Rivera v Outstanding Transp., Inc.

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[*1] Rivera v Outstanding Transp., Inc. 2013 NY Slip Op 50797(U) Decided on May 7, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2013
Supreme Court, Kings County

Sandra Rivera and ELMER RIVERA as parents and legal guardians of ED WYNN RIVERA, an incompetent, Plaintiffs,

against

Outstanding Transport, Inc., et al., Defendants.



5186/10



Plaintiff Attorney: Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, 80 Pine Street, New York, NY 10005

Defendant Attorney: Silverman Shin & Byrne, PLLC, 381 Park Avenue South, 16th Floor, New York, NY 10016

David I. Schmidt, J.

The following papers numbered 1 to 15 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3, 4-6 , 7 - 8

Opposing Affidavits (Affirmations)9 - 10, 11-12, 13

Reply Affidavits (Affirmations)14, 15

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant Walter Gibbs moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Defendant Linda Hockaday moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Defendant Outstanding Transport Inc. (Outstanding) cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint.

Plaintiffs Sandra Rivera and Elmer Rivera, as parents and legal guardians of Ed Wynn Rivera, an incompetent, commenced this action to recover damages for personal injuries sustained by Ed Wynn Rivera (hereinafter "Ed") as the result of being left in a bus overnight alone, unattended and unsupervised. Outstanding, the owner of the bus, provided transportation for handicapped adults attending F.E.G.S. Manhattan Day Habilitation Program (F.E.G.S.) in lower Manhattan. On December 31, 2008, Outstanding picked up Ed from the F.E.G.S. facility to be transported back to his residence at 220 East 116th street in Manhattan. The bus utilized by Outstanding to transport Ed was operated by Gibbs. Hockaday was present on the bus as an escort/matron. Ed was not returned [*2]to his home that evening. Instead, the bus was taken to a depot in Brooklyn with Ed still belted in his seat, where he remained overnight in frigid temperatures. Hockaday subsequently pled guilty to Endangering the Welfare of an Incompetent or Physically Disabled Person (Penal Law § 260.25).

According to the verified bill of particulars, Ed suffered the following injuries as a result of the incident: Hypothermia; low body temperature; shivering with cold extremities; dehydration; rhabdomyolysis; hunger causing Ed to eat pieces of vinyl seating; difficulty urinating; fecal impaction and constipation. Plaintiffs further state in the bill of particulars that, upon information and belief, Ed sustained severe psychological trauma, manifested by extreme agitation, emotional anxiety, upset, nervousness, apprehension, tension, fear and nightmares.

Each defendant moves for summary judgment on the ground that Ed did not suffer a "serious injury" under Insurance Law §§ 5102 and 5104. In support of their motions, defendants rely on the affirmed report of Carl B. Friedman, M.D., who asserts that he reviewed the medical history of Ed prior to the incident and the medical documents relating to the treatment of his injuries, and concludes that Ed did not suffer any permanent significant or serious medical illness or injuries from the subject episode, nor was there any significant change in Ed's mental status as a result of the incident. Of course, before the court is obligated to consider whether a "serious injury" was suffered by Ed, it must resolve the threshold issue of whether Insurance Law §§ 5012 and 5014 are applicable to the facts of this matter.

The Comprehensive Motor Vehicle Insurance Reparations Act, commonly referred to as the No-Fault Law, as codified in article 51 of the Insurance Law, was enacted in 1973 primarily to ensure prompt compensation to auto accident victims without regard to fault, to reduce the burden on the courts, and to provide premium savings to New York motorists (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 860 [2003]). Insurance Law § 5104 provides that there shall be no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle within the state, except in the case of serious injury or for basic economic loss. Serious injury is defined by condition-specific categories in Insurance Law § 5102 (d), and includes, inter alia, a medically-determined injury or impairment of a nonpermanent 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 90 days during the 180 days immediately following the occurrence of the injury or impairment (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 355-356 [2002]; Gaddy v Eyler, 79 NY2d 955, 957 [1992]). The purposes of the No-Fault Law are "to remove the vast majority of claims arising from vehicular accidents from the sphere of common-law tort litigation, and to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of such accidents. . . They reflect the Legislature's intent to draw a line between motor vehicle accidents and all other types of torts and to remove only the former from the domain of common-law tort litigation" (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996][citations omitted]). "The vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises. Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use" (id. at 215). To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury (see Manuel v New York City Tr. Auth., 82 AD3d 1059, 1061 [2011]; Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599 [2006]; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643 [2002]). Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it (see Manuel, 82 AD3d at 1061; Zaccari, 35 AD3d at 600 [2006]; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665 [2006]; Duroseau v Town of Hempstead, 117 AD2d 579 [1986]).

"As Walton and its progeny make abundantly clear, the proximate cause requirement of the No-Fault Law is not established merely because injuries occurred during the occupancy of or while entering or exiting a vehicle. Adopting this approach would be tantamount to equating proximate [*3]cause with the term occupying' a vehicle. However, more than occupancy is required to establish a causal link between a motor vehicle and a claimant's injuries. Instead, what Walton requires for the No-Fault Law to apply is that the motor vehicle itself be the instrumentality which produces the injuries" (Cividanes v City of New York, 95 AD3d 1, 7 [2012]).

Under the facts of this case, this court cannot find that the injuries suffered by Ed fall within the ambits of the No-Fault law. While it is true that the incident occurred within a vehicle, and the injuries occurred while certain instrumentalities within the vehicle (e.g. seatbelt, seat cushion) were in use, the subject vehicle was, at best, merely a contributing factor to the injuries, not the cause of them. Ed was left sitting in a vehicle that had completed its route and was parked in a depot, presumably with the engine no longer running. Ed's injuries did not occur as the result of a collision or movement of the vehicle, nor were they caused by a defect in or failure of the vehicle or any of its parts. Rather, the injuries were the result of defendants' abandonment of Ed and his exposure to cold temperatures for an extensive period. Such injuries would have occurred if Ed was left outside of the vehicle (see Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889 [1995]). In short, this matter does not involve the kind of a motor vehicle "accident" contemplated by the Legislature when the No Fault Law was drafted and enacted.

Insofar as the No-fault Law is inapplicable to this action, defendants are not entitled to dismissal on the ground that no "serious injury" was suffered by Ed.

As a result, the motions of Gibbs and Hockaday and cross motion of Outstanding for summary judgment are each denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.