O'Neil v Gambino

[*1] O'Neil v Gambino 2013 NY Slip Op 51699(U) Decided on October 8, 2013 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013
Supreme Court, Broome County

Susan O'Neil and GARY O'NEIL, Plaintiffs,

against

Ignazio Gambino and XAVIER GAMBINO, Defendants.



2012-1559



COUNSEL FOR PLAINTIFFS:

HICKEY & GATES, LLC

BY:GREGORY A. GATES, ESQ., OF COUNSEL

160 HAWLEY STREET

P.O. BOX 2124

BINGHAMTON, NY 13902

COUNSEL FOR DEFENDANTS:

COSTELLO, COONEY & FEARON, PLLC

BY:JENNIFER L. WANG, ESQ., OF COUNSEL

500 PLUM STREET, SUITE 300

SYRACUSE, NY 13204-1401

Ferris D. Lebous, J.

Plaintiffs Susan O'Neil and Gary O'Neil commenced this action against defendants Ignazio Gambino and Xavier Gambino seeking to recover for personal injuries suffered as the result of an automobile accident on October 22, 2009.

This Decision & Order addresses two motions. First, defendants move for summary judgment dismissing the complaint alleging there is no proof of causation between plaintiff[FN1] Susan O'Neil's pre-existing injuries and this accident, as well as no proof of serious injuries under Insurance Law § 5102. Second, plaintiff cross-moves for partial summary judgment on the issue of defendant Xavier Gambino's negligence, as well as dismissal of certain affirmative defenses.

The court heard oral argument from counsel on September 20, 2013. A jury trial is scheduled to commence on February 18, 2014.

BACKGROUND

A.The Accident

This automobile accident occurred on October 22, 2009, at approximately 2:30 p.m., on Prospect Street just west of the intersection with Glenwood Avenue located in the City of Binghamton, New York. Plaintiff was operating her employer's vehicle while making deliveries and had brought the vehicle to a complete stop while waiting for oncoming traffic to pass in order to make a left turn into a customer's parking lot. Plaintiff's brake lights were engaged and her left turn signal was on. Plaintiff's vehicle was struck from behind by a vehicle owned by Ignazio Gambino and operated with permission by his son, defendant Xavier Gambino that was traveling approximately 25 mph.

Defendant Xavier Gambino was cited for violation of Vehicle & Traffic Law § 1129-a (Following Too Closely). On January 6, 2010, defendant Xavier Gambino pled guilty to a violation of Vehicle & Traffic Law § 1110(a) (Failure to Obey a Traffic Control Device) in satisfaction of the charge.

B.Plaintiff's Medical & Work History

Immediately following the accident, plaintiff was transported by ambulance to Lourdes emergency room where she underwent various tests. All tests were negative and plaintiff was released that same day. Plaintiff continued medical care with her primary care physician, Daniel Hay, M.D., who referred her to physical therapy, a chiropractor, as well as a neurologist for a [*2]nerve conduction study for her continuing complaints of shoulder pain.[FN2] Plaintiff has submitted the corresponding office notes and reports from these medical providers.

As a result of her injuries, plaintiff was out of work from the date of the accident on October 22, 2009 through March 2010. Plaintiff ultimately returned to work in April 2010 on a part-time basis for a few weeks, then full time but under a restriction as to the amount of weight she could lift.

During the time she was unable to work, plaintiff made a workers' compensation claim through her employer. As a result of this claim, plaintiff was examined by various medical providers through Workers' Compensation as follows: •William McKenzie, M.D., examined plaintiff on March 23, 2010 and found "[a] mild degree of disability with regard to her right shoulder, neck, and low back" and determined plaintiff was capable of working with restrictions (Pl's Ex 6);•Albert Kochersperger, M.D., an orthopedic surgeon, examined plaintiff on May 23, 2011 and found a permanent condition described as "abduction to 105 there is a 35% Schedule Loss of Use of the right arm, causally related to 10/22/09" (Pl's Ex 5);•Peter Remec, M.D., an orthopedic surgeon, examined plaintiff on July 12, 2011 and concluded that "[w]ith mild decrease in shoulder flexion, right compared to left, and mild to moderate decrease in abduction of 120 degrees, right compared to left, a 30% schedule loss of use of the right arm is appropriate" (Pl's Ex 4, p 3); and•Charles Renia, M.D., another orthopedic surgeon, evaluated plaintiff on July 18, 2013 and found "[c]hronic right trapezial and shoulder girdle and right paracervical muscle strain (related October 22, 2009)" (Pl's Ex 7).

Based upon the foregoing, the Workers' Compensation Board ultimately issued two Notices of Decision. The first was issued following a hearing on June 21, 2010 and found a work related injury resulting in a "temporary total disability" from October 23, 2009 through March 28, 2010. Thereafter, the Board issued a second Notice of Decision following a hearing on August 26, 2011, concluding that plaintiff suffered a "32.50% schedule loss of use of the Right Arm" resulting in a "Permanent Partial Disability" (Pl's Ex 3).

On June 18, 2013, plaintiff underwent an Independent Medical Examination at defendant's request by Farouq Al-Khalidi, MD. Dr. Al Khalidi examined plaintiff and issued two letter reports dated June 18, 2013 and August 28, 2013. [*3]

Dr. Al-Khalidi's first report dated June 18, 2013, prefaces his conclusions with the following statement "[t]hese answers can be stated with a reasonable degree of medical certainty after I review the MRI scans and any x-ray taken of her neck and/or right shoulder" (Defendant's Exhibit J, p 8 [emphasis added]).

Dr. Al-Khalidi issued a second report dated August 28, 2013, after reviewing various test results, stating "[i]t is my opinion, within reasonable medical certainty that the is [sic] examinee had pre-existing multi-level degenerative and hypertrophic changes enough to explain her current condition" (Def Ex K, p 2 [emphasis added]).

C.This Action

On July 3, 2012, plaintiff commenced this action. On July 20, 2012, defendants interposed an answer with various affirmative defenses. Plaintiff's Verified Bill of Particulars alleges she suffered a serious injury under four categories including: (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and (4) a medically determined injury or impairment of a non-permanent nature (the so-called 90-180 days category) (Def's Ex D, ¶ 5). Plaintiff has now withdrawn reliance on the total loss of use category (Plaintiff's Memorandum of Law, pp 6-7), so the court need only address the three remaining categories below.

DISCUSSION

I.PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

The court will first address plaintiff's cross-motion on the issue of negligence. Fault-based motions for summary judgment in favor of a motor vehicle plaintiff are directed to the issue of negligence, as distinguished from liability which includes both negligence and serious injury (Ruzycki v Baker, 301 AD2d 48, 51 [4th Dept 2002]).

Additionally, it is well-settled that a guilty plea, as here, serves as an admission that defendant committed the act charged and constitutes some evidence of negligence (McGraw v Ranieri, 202 AD2d 725, 726 [3d Dept 1994]). The court finds that plaintiff has satisfied her burden on this portion of her cross-motion given defendant's plea of guilty to failure to obey a traffic control device. Thus, defendant was obligated to produce proof in admissible form that there was a non-negligent reason for the accident and explain the circumstances surrounding the guilty plea (Lohraseb v Miranda, 46 AD3d 1266 [3d Dept 2007]; McGraw, 202 AD2d at 727-728). In opposition, defendant argues there are questions of fact regarding whether plaintiff's vehicle stopped suddenly, as well as that he should be given an opportunity to explain his guilty plea.

Defendant's proof in opposition on these issues is limited to his own deposition testimony. During his deposition, defendant asserted that plaintiff brought her vehicle to an abrupt stop. With respect to his plea, defendant argues that he did not fully understand the charge against him or the plea which he was making as stated during his deposition as follows: [*4] A.I remember pleading guilty. I wasn't sure what it was for. I can't remember. That's why I - - I apologize.

*** Q.So as you sit here today, are you able to tell me why you pled guilty to that offense?A.No.

(Def Ex F, p 22).

In view of the foregoing, the court finds that defendants have raised questions of fact as to whether a non-negligent reason for the accident exists which are questions that are best left for the jury to determine after weighing the credibility of the witnesses. In view of the foregoing, the court finds that plaintiff's cross-motion for partial summary judgment on the issue of negligence is denied. The court will next turn its analysis to defendants' motion addressing the issues of serious injury and causally related injuries.

II.SERIOUS INJURY

It is well-settled that on a defense motion seeking summary judgment relative to the serious injury threshold the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [3rd Dept 2003]). Assuming a defendant meets this initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [3rd Dept 2003]). Moreover, under CPLR § 3212, the proponent's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Defendants move for summary judgment on the ground that plaintiff cannot meet the serious injury threshold under Insurance Law § 5102 and that there is no proof of causation due to plaintiff's pre-existing injuries and/or degenerative conditions. Plaintiff contends that she suffered a "serious injury" as that term is defined in Insurance Law § 5102 under the following categories: (1) significant limitation of use of a body function or system; (2) permanent consequential limitation of use of a body organ or member; (3) a medically determined injury or impairment of a non-permanent nature (the so-called 90-180 days category). The court notes that defendants' argument on causation is incorporated by the court in the following discussion on serious injury as the medical proof is the same.

1.Significant limitation of use of a body function or system; and Permanent consequential limitation of use of a body organ or member

The court will address these two categories together since they involve similar [*5]considerations. The Court of Appeals has explained that the "limitation of use" may be established in one of two ways, namely by medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment (excluding loss of range of motion) by way of a medical expert's qualitative assessment of plaintiff's current condition as compared to his normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The term "significant" means the "limitation" must be shown to be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]).

Turning to defendants' proof, Dr. Al-Khalidi's first report dated June 18, 2013 states that "[t]hese answers can be stated with a reasonable degree of medical certainty after I review the MRI scans and any x-ray taken of her neck and/or right shoulder" (Def's Ex J, p 8 [emphasis added]). This report is clearly insufficient to carry defendants' initial burden. Obviously, Dr. Al-Khalidi's decision to issue a predetermined opinion assuming that later facts will support his conclusion is without merit and should never have been submitted to this court in the first instance. Dr. Al-Khalidi's second report is insufficient as well. Dr. Al-Khalidi's second report states "[i]t is my opinion, within reasonable medical certainty that the is [sic] examinee had pre-existing multi-level degenerative and hypertrophic changes enough to explain her current condition" (Def Ex K, p 2 [emphasis added]). In this court's view, however, Dr. Al-Khalidi has set forth this statement in conclusory fashion without adequately explaining how he reached this purported conclusion in the context of the Toure requirements or plaintiff's prior medical history. Moreover, the court finds that Dr. Al-Khalidi's first report may not serve as the foundation for the second report since it was issued prior to his review of any diagnostic tests. In sum, the court finds Dr. Al-Khalidi's reports, standing alone or taken together, fail to meet defendants' burden as they are conditional, speculative, conclusory and vague.

Parenthetically, even had the court found that defendants had met their burden, the court would have found that plaintiff came forward with evidentiary proof raising questions of fact on the existence of a serious injury on these categories. Plaintiff relies on her medical records from her treating physicians, as well as the medical conclusions issued by the various workers' compensation providers. By way of example, the Workers' Compensation Board itself determined that plaintiff suffered a permanent 32.5% loss of use of the right arm. Thus, the court would have found that plaintiff raised sufficient questions of fact regarding these categories.

Accordingly, with respect to the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories, defendants' motion for summary judgment is denied due to questions of fact relating thereto. For the same reasons, the court also finds questions of fact exist regarding the issue of causation.

2.90/180 day category

The 90/180 day serious injury category requires proof of a "[m]edically 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 [*6]activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). The curtailment of plaintiff's usual and customary activities must rise to the level of "[a] great extent rather than some slight curtailment" based upon objective medical findings (Licari, 57 NY2d at 236).

It is well-settled that medical examinations and/or records post-dating the actual 180-day period are irrelevant to this inquiry (Lowell v Peters, 3 AD3d 778, 779-780 [3d Dept 2004]). Thus, Dr. Al-Khalidi's reports arising from his IME examination of plaintiff on June 18, 2013 - more than three years after this accident - are insufficient to meet defendants' burden on this prong of the motion.

That said, even had defendants' met their burden, the court would have found questions of fact regarding plaintiff's ability to perform substantially all of the material acts which constitute such person's usual and customary daily activities for the requisite time period. More specifically, plaintiff came forward with proof establishing she was out of work for well in excess of 90 days of the 180 days following this accident, namely from October 23, 1999 until March 28, 2010. Additionally, plaintiff testified during her deposition that she was unable to do certain usual household activities through February 2010 including grocery shopping, lifting, driving, brushing her own hair, and carrying laundry downstairs (Pl's EBT, p 72). In January 2010, plaintiff testified she started "doing a little bit more around the house" as the pain permitted and was ultimately able to do more towards February 2010 (Pl's EBT pp 73-74). Plaintiff's limitations on these activities are corroborated by the medical records of her primary care physician, Dr. Hay. Defendant has no proof, medical or otherwise, to the contrary. Rather, defendants attempt to argue that plaintiff's purchase or use of an exercise machine or short walks to the store within the ninety day period and her husband's deposition testimony are sufficient to dismiss this category. The court finds that defendant's arguments are better left for cross-examination at trial rather than determination on a summary judgment motion.

Thus, even had the court reached plaintiff's opposing papers on this category, the court would have found questions of fact as to the 90/180 category. Accordingly, in view of the foregoing, defendants' motion for summary judgment is denied with respect to the 90-180 day category.

III.AFFIRMATIVE DEFENSES

Plaintiff cross-moves to dismiss certain affirmative defenses raised by defendants in their pleadings. Based upon the determinations herein, the court will deny plaintiff's cross-motion to dismiss the First affirmative defense (comparative fault). Defendants' counsel represents in reply that the Fourth (statute of limitations), Fifth (jurisdiction/service), and Sixth affirmative defenses (jurisdiction/service) were previously withdrawn (Wang Reply Affirmation, ¶ 49). It does not appear that defendants have made any opposing argument to the cross-motion directed to the Third affirmative defense (seat belt) and, as such, the court will dismiss that affirmative defense.

CONCLUSION[*7]

In view of the foregoing, the court finds as follows: (A)Plaintiff's cross-motion for partial summary judgment on the issue of negligence is DENIED; and

(B)Defendants' motion for summary judgment with respect to the permanent loss of use category is GRANTED;

(C)Defendants' motion for summary judgment with respect to the permanent consequential limitation of use of a body organ or member category is DENIED;

(D)Defendants' motion for summary judgment with respect to the significant limitation of use of a body function or system category is DENIED;

(E)Plaintiff's cross-motion for dismissal of the First affirmative defense is DENIED, and (F)Plaintiff's cross-motion for dismissal of the Third, Fourth, Fifth and Sixth affirmative defenses is GRANTED.

It is so ordered.

The trial scheduled to commence on February 18, 2014 will proceed as scheduled.

Dated: October 8th, 2013

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous Justice, Supreme Court Footnotes

Footnote 1:The term "plaintiff" will refer solely to Susan O'Neil inasmuch as the claim of Gary O'Neil, her husband, is derivative in nature.

Footnote 2:When her primary care physician, Dr. Hay, retired, plaintiff's primary care treatment was taken over by Erik Heister, M.D.