Solis v Brochhagen

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Solis v Brochhagen 2013 NY Slip Op 30573(U) March 18, 2013 Sup Ct, Suffolk County Docket Number: 10-27431 Judge: Hector D. LaSalle 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] INDEX NO. 10-2743 1 CAL NO. 12-00977MV SlJPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: Hon. MOTION DATE 8- 16- 12 (#00 1) MOTION DATE 8-16-12 (#002) ADJ. DATE 1-22- 13 Mot. Seq. # 001 - MotD # 002 - MD HECTOR D. LaSALLE Justice of the Supreme Court ................................................................ X SIBEN & SIBEN, LLP Attorney for Plaintiffs 90 East Main Street Bay Shore, New York 1 1706 JAIME B. SOLIS and GENTNE T. SOLIS, Plaintiffs, DEIRDRE TOBIN & ASSOCIATES Attorney for Defendant Brochhagen 901 Franklin Avenue, P.O. Box 9301 Garden City, New York 1 1 530 - against - MARTYN, TOHER & MARTYN, ESQS. Attorney for Defendant Katz 330 Old Country Road., Suite 21 1 Mineola, New York 1 I501 ANN 7 . BROCIIHAGEN and CAREN E. KATZ, Defendants. X Upon the fbllowing papers numbered 1 to& read on these motions for summary iudginent; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-10: (002) 11-13; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 14- 18; Replying Affidavits and supporting papers -; Other -; ( tweitiwn) it is, ORDERED that the branch of motion (001) by the defendant, Caren E. Katz. pursuant to CPLR 3212 for summar\ judgment on the basis that she bears no liability for the occurrence of the accident is granted and tlie complaint as asserted against her is dismissed; and that branch of motion (00 1) which seela dismissal of the complaint of Jaime Solis on the basis that he did not incur a serious injury as defined by Insurance Law 5 5 102 (d), has bccn rendcred academic by withdrawal of that part of the motion by letter dated December 26, 2012 of the !no\ ing defendant and is denied as moot; and it is further ORDERED that motion (002) by defendant, Ann T. Brochhagen, pursuant to CPLR 32 12 for summary judgmcnt on the basis that she bears no liability for the occurrence of tlie accident, for denial of co-defciidant Katz s application tor judgment in Katz s favor on the issue of liability is denied; and for further order determining that the plnintiKJainie Solis has not sustained a serious injury as defined by Insurance Law tj 5102 (d), is denied in its cntirety; and i t is further [* 2] Solis \ Rroclihagen Index No. 10-2743 1 Page No. 2 ORDERED that the plaintiff is directed to serve a copy of this order with notice of entry upon all parties and upon the Clerk of the Calendar Department, Supreme Court, Riverhead, within thirty days of the date ofthis order, and said Clerk is directed to schedule this matter for a trial on damages forthwith. The plaintiffs, Jaime B. Solis and Genine T. Solis, seek damages, personally and derivatively. for injuries allegcdl?~arising ofa chain collision motor vehicle accident which occurred onNovember 12,2009, on Southern out State Parkway fifty fcet west of the intersection with 27-Waiitagh State Parkway, in the Town Henipstead, New Yorl,, when the front end of the vehicle operated by defendant Ann T. Brochhagen made contact with the rear-end of the vehicle operated by defendant Caren E. Katz, and the front of the vehicle operated by defendant Katz then made contact with the rear of the plaintiffs vehicle. I lie defendants seek suinmaryjudgment dismissing the complaint as asserted against them on the basis they bcnr no liability for the occurrence ofthe accident. It is noted that the Note of Issue was filed on May 16, 2012. The last day for filing the motions for summary judgment was on September 13, 2012. Motion (001) was not acconipanied by an affidavit of service, however, the return date was prior to the last day to file tlie motion, and is thus , considered t I i n e 1y . The proponent o f a summary judgment motioii must make a prima facie showing of entitlement tojudgment as a matter of lan, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant sunimarq ludgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth C entuuJ+FoxFilm Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. XU. Medical Center, 64 NY2d 85 1, 487 NYS2d 3 16 [ 1 9851). Failure lo make such a showing requires denial of the motion, regardless of the sufficiency of tlie opposing papers ( Winegrad I N. Y. U. Medical Cerzter, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, i n order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must show facts sufficient to require a trial of any issue of fact (CPLR 3212[b]; Zuckerman v C @ i o New York, 49 NY2d 557,427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his f proof i n order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberi_l:Birs Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 19811). I n support of motion (001:) defendant Katz has submitted, inter alia, an attorney s affirniation; copies of the suninions and complaint, the answer served by defendant Katz, and plaintiffs verified bill of particulars; the unsigned but certified transcript of the examinations before trial of Caren Katz dated January 26, 2012, Ann Broclihagcn dated November 1 5 , 201 1, and Jaime Solis dated November 15, 20 1 1 ; and an uncertified copy of the h4V 104 Police Accident Report. Initially, the Court notes that the unsworn MV- I04 police accident report constitutes hcarsaq and is inadniissible (see Lacagnino v Gonzalez, 306 AD2d 250, 760 NYS2d 533 [2d Dept 20031; Hegy v ( ollev, 262 AD2d 606, 692 NYS2d 463 [2d Dept 19991). The defendant has not submitted a copy ofco-defendant Rrochlingen s answer despite being required to do so pursuant to CPLR 32 12. In suppori of motion ( 0 ) defendant Brochhagen has submitted an attorney s affirmation. Although counsel 02, l o r defendant Hrochhagen makes reference to exhibits A and B, the summons and complaint and answer, said exhibits have not been annexed to, or provided to this court. Defendant Brochhagen, by counsel, adopts all the factual and legal nrgunicnts made in motion (001). It is noted that motion (002) was served on September 17,2012. The note o f issue \\as tiled on May 16,20 12, and defendant Brochhagen s motion (002) was served more than 120 days after the iiling of the note of issue in that it was served on September 13,2012, without explanation by the defendant for failure to timely serve the same. However, in that both motions are premised on the issue of liability between the dcfcndants, this 1;o~irtwill consider motion (002) (see Brill v City oflvew Yo&, 2 NY3d 648, 781 NYS2d 261 [* 3] Solis v Brochhagen hidex No. 10-27/1?. 1 Page No. 3 C arcn Katz testified to the extent that on November 12, 2009, she was operating lier vehicle, a black crossoi er Suharii Forester. in a westbound direction on Southern State Parkway in thlz left of three travel lanes in that direction. Traffic was heavy and the maximum rate of speed which she traveled was about forty-five miles per hour. She broughf lier vehicle to a moderate stop. She had seen a Volkswagen behind her between ten and thirty seconds prior to the accident. It was moving at that time. The first impact occurred to the rear of her vehicle while her Ldiicle was stopped for more than two seconds. She felt and heard that impact, ali.hough she did not see it. At the time of the first impact to the rear of her vehicle, the vehicle in front of her vehicle, a Honda, was stopped for five seconds or less. They were separated by about three-quarters of a car length prior to the impact to the rear of the 1<ab \.chicle. That impact, Katz testified, caused her vehicle to move forward. She testified that the screws on thc liccnse plate touched the car in front of her seconds after the impact to her vehicle. A n n Rrochhagcn testified to the extent that on November 12,2009, she was travzling westbound on Southern State I arknay, driving her Vollcswagen Passat. It was a gray day, cold and cloudy, ard the roads here dry. When ashed if her vehicle was i n good working order, she replied [plrobably, my brakes were a little bit wor11. She testified, honever. that she had not been experiencing any problems with the brakes. Slhedescribed traffic as heavy and stop and go. When the accident occurred, she was in the left travel lane of three westbound lanes, and was attenipting to inove back into the middle lane at about thirty miles per hour, and looked to her right. She illuminated her directional signal, b u t realized that there was too much traffic and started moving back into tlie left lane There \\.as a Subiiru in front of her in the lefi lane, but she did not notice ifthe brake lights were on. As she moved back into tlie left lane, still traveling about thirty miles per hour, the Subaru was much closer, about a car length ahead. She ctarted applying her brakes hard as she moved back into the left lane, as traffic began slewing down. Within seconds, the accident occurred. The left front of her vehicle struck the rear of the Katz vehicle toward the passenger side. She did not bclicve any portion of her vehicle was in the middle lane when the impact occurred. She believed the Katz \eliicle \\as either stopped or stopping when the impact occurred. Her vehicle was traveling about thirty miles per hour at the time oftlie impact with the Katz vehicle. She saw vehicles in front of the K atz vehicle, either stopped or shoived down \\lien the impact occurred. She did not hear an impact between the Katz vehicle and the plaintiffs I chicle. the extent that he was driving his wife s Honda Civic on November 12, 2009, when it bccnmc introl\ed in an accident. He was traveling westbound on Southern State Parkway in the left of three travel lanes. I t \vas clear and dry. Traffic was heavy so he slowed at times. IHe brought his vehicle to a stop for about fifteen seconds, behind a stopped vehicle. when he heard a bang, a screeching sound, and a balig. His foot was on the brake \\lien he felt a moderate impact to tlie rear of his vehicle, causing his vehicle to move forward a little bit. When he s a ~ v vehicle after the accident, he noticed that tlie license plate was dented, the bumper was dented a little, and the his driLer side o f the other car was imbedded into his right rear bumper. .I:iiiiic Solis testified to It is ne11 settled that when a driver of a motor vehicle approaches another automobile from the rear, he or h e is bound to maintain a safe rate of speed and has the duty to keep control over his or her vehicle, and to exercise reasonable care to aroid colliding with the other vehicle (ClzepelvMeyers, 306 AD2d 235,762 NYS2d 95 [2d Dept 20031; Poruer. I Mirpnrt, 260 AD2d 458, 688 NYS2d 194 [2d Dept 19991; see also Vehicle and Traffic Law 4 I 129[al). Moreover. a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability rcgarding the operator of the moving vehicle and imposes a duty of explanation 011 the operator of the moving \diicle to excuse the collision by providing a non-negligent explanation, such as a mec:liaiiical failure, a sudden stop 01 thc \diicle ahcad. and unavoidable skidding on a wet pavement or some other reasonable excuse (see Rainford 11 Hun, 18 AD3d 638; 795 NYS2tl645 [2d Dept 20051; Tlzoman vRivera, 16 AD3d 067,792 NYS2d 558 [2d Dept [* 4] Solis v Brochhagen I I I ~ ~ X 10-2741 1 No. I agc No. 4 I n the instant action, the adduced testimonies clearly establish that defendant Brcchhagen was traveling about thirty miles per hour. attempting to change from the left travel lane to the middle land on Southern State Parkway, nnd then hack again to the left travel lane when she struck the vehicle operated by defendant Katz in the rear. The [<at7 vehicle \vas described by Brochhagen as either stopping or stopped at the time of the impact. She did not notice if the brake lights on the Katz vehicle were on at the time of the impact. It has been further established that the Kat7 vchicle \vas then pushed forward into the plaintiffs vehicle. Defendant Brochliagen has not come forward \\ ith a non-negligent explanation for the occurrence of the accident (see Rninford v Hun, supra; Tliomnn v Rivera, 5 i q m : Power v Hiipart. siqra). Moreover. drivers have a duty to see what should be seen and to exercisc reasonable care under the circunistances to avoid an accident (Fi/ippazzovSnntiago, 277 AD2d 41 9, 7 16 NYS2d 71 0 [2d Dept 20001). Based upon the adduced testimonies, Brochhagen did not observe what she should have seen, namely that traffic in the left lane was stopped o r stopping as she attempted to pull back into the left lane after attempting to move into the middle lane and could not do so. Brochhagen failed to exercise reasonable care under the circumstances to avoid an accident. Ihsed upon the Yoregoing, no liability has been established as against either defendant Katz or the plaintiff who were either both stopped or stopping when the impacts occurred. Turning to that part of motion (002) wherein defendant Brochhagen seeks summary judgment on the basis tliat Jaime Solis had not sustained a serious injury as defined by Insurance Law fj 5102 (d), it is noted that Rrochhagcn relies on the evidentiary submissions proffered by defendant Katz. Such evidentiary submissions, in addition to thosc already set forth, are, inter alia, an attorney s affirmation and the signed report of Dr. Lee Kupersmith dated January 10, 20 12. B!, way of thc bill ofparticulars, the plaintiff claims that the following injuries were caused by the sub-ject accident: herniated discs at C3-4 and C4-5 with inass effect on the cord; herniated disc at C6-7; cervical spine sprain: aggrairation and/or exacerbation ofpreviously syniptomatic dengenerative disc disease of the cervical spine; hcrniated disc at L5-S 1 ; lumbar spine sprain; aggravation and/or exacerbation of previously asymptomatic degenerative disc disease of the lumbar spine. Based upon a review of the evidentiary submissions, it is determined that defendant Brochhagen has not demonstrated prima facie entitlement to summary judgment dismissing the complaint on the basis tliat the plaintiff did not sustain a serious injury as defined by Insurance Law 3 5102 (d). t l r I<upersmith has not submitted a copy of his curriculum vitae to qualif!i as an expert in this matter. though I h . I<upersniith has set forth the materials and records which he reviewed, including the MRIs of the plaintiff s cer\Ficd spine and lumbar spine, none of the medical records or reports habe been provided to this court, lea\ ing this court lo speculate as to the contents of the same. The general rule in New York is that an expert cannot basc an opinion on facts he did not observe and which were not in evidence, and that the expert testimony is limited to fhcts i n evidence ( w e Alleiz v Uh, 82 AD3d 1025,919 NYS2d 179 [2d Dept 201 11; Marzuillo v Isam, 277 AD2d 362.716NYS2d98 ~2dDept2000];StriizgilevRotlzmnn, 142AD2d637,530NYS2d838 [2dDept 19881;O Sliea v Snrro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841). D r Kupersmith Iias set forth in his report that the plaintiff has pain radiating from his lower back down his leg, but docs not indicate which leg. No report from a neurologist who performed an independent neurological c\tamination on behalf of the defendants has been submitted by the defendants (Browdame v Cnndurn, 25 AD3d [* 5] Solis v Brochhagen Index NO. 10-2743 1 Page No. 5 747. 807 NYS2d 658 [2d Dept 2006]), precluding summary judgment. While Dr. I<upersmith has stated that the plaintiff had no orthopedic disability that is causally relatcd to the subject accident, hc does not rule out that the herniated lumbar and cervical discs are causally related to the accident. Fui-therniore, Dr. Kupersmitli has set forth objective findings of deficits in range of motion values relative to the plaintiff s lumbar spine as to forward flexion, extension, left and right lateral rotation, and lcft and right lateral flexion. raising factual issues with regard to this injury. S!, way of Ictter dated December 26, 2012, counsel for defendant Katz withdrew the motion for summary judgment on the threshold issue of serious injury in that he is in receipt of the plaiintiffs suppleniental bill of particulars which alleges the plaintiff underwent lumbar fusion surgery. However, no party has submitted such supplemental bill of particulars to this court, raising further factual issues as to whether or not this surgery is related to tlie iii-juriesclaimed in this action. Vie drfcndants expert has offered no opinion as to whether the plaintiffwas incapacitated from substantially I?crfhrniingthc activities of daily living for a period of ninety days in the 180 days following tlie accident, and they did not examine the plaintiff during that statutory period (Delayhaye v Caledonia Limo & Car Service, Irzc., 61 ,4D3d 81 4,877 NYS2d 438 [2d Dept 20091; see Uddin v Cooper, 32 AD3d 270,820 NYS2d 44 [ 1 st Dept 20061; Toussnirit vCf(irr~fio, AD3d 268,803 NYS2d 564 [ 1st Dept 20051; see Blanchard v Wilcox.283 AD2d 821,725 23 NYS2d 433 [3d Dcpt ZOOl]). The plaintiff testified that on tlie date of the accident, he was employed by Office Solutions Incorporated as a copy technician. He was en route to a service call when the accident occurred, and after the accident, went to that call. When he arrived at the site of the service call, he called his employer and told him he was fecling numbncss and pain in his back. He then went to the doctor that same day, and presented with pain i n his neck and back for which x-rays were taken, and muscle relaxants were prescribed. He testified that he missed close to three months from work due to the injuries and pain, especially in his back. In January 201 1, he started physical therapy lhr pain and stiffness in his back, three to five times a week for about two months. He last had physical therapy i n May 201 1. He also had cervical and lumbar spine MRIs taken. Prior to this accident, he did not sustain any iii.iuries to his back or neck. After the accident, he could not bend over to repair the machines at \\orl<-and he could not drive for long periods of time due to the pain. In July 201 1, he hit a curb while driving and s t a i d out of work for a week and a half due to the back pain, however, he stated, there was no accident. His orthopedist, Dr. IIre7ili, reconmiended that he stop working and referred him to see Dr. Dowling, a spine surgeon. Dr. h ) ling ordered more MRI studies ofhis entire back, and ordered one more month ofphysical therapy. He was J ;id\ ised that if the additional physical therapy did not help, then surgery was reconmiended as a nerve was being pnclicd b the herniated disc in his back. He experiences pain i n his back radiating down his left leg. Hc was ! uxxmploqcd at the time of his deposition. f3ased upon the foregoing, it is determined that the defendant has failed to establish that the plaintiff did not skistain a serious in-jury under either category set forth in Insurance Law 9 5 102 (d). Movant has failed to satisfy the burden of establishing, prima facie, that the plaintiff did not sustain a serious iii.iur) \vithin the meaning of Insurance Law 95 102 (d) (see, Agatlze v Tun Clzen Wnng, 98 NY2d 345, 746 NYSZd 865 [2006]); S C P LIISO Walters v Pnpanastassiou, 31 AD3d 439, 819 NYS2d 48 [2d Dept 20061). Inasmuch as the defendant has failed to establish prima facie entitlement to judgment as a matter of law in thc first instance on the issue of serious injury within the meaning of Insurance Law 9 5102 (d), it is unnecessary to consider mhethcr the opposing papers were sufficient to raise a triable issue of fact (,pee Yong Deok Lee v Sirzglz, 56 AD3d 662,867 NYS2d 339 [2d Dept 20081); Krayiz v Torella, 40 AD3d 588,833 NYS2d 406 [2d Dept 20071; It nfker 1 IWhzge o f O s s i n i ~ ~18 AD3d 867, 796 NYS2d 658 [2d Dept 20051). g, [* 6] Solis v Brnchhagen Iiidex No. 10-2743 1 Page No. 6 Accordinglq . that part of defendant s motion (002), which seeks summary judgment dismissing the coniplaiiit on the basis that the plaintiff did not sustain a serious injury as defined by Insurance Law $ 5 102 (d) is (1en i cd . Thc Ihregoing constitutes the Order of this Court. Ihited: March 18, 2013 liiverhead, NY H O ~HECTOR D. LASALL~E, . J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSlTl~ON

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