,20001,Vignola v. Vanichio, 243 AD2d464 [2nJ Dept., 1997]; Tones v. Micheletti, 208 AD2d 5 I9 [2"dDept.,1994]). Once a defendant has met this burden, the plaintiff must then submit objective and admiSSIble proof of the nature and degree of the alleged injury in order to meet the lhreshold of the statutory standard for "senous inJury" under New York's No-P'.lllit Insurance Law (sec. Dufel v. Green, 84 NY2d 795 [1995]: Tomabene v. Pawlewskl, 305 AD2d 1025 [41h Dept., 20031: Pa!lallO v. Kim.!:sbury, 182 AD2d 268 f2"J Dept.,1992]). I1owever, if a defcnd;.mt does not estahlish aprilllafacie case that the plaintiff's injUJies do not meet the serious injury threshold. the COUllneed not consider the sufficiency of the plaintiff's opposition papers (see, Rums v. Str;m~er. 31 AD3d 360 [2od Dept.,2006J: Rich-Wing v. Baboolal, 18 AD3d 726 [2'lJ Dept.,:2005J: see !!cncrallv. Wine!lrad v. New York Univ. Med. Or., 64 NY2d 851 [19851). Moreover, a plaintiff dallning a significant limitation of use of u body function or system must substantiate his or her complaints with objective medical evidence showmg the extent or degree of the lilmtalion caused hy the injury and its duration (see, FelTuro v. Ridge Car Serv., 49 AD3d 498 [2"<.1 Dept.,200S]: MejIa v. DeRose, 3:')AD3d407 [2'''1Ocpt.,2006J: Laruffa v. Yui Ming Lau, 31 AD3d 996 [1"d Dept ..20061: K~;arscv. New York City Tr. Auth., 16 AD3d 45 r211J Dept.,2005 J). "Whether <.l iinlltation or LiseDr runclion IS 'slgmficant' or 'consequential' (i.e. important ... ), relates to medIcal Significance and Involves a comparative detcrmlllation of the degree or qu,llitulivc nature of an Injury based on the normal function, purpose :'lIldLIseof the body part" (Dufel v. Green, 84 NY2d 795. at 798 [1995 D. A plaintiff claiming mjury under ell her of the '-limHution of LIse"categories also must present [* 5] Fitzgerald v. CllIbek Index No.: 29640/2009 Page 5 llicdlcul proof contemporaneous wIth the accident showmg the initial restrictions in movement or elllexplanation for its omissIon (see, Ma£id v. Llnco!n Servs. Corp., 60 AD3d 1008 [2'1<1 Depl.,2009]: Hac ken v. AAA Expedited Frel9:ht Sys., 54 AD3d 721 [2nJ Dept.,2008]; Ferraro v. Rld9:e Car Serv., 49 AD3d 49g [2",] Depl.,2008]; Morales v. Daves, 43 ADJd 1118 [2nd Depl.,2007]), as well as ob.lective medical findings of restricted movement that arc based on a recent examll1atlon of lhe plai nri ff (see, Nicholson v. Allen, 62 AD3d 766 [2"d Dept.,2009]; Diaz v. Lopresti, 57 AD3d832 [2nJ Dcpt.,2008]; Laruffu v. Yui Ming LUll, 32 AD3d 996 [2"d Dept.,2006]; John v. EnS!el, 2 AD3d 1027 [J,J Depl.,2003 J). A sufficient descnptlOn of the "qualrtative nature" of plainllff's Ii rnitations, wIth an objective basIs, correlating plaintiff's lilmtatlons to the normal function, PUlvose and use of the body part muy also suffice (see, Toure v. Avis Rent A Car Systems. fnc., 98 NY2d 345 [2002]; Dufel v. Green, 84 NY2d 795 [1995J). A minor. mildor slight limltation of use IS consIdered InsIgnificant wlthin the meaning of the statute (see, Licari v. Elhott, 57 NY2d 230 [1982]). Further, a plall1tiff allegIng lnjury wlthll1 the "l1mltation of use" categories who ceases treatment after the aCCident must provide a reasonable explanation for havll1g done so (see, PommeJls v. Perez,; see, Ferebee v. Sheika, 58 i\D3d 675 [211J Dep\., 2009]; Besso v. DeMagQlo, 56 AD3d 596 [2"J Dept., 20(81). Basecl upon tile adduced cvidence, defendant establ1shed, prima facie, her entitlement to judgment as a matter of I;.\w on tile ground that plaintiff did not sustain a serious injury WIthin the meaning of Insurance Law *5102(d) (see, Toure v. AVIS Rent A Car Systems. Inc., 98 NY2cl345 [20021: Dufel v. Green, 84 NY2d 795 [1995]). Defendant's examining orthopedist, Dr. Katz, slates In hiS medical report that an examination of pl,llntiffreveals that she has full range of motIon In her cervical and thoracolumbosacral regions and III her right shoulder. Dr. Katz states thaI there was no swc:lling, erythema or induration in plallltiff's right shoulder; that her gait was normal, that there was no paravertebral muscle spasm in her cervlc,-d or thoracolumbosacral spIne; and that thc straIght leg r,uslng test was negative. Dr. Katz opmes that the cerVIcal and thoracolumbosacral strain and the right shoulder contusion that plaintiff sustained as i.l result of the aCCIdent have resolved and thut <)he CXhlllItS no sIgn,'; or symptoms of permanent 10,';,'; of use relative to her musculoskeletal system causally related to the aCCIdent. Dr. Katz concludes his report by stating that plaintiff 1<) ot disabled, n IS capable of galllful employment as a switchboard operator and is cupable of performlllg her daily IrVing actIVities without re<)trictioll_ I'herefore, defendant has shifted the burden to plaintiffto COIllC I·mwarc! WIth eVIdence In admissible form to raise a material triable ls<)ue of fact as to whether she suslamcu an Il1jury WIthin the meaning of the Insurance Law (see, Pommells v. Perez, 4 NY3d 566, 574 [2005]:see ~!illl.v, Zuckerman v. City of New York, 49 NY2d 557 [1980]). In opposition to defendant's primafacie showing, plaintiff has come forw ¢. with acllnJssible lrd cVldcnce that raises a tnable Issue of fact as to whether she sustained a serious injury to her cervic,]l and thoracolumbosacrul reglOns of her spine withll1 each of the Illnitations of use catcgones of Insurance Law * 5102(cl) (see, Pommells v. Perez., 4 NY3d 566 [20051, Licari v. Elliott, 57 NY2d 2JO [1981[; Evans v. Pitt, 77 AD3d611 [2"J DepL,2010], fv. denied 16 NY3d 736 [2011"]: Harris v. Bombrl. 70 AD3d 643 [2"UDept,20 I OJ). "The rnerc eXIstence of bulging diSCS and herniations. in the ;lbsence of obJectl ve evidence as to the extent of the alleged physical IllTlItatIons [-esulting from the inJune'i and thelr duration, is not evidence of serious injury" (Pierson v. Edwards, 77 1\D3d 642, ()43 [2"UDept.,20101, sec, Lozusko v. MIller, 72 AD3d 908 [2"J Dept.,2008J; Zarate v. McDonald. [* 6] FHzgcrald v. Czuhe~ Index No.: 2964012009 Page 6 ::;j AD3cl 632 [2,,,1 Dept ,1006 J). However, when eVidence of disc bulges and henllalions arc coupled with evidence of range of motion Iimitatlons, posltlve MRI findings Jnd objective test results, thl.s lS sufficIent to defeat summary Judgment (see, Wadford v. Gruz, :i.'i AOJd 258 [2nd Dcpt ,2006]; Meely v. 4 G's Truck Renting Co .. Inc., 16 AD3d26 [21\d Oep1.,1005]; Kearse v. New York Citv Tr. Auth., 16 AD3d 4S [2nJ OepL,2005]). Plamtiffpnmarilyrelies upon the affidavit of Dr. Campo, her treatmg chiropractor, which states that he began treating plaintiff for pain III her cervical and thoracolumbosacral regIOns on June 19,2009, and that he re-examined her on August 29, 20] O. Or. Campo explains that hISInitial examination of plalntifl rewaled signi ricant decreases In her ranges of motion 111 her spme, that her movements \vere slow and guarded and noticeably difficult and that he recommended that she not retum to work until August 10,2009. Dr. Carnpo states that his review of plaintiff's MRI reports revealed that she is suffenng from disc bulges and herniations 1rl her cervical and thoracolumbosacral regIons of her spine. He also states that a recent examination of plaintiff revealed decreased ranges of motion in her cervical and lumbar spines and marked spasm in her cervical and thoracolumbosacral regions upon palpation. Dr. Campo opmes that plaintitr s injuries are chronic and permanent In nature and that her InJunes are the cl1rectresult of the subject aCCIdent. Thus, plamtiff has submitted objective medical proof, based upon contemporaneous and recent exammations, demonstrating that she sustained slgmficant range of 1110tlonllmltations in her cervical and thoracolumbosacral regions of her spine as a result of the subject accHlent (see, Kanaracl v. Setter, 87 AD3d 714 ["2HdDept.,201l]; Khavosov. v. Castillo, 81 AD2d 903 [:2"d Oept.,2011]; Dixon v. Fuller, 79 AD3d 1094 [2m' Dept.,2010]; Gussack v. McCov, 7'2 AD3d 644 [2"d Dcpt.,2010]). Accordingly, It is ORDERED that the motion by plaintlffs Nicola Fitzgerald and Alan Fitzgerald seeking summary judgment in then" favor on the Issue of liability IS granted; anclll is furrher ORDERED that the cross motion by defendant Chnstine Czubek seeking summary Judgment cllsmlsslllg the complalllt is denied. ~k~< HON. WILLIAM fl. REflOLlNI, J.S.c. ___ FINAL D1SllOSITION X NON-FINAL DISPOSITION

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