Smolinski v DeMuth
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Smolinski v DeMuth 2014 NY Slip Op 31733(U) June 18, 2014 Sup Ct, Wayne County Docket Number: 74494/2013 Judge: Dennis M. Kehoe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT: COUNTY OF WAYNE SHANE E. SMOLINSKI, Plaintiff, -vsCHARLES C. DeMUTH, CHARLES CRAIG DeMUTH, D.V.M ., P.C. Defendants ECISION Cellino & Barnes, P.C. Robert L. Voltz, Esq., of Counsel Attorneys for Plaintiff Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC Matthew A. Lenhard, Esq. , of Counsel Attorneys for Defendants The Plaintiff has moved for an order granting summ ry judgment against the Defendants as to the issues of negligence and proximate cause, as well as the issue of serious injury, in this person I injury action. The Defendants have opposed the motion in its entirety, maintaining that there are factual issues which must await determination at trial. The action arises from a motor vehicle accident whic occurred on January 26, 2012 at approximately 1:15 P.M . at the inters ction of Routes 33 and 237 in the Town of Byron , New York. The Plaintiff as operating a · borrowed GMC pick-up truck on Haute 33, and the Defend nt Dr. Charles -1- [* 2] DeMuth was operating a Honda on Route 237. The inter ection was controlled by a four-way flashing signal. The Plaintiff's tra el was controlled by a flashing yellow light, while the Defendant's ehicle was controlled by a flashing red light. At his deposition, the Defendant testified that he sto ped for the flashing red light, at which time he was to the Plaintiffs left However, the Defendant then proceeded to enter the intersection and co lided with the Plaintiff's vehicle in Plaintiff's own lane, which then pushe that vehicle into a third vehicle stopped at the inte? rsection to the Plaintiff's ght. (The third vehicle is not involved in this action). The Defendant also estified that he never saw the Plaintiff's vehicle until the time of impact, alt ough he admitted that there was nothing to impair his line of vision. Finally, the Defendant conceded that the Plaintiff had the right of way, and that it was his responsibility to yield the right of way to the Plaintiffs v . hicle. At his deposition, the Plaintiff testified that he was tr veling less than 50 miles an hour in a 55 mph zone because he had taken is foot off the gas pedal as he approached the 'flashing light. He saw th vehicle stop at the intersection, but the Plaintiff maintains t at the Defendant entered the intersection at the same time as th Plaintiff, and -2- [* 3] that there was only a "split second before we had impact". The Plaintiff's position is that his actions in no way contributed to the ace dent, and that the Defendant's failure to yield was the sole proximate cau e of the collision. Traditionally, there has been considerable reluctanc on the part of the courts to grant summary judgment in negligence actio considered a "drastic remedy". P1 plaintiff has the burden f establishing as a matter of law that the sole proximate cause of the accide t was the defendant's negligence in order to prevail on a summary j dgment motion. In this action, the Defendants argue that they have submitted evidence, based upon sworn deposition testimony, that the Plaintiff as also negligent, thereby creating triable issues of fact. It is well settled that even if a vehicle has the right of ay at an intersection "the driver may nevertheless be found neglige t if he or she falls to use reasonably care when entering the intersection " (Halbina v Brege, 41 AD3d 1218 (4th Dept, L~007)). A driver cannot p oceed blindly into an intersection, even when he or she had the right. T e driver has a duty to keep a proper lookout. -3- [* 4] However, in this action, the Court finds that there is o evidence that the Plaintiff failed to exercise such reasonable care. The f cts of this case are similar to those presented in Limardi v McLeod, 100 AID3d 1375 (4th Dept, 2012)). In Limardi, the appellate court upheld the tri I court's finding that there were no triable issues of fact with respect to the laintiff's comparative negligence. The Court held that, as the Plain iff had the rightof-way, he was entitled to anticipate that the Defendant wo Id obey the traffic laws, and that there was no evidence that the Plainti failed to operate his vehicle in an appropriate manner. Here, this Court finds that the Plaintiff exercised reasonable care and that this record does not support the Defendant's contenti n that the Plaintiff was negligent due to any alleged failure to take ev sive action when the Defendant entered the intersection. The Defen ant's assertions as to the existence of triable fact issues rest largely on sp culation and on a strained reading of the deposition testimony. Therefore, he Plaintiff has met his burden of establishing that the Defendant was neg igent as a matter of law and that his negligence was the sole proxima e cause of the accident. -4- [* 5] Turning to the issue of serious injury, the Court has viewed the submitted medical records, including the expert opinions o ered by the respective parties. The Plaintiff maintains that he suffered a serious injury as that term is defined by every subdivision of Insurance L w §5102(d) (other than loss of a fetus). Immediately after the acciden , the Plaintiff was taken to the United Memorial Hospital Emergency De artment, where he was diagnosed with a lumbosacral sprain. He was rele sed to follow up with his own doctor. The Plaintiff proceeded to consult tw ch iropractors, the second of whom treated the Plaintiff regularly for low b . ck pain. The Plaintiff also experienced left leg pain and tingling, prompti g the chiropractor to refer the Plaintiff for an MRI. The study ind cated the existence of a disc protrusion which allegedly was the cause of the radicular pain in the Plaintiff's left leg. The Plaintiff then cl sulted an orthopedic surgeon, who performed a disectomy, during w ich the doctor visualized an annular tear. The surgeon subsequently ref rred the Plaintiff for a functional capacity evaluation, to determine his range of motion. After reviewing the exhibits submitted by the parties, he Court concludes that the Plaintiff has failed to meet his burden o proof in establishing his right to summary judgment on the issue of serious injury. -5- [* 6] The Court has reviewed the voluminous medical records s bmitted by the Plaintiff but is unable to determine as a matter of law that t e Plaintiffs physical condition meets any of the definitions set forth in . 5102(d), nor can the Court conclude as a matter of law that the acciden was a proximate cause of the alleged i juries. Moreover, while th parties have offered expert opinions from their respective doctors as to he issues of physical injury, causation, and tre~atment, the Court must a ain agree with the Defendant that it cannot determine matters of credibilit on the papers. The so-called "battle of the experts" cannot be resolved on a motion for summary judgment. Therefore, ' he Plaintiff's motion for s mmary judgment on the issue of serious injury must be denied. Therefore, it is the determination of this Court that th Plaintiff's motion for summary judgment against the Defendants is g nted as to the issues of the Defendant's negligence and sole proximate c use, but is denied as to the issue of serious injury. This Decision shall constitute the Order of the Court. Dated: June 18, 2014 Lyons, New York 9l:vd £-TI' vl. Hl ~ I . ·- -6-
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